Practice Under the California Environmental Quality Act

This update includes discussion and analysis of recent CEQA cases and addresses the most significant statutory and regulatory changes since the previous update was published. The most significant developments and improvements in this book since the last update, and several that were included in last year’s update, are the following:

2021 Legislation

In 2021, the legislature enacted some important bills to encourage housing development, including provisions to make approval of smaller housing projects ministerial and thus exempt from CEQA. The legislature also enacted a number of generally minor amendments to CEQA itself, including extending the program for environmental leadership projects. The following bills, summarized below and in §1.26.K, were enacted in 2021:

• Senate Bill 7 (Stats 2021, ch 19) extended and to some extent expanded the provisions for streamlined approval of environmental leadership projects. See §§10.59–10.61.

• Senate Bill 9 (Stats 2021, ch 162) added provisions that approval of small housing projects, up to two units, in existing single family zones, and approval of lot splits in urban areas, are ministerial actions, and thus not subject to CEQA. See §5.10A.

• Senate Bill 10 (Stats 2021, ch 163) added a provision that certain rezonings for housing in transit-rich areas or infill areas, are ministerial actions and thus not subject to CEQA. See §5.10A.

• Assembly Bill 133 (Stat 2021, ch 143) added a new statutory exemption for projects funded pursuant to the Behavioral Health Continuum Infrastructure grants, provided the project meets a number of additional conditions. See §5.63L.

• Senate Bill 155 (Stats 2021, ch 258) is an omnibus “trailer bill” which made numerous amendments to the Public Resources Code, including enactment of a new statutory exemption for species protection and habitat conservation projects that meet certain conditions. Pub Resources C §21080.56. See §5.63K.

• Senate Bill 156 (Stat 2021, ch 112) added a new statutory exemption for linear open-access middle-mile broadband projects that meet certain conditions. See §5.22.

• Senate Bill 552 (Stats 2021, ch 245) enacted new requirements for drought planning by small water suppliers. See §§20.75, 20.79.

• Assembly Bill 819 (Stats 2021, ch 97) adds and updates a variety of CEQA notice and posting provisions, generally to require electronic submission of documents and notices, and posting CEQA documents and notices on agency websites. See generally §§5.118, 7.15, 7.31, 9.12, 9.14.

As noted throughout this update, under Executive Order No. 54-20, regarding the coronavirus, the requirement to post notices of determination at the county clerk’s office was suspended between April 23 and June 21, 2020, and was replaced by requirements for website and electronic posting by the lead agency, unless the applicable clerk’s office was open during such time. Under Executive Order No. 80-20, effective on September 23, 2020, these substitute noticing provisions were extended, but under Executive Order No. N-8-21, these provisions expired on September 30, 2021.

Late 2020 Through Late 2021 Case Developments

Attorney’s Role in CEQA Process (chap 2)

In US Fish & Wildlife Serv. v Sierra Club, Inc. (2021) ___ US ___, 141 S Ct 777, the court held that draft biological opinions are predecisional documents subject to the deliberative process privilege, even though they express the final position of the Fish and Wildlife Service on the proposal that is the subject of the draft opinion. See §2.42(B).

In Sierra Watch v Placer County (2021) 69 CA5th 1, the court found that the county violated the disclosure requirement of section 54957.5 of the Brown Act because it failed to make a memorandum that related to an agenda item for an open session of a regular meeting of the county board of supervisors available for public inspection at the time it distributed the memo to the board, when it placed the memo in the county clerk’s office after hours. See §2.46.

Role of Public Agencies in CEQA Process (chap 3)

In Santa Clara Valley Water Dist. v San Francisco Bay Regional Water Quality Control Bd. (2020) 59 CA5th 199, the court affirmed the denial of a petition for writ of mandate challenging waste discharge requirements imposed by a responsible agency through an order issued under its own governing statutes, after it had already approved a water quality certification for the project during the CEQA review process, noting the unique circumstances of the case. See §3.22.

In California Coastkeeper Alliance v State Lands Comm’n (2021) 64 CA5th 36, the court held that a responsible agency is not required to assume the role of lead agency when it prepares a supplemental EIR rather than a subsequent EIR under CEQA Guidelines 15162–15163. See §§3.8, 11.33, 12.10, 19.2, 19.5, 19.54.

In McCann v City of San Diego (2021) 70 CA5th 51, the court concluded that a determination that a project is exempt from CEQA does not constitute an environmental document, and may be delegated to agency staff. Petitioner failed to exhaust administrative remedies by appealing the staff determination to the city council. See §§3.50, 6.16A, 6.18, 6.31, 6.78, 6.79, 20.81, 20.81, 20.81A, 23.103.

Is the Activity a Project? (chap 4)

In San Francisco Taxi Coalition v City & County of San Francisco (9th Cir 2020) 979 F3d 1220, the court considered the city’s adoption of taxi regulations favoring new medallion holders and held that assertions of environmental impact that are entirely speculative are not sufficient to characterize an action as a project subject to CEQA. See §§4.20, 4.22.

Is the Project Exempt? (chap 5)

In Protect Tustin Ranch v City of Tustin (2021) 70 CA5th 951, the court held the construction of a new gas station and ancillary facilities by a warehouse store in an existing shopping center, surrounded by commercial and residential uses, was exempt from CEQA under the categorical exemption for infill development. See §§5.72, 5.126, 5.127.

In Los Angeles Dep’t of Water & Power v County of Inyo (2021) 67 CA5th 1018, the court held that the county’s unlined landfills did not fall within the scope of the exemption for existing facilities based on a narrow construction of the exemption, and that due to possible environmental risks, unlined landfills do not constitute a suitable class for a categorical exemption. See §§5.77, 5.126, 23.105.

Initial Study (chap 6)

In Newtown Preservation Soc’y v County of El Dorado (2021) 65 CA5th 771, the court held that concerns about existing wildfire risks did not support a fair argument that the project might adversely affect the environment or exacerbate existing environmental hazards. See §§6.35, 6.39, 6.41, 6.42, 6.76, 6.80.

CEQA Streamlining and Special EIR Processes (chap 10)

In Pacific Merchant Shipping Ass’n v Newsom (2021) 67 CA5th 711, the court considered special legislation enacted to facilitate the construction of a new baseball park and mixed-use development project at the Howard Terminal site in the City of Oakland, and concluded that Pub Res C §21168.6.7 did not impose on the Governor a deadline to certify the project. See §10.59.

Substantive Requirements for EIRs (chap 11)

In Sierra Watch v County of Placer (2021) 69 CA5th 86, the court held the EIR lacked adequate discussion of the environmental setting, arbitrarily ignoring noise impacts farther than 50 feet from expected construction activity and lacked detailed mitigation measures for construction noise. See §§11.28, 11.30, 11.34, 11.35, 11.40, 12.17, 13.8, 13.42, 13.63, 14.11, 14.12, 16.15C, 16.16, 17.15, 23.101, 23.124.

In Central Delta Water Agency v Department of Water Resources (2021) 69 CA5th 170, the CEQA litigation over the Monterey Agreement was brought to a conclusion after 27 years with the court’s rulings in favor of the Department of Water Resources in three consolidated appeals, upholding the adequacy of EIRs, the changes to the provisions of its water supply contracts and a transfer of land for a water bank to implement the Agreement. See §§11.37, 11.38, 11.39, 15.20, 15.22, 20.80, 23.115, 23.124, 23.125A, 23.130.

Project Description, Setting, and Baseline (chap 12)

In Stop Syar Expansion v County of Napa (2021) 63 CA5th 444, the court rejected petitioner’s claim that the EIR failed to disclose inconsistencies of a quarry expansion project with the general plan, holding that it was the prerogative of the county as lead agency to conclude that the project was consistent with general plan, and that no analysis is required if the project is consistent with the relevant plans. See §§12.28, 23.3, 23.97, 23.98, 23.103.

Mitigation Measures (chap 14)

In King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, the court concluded that the EIR for a permitting ordinance for oil and gas wells improperly deferred formulation and implementation of feasible mitigation measures for significant water supply impacts, failed to sufficiently respond to comments on mitigation, and failed to adequately analyze noise impacts because the use of a single metric for determining significance did not address the magnitude of increases. See §14.3.

In Alliance for Responsible Planning v Taylor (2021) 63 CA5th 1072, the court held that an initiative measure requiring new development to pay fees to mitigate cumulative traffic was unconstitutional under the Nollan/Dolan rough-proportionality test because it required construction of improvements exceeding the extent of the development’s own impact. See §§14.33, 23.110.

Project Alternatives (chap 15)

In Save Our Access etc. v Watershed Conservation Authority (2021) 68 CA5th 8, the court upheld the EIR’s analysis of alternatives for a project to improve a recreation area within the Angeles National Forest even though no alternatives other than the “no project” alternative was considered in the EIR. See §§6.36, 11.38, 13.22, 13.23, 13.71, 15.7, 15.11, 15.12, 15.16.

Project Approval and Findings (chap 17)

In Organizacion de Comunidad de Alviso v City of San Jose (2021) 60 CA5th 783, the court held the agency’s failure to send to a requesting party a second notice of determination that correctly named the project applicant constituted a CEQA violation but did not affect the requirement that the requesting party name the project applicant as a necessary party in its petition prior to the expiration of the statute of limitations. See §§17.47, 23.16, 23.21, 23.22, 23.28.

Relationship Between CEQA and Other Statutes and Programs (chap 20)

In Kracke v City of Santa Barbara (2021) 63 CA5th 1089, the court held that a city’s ban on short-term vacation rentals was a development requiring a coastal development permit. See §20.18.

In Ruegg & Ellsworth v City of Berkeley (2021) 63 CA5th 277, the court held that the city improperly denied an application for ministerial approval of a mixed-use development as an affordable housing project under SB 35, which added GC 65913.4. See §20.115.

In California Renters Legal Advocacy and Education Fund v City of San Mateo (2021) 68 CA5th 820, the court held that the design guideline the city invoked in rejecting a housing development was not objective for purposes of the Housing Accountability Act. See §20.115.

Joint Federal-State Environmental Documents (chap 22)

In Center for Community Action v FAA (9th Cir, Nov. 18, 2021, No. 20-70464), the court upheld the FAA’s Record of Decision finding no significant environmental impact stemming from the construction and operation of an Amazon air cargo facility at the San Bernardino International airport, concluding that the petitioners failed to establish that the FAA acted arbitrarily or capriciously. See §22.2.

In Bair v California Dep’t of Transp. (9th Cir 2020) 982 F3d 569, the court reversed the trial court’s judgment ordering the department to prepare an EIS, concluding that NEPA was satisfied under an arbitrary and capricious standard of review. See §22.2.

CEQA Litigation (chap 23)

In Save Berkeley’s Neighborhoods v Regents of Univ. of Cal. (2021) 70 CA5th 705, the court held the trial court did not abuse its discretion in finding the real party developers of a campus project, closely aligned with the lead agency and undertaking the project for the benefit of the lead agency, were not indispensable parties to a CEQA action challenging the project EIR under the balancing factors of CCP 389. See §§23.16, 23.22.

In Save Lafayette Trees v East Bay Regional Park Dist. (2021) 66 CA5th 21, the court held that a CEQA claim was time-barred, concluding the public was given constructive notice that starts the 180-day limitations period despite the absence of any form of actual notice or flaws in the approval process. See §§23.25, 23.28.

In Schmid v City & County of San Francisco (2021) 60 CA5th 470, the court held petitioner’s lawsuit was time-barred because a tolling agreement between the petitioner and the agency, which the real party in interest did not consent to, could not be enforced against it, and the real party had not been joined in the lawsuit before the statute of limitations expired and was found to be indispensable to resolution of the case. See §§23.97, 23.103.

In Farmland Protection Alliance v County of Yolo (Nov. 3, 2021, Case No. C087688), the court reversed a trial court order for the preparation of a limited EIR after it set aside a mitigated negative declaration, concluding that CEQA requires preparation of a “full EIR” when any aspect of a project may have a significant effect on the environment, and does not authorize a project’s environmental review to be split across two types of documents, a negative declaration and an EIR. See §23.155.

In Dunning v Johnson (2021) 64 CA5th 156, the court upheld the trial court order denying a motion to strike a malicious prosecution complaint against unsuccessful plaintiff in CEQA case, but found the motion to strike complaint against plaintiff’s attorneys should have been granted as the record was insufficient as a matter of law to establish malice. See §§23.155, 23.159.

In Sierra Club v County of Fresno (2020) 57 CA5th 979, the court held that when a court finds an EIR is legally inadequate, it must order that the agency set aside its certification of the EIR in its entirety, and may not issue an order that the certification be decertified in part. See §§23.124, 23.125A.