March 2018 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:
In 2017, the legislature enacted a package of bills designed to respond to the housing crisis, with relatively few CEQA provisions. The legislature also enacted a few minor CEQA provisions (see §1.26F). The bills are summarized below:
Assembly Bill 246 (Stats 2017, ch 522) extended the provisions of AB 900 (Stats 2011, ch 354) for expedited review of environmental leadership development projects through 2021.
Pub Res C §§21180–21186. See §§10.59–10.61. Assembly Bill 1218 (Stats 2017, ch 147) extended the statutory exemption for bicycle lane restriping through 2021. Pub Res C §§21080.20, 21080.20.5.
Senate Bill 35 (Stats 2017, ch 366) establishes a ministerial process for review of multifamily projects in areas that have not met regional housing needs, if the project meets long list of other requirements. Govt C §65913.4. See §§1.26F, 20.114.
Assembly Bill 73 (Stats 2017, ch 371) authorizes the approval of housing sustainability districts following certification of an EIR, with future approvals then to be issued based on that EIR. Govt C §§66200–66210. The bill also requires lead agencies to prepare an EIR when designating a housing sustainability district, and exempts from CEQA housing projects undertaken in housing sustainability districts that meet certain requirements. Pub Res C §§21155.10–21155.11.
Late 2016 through late 2017 Cases
Supreme Court Decisions
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, the supreme court held that the EIR was legally inadequate because it failed to include an analysis of whether lands within the project site would potentially qualify as environmentally sensitive habitat areas under the Coastal Act. See §§1.23, 8.5, 11.2, 11.22, 11.43, 15.8, 16.7, 16.11, 23.36.
In Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov’ts (2017) 3 C5th 497, the supreme court held that the EIR for a regional transportation plan was not required to provide an analysis of consistency of greenhouse gas emissions projected for 2050 with 2050 goals set in Governor Schwarzenegger’s 2005 executive order on greenhouse gas emissions. See §§1.23, 11.2, 11.22, 11.28, 11.34, 13.26, 13.28, 16.7, 16.11, 23.33, 23.114.
In Friends of the Eel River v North Coast R.R. Auth. (2017) 3 C5th 677, the supreme court held that application of CEQA to a railroad project undertaken by a state public entity together with a private entity is not preempted as regulation of rail transportation under the federal ICC Termination Act of 1995, but that CEQA cannot provide the basis for an injunction against the private rail operator’s freight operations. See §§1.23, 3.50, 20.154.
On December 22, 2017, the North Coast Railroad Authority filed a petition for writ of certiorari in Friends of the Eel River (SCOTUS No. 17–915).
Overview of CEQA Process (chap 1)
The decision in East Sacramento Partnerships for a Livable City v City of Sacramento (2016) 5 CA5th 281 joins a now 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, 11.35.
The glossary of CEQA terms set forth in §1.36 has been revised and updated to reflect the most current usage in CEQA practice.
Attorneys Role in CEQA Process (chap 2)
In Consolidated Irrig. Dist. v Superior Court (2012) 205 CA4th 697, 710, the court ruled that documents held by a consultant can be treated as being in the agency’s possession for purposes of the Public Records Act if the agency is deemed to have constructive possession of them. See §2.42.
Role of Public Agencies in CEQA Process (chap 3)
In Friends of Outlet Creek v Mendocino County Air Quality Mgmt. Dist. (2017) 11 CA5th 1235, 1243, the court held that a lawsuit brought against a responsible agency is limited to the actions that the responsible agency takes in approving the project, and does not extend to actions by the lead agency, or to the adequacy of the lead agency’s CEQA review of the project. See §3.23.
The decision in Friends of the Eel River v North Coast R.R. Auth. (2017) 3 C5th 677, 712, confirmed the general rule that a lead agency’s functions under CEQA are sufficiently important that they may not be delegated to another agency. See §3.50. NOTE: On December 22, 2017, the North Coast Railroad Authority filed a petition for writ of certiorari in Friends of the Eel River (SCOTUS No. 17–915).
Is the Activity a Project? (chap 4)
In Residents Against Specific Plan 380 v County of Riverside (2017) 9 CA5th 941, 960, the board of supervisors’ tentative approval of an EIR and a specific plan, subject to preparation of the documents necessary for final action, did not constitute approval of the project for CEQA purposes. See §§4.15, 11.38.
Similarly, in Bridges v Mt. San Jacinto Community College Dist. (2017) 14 CA5th 104, 121, a land acquisition agreement that conditioned the opening of escrow on CEQA compliance and that did not commit the college district to any type of construction plan did not amount to approval of a project under CEQA. See §4.15.
In Aptos Council v County of Santa Cruz (2017) 10 CA5th 266, 281, the court held that activities that will operate independently of each other and can be implemented separately may be treated as separate projects under CEQA if one activity is not a foreseeable consequence of the other. See §4.19.
The court in Sierra Club v County of Sonoma (2017) 11 CA5th 11, 22, ruled that the ability to exercise some discretion in acting on a project is irrelevant unless that discretion would allow the agency to require the activity’s environmental impacts to be mitigated. The court also held that a determination whether issuance of a permit is ministerial or discretionary ordinarily must be based on the specific regulations that are relevant to the agency’s determination whether to approve the proposed project. See §§4.26–4.27, 4.30, 5.8–5.9.
Is the Project Exempt? (chap 5)
Effective January 1, 2018, under a new statutory exemption (Pub Res C §21080.30), CEQA does not apply to any action, approval, or authorization by the State Public Works Board or the Department of Finance regarding any bond issuance, capital outlay project, or real estate transaction. See §§5.7, 5.41.
Initial Study (chap 6)
In Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160, 172 n12, the court noted that the environmental checklist form in CEQA Guidelines Appendix G can be tailored to cover environmental issues specific to a particular project. See §6.14.
In Aptos Council v County of Santa Cruz (2017) 10 CA5th 266, 293, a negative declaration evaluating changes in county ordinances governing hotel development was not required to evaluate potential development of larger hotels, because such development was speculative and not reasonably foreseeable. The court also ruled that the county’s approval of several revisions to its zoning ordinances was not a single project because the ordinances serve different purposes, operate independently of one another, and can be implemented separately. See §§6.31, 6.33, 6.39, 6.75–6.76, 6.80, 10.20.
Determining Scope and Contents of EIR (chap 8)
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, 936, the court held that the directive under Pub Res C §21003(a) and the CEQA Guidelines—to integrate CEQA review with the project planning, consultation, and approval processes used by each public agency—is a “fundamental policy” of CEQA. See §§8.5, 8.8.
CEQA Streamling and Special EIR Processes (chap 10)
In Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160, the court held that program EIRs may examine the program as a whole at a programmatic level of detail, while also examining some activities within the program at a project-specific level of detail. The court also ruled that the substantial evidence standard of review applies to an agency determination that certain impacts of a proposed activity are adequately covered by a program EIR and need not be reevaluated in a later EIR prepared to address the activity’s other impacts. See §§10.14, 10.16, 10.18, 10.21, 10.40, 10.59.
Substantive Requirements for EIRs (chap 11)
The supreme court in Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov’ts (2017) 3 C5th 497, 515, stated that the description of adverse environmental impacts in an EIR is “necessary to inform the critical discussions of mitigation measures and project alternatives” that are at the core of an EIR. See §11.34.
In Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160, the court applied the substantial evidence test when the following issues relating to the adequacy of an EIR were involved: (1) the methodology or criteria for assessing an environmental impact (6 CA5th at 205); (2) the sufficiency of the scope of technical studies supporting an EIR, such as a health-risk assessment for toxic air contaminants (6 CA5th at 205); (3) the effectiveness of mitigation measures (6 CA5th at 199); (4) whether a project is consistent with a local greenhouse gas (GHG) reduction strategy and thus will not have a significant environmental impact due to GHG emissions (6 CA5th at 203); and (5) whether a project consistent with a prior program EIR presents a new significant impact not previously studied (6 CA5th at 174). See §11.39.
In Cleveland Nat’l Forest Found. v San Diego Ass'n of Gov’ts (2017) 3 C5th 497, 516, the supreme court held that responses to EIR comments can directly bolster an EIR’s analysis of impacts. The court described responses to comments as “an integral part of the EIR” and held there was no legal infirmity in the fact that part of an EIR’s analysis of impacts was contained in the responses to comments. See §11.43.
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, 940, the supreme court noted that adequate responses to comments on the draft EIR are of particular importance when significant environmental issues are raised in comments submitted by experts or by regulatory agencies with specialized expertise. See §11.43.
Project Description, Setting, and Baseline (chap 12)
In Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160, 185, the court held that mischaracterization of a mitigation measure as a project component amounts to a material error only if it obstructs or obscures analysis of the project’s environmental impacts and potential mitigation measures. See §12.7.
In East Sacramento Partnership for a Livable City v City of Sacramento (2016) 5 CA5th 281, 293, the court held that a lead agency may not split a single large project into smaller ones resulting in piecemeal environmental review that fails to consider the environmental consequences of the entire project. Under the facts of that case, a proposed tunnel that would provide additional access to the project was not a necessary part of the project; the project was not conditioned on the tunnel’s construction; and the tunnel was deemed infeasible at the time the project was approved. The East Sacramento court also ruled that references to the development agreement in final EIR and in public meeting notices were sufficient to alert interested persons to its relevance; analysis of the development agreement in the EIR was not required. See §§12.8, 12.10–12.11, 12.15, 12.33.
The court in Poet, LLC v State Air Resources Bd. (2017) 12 CA5th 52 ruled that the test for determining which activities to include in, or exclude from, the project description includes whether they are closely related to the overall objective of the project or are part of a coordinated endeavor. See §§12.10, 12.20, 21.13, 23.37.
Significant Environmental Effects (chap 13)
In Mission Bay Alliance v Office of Community Inv. and Infrastructure (2016) 6 CA5th 160, 197, the court rejected claims that an EIR was required to evaluate the extent to which patrons of a proposed project would be exposed to existing windy conditions. The court also held that selection of a threshold of significance “requires an exercise of reasoned judgment” founded on substantial evidence (6 CA5th at 206). See §§13.5, 13.8, 13.11, 13.13, 13.15, 13.60, 13.66, 13.66D.
The supreme court in Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov’ts (2017) 3 C5th 497, 515, confirmed that a lead agency’s choice of appropriate thresholds of significance must be “based to the extent possible on scientific and factual data,” citing 14 Cal Code Regs §15064(b). See §§13.8, 13.26, 13.28, 13.66.
In East Sacramento Partnership for a Livable City v City of Sacramento (2016) 5 CA5th 281, the court rejected claims that an EIR was required to evaluate existing health hazards in the area of an infill development site. The court upheld the scope of a traffic impact analysis that focused on impacts to intersections rather than roadway segments, but rejected the use of a general plan level of service standard to determine the significance of impacts at intersections, in part because the lead agency was inconsistently applying those standards in determining significance. The court also ruled that when there is evidence an impact might be significant, an EIR may not adopt a contrary finding without providing an adequate explanation along with supporting evidence. See §§13.5, 13.8, 13.11, 13.66D.
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, 941, the supreme court held that, for a project located in the coastal zone, an EIR must evaluate as part of its analysis any areas that might qualify as environmentally sensitive habitat areas under the Coastal Act. See §13.61.
Mitigation Measures (chap 14)
In Mission Bay Alliance v Office of Community Inv.& Infrastructure (2016) 6 CA5th 160, 187, 190, the court held that CEQA does not require that a guaranteed source of funding for mitigation measures be identified; an agency’s determination—that funding sufficient to implement a mitigation plan will be available—will be upheld if supported by substantial evidence. See §§14.9, 14.12–14.13.
In Residents Against Specific Plan 380 v County of Riverside (2017) 9 CA5th 941, the court upheld the agency’s use of a performance standard, rather than prescriptive mitigation measures, to allow implementation of mitigation to be tailored to fit the final project design and then-available technology. See §§14.10, 14.12.
Project Alternatives (chap 15)
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, the court found legally inadequate an EIR that failed to identify areas on project site that might qualify as environmentally sensitive habitat areas under the Coastal Act, and to take those areas into consideration in its analysis of alternatives and mitigation measures. See §15.8.
Final EIRs (chap 16)
In Residents Against Specific Plan 380 v County of Riverside (2017) 9 CA5th 941, 964, the court ruled that changes to the allocation and arrangement of uses within the specific plan, without changing the nature of the uses or footprint of the plan, did not result in new or substantially more severe impacts. See §§16.12, 16.15B, 16.15F, 23.22.
Project Approvals and Findings (chap 17)
In Residents Against Specific Plan 380 v County of Riverside (2017) 9 CA5th 941, 963, the court rejected claims that errors in the notice of determination’s project description warranted unwinding the agency’s approval of the project. See §17.46.
Subsequent and Supplemental EIRs (chap 19)
In Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2017) 11 CA5th 596, 611, the court held that an agency may adopt a subsequent mitigated negative declaration when a subsequent EIR would otherwise be required but the project’s new significant impacts can be significantly reduced or avoided by adopting appropriate mitigation measures. See §19.7.
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)
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, the supreme court held that an EIR on a proposed project in the coastal zone was required to identify areas that might be designated by the Coastal Commission as environmentally sensitive habitat areas under the Coastal Act. Further, the court ruled that a discussion of potential environmentally sensitive habitat areas on such a project site was essential to an adequate analysis of feasible project alternatives and mitigation measures (2 C5th at 937). See §20.18.
Adding to the growing body of CEQA case law on the evaluation of climate change impacts are Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov’ts (2017) 3 C5th 497 (EIR for regional transportation plan not required to use state climate goals from Governor’s Executive Orders as CEQA thresholds of significance) and Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160 (EIR analysis based on consistency with adopted greenhouse gas emissions reduction plan was sufficient; quantified analysis of emissions not required in addition to such consistency evaluation). For detailed discussion of these cases, see §§20.81–20.81D, 20.83–20.83A, 20.86–20.86A, 20.88A.
In November 2017, the Bay Area Air Quality Management District adopted Regulation 11–18, Reduction of Risk from Air Toxic Emissions at Existing Facilities, “considered to be the most health-protective toxic air pollution risk control measure in the nation.” See §20.81A.
CARB is now proceeding to consider a second Scoping Plan update, which will reflect the 2030 mid-term emissions reduction target set by SB 32 (Stats 2016, ch 249). (The Scoping Plan sets forth various regulatory and market-based measures to reduce GHG emissions, including a cap-and-trade market-based system for reducing emissions from existing utility and large industrial sources.) The cap-and-trade rules were upheld in California Chamber of Commerce v State Air Resources Bd. (2017) 10 CA5th 604. See §20.81C.
A new section has been added to chapter 20 on how a lead agency should determine the appropriate time horizon for analysis of the impacts of a project’s greenhouse gas emissions. See §20.83A.
CEQA Litigation (chap 23)
In Friends of Outlet Creek v Mendocino County Air Quality Mgmt. Dist. (2017) 11 CA5th 1235, 1243, the court held that relief in a case brought against a responsible agency is limited to that agency’s acts and cannot extend to decisions or actions by the lead agency. See §23.15.
In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, 935, the supreme court held that the question whether an EIR has omitted essential information required by CEQA to be included is a legal issue subject to de novo review. In Banning Ranch, the omission of information from an EIR relating to the potential effect of Coastal Commission environmental review procedures and requirements was prejudicial because it skewed the evaluation of alternatives and mitigation measures and precluded a full understanding of the environmental issues posed by the project. See §§23.35, 23.37.
In Residents Against Specific Plan 380 v County of Riverside (2017) 9 CA5th 941, 964, the court ruled that errors in the notice of determination were not prejudicial because the suit was filed before the statute of limitations had run. See §23.37.
In Friends of Outlet Creek v Mendocino County Air Quality Mgmt. Dist. (2017) 11 CA5th 1235, 1244, the court ruled that if an agency is required by law to hold an evidentiary hearing and to make its factual determinations based on the administrative record, its findings and decision are reviewed under CCP §1094.5. See §23.42.
In The Urban Wildlands Group, Inc. v City of Los Angeles (2017) 10 CA5th 993, 996, the court held that a judgment denying a mandamus petition on the basis of the petitioner’s failure to lodge the record with the court is not a default judgment or dismissal subject to mandatory relief under CCP §473(b). See §23.75.
In East Sacramento Partnership for a Livable City v City of Sacramento (2016) 5 CA5th 281, 303, the court of appeal remanded the case for issuance of a writ of mandate, instructing that the city need only correct the EIR deficiency that the court had identified before recertifying the EIR. See §23.125.
In Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2017) 11 CA5th 596, 611, the court rejected the district’s approval of project modifications on the basis of an addendum to a prior negative declaration for the project, but ruled that the district could elect to adopt a subsequent mitigated negative declaration, rather than preparing an EIR, if it determined that the impacts of the modifications could be reduced to insignificance by implementing appropriate mitigation measures. See §23.125.
In Poet, LLC v State Air Resources Bd. (2017) 12 CA5th 52, 85, the court ruled that if an appellate court determines a lower court order discharging a writ of mandate was granted in error the appellate court has authority to reverse the order, direct compliance with the writ, and issue further appropriate orders to compel compliance. See §23.125A.
In Save Our Heritage Organisation v City of San Diego (2017) 11 CA5th 154, the court held that, although a project proponent may obtain an attorney fee award under the private attorney general statute (CCP §1021.5) if it satisfies the statutory requirements, an award against the petitioner in this case would be improper because the litigation did not seek to curtail or compromise public rights but, rather, to enforce them. See §23.135.