Appellate Judges Grow Impatient With CEQA
- William Fulton
- Jan 31, 2023
- 5 min read
Have appellate justices finally had it with the California Environmental Quality Act? The short answer appears to be yes – at least in the Bay Area, home to the First District Court of Appeal, where justices have recently lamented that “something is very wrong” with CEQA, insisted that environmental documents don’t have to be perfect, and even allowed a malicious prosecution case to move forward against a prominent CEQA plaintiffs’ lawyer. “In all these cases, you are starting to see a thread of frustration that has CEQA been hijacked by labor unions, by NIMBYs, by competitors,” veteran CEQA lawyer Tina Thomas, who often represents agency defendants, said at the recent UCLA Land Use and Planning Conference. “I don’t know how these cases are going to turn out, but there is this sort of thread of frustration.” Not everybody is frustrated, however. In the Sacramento-based Third District, however, things appear to be different, as evidenced by the outcome of the recent appellate court involving the proposed new annex to the State Capitol. In the Save Our Capitol! Case, the Third District first said that the Department of General Services should have included visual representations of the new annex in its environmental analysis. (The court softened its position slightly on this issue after a rehearing; CP&DR coverage can be found here.) And back in the Bay Area, Alameda County appears to be particularly fertile ground for CEQA expansion rather than frustration. The whole battle over the CEQA implications of UC Berkeley exceeding its enrollment projections began when Alameda County Superior Court Judge Brad Seligman ruled, essentially, that increases in student enrollment could create an environmental impact. Both the First District and the California Supreme Court declined to resolve the CEQA battle over student enrollment at UC Berkeley, leading the Legislature to take the unusual step of amending CEQA to clarify the issue. (You can read CP&DR’s analysis of the case here.) More recently, a tentative ruling from the First District in the People’s Park case seemed to indicate that noise from students and potential problems associated with homeless persons could be viewed as environmental impacts under CEQA. (Read CP&DR coverage here.) CEQA plaintiffs’ lawyers are clearly getting more defensive about the law, though even they acknowledge that judges are beginning to lose patience. “You’re starting to see this frustration show up,” plaintiffs attorney Kevin Bundy said at the UCLA conference. But like his counterparts, he argues strongly that CEQA, at its best, will make development projects better. “We risk losing a lot of what is very important about CEQA,” he said at the UCLA event. “It makes sense to understand what the impacts of a project are before you approve it. It makes sense to see if there are feasible ways to reduce those impacts. We have to plan for wildfire and droughts. We have to plan for sea level rise.” What judges think about CEQA matters a lot. Over the past half-century, the Legislature has repeatedly declined to reform CEQA by statute, in large part because of changing cast of powerful characters – mostly recently labor unions – have found CEQA useful in gaining leverage over developers for their own purposes. That means Superior Court judges and appellate court justices have had to fend for themselves in interpreting CEQA – and although trends have ebbed and flowed over the years, in general judges have tended to expand CEQA through their rulings. Remember that the most important CEQA expansion dd the judgment that CEQA applied to permits for private development projects as well as government projects – came originally from the courts in the Friends of Mammoth in 1972. Though most CEQA cases are not challenged in court, there’s always the threat of litigation, and judges have a long history of finding environmental analysis inadequate in some way. “There’s always another study that can be done under CEQA,” Thomas told the UCLA audience. Even CEQA practitioners have begun to be concerned about endless CEQA expansion. Take, for example, the issue of evacuation routes in wildfire risk areas – an issue that has emerged recently in several CEQA cases. (For one example, take a look at CP&DR’s coverage of what we called the Lake County “reverse-reverse-CEQA case.) At the CLE conference in San Francisco in December, Fehr & Peers’ Ron Milam – one of the leading transportation analysts in the state, said: “This is one of those ones that if you’re not careful will expand. We’re talking about wildfire evauation. What about other evacuations, urban fire, terrorism, whatever. Be prepared for some opponent to a project to translate that to all those other things you should have looked at. I’m hesitate to want to jump there because it just gives more opposition to projects.” Still, judicial frustration appears to be mounting. The Tiburon case involved a fight over building 43 units on a spectacular 110-acre property overlooking San Francisco Bay that has been going on for almost a half-century. The appellate court’s ruling was written by veteran Justice James Richman, who concluded his 110-page analysis of the California Environmental Quality Act by saying, “Something is very wrong with this picture.” (See CP&DR coverage here.) In the Save Livermore Downtown case, which was just published in late January, the plaintiffs argued that the project’s specifics violated the city’s general plan and downtown specific plan in various ways. But, the appellate court ruled, “A given project need not be in perfect conformity with each and every general plan policy.” Last year, in Southwest Regional Carpenters Council v. City of Los Angeles, the First District Court of Appeal let an environmental impact analysis go forward even though the final project did not emerge until the final EIR and therefore the public didn’t have a chance to comment on it. “Although we believe decision-makers and the public would be better served if the public had an opportunity to comment on the actual project before approval, we decline to engraft that requirement into CEQA,” the court wrote. (This was more or less the opposite of the conclusion in the Save Our Capitol! Case.) Perhaps most surprisingly was the decision of the First District to permit a malicious prosecution case go forward against prominent CEQA plaintiffs’ lawyer Susan Brandt-Hawley for supposedly misrepresenting the facts in a challenge to a single-family home in San Anselmo. Brandt-Hawley tried to invoke the anti-SLAPP law but failed. So what does all this add up to? A confusing time for CEQA, where many courts are really resisting expansion while others are facilitating it. If ever there was a time that called for comprehensive legislative reform, it’s now. But as the Berkeley enrollment situation proved, it’s unlikely that the legislators will do anything but create more CEQA Swiss-cheese when their backs are to the wall: We may see a little more tinkering around the edges, especially on UC enrollment. But comprehensive reform seems to be as far away as ever.
