Longtime Supreme Court CEQA Maven, Justice Kathryn Werdegar, Announces Retirement

by Miller Starr Regalia

The Los Angeles Times reported yesterday that California Supreme Court Justice Kathryn Werdegar, 81, and currently the Court’s longest-serving member, will retire this summer, on August 31, 2017.  Justice Werdegar has served as an associate justice on the high court for 23 years, and was quoted as saying “it is time for someone else to have that privilege and opportunity.”

Justice Werdegar has, in previous public remarks to the environmental bar, essentially denied that she was the Court’s designated “CEQA expert,” explaining that the chief justice assigns opinion authors in each of the court’s cases without sharing his or her reasons for doing so.  Notwithstanding her apparent modesty, Justice Werdegar seems to have authored a “lion’s share” of the Court’s landmark CEQA cases over the last decade – a period when the high court has been particularly active in this area.  Significant Supreme Court CEQA opinions authored by Justice Werdegar include:

  • Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (holding analyzing significance of project’s GHG emissions in terms of reductions from projected “business as usual” emissions, and for consistency with AB 32’s statewide reductions mandate, is permissible methodology under CEQA, but must be supported by substantial evidence and logical analysis establishing relevant quantitative equivalence).
  • City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945 (state agency may not declare mitigation of its projects’ off-site impacts through payment of “fair share” fees legally infeasible simply because legislature has not appropriated specifically earmarked funding).
  • Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (CEQA normally requires analysis based on “existing conditions” baseline and disallows sole reliance on “future conditions” baseline unless substantial evidence shows normal baseline would be misleading or without informational value).
  • Communities For A Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (lead agency has discretion to choose methodology to determine how “existing conditions” are best and most realistically measured for baseline purposes where conditions are fluctuating, so long as supported by substantial evidence).
  • Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (holding, in light of all surrounding circumstances, that city’s approval of conditional agreement to sell land for private redevelopment of historic estate property into low income senior housing project constituted “approval” of project requiring preparation of EIR, notwithstanding CEQA compliance clause in agreement).
  • Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372 (holding development displaced by density limits is not too speculative of an impact to require CEQA analysis, but applying “common sense” exemption to hold airport land use plan “project” that simply adopted existing county general plan land use and zoning provisions nonetheless could not possibly have significant effect on environment under circumstances).
  • Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (landmark CEQA decision reaffirming and clarifying standards of judicial review of basic types of CEQA errors, and synthesizing, clarifying, and reiterating numerous principles governing adequacy of water supply analysis for development projects under CEQA).
  • City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341 (explaining CSU’s duty to mitigate under CEQA extended beyond geographic boundaries of campus at issue and to the entire “environment” affected by its campus expansion project, and rejecting argument that paying “fair share” fees to mitigate such off-site impacts would be unlawful “assessment” or gift of public funds).

The above decisions reflect one jurist’s Herculean efforts to tackle a number of thorny CEQA issues, and – while, understandably, not always being able to articulate “bright line” rules – to make an incredibly complex law a bit easier for practitioners to apply and understand.  Nice job, Justice Werdegar, and best wishes for a happy retirement!

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Miller Starr Regalia

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