Not A CEQA “Project”? Not So Fast, Lead Agency! Supreme Court Reverses Fourth District’s Decision That San Diego’s Adoption of Medical Marijuana Dispensary Ordinance Was Not A Project Requiring CEQA Review

Miller Starr Regalia
Contact

Miller Starr Regalia

Introduction And Overview

On August 19, 2019, the California Supreme Court issued its unanimous 38-page opinion, authored by Chief Justice Cantil-Sakauye, in the CEQA “project definition” case we’ve been tracking with interest.  Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission, Real Party in Interest) (2019) ____ Cal.5th ____, Case No. S238563.  As anticipated based on the high court’s questioning and remarks at oral argument (see “Supreme Court Hears Oral Argument in CEQA Project Definition Case,” posted June 6, 2019), it reversed the Fourth District Court of Appeal’s decision that the City’s approval of the medical marijuana dispensary ordinance at issue was not a CEQA “project”; accordingly, it held that the City was required to treat it as such and “proceed to the next steps of the CEQA analysis.”

The Court rejected plaintiff’s UMMP’s argument that all enactments labelled “zoning ordinances” are automatically CEQA projects as a matter of law, based on the statutory list of specific discretionary public agency actions contained in Public Resources Code § 21080.  But it still held as a matter of law that the City’s action adopting the dispensary ordinance was, indeed, a “project” under the test announced in its 2007 decision in Muzzy Ranch – “a proposed activity is a CEQA project if, by its general nature, the activity is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.”  Setting aside the Court’s rather tortuous reasoning on the first issue (perhaps the price of a unanimous opinion with no concurrence?), the legal test for determining whether an action is a CEQA project that the Court ultimately reaffirms and follows is a simple and easily satisfied one.

While significant because it deals with a fundamental threshold issue governing CEQA’s applicability, the Supreme Court’s decision really breaks no new legal ground, but instead follows existing law as laid out in its prior precedent.  While it resolves what was a somewhat esoteric disagreement between the courts of appeal over proper interpretation and reconciliation of Public Resources Code § 21065 (defining “project”) and § 21080 (listing discretionary projects subject to CEQA), the Court’s holding ultimately rests on case law established over a decade ago in former Justice Werdegar’s unanimous opinion in Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372.  The Court’s opinion here reaffirms and clarifies that the “Muzzy Ranch test” for whether a public agency action is a “project” requiring CEQA review is an abstract, theoretical inquiry – properly resolved as a question of law, apart from the factual record, and based on the “general nature” of the proposed activity – as to whether the activity “is capable of causing a direct or reasonably foreseeable indirect change in the environment.”  Such a test would appear to be easily satisfied in the case of most zoning and land use ordinances, with the only readily apparent exceptions being those merely restating existing law without change, or those mislabeled as “zoning” restrictions when they are actually something else.  Accordingly, the biggest practical “takeaway” from this decision, in my view, seems to be its message to public agencies that they cannot “short cut” the CEQA process and evade their CEQA review responsibilities by the simple expedient of labelling local land use or zoning ordinances “not a project.”

Case Background And The Parties’ Arguments

As brief background, the case involved a City of San Diego ordinance authorizing (as a new use in industrial/commercial zones) and restricting the location and manner of operation of medical marijuana dispensaries within the City.  The ordinance’s central provisions amended various City zoning regulations to specify allowed locations for new dispensaries.  The City found the ordinance’s adoption was not a project for CEQA purposes and thus conducted no environmental review.  Plaintiff UMMP challenged the City’s failure to conduct CEQA review, arguing that (1) zoning ordinances and amendments were conclusively declared projects by Public Resources Code § 21080, and that (2) in any event, the ordinance at issue met the definition of a project under § 21065 because dispensary siting restrictions could potentially cause physical environmental changes, including increased cross-City travel by patients, additional user cultivation, and other urban development impacts associated with new dispensaries.

Plaintiff’s first argument relied in part on Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, which held under § 21080 that a county’s approval of a tentative subdivision map was a project as a matter of law.  The Fourth District Court of Appeal in this case disagreed with Rominger’s reasoning, however, and concluded that the amendment of a zoning ordinance – a discretionary agency activity also listed in § 21080 – was nonetheless subject to the same statutory “project” test under § 21065 as other public agency actions, whether or not listed in § 21080.  It also found no error in the City’s conclusion that the ordinance was not a project because it lacked the potential to cause a physical change in the environment; the Court of Appeal rejected plaintiff’s contrary arguments as too speculative and unsupported by record evidence to establish that the ordinance foreseeably had the potential to physically change the environment, even indirectly, so as to render it a “project” necessitating CEQA review.  As discussed further below, however, the Fourth District erred in conflating “potential” with “actual” causation in this first tier project inquiry.

The Supreme Court’s Decision And CEQA’s Three-Tier Process

The Supreme Court agreed that § 21080 does not “override” § 21065’s definition of “project” for CEQA purposes, thus resolving the conflict between the Fourth District’s UMMP decision and Rominger on that point.  But that particular issue was not dispositive; despite prevailing on it, the City still lost the case.  The Supreme Court went on to hold that “the Court of Appeal misapplied the test for determining whether a proposed activity has the potential to cause environmental change under section 21065, which was established in Muzzy Ranch [], and erred in affirming the City’s finding that adoption of the ordinance did not constitute a project.”

Key to understanding the Supreme Court’s decision is placing it in the proper context of CEQA’s “three-tier process,” which the high court’s opinion describes as follows:

A putative lead agency’s implementation of CEQA proceeds by way of a multistep decision tree, which has been characterized as having three tiers.  (Muzzy Ranch, supra, 41 Cal.4th at p. 380.)  First, the agency must determine whether the proposed activity is subject to CEQA at all.  Second, assuming CEQA is found to apply, the agency must decide whether the activity qualifies for one of the many exemptions that excuse otherwise covered activities from CEQA’s environmental review.  Finally, assuming no applicable exemption, the agency must undertake environmental review of the activity, the third tier.

(Citing Muzzy Ranch, at 380-381, fn. omitted.)

The Court noted that the first tier of the “decision tree”, concerning CEQA’s applicability, “requires the agency to conduct a preliminary review to determine whether the proposed activity constitutes a “project” for purposes of CEQA.”  (Citing Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037; and Pub. Resources Code, § 21065; CEQA Guidelines § 15378(a) [both defining “project”].)  If, upon this preliminary project determination, “the proposed activity is found not to be a project, the agency may proceed without further regard to CEQA.”  (Citing Muzzy Ranch, at 380; CEQA Guidelines, § 15060(c)(3).)  If the lead agency determines it is faced with a project, it then considers – at the “second tier” of the process – whether the project is exempt from CEQA review by any statutory or categorical exemption.  Finally, if no exemption applies, the agency proceeds to the “third tier” of the process by undertaking an initial study to determine whether the project may have a significant effect on the environment, which will determine whether the lead agency prepares a negative declaration or mitigated negative declaration (appropriate where there is no substantial evidence that the project as proposed or mitigated may have any significant effect), or an EIR (where the initial study finds substantial evidence the project may have a significant effect).  Obviously, there are several points along the lead agency’s “three-tier” decision tree at which the CEQA analysis, or environmental review under CEQA, could either continue or end, and the issue in this case was whether the process was properly terminated at the first-tier, preliminary review stage on the basis that the dispensary ordinance was not even a “project.”

The Supreme Court’s Interpretation And Harmonization Of
Public Resources Code §§ 21065 And 21080

Against the foregoing general background, Public Resources Code § 21065 defines project “as an activity (1) undertaken or funded by or requiring the approval of a public agency that (2) “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.””  (Quoting statute, citing Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907.)  The reader should here take note that only the potential for some “physical change” is required, and there is no requirement that the possible physical change be substantial, extensive or adverse – or of any particular extent or nature – for the action to qualify as a “project” at CEQA’s first tier.  Investigation and analysis of the magnitude, nature, extent and significance of a project’s potential adverse environmental impacts is undertaken later by the lead agency, typically at the third tier of CEQA process when it conducts an initial study leading either to an EIR or some type of negative declaration.

Public Resources Code § 21080, based on which plaintiff UMMP argued zoning ordinances (and other agency activities listed therein) were legislatively determined to be CEQA projects per se (per Rominger) without regard to § 21065, provides:  “Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits, and the approval of tentative subdivision maps unless the project is exempt from this division.”  (Citing § 21080(a), emph. Court’s.)  The statutory interpretation issue before the Court essentially boiled down to whether the specific agency actions listed in § 21080(a) were ipso facto CEQA “projects” – thus obviating consideration of § 21065 to subject them to CEQA – or whether those activities were still required to satisfy the definitional requirement of § 21065, just like all other discretionary lead agency activities.  The Court of Appeal had correctly held that satisfaction of § 21065’s definition requires that the particular activity have “a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment,” but further reasoned that the various indirect impacts posited by plaintiff – i.e., increased traffic from patients driving to new dispensaries, increased self-cultivation, and changed urban development patterns – were simply too speculative and lacking in record support to be reasonably foreseeable.  It was the Court of Appeal’s incorrect further reasoning that led to the reversal of its decision.

The Supreme Court engaged in extensive analysis of statutory interpretation and legislative history, observing that “project” is a defined term in § 21065 and concluding that § 21080 does not currently declare the listed activities – including zoning ordinances and amendments – to be CEQA projects as a matter of law.  While the Court’s analysis in this regard seems more scholastic than common sense and practical, perhaps most persuasive were its observations, based on those of amici curiae League of California Cities and California State Association of Counties, that many types of local government regulations covering a wide range of subjects are labeled “zoning ordinances,” and that whether such regulations carry the potential for environmental change should depend on their particular substance and should not be presumed solely from their label.  That point is well taken, and despite the fact that it is difficult to imagine a true zoning ordinance – i.e., one actually regulating the permissible physical uses of land – not having at least the potential to indirectly cause some physical change in the environment, the Court’s reasoning here makes some sense.  After all, what’s in a name (especially one that CEQA does not define)?  A “zoning” ordinance could well be mislabeled as such, or could (as in the case of reenactments and recodifications) be an amendment merely restating (rather than changing) existing law, and thus carry no potential for resulting in a physical change.

But the Court’s discussion in this regard still seems far more esoteric and academic than practical, especially given the nature of its subsequent analysis reaffirming and following Muzzy Ranch’s “project” determination test under § 21065.  And despite the Court’s analysis and interpretation of § 21080 in a manner contrary to Rominger,  lead agencies should not be misled.  The bottom line (as discussed further below) is that, as both a legal and very practical matter, zoning and land use ordinances that change existing law will almost always be treated as projects subject to CEQA by local agencies conscientiously following the Muzzy Ranch test.

The Supreme Court’s Application Of The Muzzy Ranch CEQA Project Test

The concluding part – and meat – of the Supreme Court’s UMMP opinion analyzed the dispositive issue, i.e., whether San Diego’s medical marijuana dispensary ordinance was, under the Muzzy Ranch test, the “sort of activity that may cause a direct or indirect physical change in the environment” so as to qualify as a “project” at the first tier of the CEQA decision tree and thus require CEQA review.  The Court answered this question in the affirmative, disagreeing with the City’s and Court of Appeal’s contrary conclusion.

In 2007, Muzzy Ranch held the Travis Air Force Base land use compatibility plan (TALUP) – which restricted residential development in certain low-overflight areas surrounding the military base to existing general plan and zoning densities – was a CEQA project at the first tier as a matter of law because, given population pressures and possible “displaced development” effects, it “might cause a reasonably foreseeable indirect physical change in the environment.”  At the same time, Muzzy Ranch held the TALUP project was exempt from CEQA under the “common sense” exemption at the second tier as a matter of fact because upon examination of the factual record it could be seen with certainty that there was no possibility it would actually have any significant effect on the environment.

Contrasting these two distinct inquires – first tier “project” determination and second tier common sense exemption finding – the Supreme Court in its UMMP opinion makes a number of points that usefully state and clarify the nature and operation of the Muzzy Ranch project test:

  • “Under Muzzy Ranch, a local agency’s task in determining whether a proposed activity is a project is to consider the potential environmental effects of undertaking the type of activity proposed, “without regard to whether the activity will actually have environmental impact.”” (Quoting Muzzy Ranch, at 381.)  The Court observed that in Muzzy Ranch’s discussion of the first-tier “project” issue, it “made no reference to any evidence in the record bearing on the actual impact of the TALUP on development in Solano County” and instead “restricted itself to an examination of the potential effects that could reasonably be anticipated from adopting a land use policy of the type contained in the TALUP.”
  • “To encapsulate the Muzzy Ranch test, a proposed activity is a project if, by its general nature, the activity is capable of causing a direct or reasonably foreseeable indirect physical change in the environment. This determination is made without considering whether, under the specific circumstances in which the proposed activity will be carried out, these potential effects will actually occur.”
  • “Consistent with this standard, a “reasonably foreseeable indirect physical change is one that the activity is capable, at least in theory, of causing. [citation]  Conversely, an indirect effect is not reasonably foreseeable if there is no causal connection between the proposed activity and the suggested environmental change or if the postulated causal mechanism connecting the activity and the effect is so attenuated as to be “speculative.” [citations]”
  • “The somewhat abstract nature of the project decision is appropriate to its preliminary role in CEQA’s three-tiered decision tree . . . . The question posed at that point in the CEQA analysis is not whether the activity will affect the environment, or what those effects might be, but whether the activity’s potential for causing environmental change is sufficient to justify the further inquiry into its actual effects that will follow from the application of CEQA.”
  • “Only as so [properly] understood is the nature of the project decision consistent with the scope of appellate review[,]” which treats the decision as a question of law, rather than fact. (Were it actually a question of fact, the Court noted, the lead agency’s evidence-supported conclusions would receive judicial deference, which is not the case with the Muzzy Ranch project test.)
  • Muzzy Ranch clearly requires a public agency to consider the substance of a proposed activity in determining its status as a project. What need not be considered is the activity’s actual impact in the specific circumstances presented.”
  • The Court of Appeal erred in determining the City’s adoption of the dispensary ordinance was not a project because “establishment of the[] new businesses [authorized by the ordinance] is capable of causing indirect physical changes in the environment,” including through new retail construction, and citywide changes in “traffic [patterns] from the businesses’ customers, employees, and suppliers.” Per the Court:  “The[se] theoretical effects . . . are sufficiently plausible to raise the possibility that the Ordinance “may cause . . . a reasonably foreseeable indirect physical change in the environment” (§ 21065), warranting its consideration as a project.”
  • To summarize, where an activity has the “potential” for such “plausible” effects, at least “in theory,” they meet the “reasonably foreseeable” standard and require that the activity be determined to be a CEQA “project.” This conclusion cannot be rejected because the potential effects are “speculative” in the sense that they are unsupported (or not yet supported) by “evidence in the record” because at this point in the CEQA process – prior to any initial study or even review for exemptions – there is no “record.”  As explained by the Court:  “[A]t this stage of the CEQA process virtually any postulated indirect environmental effect will be “speculative” in a legal sense – that is, unsupported by evidence in the record [citation] – because little or no factual record will have been developed.  A lack of support in the record, however, does not prevent an agency from considering a possible environmental effect at this initial stage of CEQA analysis.  Instead, such an effect may be rejected as speculative only if, as noted above, the postulated causal mechanism underlying its occurrence is tenuous.”
  • Hence, the Court held with respect to San Diego’s medical marijuana dispensary ordinance: “At this initial tier in the CEQA process, the potential of the Ordinance to cause an environmental change requires the City to treat it as a project and proceed to the next steps of the CEQA analysis.”

Conclusion And Implications

The Supreme Court’s holding in this case is not unexpected or surprising.  The Muzzy Ranch project test has been settled law for over a decade, and CEQA’s definition of “projects” within its scope at the “first tier” is – also unsurprisingly – intentionally broad and encompassing.  Practitioners and lead agencies dealing with “zoning” ordinances (including, but not limited to, those regulating the location and operation of marijuana cultivation, manufacturing and distribution uses) will virtually always be required to treat them as CEQA projects so long as there is a plausible argument in theory that they may indirectly cause some physical change in the environment; arguing over facts on an undeveloped record will not be relevant to the abstract inquiry required because the issue at the “first tier” is potential and theoretical, not actual, physical change.  As noted above, the latter will be the subject of subsequent environmental review, likely at CEQA’s third tier, if the project is not found exempt at the second tier.  All in all, the Supreme Court’s UMMP decision reaffirms and follows existing law under which the first tier project test sets a very low threshold for qualification as a CEQA “project” that is usually easily satisfied, as it was by San Diego’s ordinance here.

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.