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.
And when the most recent Newhall Ranch case went up to the court, everybody hoped there would be clarity about how practitioners might approach the question of what percentage reduction in greenhouse gas emissions would be an acceptable target in CEQA analysis. In that case, the justices was pretty clear about what wouldn't be acceptable - simply using the Air Resources Board's regional number - but they weren't very clear about what methodology should be used.
What's going on? Shouldn't we be able to count on the California Supreme Court to provide clear lines?
CEQA is an unusually complicated, mostly procedural law that is deliberately designed to be enforced through litigation. It's so ubiquitous and complicated that every county's superior court has a designated CEQA judge. Since its passage 45 years ago, it has evolved far more through court rulings than legislation. And that's not likely to change soon. Despite a lot of rumblings about comprehensive CEQA reform in recent years, the moment appears to have passed. Meanwhile, the Supreme Court is working through a big backlog of CEQA cases.
But there a couple of other things going on here. First, CEQA litigation issues are getting ever more complicated and arcane. When I first started writing about CEQA lawsuits back in the -80s, the issues seemed, in retrospect, pretty clear-cut: Who had standing? Was an environmental impact report required? What level of independent judgment did a lead agency have to apply if the draft EIR was done by the applicant? And, later, were specific mitigations feasible or not. Yes, there were often legal debates about adequacy of the analysis, but there was also a lot of deference given to lead agencies.
Compare those kinds of questions to the issue that came up in Berkeley Hillside: Did the City of Berkeley put enough evidence on the record that a very large proposed house was not unusual within the context of the city, and therefore the city's use of two categorical exemptions was not overridden by the "unusual circumstances" rule contained in the CEQA Guidelines. That is a long, long way from, "Do you have to do an EIR"?
But there's another factor at work here, as veteran CEQA attorney Tina Thomas pointed out at last week's 30th annual UCLA Land Use Law and Planning Conference last week. It's the way the California Supreme Court works these days.
Since he re-election as governor in 2010, Jerry Brown has reshaped the court to some extent, appointing three of the seven justices: Berkeley law professor Goodwin Liu, Stanford law professor Mariano-Florentino Cu-llar; and former deputy attorney general Leondra Kruger. Unlike a lot of Brown's selections back in the -70s, they're all solid choices. Along with Wilson and Schwarzenegger holdovers - including Chief Justice Tani Cantil-Sakauye - they represent a lot of intellectual horsepower. And, unlike the U.S. Supreme Court, they apparently work hard to reach consensus and avoid a lot of concurring and dissenting opinions.
Which, apparently, is the problem.
"The justices go to great length to avoid scathing dissent," Thomas told the crowd of 300 people at the Biltmore Hotel in downtown Los Angeles. "So they go out of their way to compromise. The result is sometimes complicated, nuanced ways of spiltting standards of review that are difficult for lower court to apply. You may want clear answers, you may not get them."
This problem became immediately apparent after the Berkeley Hillside ruling, when the Third District considered the case of a rodeo fundraiser at the Santa Cruz Fairgrounds in Watsonville.
The Supreme Court had concluded the lead agency must first review the record to see whether unusual circumstances exist and if so courts must use the "substantial evidence" test in determining the validity of an exemption under those circumstances. The court ruled that a categorical exemption can be defeated by a "fair argument" that supports a reasonable possibility that significant environmental effects will result from the "unusual circumstances."
But it also held that "a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect."
In the Santa Cruz rodeo case, the Third District said the environmentalist plaintiffs didn't meet either test. The plaintiffs are appealing the case but the Supreme Court hasn't decided yet whether to take it.
Kevin Bundy of the Center for Biological Diversity, another panelist at the UCLA event, said he feared that the Supreme Court's ruling would lead others to conclude that merely qualifying for an exemption would be substantial evidence that unusual circumstances don't exist. "That reads unusual circumstances out of the law," he said.
In some ways the latest Newhall Ranch case is even more confusing, because the court rejected the idea that Los Angeles County could use the Air Resource Board's regional estimate for required greenhouse gas emissions reduction (29% by 2030) as the standard against which to measure an individual project. But does this mean less deference to lead agencies?
"Courts need to look carefully at the record to make sure that the record really connects the dot," said Bundy, the winning lawyer in the case. "The record needed to show the quantitative link between those two assumptions [the ARB target and the Newhall Ranch project] and it did not."
But Thomas, who was the losing lawyer in the case, had a different view. "In my personal opinion, I've always understood the standard to be, good faith effort for full disclosure," she said, "and I didn't understand it to be mathematical precision."
In a way, the disagreement between Thomas and Bundy may simply be a traditional disagreement between an agency lawyer who wants the courts to give deference to the agency and an environmental lawyer who wants the courts to push agencies harder for environmental protection.
Or it may be a generational thing. Thomas, like me, came to CEQA maturity in the -80s, while Bundy passed the bar 25 years later.
But it reinforced one thing for me: It's not just that CEQA never going to get any simpler. (We crossed that bridge a long time ago). It's probably not going to get any clearer, either.