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 important developments in this book since the last update, and several that were included in last year’s update, are the following:

2022 Legislation

In 2022, the Legislature continued to enact legislation to encourage housing development, including a CEQA exemption for housing projects on public university or college land that meet a variety of requirements, and a provision for ministerial approval of affordable housing on commercially zoned property and mixed-income housing in commercial corridors, subject to a number of specific criteria. The following bills related to CEQA and housing (See §1.26.L), were enacted in 2022:

• Assembly Bill 2011 (Stats 2022, ch 647), the Affordable Housing and High Road Jobs Act of 2022, includes among its provisions the enactment of a “use by right” ministerial process for local approval of affordable housing projects on commercially zoned land, and for mixed-income housing projects in commercial corridors. The projects must meet a lengthy list of siting, environmental, and other requirements. Govt C §§65912.110–65912.114 (affordable housing on commercially zoned land), §§65912.120–65912.124 (mixed-use projects in commercial corridors). In addition, the approval of subdivision maps for such projects is specifically exempted from CEQA. Govt C §§65912.114(h), 65912.124(h). See §§4.26, 20.113.

• Senate Bill 886 (Stats 2022, ch 663) enacted Pub Res C §21080.58, establishing a statutory exemption for faculty, staff, or student housing projects carried out by public universities (University of California, California State University) on university land, provided the project meets a variety of environmental, labor, and other requirements. The statute has a sunset date of January 1, 2030. Pub Res C §21080.59(e). See §5.63M.

• Senate Bill 679 (Stats 2022, ch 661) enacted the Los Angeles County Regional Finance Act. Govt C §§64700–64832. Among other things, this act established the Los Angeles County Affordable Housing Solutions Agency as a multistakeholder countywide agency empowered to generate new revenue for affordable housing, offer certain housing assistance, and assemble and acquire land for affordable housing. The bill includes exemptions from CEQA activities of the agency involving grants, bonds or loans, and the purchase of properties to preserve existing housing or develop housing for low­ and moderate-income residents. Govt C §64720.3(a) (grants, bonds or loans), Govt C §64720.3(b) (acquisitions). See §5.63N.

  The following bills related to other aspects of CEQA practice were enacted in 2022:

• Assembly Bill 205 (Stats 2022, ch 61) includes a number of provisions relating to CEQA and alternative energy facilities. First, the statute sets forth a new procedure for certification and approval by the Energy Commission of a solar photovoltaic project, a terrestrial wind power plant, a thermal power plant that does not use fossil or nuclear fuels, an energy storage facility capable of storing at least 200 megawatt-hours of electricity, and tie lines that connect such projects to electrical transmission lines. Pub Res C §§25545–25545.13. Approved projects are deemed to be Environmental Leadership Projects subject to the streamlined litigation provisions set forth in Pub Res C §§21178–21189.3 (see §§10.59–10.61). This bill also enacted specific statutory exemptions for Energy Commission approval of certification by the Department of Water Resources of distributed electricity backup or demand side grid projects, and Department of Water Resources certifications of such projects. Pub Res C §25794.1(b); Wat C §80710.

• Senate Bill 922 (Stats 2022, ch 987) expands the exemption in Pub Res C §21080.20 for bicycle plans to include “active transportation” and pedestrian plans, and makes a number of revisions to the exemption in Pub Res C §21080.25 for bicycle, pedestrian, wayfinding, and bus lane projects. See §5.22.

• Assembly Bill 211 (Stats 2022, ch 574) extends and expands the existing statutory exemption for fire thinning or fuel reduction projects on federal lands, extending the sunset date from 2023 to 2028, and including within the exemption reforestation and habitat restoration activities. See §5.17. This bill also includes a project-specific provision that the program EIR for the Hollister Ranch Coastal Access program is conclusively presumed to satisfy CEQA requirements for public access and related facilities. Pub Res C §21166.3.

• Assembly Bill 203 (Stats 2022, ch 60) is an omnibus public resources bill which revises the statutory exemption in Wat C §10736.2 for State Water Board actions dealing with probationary basins. The existing exemption specified that it did not apply to the adoption or amendment of interim plans for such basins, and this bill modified that provision to also exclude from the scope of the exemption any projects to implement such interim plans. See §§5.30, 20.79.

REMINDER: 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 2021 Through Late 2022 Case Developments

Role of Public Agencies in CEQA Process (chap 3)

In We Advocate Through Envt’l Review v City of Mt. Shasta (2022) 78 CA5th 629, the court explained that a responsible agency must, before approving or carrying out a project for which an EIR was prepared that identifies any significant effects, make the findings required under Pub Res C §21081(a), accompanied by a brief explanation of the rationale for each finding. The court held a blanket finding of no significant unmitigated environmental impacts is not sufficient. See §§3.23, 3.31, 14.12, 15.8, 16.15C, 23.27.

Is the Activity a Project? (chap 4)

In Citizens’ Comm. to Complete the Refuge v City of Newark (2021) 74 CA5th 460, the court concluded that potential adaptive responses to future sea level rise that were discussed in a hydrology report did not relate to the project’s potential impacts on the environment, and could not be considered part of the project at issue. An EIR need not guess about actions that might be taken to respond to future environmental conditions that cannot reliably be predicted. See §§4.23A, 11.33, 12.2.

Is the Project Exempt? (chap 5)

In G.I. Industries v City of Thousand Oaks (2022) 84 CA5th 814, the court concluded that while no hearing is required by CEQA for an exempt project, an agency must provide public notice at least 72 hours before a hearing that the hearing body will determine that the project is exempt at that hearing or that the project to be considered has been found to be exempt by staff. See §5.114.

CEQA Streamlining and Special EIR Processes (chap 10)

In League to Save Lake Tahoe Mtn. Area Preservation Found. v County of Placer (2022) 75 CA5th 63, the court held that the county’s failure to comply with tiering and incorporation by reference requirements were not prejudicial where the EIR referenced prior environmental review of a road widening project, information regarding the widening project was publicly available, and widening would undergo its own full CEQA review. See §§10.11, 11.25, 11.28, 11.36, 12.17, 13.8, 13.13, 13.17, 13.19, 13.50, 23.24, 23.27, 23.37.

Substantive Requirements for EIRs (chap 11)

In Save the Hill Group v City of Livermore (2022) 76 CA5th 1092, the court concluded the expert’s report supported a finding of no significant hydrological impacts despite other evidence on the issue. See §§11.35, 13.72, 15.9, 15.22, 23.98.

In Tiburon Open Space Comm. v County of Marin (2022) 78 CA5th 700, the court held that the scope of the project was necessarily defined by a stipulated judgment that specified the minimum number of residential units to be approved. See §§11.28, 11.35, 12.8, 14.12, 14.15, 15.9B, 23.24, 23.37.

Project Description, Setting, and Baseline (chap 12)

In Buena Vista Water Storage Dist. v Kern Water Bank Auth. (2022) 76 CA5th 576, the court held that where project water diversions could vary from year to year, the maximum proposed diversion used in the project description was appropriate. See §§12.3, 12.4, 12.7.

In Southwest Council of Carpenters v City of Los Angeles (2022) 76 CA5th 1154, the court held that the approval of a revised project that was similar in scope and uses to alternatives evaluated in EIR and which would not result in new significant impacts did not trigger the recirculation requirement given the opportunities to comment on the revised project at multiple public hearings. See §§12.11, 16.15D.

In Ocean St. Extension Neighborhood Ass’n v City of Santa Cruz (2021) 73 CA5th 985, the court ruled that objectives designed to implement the project’s underlying purpose were not overly narrow or unreasonable. See §§12.13, 23.113.

In Save the El Dorado Canal v El Dorado Irrig. Dist. (2022) 75 CA5th 239, the court concluded that collateral information not necessary for a legally adequate environmental analysis may be excluded. See §§12.14, 13.22.

In Old E. Davis Neighborhood Ass’n v City of Davis (2021) 73 CA5th 895, it was ruled that courts will not interfere with an agency’s interpretation of policies that are amorphous, contain subjective standards, or require that competing factors be weighed and balanced. See §12.33.

In California Renters Legal Advocacy and Education Fund v City of San Mateo (2022) 68 CA5th 820, the court applied a nondeferential standard to the city’s interpretation of height guidelines in the context of the Housing Accountability Act, recognizing that the act limits the discretion of local agencies to reject proposals for new housing. See §12.33.

Final EIRs (chap 16)

In Save Civita Because Sudberry Won’t v City of San Diego (2021) 72 CA5th 957, the court concluded that when a revised draft EIR entirely replaces the prior draft EIR, the revised draft should describe the overall nature of the revisions but need not summarize each of the changes made. See §16.19, 23.37.

Certified Regulatory Programs(chap 21)

In Friends, Artists and Neighbors of Elkhorn Slough v California Coastal Commission (2021) 72 CA5th 666, the court concluded the Coastal Commission erred by failing to comply with requirements of CEQA and its regulatory program by approving coastal development permit application without completing an analysis of mitigation measures, alternatives, and conditions until after it approved the permit. See §21.11.

CEQA Litigation (chap 23)

In Department of Water Resources Environmental Impact Cases (2022) 79 CA5th 556, 572, the court concluded that in order to receive a fee award the plaintiff need not show the lawsuit was the only cause of defendant’s change in policy; it need only show the lawsuit was a substantial contributing factor or a significant catalyst motivating the change. See §§20.154, 23.132.