Selected Developments
March 2020 Update
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 are the following:
2019 Legislation
In 2019, the legislature enacted several CEQA bills, making minor changes, primarily relating to statutory exemptions. The bills are summarized below (see §1.26H):
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Assembly Bill 29 (Stats 2019, ch 791) specified that certain alternatives to the Interstate 210 North Gap closure project are not feasible. Govt C §54237.8.
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Assembly Bill 101 (Stats 2019, ch 159), an omnibus bill containing a variety of provisions, included statutory exemptions for homeless navigation centers and certain multifamily housing projects meeting a laundry list of requirements. Govt C §§65660(b), 65913.4(c)(2), (h).
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Assembly Bill 143 (Stats 2019, ch 336) extended an existing exemption for emergency homeless shelters under a local declaration of emergency, and enacted a statutory exemption for the provision of land or monetary assistance for such shelters. Govt C §8698.4(a)(4).
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Assembly Bill 430 (Stats 2019, ch 745) established a ministerial approval process not subject to CEQA for residential and mixed-use projects within jurisdictions affected by the 2018 Camp Fire (the cities of Biggs, Corning, Gridley, Live Oak, Orland, Oroville, Willows, and Yuba City), if the project meets a laundry list of conditions. Govt C §65913.15. This bill has a January 1, 2026, sunset clause.
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Assembly Bill 782 (Stats 2019, ch 181) established a statutory exemption for land acquisition for open space, agricultural preservation, or historic preservation, generally similar to the activities that are exempted under the existing categorical exemption set forth in 14 Cal Code Regs §15325. Pub Res C §21080.28.
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Assembly Bill 1197 (Stats 2019, ch 340) established a statutory exemption for supportive housing for the homeless in the City of Los Angeles. Pub Res C §21080.27. The bill has a sunset date of January 1, 2025.
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Assembly Bill 1515 (Stats 2019, ch 269) enacted a provision specifying that, if a court finds a community plan update to be invalid under CEQA, then the court may not, on the basis of that CEQA noncompliance, set aside approval of a specific development project adopted under that plan, if certain conditions are met. Govt C §65458.1. This bill has a sunset date of January 1, 2025.
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Assembly Bill 1560 (Stats 2019, ch 631) added bus rapid transit stations to the definition of a “major transit stop” in Pub Res C §21064.3, which relates to several CEQA streamlining provisions, and added a definition of “bus rapid transit.” Pub Res C §21060.2.
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Assembly Bill 1783 (Stats 2019, ch 866) established a streamlined and ministerial approval process for farmworker housing that meets certain provisions, and specified that both permit decisions and application of development standards to such permits are not discretionary actions subject under CEQA. Health & S C §17021.8(f).
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Assembly Bill 1824 (Stats 2019, ch 466) made various updating changes to CEQA, including extending to January 1, 2025, the sunset date for the statutory rail crossing exemption in Pub Res C §21080.14.
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Senate Bill 450 (Stats 2019, ch 344) enacted a statutory exemption for interim motel housing projects, which convert an existing motel to transitional or supportive housing, with a sunset date of January 1, 2025. Pub Res C §21080.50.
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Senate Bill 632 (Stats 2019, ch 411) set a deadline of February 1, 2020, for the State Board of Forestry and Fire Protection to complete the EIR for its statewide vegetation management program. Pub Res C §746. The bill includes a sunset date of January 1, 2021.
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Senate Bill 744 (Stats 2019, ch 346) enacted a statutory exemption for funding requests for homeless supportive housing projects qualifying for the “no place like home” program, and CEQA streamlining provisions for such projects generally. Pub Res C §§21163–21163.4. This bill includes a sunset provision that is triggered by a notice that all funds in the program have been disbursed. Pub Res C §21163.4.
The legislature also enacted the Housing Crisis Act of 2019, which remains in effect through January 1, 2025, and is generally triggered by the filing of an additional preliminary development application with specified information. Govt C §§65589.5, 65905.5, 65913.10, 66300. That Act did not amend CEQA, but contains a number of timing and substantive limitations designed to expedite approval of housing developments, along with several provisions stating that the bill is not intended to affect CEQA requirements. See §§20.13–20.14.
In December 2018, the Resources Agency adopted a substantial set of amendments to the Guidelines, which generally became effective on December 28, 2018. Some of the most important changes are reflected in 14 Cal Code Regs §15064.3, which implements the provisions of SB 743 (Stats 2013, ch 386) to limit the use of traffic level of service standards in evaluating traffic impacts under CEQA, and to instead move to the use of vehicle miles traveled (VMT) as the metric for traffic impact analysis. The Resources Agency generally divided these Guidelines amendments into three categories: amendments to promote efficiency, substantive amendments, and technical amendments. See §1.32.
Late 2018 Through Late 2019 Cases
Supreme Court Decisions
In Union of Med. Marijuana Patients, Inc. v City of San Diego (2019) 7 C5th 1171, the court held that the listing of examples of activities subject to CEQA in Pub Res C §21080 is illustrative, and such activities (such as a zoning ordinance amendment) must still meet the basic definition of a “project” in Pub Res C §21065 to be subject to CEQA. The court also held that amendment of the provisions of the city’s zoning ordinance governing cannabis dispensaries was a “project” subject to CEQA because it could have a reasonably foreseeable indirect impact on the environment. See §§1.16–1.18, 1.23, 1.27, 4.5–4.7, 4.17, 4.20–4.22, 4.31, 20.8, 23.113.
Covered in last year’s update but included again here, in case you missed it:
In Sierra Club v County of Fresno (2018) 6 C5th 502, the supreme court held that an EIR air quality analysis must meaningfully connect the identified air quality impacts to the human health consequences of those impacts, or meaningfully explain why that analysis cannot be provided. The court also held that the adequacy of an EIR analysis of impacts is a mixed question of law and fact subject to independent judicial review, although underlying factual determinations such as an agency’s choice of methodology are factual questions reviewed for substantial evidence support. See §§1.23, 11.28, 11.34, 11.37, 11.40, 13.60, 14.12, 23.34–23.35.
Role of Public Agencies in CEQA Process (chap 3)
In McCorkle Eastside Neighborhood Group v City of St. Helena (2018) 31 CA5th 80, 90, the court ruled that, when an advisory body such as a planning commission hears a CEQA matter that is later appealed to the elected decision-making body, there is no improper delegation as a result of the advisory body’s consideration of the matter, even if the scope of issues considered by the elected body is narrower than those considered by the advisory body. See §§3.50, 5.72.
Is the Activity a Project? (chap 4)
Chapter 4 has been extensively revised and updated to reflect the 2018 amendments to the CEQA Guidelines.
In Lake Norconian Club Found. v Department of Corrections & Rehabilitation (2019) 39 CA5th 1044, 1051, the court held that agency inaction does not constitute a “project” even if that inaction may have environmental consequences. See §§4.5, 4.7, 20.91, 22.4.
A new section has been added to chap 4 on the general rule that the effects of the environment on a project are not subject to CEQA. See §4.23A, discussing the line of “reverse CEQA” cases.
Is the Project Exempt? (chap 5)
The tables in §5.7 listing the statutory exemptions from CEQA have been expanded and updated.
A new section has been added to chap 5 on the statutory exemption for low barrier centers for the homeless. See §5.63J.
In Berkeley Hills Watershed Coalition v City of Berkeley (2019) 31 CA5th 880, 891, the court ruled that the “sensitive environment” exception does not apply to designated earthquake and landslide hazard zones because earthquakes and landslides are geologic events, not environmental resources. See §§5.74, 5.80, 5.127.
The court in San Diegans for Open Gov’t v City of San Diego (2019) 31 CA5th 349, 371, upheld the application of the “existing structures” exemption (14 Cal Code Regs §15301) to the renewal of a lease for a shorefront amusement park. See §5.77.
Initial Study (chap 6)
Chapter 6 has been extensively revised and updated to reflect the 2018 amendments to the CEQA Guidelines.
The court in Georgetown Preservation Soc’y v County of El Dorado (2018) 30 CA5th 358, 375, held that comments regarding the project’s aesthetic impacts and its incompatibility with the look and feel of a historic town center were enough evidence to trigger the EIR requirement. See §§6.37, 6.42, 6.57, 6.76, 6.79.
In Hollywoodians Encouraging Rental Opportunities v City of Los Angeles (2019) 37 CA5th 768, the court upheld the city’s determination that the conversion of an apartment building to a boutique hotel would not have population and housing impacts because the building was vacant when the initial study was prepared. See §§6.30, 6.34, 6.80.
Requirements for Preparation and Review of Draft EIRs (chap 9)
Chapter 9 has been updated to reflect the 2018 amendments to the CEQA Guidelines. See §§9.16, 9.18.
CEQA Streamlining and Special EIR Processes (chap 10)
Chapter 10 has been updated to reflect the 2018 amendments to the CEQA Guidelines. See §§10.16, 10.21, 10.45.
In Center for Biological Diversity v Department of Conserv. (2019) 36 CA5th 210, 231, the court stated that a program EIR must include enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” See §§10.13–10.14, 10.19, 14.9, 20.129.
Substantive Requirements for EIRs (chap 11)
Chapter 11 has been updated to reflect the 2018 amendments to the CEQA Guidelines. See §11.24.
In South of Market Community Action Network v City & County of San Francisco (2019) 33 CA5th 321, 339, the court confirmed that when reviewing an EIR’s analysis under the substantial evidence test, a court resolves all disputed questions of fact relating to technical methodology in favor of the lead agency. See §§11.28, 11.37–11.40, 12.7, 12.11, 12.27–12.28, 13.42, 13.45–13.46, 14.4, 14.10, 15.2, 15.11–15.12, 15.17, 15.40, 17.11, 23.34.
In Chico Advocates for a Responsible Economy v City of Chico (2019) 40 CA5th 839, 852 n9, the court held that a lead agency is not required to respond to expert comments submitted after the period designated for public review and comment. See §§11.35, 11.37, 11.39, 13.10, 13.23, 13.64, 23.34.
Project Description, Setting, and Baseline (chap 12)
Chapter 12 has been updated to reflect the 2018 amendments to the CEQA Guidelines. See §§12.19–12.20, 12.25.
Significant Environmental Effects (chap 13)
Chapter 13 has been extensively revised and updated to reflect the 2018 amendments to the CEQA Guidelines. See §§13.5, 13.7, 13.12–13.14, 13.59, 13.66, 13.66D.
In South of Market Community Action Network v City & County of San Francisco (2019) 33 CA5th 321, 339, the court held that a lead agency is entitled to rely on its own experts and consultants when choosing an appropriate methodology for assessing cumulative impacts. See §§11.28, 11.37–11.40, 12.7, 12.11, 12.27–12.28, 13.42, 13.45–13.46, 14.4, 14.10, 15.2, 15.11–15.12, 15.17, 15.40, 17.11, 23.34.
Mitigation Measures (chap 14)
In South of Market Community Action Network v City & County of San Francisco (2019) 33 CA5th 321, 348, the court held that mitigation measures were not required for wind speed thresholds in the local planning code, on the basis that those thresholds were specifically identified as “comfort” thresholds not to be used to identify significant effects. See §§11.28, 11.37–11.40, 12.7, 12.11, 12.27–12.28, 13.42, 13.45–13.46, 14.4, 14.10, 15.2, 15.11–15.12, 15.17, 15.40, 17.11, 23.34.
In Sierra Club v County of Fresno (2018) 6 C5th 502, 522, the supreme court ruled that when the effectiveness of a mitigation measure is not apparent, the EIR should include facts and analysis supporting its characterization of the expected result. The court also held there is no impermissible deferred mitigation when an agency adopts a “substitution clause” under which a mitigation measure provides for later substitution of an equally or more effective measure. See §§1.23, 2.5, 10.14, 11.2, 11.28, 11.34–11.35, 11.37, 11.40, 13.26–13.28, 13.60, 14.3, 14.9, 14.11–14.12, 14.16, 14.22, 14.35, 23.34–23.35.
In Center for Biological Diversity v Department of Conserv. (2019) 36 CA5th 210, 239, the court applied the presumption from Evid C §664 that official duties have been regularly performed in upholding the adequacy of mitigation measures in an agency mitigation manual. See §§10.13, 10.14, 10.19, 14.9, 20.129.
Project Alternatives (chap 15)
In South of Market Community Action Network v City & County of San Francisco (2019) 33 CA5th 321, 346, the court upheld an EIR that discussed nine alternatives to a large mixed-use project, rejected five of those as infeasible, and evaluated the other four. See §§11.28, 11.37–11.40, 12.7, 12.11, 12.27–12.28, 13.42, 13.45– 13.46, 14.4, 14.10, 15.2, 15.11–15.12, 15.17, 15.40, 17.11, 23.34.
Final EIRs (chap 16)
Guideline 15088 was amended to provide that a general response to a comment may be appropriate if the comment references information that is not readily available, or fails to explain the relevance of evidence submitted with it. The amended Guideline also clarifies that a lead agency’s responses to comments may be provided in printed or electronic form. See 14 Cal Code Regs §15088(b)–(c), discussed in §§16.11, 16.14.
Relationship Between CEQA and Other Statutes and Programs (chap 20)
Adding to the growing body of CEQA case law on the evaluation of greenhouse gas (GHG) emissions impacts are the following 2018 decisions:
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Golden Door Props. v County of San Diego (2018) 27 CA5th 892 (rejecting local GHG analysis guidance document as improperly adopted threshold of significance and because it applied state standards without justifying their application to local conditions);
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Rodeo Citizens Ass’n v County of Contra Costa (2018) 22 CA5th 214 (EIR for propane recovery project at refinery not required to quantify speculative propane emissions);
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City of Long Beach v City of Los Angeles (2018) 19 CA5th 465 (upholding analysis of rail terminal GHG emissions); and
See §§20.81–20.81D, 20.86–20.86A, 20.88A.
In Union of Med. Marijuana Patients, Inc. v City of San Diego (2019) 7 C5th 1171, 1190, the supreme court held that the listing of local zoning activities in Pub Res C §21080(a) does not automatically render those activities subject to CEQA; they must still meet the definition of “project” in Pub Res C §21065 as an activity having a direct or reasonably foreseeable indirect impact on the environment. See §§1.16–1.18, 1.23, 1.27, 4.5–4.7, 4.17, 4.20–4.22, 4.31, 20.8, 23.113.
Guideline 15155 was amended to specify certain information that must be included in the water supply analysis in an EIR or negative declaration may incorporate by reference the water supply assessment that was prepared, and may also incorporate by reference information from an urban water management plan or other publicly available source. See 14 Cal Code Regs §15155(f), discussed in §20.76.
In determining the significance of GHG emissions, 14 Cal Code Regs §15064.4 now specifies that a lead agency has discretion to select a methodology, provided the determination is supported by substantial evidence. See §§20.86B, 20.86D.
In Lake Norconian Club Found. v Department of Corrections and Rehab. (2019) 39 CA5th 1044, 1051, the court held that an agency’s failure to act is not an activity constituting a project under CEQA, even if adverse environmental consequences may flow from that lack of action. See §§4.5, 4.7, 20.91, 22.4.
As required by Pub Res C §3160, California conducted an independent scientific study of hydraulic fracturing and other well stimulation techniques and prepared an EIR evaluating the impacts of using such techniques. That EIR was upheld in Center for Biological Diversity v Department of Conserv. (2019) 36 CA5th 210. See §§10.13–10.14, 10.19, 14.9, 20.129.
A new section has been added to chapter 20 on housing sustainability districts and the two new CEQA exemptions that relate to them. See §20.115A.
The extent to which the Federal Power Act may preempt CEQA is currently pending before the California Supreme Court, in County of Butte v Department of Water Resources (review granted Dec. 11, 2019, S258574; superseded opinion at 39 CA5th 708). See §20.154.
CEQA Litigation (chap 23)
In Sierra Club v County of Fresno (2018) 6 C5th 502, the supreme court held the EIR’s discussion of project-related air pollution was insufficient because it did not describe the nature and magnitude of the significant impacts on public health that would result or explain why it was not feasible to provide such an analysis. For detailed discussion of this case, see §§1.23, 2.5, 10.14, 11.2, 11.28, 11.34–11.37, 11.40, 13.26–13.28, 13.60, 14.3, 14.9, 14.11–14.12, 14.16, 14.22, 14.35, 23.34–23.35.
The court in Chico Advocates for a Responsible Economy v City of Chico (2019) 40 CA5th 839 held that, when applied to judicial review of an EIR, the substantial evidence standard applies to the agency’s conclusions, findings and determinations, the scope of the EIR’s analysis, the amount or type of information contained in the EIR, the methodology used to assess impacts, and the reliability or accuracy of the data supporting the EIR’s conclusions. See §§11.35, 11.37, 11.39, 13.10, 13.23, 13.64, 23.34.
In Save Lafayette Trees v City of Lafayette (2019) 32 CA5th 148, 160, the court held that the 90-day service requirement in Govt C §65009(c) does not apply to a CEQA cause of action that is subject to CEQA’s longer 180-day statute of limitations (which applies when no notice of determination or notice of exemption is filed following an approval). See §23.65.
In Stopthemillenniumhollywood.com v City of Los Angeles (2019) 39 CA5th 1, 20 n10, the court characterized Pub Res C §21168.9 as specifying that trial court remand orders should include only those mandates necessary to achieve CEQA compliance; the court did not consider or reference Pub Res C §21005(c) in making this characterization. See §23.125.
