Selected Developments
March 2019 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:
2018 Legislation
In 2018, the legislature enacted several CEQA bills, generally making relatively minor changes (see §1.26G). The bills are summarized below:
• Senate Bill 901 (Stats 2018, ch 626), an omnibus bill containing a variety of provisions to reduce fire risk, includes a statutory exemption for fire thinning or fuel reduction projects on federal lands, if the project was evaluated under NEPA. Pub Res C §§4799.05(d).
• Assembly Bill 2341 (Stats 2018, ch 298) provides that aesthetic impacts of a project are not to be considered under CEQA if the project replaces or refurbishes a dilapidated, abandoned, or vacant building, and includes housing, and meets other conditions. The bill has a January 1, 2024, sunset clause. Pub Res C §§21081.3.
• Assembly Bill 2782 (Stats 2018, ch 193) enacted a provision allowing lead agencies to describe the positive aspects of a project, and the negative aspects of denying a project, in CEQA documents. Such descriptions must be supported by substantial evidence in the record. Pub Res C §21082.4.
• Assembly Bill 1804 (Stats 2018, ch 670) enacted a statutory exemption for projects in urbanized areas of counties that meet a variety of conditions. Pub Res C §21159.25.
• Assembly Bill 734 (Stats 2018, ch 959) enacted provisions to streamline the CEQA process and litigation for a baseball stadium and mixed-use project in Oakland. Pub Res C §§21168.6.7.
• Assembly Bill 987 (Stats 2018, ch 961) enacted provisions to streamline the CEQA process and litigation for a basketball arena project in Inglewood. Pub Res C §§21168.6.8.
Late 2017 Through Late 2018 Cases
Supreme Court Decisions
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, 11.37, 11.40, 13.60, 14.12, 23.34–23.35.
Overview of CEQA Process (chap 1)
The decision in Clews Land & Livestock v City of San Diego (2017) 19 CA5th 161 joins the well-established line of cases holding that CEQA is limited to analysis of impacts of a proposed project on the environment and does not require analysis of impacts of the existing environment on the proposed project. See §§1.23, 4.22, 6.39, 6.41–6.42, 6.76, 7.24, 7.27.
Role of Public Agencies in CEQA Process (chap 3)
In AquAlliance v U.S. Bureau of Reclamation (2018 ED Cal) 287 F Supp 3d 969, 992, the court held that the local water authority was the proper lead agency for a series of water transfers. See §§3.4, 20.87, 22.4.
Is the Activity a Project? (chap 4)
In John R. Lawson Rock & Oil, Inc. v State Air Resources Bd. (2018) 20 CA5th 77, 98, the court ruled that an agency regulatory advisory allowing truck fleet operators to comply with proposed modifications to a regulation, rather than the existing regulation, amounted to approval of the proposed modifications. See §§4.15, 6.30, 12.19, 21.2, 21.11, 21.25, 23.125.
The court in California Water Impact Network v County of San Luis Obispo (review granted Nov. 14, 2018, S251056; superseded opinion at 25 CA5th 666) held that a county ordinance stating that a well permit “shall be issued” if state and county technical standards are met required only ministerial decision-making, and thus is not subject to CEQA. See §§4.26, 4.30.
Is the Project Exempt? (chap 5)
Effective January 1, 2019, a new statutory exemption (Pub Res C §21159.25) applies to specified residential and mixed-use infill projects in certain counties. See §§5.7, 5.52.
The tables in §5.7 listing the statutory exemptions from CEQA have been expanded and updated.
In County of Ventura v City of Moorpark (2018) 24 CA5th 377, the court upheld a beach restoration project undertaken by a geologic hazard abatement district as exempt under Pub Res C §26601. See §§5.17, 5.125.
In High Sierra Rural Alliance v County of Plumas (2018) 29 CA5th 102, the court noted that, because the placement of parcels into a timberland production zone necessarily includes authorization for construction of residences and structures necessary for management of the parcels, CEQA does not govern approval of such residences and structures. See §§5.27, 11.33. 11.39.
Effective January 1, 2019, two new exemptions apply to certain actions regarding projects within a housing sustainability district, once such a district has been properly designated and an EIR for such designation has been prepared. See new §5.34A.
New sections have been added to chap 5 summarizing the statutory exemptions for the following activities:
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Certain actions under the Surface Mining and Reclamation Act (§5.63D);
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Williamson Act rescission eligibility determinations (§5.63E);
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Certain cannabis regulations (§5.63F);
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Quagga mussel restrictions (§5.63G);
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Ocean Fishery Management Plan regulations (§5.63H); and
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Public water system non-exemption decisions (§5.63I).
In World Business Academy v State Lands Comm’n (2108) 24 CA5th 476, 498, the court held that the “unusual circumstances” exception to a categorical exemption applies only if the claimed unusual circumstance relates to the proposed action under consideration; it does not apply if the unusual circumstance is part of the existing conditions baseline. This case upheld the application of the “existing facilities” exemption under 14 Cal Code Regs §15301 to renewals of leases for nuclear power plant facilities that provide 10 percent of the state’s electric power. See §§5.72, 5.77, 5.115, 5.127, 23.49, 23.75.
In Don’t Cell Our Parks v City of San Diego (2018) 21 CA5th 338, 363, the court ruled that the “sensitive environment” exception applies only if the resource has been so designated, and the absence of any such agency designation, mapping, or adoption precludes application of this exception. This case upheld the application of the “small structures” exemption under 14 Cal Code Regs §15303 to a cell tower disguised as a tree and an accompanying small equipment structure. See §§5.74, 5.80, 5.126, 23.105.
Similarly, in Aptos Residents Ass’n v County of Santa Cruz (2018) 20 CA5th 1039, the court upheld the application of the “small structures” exemption to the approval of 13 microcell facilities to be attached to existing utility poles as part of a distributed antenna system to provide wireless coverage. See §§5.80, 5.127.
Initial Study (chap 6)
In Clews Land & Livestock v City of San Diego (2017) 19 CA5th 161, 193, the court noted that consideration of existing environmental hazards, such as the potential effect of wildfires on the project, would not be proper under CEQA. See §§6.35–6.36, 6.39, 6.52, 6.80, 23.103.
In Protect Niles v City of Fremont (2018) 25 CA5th 1129, the court held that the collective opinions of members of the city’s historical architectural review board about the project’s incompatibility with the historic district were substantial evidence supporting an argument that the project’s aesthetic impacts were significant. See §§6.40, 6.42, 6.79, 13.66D.
The court in Jensen v City of Santa Rosa (2018) 23 CA5th 877 held that noise calculations made by nonexperts were not substantial evidence. See §§6.39, 6.42, 6.56, 6.76, 6.80.
In Friends of Riverside’s Hills v City of Riverside (2018) 26 CA5th 1137, the court found an allegation that the final development plans for the project might not comply with city standards for development of sensitive topographical areas was speculative. See §§6.42, 6.80.
Requirements for Preparation and Review of Draft EIRs (chap 9)
In Placerville Historic Preservation League v Judicial Council (2017) 16 CA5th 187, the court noted that the lead agency is responsible for investigating the relevant environmental issues addressed in the draft EIR, and the information it gathers during this process is evidence on which the agency may rely in formulating the EIR’s conclusions. See §9.3.
CEQA Streamlining and Special EIR Processes (chap 10)
In Covina Residents for Responsible Dev. v City of Covina (2018) 21 CA5th 712, the court upheld a tiered mitigated negative declaration on the basis of both CEQA’s tiering provisions and Pub Res C §21099’s exemption for parking impacts in transit priority areas. See §§10.3, 10.12, 13.66E.
Substantive Requirements for EIRs (chap 11)
The court in City of Long Beach v City of Los Angeles (2018) 19 CA5th 465 held that an EIR may rely on reasoned predictions by experts. However, the court found the EIR’s analysis of the effects on offsite ambient air pollution concentrations was incomplete, despite evidence supporting the EIR’s method of analysis, because it did not provide sufficient information about the frequency and duration of excessive levels of pollution. See §§11.32, 11.34, 11.35, 11.40, 12.9, 13.22, 13.26, 13.48, 13.60, 13.66, 16.11, 20.86–20.86B, 23.97.
In Washoe Meadows Community v Department of Parks & Recreation (2017) 17 CA5th 277, an EIR was found inadequate because it failed to identify the proposed project as required by CEQA, and instead described a set of possible alternative projects. See §§11.40, 12.7, 15.2, 15.36, 22.4, 23.37, 23.125.
Project Description, Setting, and Baseline (chap 12)
In Association of Irritated Residents v Kern County Bd. of Supervisors (2017) 17 CA5th 708, the court ruled that the agency’s determination that existing conditions at an oil refinery could realistically be measured on the basis of the refinery’s last year of full operations was supported by substantial evidence, including permits that remained in effect. See §§12.20, 12.22, 12.25, 13.7, 13.66, 14.26, 20.81–20.81D, 20.86, 23.37.
In San Franciscans for Livable Neighborhoods v City & County of San Francisco (2018) 26 CA5th 596, the court held that an EIR on a proposed plan or plan amendment may use projected future conditions as the baseline for the impact analysis if the agency determines that an analysis based on existing conditions would be misleading or without informational value. Such a determination is primarily factual and will be upheld if supported by substantial evidence. See §12.21.
Significant Environmental Effects (chap 13)
In AquAlliance v US Bureau of Reclamation (ED Cal 2018) 287 F Supp 3d 969, the court rejected a claim that an EIR on Central Valley Project water transfers should have analyzed whether the proposed action would exacerbate the effects of climate change on water supplies, finding plaintiffs had failed to meet their burden to identify evidence that the project might do so. See §13.5.
In Placerville Historic Preservation League v Judicial Council (2017) 16 CA5th 187, the court upheld the lead agency’s determination that urban decay was not a reasonably foreseeable consequence of relocating judicial functions to a new building outside a city’s downtown district. See §§13.22, 13.24, 13.26, 13.64, 14.4.
In High Sierra Rural Alliance v County of Plumas (2018) 29 CA5th 102, the court ruled that EIR is not required to include an analysis of an unlikely worst-case scenario and need only evaluate impacts that are a reasonably foreseeable consequence of the project. See §13.26.
A new section has been added on the standards for evaluating noise as an environmental impact. See new §§13.63A.
Mitigation Measures (chap 14)
In Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov’ts (2017) 17 CA5th 413, the court held that mitigation measures that are unrealistic and unlikely to be implemented create an illusory analysis and should not be included in an EIR. See §§14.9, 14.12, 15.7, 15.12, 20.85, 23.114.
In San Franciscans for Livable Neighborhoods v City & County of San Francisco (2018) 26 CA5th 596, the EIR evaluated mitigation measures for impacts on transit, and determined that none of the measures was feasible; because substantial evidence supported that determination, no further consideration was required. See §§14.10, 15.12.
Project Alternatives (chap 15)
In Los Angeles Conservancy v City of W. Hollywood (2017) 18 CA5th 1031, the court held that an EIR’s evaluation of an alternative does not require the preparation of design plans or architectural drawings of alternatives, and it is appropriate to rely on estimates of square footage. See §15.36.
Final EIRs (chap 16)
In High Sierra Rural Alliance v County of Plumas (2018) 29 CA5th 102, the court held that the addition of maps and additional building standards information to a general plan EIR merely provided clarifying information and did not require recirculation. See §16.15B.
Project Approvals and Findings (chap 17)
In Los Angeles Conservancy v City of W. Hollywood (2017) 18 CA5th 1031, the court upheld a finding that a project alternative was infeasible because it was inconsistent with the project’s objectives that would implement the city’s general plan policies for development of the site. See §§17.29–17.30.
Subsequent and Supplemental EIRs (chap 19)
In Save Our Heritage Organisation v City of San Diego (2018) 28 CA5th 656, the court held that findings were not required when a decision that no further EIR is required is made by an addendum. See §§19.42, 19.46.
On remand from the supreme court’s decision in Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2016) 1 C5th 937, the court of appeal ruled that an EIR must be prepared whenever the record contains substantial evidence sufficient to support a fair argument that a significant environmental impact not previously considered might occur. Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2017) 11 CA5th 596, 607. The court of appeal also held that an agency may adopt a subsequent mitigated negative declaration to address new significant impacts that were not covered by prior mitigated negative declaration adopted for the project. For detailed analysis of the two Friends of the College decisions, see §§19.34, 19.40, 19.43, 19.55.
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: 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); 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); City of Long Beach v City of Los Angeles (2018) 19 CA5th 465 (upholding analysis of rail terminal GHG emissions); and Association of Irritated Residents v Kern County Bd. of Supervisors (2018) 17 CA5th 708, 738 (upholding GHG impact analysis based substantially on compliance with state cap-and-trade program). See §§20.81–20.81D, 20.86–20.86A, 20.88A.
In Bottini v City of San Diego (review granted on regulatory taking issue Dec. 19, 2018, S252217; superseded opinion at 27 CA5th 281), the court rejected a city’s attempt to treat a previously-approved demolition as part of a project to construct a single-family residence. The court held that the project consisted solely of the new home, and that the baseline for evaluating whether it was exempt from CEQA was the existing physical condition when the homeowner applied for the permits to build it. See §20.93.
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.
In Association of Irritated Residents v Kern County Bd. of Supervisors (2017) 17 CA5th 708, the court evaluated an EIR for modifications to an oil refinery that would allow an increase in the amount of crude oil offloaded from trains, and held that federal law did not preempt the analysis and disclosure of impacts resulting from increased train traffic. See §20.154.
Certified Regulatory Programs (chap 21)
In Pesticide Action Network N. Am. v California Dep’t of Pesticide Regulation (2017) 16 CA5th 224, the court ruled that recirculation of the EIR was required because the original document was fundamentally inadequate and the supporting analysis for the impact conclusion not added until after the responses to comments. The court also held that the determination of “no significant impact” is reviewed under the same “fair argument” standard that applies to a negative declaration. See §§21.2, 21.11, 21.13–21.14, 21.18, 21.20.
CEQA Litigation (chap 23)
In Creed-21 v City of Wildomar (2018) 18 CA5th 690, the court upheld terminating sanctions for the petitioner’s egregious failure to comply with discovery orders regarding petitioner’s standing to pursue its CEQA action. See §23.14.
In LandWatch San Luis Obispo County v Cambria Community Servs. Dist. (2018) 25 CA5th 638, the court held that if a petitioner who has elected to prepare the record does not do so in a timely fashion, a prevailing respondent may be able to recover costs for record preparation work necessary to provide a complete and timely record. See §23.72.
In Clews Land & Livestock, LLC v City of San Diego (2017) 19 CA5th 161, the petitioner was found to have failed to exhaust remedies when missing information in a notice was later clarified but petitioner failed to object following that clarification. See §23.107.
In Protect Niles v City of Fremont (2018) 25 CA5th 1129, the court held that when the agency has responded to a writ of mandate by vacating its approval of the project, an appeal taken by the project proponent is not moot if reversal of the judgment would operate to restore the approval. See §23.114.
In Center for Biological Diversity v Department of Fish & Wildlife (2017) 17 CA5th 1245, the court characterized the holding of LandValue 77, LLC v Board of Trustees of Cal. State Univ. (2011) 193 CA4th 675 as being limited to situations in which the court has not made severability findings in connection with a partial decertification. See §23.124.
In John R. Lawson Rock & Oil, Inc. v State Air Resources Bd. (2018) 20 CA5th 77, the agency had approved a project before completion of a functional equivalent document under a certified regulatory program. In that situation, the court found that the agency could take several possible actions to remedy its noncompliance, including revising the regulations at issue, or issuing the equivalent of a mitigated negative declaration, so a trial court order requiring the agency to comply with CEQA was the appropriate remedy. See §23.125.
In Heron Bay Homeowner’s Ass’n v City of San Leandro (2018) 19 CA5th 376, the court held that when a petitioner is motivated in part by economic interest, and the extent of that economic interest is uncertain, it may be appropriate to apportion the awarded fees based on the economic interest as a partial motivation for the lawsuit. See §23.129.
