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:

2020 Legislation

In 2020, the legislature enacted several CEQA bills making modest changes. The bills are summarized below (and in §1.26I):

• Senate Bill 288 (Stats 2020, ch 200) enacted a 2-year exemption covering a variety of actions to promote transit, including approval of pedestrian and bicycle facilities, transit prioritization projects, converting lanes to transit, and new transit within existing rights of way, provided the action meets a variety of environmental, procedural, and workforce requirements. Pub Res C §21080.25. The bill also extended the statutory exemption for bicycle lane restriping through January 1, 2030. Pub Res C §21080.20. See §5.22.

• Senate Bill 869 (Stats 2020, ch 171) enacted Govt C §12012.101, which ratified compacts with six Native American tribes and enacted CEQA exemptions related to such compacts, agreements under such compacts, and on-reservation impacts of compliance with such compacts. See §5.47.

• Senate Bill 974 (Stats 2020, ch 234) enacted Pub Res C §21080.47, establishing a CEQA exemption for various infrastructure improvements to disadvantaged community water systems and small water systems, provided the project in question meets a variety of environmental and workforce requirements. See §5.22. The statute includes a sunset date of January 1, 2028.

• Assembly Bill 2421 (Stats 2020, ch 255) enacted Govt C §65850.75, making the approval of emergency standby generators for existing macro cell tower sites ministerial through January 1, 2024. The text of the bill does not reference CEQA, but the Legislative Counsel’s Digest describes the bill as expanding the exemption for ministerial actions.

• Assembly Bill 2731 (Stats 2020, ch 291) adds Pub Res C §§21189.70–21189.70.10, enacting streamlined approval and litigation provisions for San Diego Old Town Center project. See §§10.59, 23.153A.

• Assembly Bill 168 (Stats 2020, ch 166) amended Govt C §65913.4 to add provisions protecting tribal cultural resources to the ministerial approval process set forth in that statute. Applicants for such an approval must submit a preliminary notice to the local government, and the local government must notify Native American tribes of the application. This ministerial approval process may not be used if the project would affect a tribal cultural resource listed on a federal, state, local, or tribal historic register. Govt C §65913.4(b). See §§20.100, 20.114.

• Assembly Bill 1561 (Stats 2020, ch 195) amended Govt C §65583 to generally extend some permits for housing. The bill also extended the time for Native American tribes to respond to lead agency notices regarding possible consultation on tribal cultural resources. See Pub Res C §21080.3.1.

Under Executive Order N-54-20, regarding the coronavirus, the requirement to post notices of intent to adopt a negative declaration 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 that time. Under Executive Order No. 80-20, effective on September 23, 2020, these substitute noticing provisions were extended until the Order is modified or until the coronavirus emergency is terminated, whichever occurs first. See Practice Tips in §§7.14, 8.8A, 8.15, 9.19, 17.47, 23.21.

Late 2019 Through Late 2020 Cases; 2020 Regulatory Changes; and New Sections in This Book

Supreme Court Decisions

In Protecting Our Water & Envt’l Resources v Stanislaus County (2020) 10 C5th 479, a case involving well permits, the supreme court held generally that the test for determining whether an agency action is discretionary rather than ministerial, and thus subject to CEQA, is whether the agency has the power to impose conditions or mitigation measures that can respond to environmental impact concerns. See §§1.17, 1.23.

Attorney’s Role in CEQA Process (chap 2)

The court in Ventura Foothill Neighbors v County of Ventura (2014) 232 CA4th 429 held that, when a lead agency’s EIR addendum did not disclose that changes to a project included a substantial height increase, the time for bringing a CEQA action based on the height change was 180 days after the plaintiff knew or should have known of the additional height change. See §2.35.

In Save Berkeley’s Neighborhoods v Regents of Univ. of Cal. (2020) 51 CA5th 226, the court held that a petitioner could state a CEQA claim that further CEQA review was required for enrollment increases approved several years after a campus long-range development plan was adopted. See §§2.35, 19.10, 19.32, 20.118.

In evaluating trade secret issues, the court in Covington v Great Basin Unified Air Pollution Control Dist. (2019) 43 CA5th 867 noted that, although emissions data are public and not trade secrets, data that underlie and are used to calculate such emissions data may be trade secrets. See §2.41.

In Golden Door Props., LLC v Superior Court (2020) 53 CA5th 733, the court considered the application of the common interest doctrine to pre-approval communications, holding that the doctrine applied because the agency and the applicant were already involved in litigation against the same party that challenged the CEQA process at issue. See §§2.21, 2.42–2.42B.

Role of Public Agencies in CEQA Process (chap 3)

In Covington v Great Basin Unified Air Pollution Control Dist. (2019) 43 CA5th 867, the court held that the regional air district was the proper lead agency for approval of a power plant on federal land in Mono County when the county had jurisdiction over only a small part of the project. See §3.4.

Is the Activity a Project? (chap 4)

In Protecting Our Water & Envt’l Resources v County of Stanislaus (2020) 10 C5th 479, the supreme court held that the issuance of well drilling permits under a county code could be discretionary in certain circumstances (and thus subject to CEQA), and ministerial in other circumstances. See §§4.25, 4.26A–4.29, 4.31.

A new section was added (last year) 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 was added (last year) to chap 5 on the statutory exemption for low barrier centers for the homeless. See §5.63J.

In Holden v City of San Diego (2019) 43 CA5th 404, the court upheld the city’s application of the infill development exemption to a seven-unit project proposed for a steep environmentally sensitive site on the basis of the city’s findings that the project was consistent with its general plan. See §§5.83, 5.115, 20.2.

The court in San Diegans for Open Gov’t v City of San Diego (2019) 31 CA5th 349 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.

In Citizens for a Responsible Caltrans Decision v Department of Transp. (2020) 46 CA5th 1103, the court held that when exemptions for a specific plan or project are specified by statute, additional exemptions will not be inferred absent a clear legislative intent to the contrary. See §5.125.

Initial Study (chap 6)

In Save the Agoura Cornell Knoll v City of Agoura Hills (2020) 46 CA5th 665, the court held that expert opinion supported by facts may qualify as substantial evidence of a significant impact, even though it is not based on specific observations of the project site. See §§6.41, 6.43, 6.60, 6.73–6.74, 6.79, 20.100.

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.

CEQA Streamlining and Special EIR Processes (chap 10)

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)

In King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, the court ruled that evidence supported the county’s determination that localized (rather than area-wide) analysis of future water supply impacts would be speculative pending implementation of groundwater sustainability plans for the project area. See §§11.33, 11.36, 11.40, 12.19, 20.79.

In Environmental Council of Sacramento v County of Sacramento (2020) 45 CA5th 1020, the court held that an EIR need not evaluate a speculative possibility that a phase of the project would not be built. See §§11.33, 12.8.

In Citizens for Positive Growth & Preservation v City of Sacramento (2019) 43 CA5th 609, the court held that a challenge to the adequacy of an EIR’s analysis of an environmental impact must be founded on evidence in the record rather than on hypotheticals or unsubstantiated opinion. See §11.38.

Project Description, Setting, and Baseline (chap 12)

In Golden Door Props., LLC v County of San Diego (2020) 50 CA5th 467, the court found that the EIR’s finding that the county’s climate action plan would not be inconsistent with its general plan was supported by substantial evidence. See §12.33.

Significant Environmental Effects (chap 13)

The court in Golden Door Props., LLC v County of San Diego (2020) 50 CA5th 467 held that past, present, and probable future projects producing related impacts should be included in an EIR analysis when it is reasonable, feasible, and practical to do so, given the information available about the projects, and when failure to include such projects would lead to an inadequate analysis of the severity and significance of the cumulative impacts in question. The court also ruled that when a project affects a broad area, such as a climate plan for the entire unincorporated area of a county, projects that create emissions in that broader area should be included. See §§13.42, 13.44.

In King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, the court ruled that the issue of whether the EIR analyzed water supply impacts to the extent reasonably possible presents a mixed question of law and fact in which factual questions predominate. See §§13.63–13.63A, 13.72.

In light of 14 Cal Code Regs §15064.3, which provides that “vehicle miles traveled” is generally the most appropriate measure of transportation impacts, the court in Citizens for Positive Growth & Preservation v City of Sacramento (2019) 43 CA5th 609 held that the adequacy of a “level of service” analysis is not a basis for challenging the legal adequacy of an EIR under CEQA. See §13.70.

A new section was added (last year) to chap 13 on the legal issues regarding conversion of agricultural land. See §13.72.

Mitigation Measures (chap 14)

In Covington v Great Basin Unified Air Pollution Control Dist. (2019) 43 CA5th 867, the court held that when comments suggest additional mitigation and are supported by expert opinion or technical evidence, the EIR must provide a detailed evidence-based response. See §§14.10, 14.22, 16.7, 16.11.

The court in Golden Door Props., LLC v County of San Diego (2020) 50 CA5th 467 ruled improper a mitigation measure that identifies only a general goal rather than a specific performance standard, defers formulation of the specific mitigation measure, and then allows the adequacy of that measure to be determined based on subjective criteria. See §§14.12, 15.12, 15.17, 23.124.

In King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, the court held that requiring conservation easements over off-site farmland did not provide effective mitigation for the impact of converting farmland to another use. See §§14.9, 14.14–14.15, 16.11, 17.20, 17.33.

Project Alternatives (chap 15)

In South of Mkt. 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)

In Environmental Council of Sacramento v County of Sacramento (2020) 45 CA5th 1020, the court held that recirculation of an EIR for a second round of public review is intended to be the exception, not the rule. See §16.15.

In Citizens for Positive Growth & Preservation v City of Sacramento (2019) 43 CA5th 609, the court held that recirculation of the general plan EIR was not required, because deleting certain volume-to-capacity policies based on traffic level-of-service from the EIR did not result in any increased traffic impacts. See §16.15B.

Subsequent CEQA Review (chap 19)

In Martis Camp Community Ass’n v County of Placer (2020) 53 CA5th 569, the court ruled that the determination of whether a change to a project requires further CEQA review hinges on whether the impacts of the change were covered in the EIR for that project, not on whether they might have been covered in an EIR for a different project that would be affected by those impacts. See §§19.9, 19.30, 19.33.

In Willow Glen Trestle Conservancy v City of San Jose (2020) 49 CA5th 127, the court ruled that the city’s notification to the California Department of Fish and Wildlife to obtain a stream alteration agreement for a previously approved project was not a new discretionary approval. See §19.31.

In Ventura Foothill Neighbors v County of Ventura (2014) 232 CA4th 429, the court held that the county violated CEQA by failing to review in a subsequent EIR a substantial increase in the height of a medical building. See §19.32.

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 2020 decisions:

• Golden Door Props., LLC v County of San Diego (2020) 50 CA5th 467 (rejecting county climate action plan based on its use of emissions offsets as mitigation without sufficient performance standards); and

• Environmental Council of Sacramento v County of Sacramento (2020) 45 CA5th 1020 (upholding per capita cap based on EIR’s GHG analysis as adequate mitigation against possible increases in GHG emissions due to plan amendments or changes).

See §§20.81, 20.81C, 20.85, 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 still must 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 that 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 Save the Agoura Cornell Knoll v City of Agoura Hills (2020) 46 CA5th 665, 687 n11, the court noted that a lead agency could not disclose the precise boundaries of a tribal cultural resource, but held that this did not excuse the lead agency from determining whether that resource could be avoided as mitigation for the project’s impact. See §20.100.

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 was added (last year) to chapter 20 on housing sustainability districts and the two new CEQA exemptions that relate to them. See §20.115A.

In Save Berkeley’s Neighborhoods v Regents of Univ. of Cal. (2020) 51 CA5th 226, the court held that a university’s subsequent decisions to increase enrollment beyond the level projected in a long-range development plan and the plan’s EIR are subject to further CEQA review. See §20.118.

In Citizens for a Responsible Caltrans Decision v Department of Transp. (2020) 46 CA5th 1103, the court held that the Str & H C §103 provision for approval of certain projects under a Coastal Commission certified program did not exempt from CEQA project approval decisions made by Caltrans. See §§20.133, 21.3, 23.22.

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 Citizens for a Responsible Caltrans Decision v Department of Transp. (2020) 46 CA5th 1103, the court held that an agency that has filed a notice of determination or exemption can be estopped from raising the statute of limitations as a defense if the elements of equitable estoppel are satisfied. See §§23.22, 23.25, 23.28.

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 King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, the court held that a challenge to the adequacy of an EIR’s discussion and analysis must be founded on evidence in the record of the agency’s proceedings rather than on hypotheticals or unsubstantiated opinion. See §§23.35, 23.37, 23.124–23.125.

In Golden Door Props., LLC v Superior Court (2020) 53 CA5th 733, the court ruled that, because adequate judicial review of an agency’s determinations requires a complete record of its proceedings, the agency must retain all documents described in Pub Res C §21167.6 until the applicable statute of limitations period has run without litigation being filed. See §§23.73, 23.113.

The court in Parkford Owners for a Better Community v County of Placer (2020) 54 CA5th 714 found the case moot when the plaintiff failed to request a preliminary injunction until the project was nearly completed and failed to show the developer had acted in bad faith or attempted to evade the requirements of CEQA. See §23.113.

In Canyon Crest Conservancy v County of Los Angeles (2020) 46 CA5th 398 (decided under CCP §1021.5, the private attorney general statute), the court held that the fact that a plaintiff prevails on a technical preliminary issue that results in abandonment of the project does not necessarily demonstrate that the action served to vindicate an important public right. See §§23.127–23.128.

The court in Save the Agoura Cornell Knoll v City of Agoura Hills (2020) 46 CA5th 665 held that, although timely notice to the Attorney General is not a prerequisite to a fee award, the failure to provide adequate notice can be considered by the court in determining whether private enforcement was sufficiently necessary to justify a fee award. See §§23.130, 23.134.