California Environmental Quality Act

 

Insight: Consensus, Not Clarity, From Cal Supremes on CEQA

Now that comprehensive legislative reform of the California Environmental Quality Act seems unlikely, all eyes are turning to the California Supreme Court – if not for reform, then at least for clarity that will make the world of CEQA a little simpler, a little cleaner, and a little more understandable.

Good luck. Although the Cal Supremes have a heavy CEQA docket – and the justices are clearly putting a lot of thought into CEQA cases – the result is not exactly clarity.

When the Berkeley Hillside case went before the Cal Supremes, everybody hoped the result would be clarity about when the unusual circumstances exemption can be used. But the result was a complicated two-step test that actually may strengthen the exemption but requires a lot more effort to do so.

OPR Revises SB 743 Guidance, Putting Thresholds in "Advisory" Category

A new set of recommendations for implementing SB 743 – which would require traffic analysis to be based on vehicle miles traveled -- proposes moving many proposed significance thresholds from the legally binding CEQA guidelines to a technical advisory memo. These recommendations also call for stricter thresholds on the so-called “regional averages” and provide simpler methodologies for dealing with safety issues. The thresholds of significance are important because they often trigger an environmental impact  report.

The new recommendations were released by the Governor’s Office of Planning and Research on Wednesday morning. OPR will be taking comments for 45 days – until the end of February – before turning the proposal over to the Natural Resources Agency for a formal rulemaking process.

SB 743 requires that traffic analysis under the California Environmental Quality Act be shifted away from the long-standing “Level of Service” metric, which focuses on congestion. OPR’s original draft recommendations were issued almost a year and a half ago. They called for a shift to a VMT standard and called for a variety of thresholds to be included in the CEQA Guidelines. Among other things, projects would be deemed less than significant if they are located within a half-mile of transit and/or if they generate less than the regional average for VMT on residential and office developments. The proposal also permitted CEQA analysis of safety issues that might be related to congestion, such as queueing – a matter of concern to Caltrans.

»   Please Login or Subscribe to view this article.

Using Tuolumne Tactic, Moreno Valley Approves Development of 40 Million Square Feet

For years, National Football League teams have been trying to find places to play in the Los Angeles area. Soon enough, 700 of them could move to Moreno Valley, with room to spare.  

In what may be the largest single commercial development in the history of California — or possibly the universe — the World Logistics Center will, as currently envisioned, cover 40 million square feet, most of which will be dedicated to storage, transshipment, and other functions related to the logistics industry. It will be more than twice as large as New York City’s much-heralded Hudson Yards project.  

WLC was approved last summer on a 3-2 vote of the Moreno Valley City Council. Following the filing of as many as nine California Environmental Quality lawsuits against the project, that vote was reaffirmed in November as the council voted to adopt a ballot initiative to approve the project – using the so-called “Tuolumne Tactic” after developer Highland Fairview qualified a measure for the ballot. It is believed to be the first time the tactic has been used after a project had been approved by local elected officials and CEQA lawsuits had been filed. 

CDFA Erred in EIR Alternatives Analysis on Pest Control Action, Court Rules

The California Department of Food & Agriculture erred in preparing an environmental impact report for a program intended to eradicate with an invasive pest without examining the long-term consequences of an alternative program to control the pest rather than eradicate it, the Third District Court of Appeal has ruled.

As it happens, CDFA actually switched the program at the last minute from eradication to control, but the Third District said the defeat in the EIR would have been a legal problem under any circumstances. Relying on Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the Third District said CDFA’s action was “prejudicial,” requiring the appellate court to reverse two trial court rulings related to the case.

The case involves CDFA’s efforts to eradicate the light brown apple moth, or LBAM, an invasive “leaf-roller” moth that was first seen in California in 2007. Because LBAM represented a threat to all California ornamental plants as well as fruits and vegetables, and its invasion of California was moving fast, the legislature quickly authorized CDFA to undertake a temporary LBAM program with the goal of eradicating the pest. 

»   Please Login or Subscribe to view this article.

Will CBIA v BAAQMD Make Infill Projects Easier To Build in California?

Last week’s unanimous, finely worded ruling by the California Supreme Court has spared builders their worst-case scenario in the long-awaited "CEQA in Reverse" case. It does not interpret the California Environmental Quality Act to require an environmental impact report whenever a project might attract more people within range of an existing hazard such as air pollution or earthquake risk. 

Attorneys for the plaintiff/respondent California Building Industry Association (CBIA) cheered the decision as especially likely to spare infill and affordable housing projects that might otherwise face CEQA challenges because of air pollution impacts on residents and others. 

But the ruling does still apply CEQA broadly enough to leave both sides claiming partial success in overall impact and in the underlying air quality guidelines matter. Each already disputes the other's claim. 

»   Please Login or Subscribe to view this article.

Legal Briefs: Cal Supremes Take Another Newhall Case

Another Newhall Ranch case goes to the Supreme Court. The winning environmentalists seek a rehearing in the big Newhall lvictorh -- mostly to clarify the nature of their win. And, on another front, an appellate court reheard a groundwater extraction fee case and didn’t budget.

Now that the California Supreme Court has given environmentalists a big win in the “main event” Newhall Ranch case, the court has accepted one of the ancillary cases, CA Native Plant Society v. County of Los Angeles, No. B258090. This case involves the Mission Village phase of Newhall Ranch, which received county approval for its January project-level EIR approval in 2012. It was challenged as of June 2012.

Meanwhile, the Supreme Court will have to decide whether to grant a re-hearing in the main event, because the Center for Biological Diversity – which mostly won the case – wants a clarification that it cast as a request for a rehearing.  

»   Please Login or Subscribe to view this article.

First District Orders Cal State East Bay to Reconsider Offsite Traffic Mitigation

In light of a similar ruling by the California Supreme Court in a case from San Diego, the First District Court of Appeal has ordered Cal State East Bay to revisit the question of offsite traffic mitigation in the environmental impact report for its long-range master plan. As the Supreme Court did in San Diego, the court ruled that Cal State cannot simply declare mitigations infeasible unless the state legislature appropriates funds specifically for that purpose.

The Supreme Court remanded the East Bay case to the First District after ruling in the San Diego State case earlier this year. The First District reaffirmed its 2012 ruling on all other grounds, also ordering Cal State to conduct a better analysis of the impact of the campus expansion on surrounding parks. 

»   Please Login or Subscribe to view this article.

Supreme Court Gives Enviros Big Victory on Newhall Ranch

California's Supreme Court broke the Newhall Land & Farming Company's long winning streak November 30 in a victory for environmental and community groups over the Newhall Ranch megadevelopment. 

The plan to extend Los Angeles' urban growth into the Santa Clarita Valley, with a planned community of almost 58,000 people, has been persistently proposed and persistently litigated for two decades. Thanks to recent years' pro-development rulings, notably by the Second District Court of Appeal's Fifth Division, the project seemed to be well launched. Now quite a few bets are off.

The five-vote majority opinion by Justice Kathryn Werdegar sided with opponents of the development on the three major issues before the court. Justice Carol Corrigan filed a brief separate opinion concurring and dissenting, while Justice Ming W. Chin wrote an extensive dissent objecting to the likely delays in the project. 

Perhaps most significantly, the court said Newhall could not determine the significance of greenhouse gas emissions (GHGs) simply by applying the raw statewide regulatory goal of reducing GHG emissions 29 percent below "business as usual" levels by the year 2020, as set under the AB 32 Scoping Plan. The court held that an agency trying to apply the statewide goal locally should explain how the local situation related to the statewide goal.

»   Please Login or Subscribe to view this article.

What Next For The Subway To The Sea?

The Second District Court of Appeal has upheld the environmental impact report for the extension of Los Angeles’s Purple Line, removing another hurdle for construction of the “Subway to the Sea” through Beverly Hills. Now we'll see whether the Beverly Hills city and school district will appeal to the California Supreme Court.

The subway extension has been consistently opposed by both the City of Beverly Hills and the Beverly Hills Unified School District, primarily because it would require tunneling under Beverly Hills High School. The Los Angeles Metropolitan Transportation Authority is planning to locate a station at Constellation Boulevard and Avenue of the Stars, in the middle of the Century City business district, which is located immediately west of Beverly Hills High School, rather than further north along Santa Monica Boulevard.

In ruling against the city and the school district, the appellate court emphasized the need to give great deference to the lead agency in reviewing decisions about whether to recirculate an EIR.

»   Please Login or Subscribe to view this article.

First District Reverses Earlier Decision in Berkeley Hillside Case

Reversing itself on remand, the First District Court of Appeal has ruled in the Berkeley Hillside case that the proposed home of computer pioneer Mitch Kapor and his wife does not, in and of itself, represent an “unusual circumstances” under the CEQA Guidelines and therefore the  City of Berkeley acted properly in applying a CEQA exemption to the project. 

In so doing, the court did not need to move on to the second half of the analysis laid out earlier this year by the California Supreme Court in the appeal of the Berkeley Hillside case, Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, which was decided in May. 

»   Please Login or Subscribe to view this article.