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And You Thought CEQA Was Complicated Enough

Jan 31, 2008
It's difficult to believe that CEQA case law could get more complicated.

But it can, according to land-use lawyers who spoke at last week's UCLA Extension Land Use Law and Planning Conference.

During the last 12 months, Courts of Appeal have published about 25 California Environmental Quality Act cases a huge increase from recent years.

No fewer than seven published cases dealt with the definition of a "project" under CEQA, according to Michelle Ouellette and Whit Manley, two leading CEQA attorneys at UCLA conference.

This simply amazes me: 38 years after Ronald Reagan signed CEQA, and 36 years after the state Supreme Court issued its first CEQA decision, we're still arguing about which government activities are subject to environmental review.

Neither Ouellette, of Best, Best & Krieger in Riverside, nor Manley, of Sacramento's Remy, Thomas, Moose & Manley, could explain the courts' sudden willingness to publish CEQA decisions at the rate of about one every two weeks. In recent prior years, courts have published in the neighborhood of 10 to 15 CEQA cases.

But Ouellette and Manley did have some interesting observations:

The large number of cases concerning the definition of a "project" under CEQA suggests that local agencies are trying to avoid the environmental review process, Manley said. What's more, courts appear willing to let public agencies start down a path without applying CEQA if an agency promises to perform environmental review eventually and the agency maintains absolute discretion over the matter. Manley himself lost one of the cases, Friends of Sierra Railroad v. Tuolumne Park and Recreation Dist., (2007) 147 Cal.App.4th 643, in which the court ruled that a park district's land swap with an Indian tribe was not a project because not enough was known about the tribe's plan for the land it wanted. Manley said everyone knows the tribe wanted the park district land for a casino. But the court said not enough was known about the casino project to commence environmental review.

Ouellette said the "project" rulings suggest that if an agency uses lots of "weasel words" in its documentation, the agency may be able to avoid early CEQA review.

On the other hand, a court slammed the City of West Hollywood for delaying CEQA review of a project that involved a small housing development and re-use of an historic structure. Even though the city had certified an EIR by the time the Court of Appeal decided the case, the court said the EIR wasn't good enough and the city had to do it over, explained Ouellette, who was clearly astonished at the decision in Save Tara v City of West Hollywood. But the decision might not matter, because the state Supreme Court has accepted the case for review. (We wrote about both Friends of Sierra Railroad and Save Tara several months ago.)

Courts are showing more willingness than ever to engage in careful examination of environmental impact reports and the administrative record, according to Manley. Project opponents are winning these cases, even when there is "substantial evidence" supporting the agency's decision, he said.

- Paul Shigley