March 2017 Update
For discussion of 2016 legislation affecting CEQA practice, see §1.26E.
In 2016, the legislature enacted several minor CEQA bills, as well as more substantive legislation relating to greenhouse gas (GHG) emissions and water supply assessments (see §1.26E). The bills are summarized below:
Senate Bill 734 (Stats 2016, ch 210) extends the provisions of AB 900 (Stats 2011, ch 354) governing expedited review of environmental leadership projects. Pub Res C §21181.
Senate Bill 1008 (Stats 2016, ch 588) extends the sunset date of the exemption for the Los Angeles Regional Interoperable Communications System (LA-RICS) to January 1, 2020. Pub Res C §21080.25(h).
Senate Bill 836 (Stats 2016, ch 31) is an omnibus budget bill that includes new provisions to expedite any lawsuits challenging construction of the Capitol Building annex. Pub Res C §§21189.50–21189.57.
Senate Bill 122 (Stats 2016, ch 476) adds provisions allowing a project applicant and lead agency to agree to expedited preparation of the administrative record for a project. Pub Res C §21167.6.2.
Senate Bill 32 (Stats 2016, ch 249) directs that GHG emissions be reduced to 40 percent below 1990 levels by 2030. Health & S C §38566.
Assembly Bill 197 (Stats 2016, ch 250) creates the Joint Legislative Committee on Climate Change Policies (see Govt C §9147.10) and enacts various new provisions regarding GHG emissions regulation (Health & S C §§38506, 38531, 38562.5, 38562.7).
Senate Bill 1262 (Stats 2016, ch 594) adds groundwater issues into water supply assessments. Wat C §10910; Govt C §66473.7.
Late 2015 through late 2016 cases
Joshua Tree Downtown Bus. Alliance v County of San Bernardino (2016) 1 CA5th 677. This case had several noteworthy holdings: (1) Gaps in an initial study's explanation can be filled in by referring to evidence in the record; (2) an attorney who was also a business owner was not qualified to opine on whether the project would have an adverse economic impact causing urban decay; (3) there is no requirement that a negative declaration discuss the ways in which a project might be inconsistent with applicable local or regional land use plans, and an inconsistency with such a plan is not necessarily an environmental impact. See §§1.3, 6.18, 6.20, 6.36, 6.42, 6.52, 6.56, 6.76, 6.80, 12.28, 12.34, 13.15, 13.64.
Preserve Poway v City of Poway (2016) 245 CA4th 560. The court rejected a challenge to a negative declaration founded on an allegation that activities at a nearby horse boarding facility would adversely affect project residents; social and psychological effects of a project's change to the community's character are not environmental impacts subject to CEQA. See §§1.15, 1.23, 4.22, 6.35–6.36, 6.52, 6.80, 13.23, 22.4, 23.144.
California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2016) 2 CA5th 1067. On remand from the supreme court, the court of appeal ruled that the significance thresholds in the Bay Area Air Quality Management District's CEQA guidelines are invalid to the extent that they indicate that lead agencies should ordinarily apply the District's receptor thresholds to evaluate the effects of existing air pollution on a proposed project's occupants or users. The District's receptor thresholds may, however, appropriately be used to assess the impacts on project occupants or users to the extent those impacts will result from changes the project will make to the environment. Note: This case has been remanded to the trial court for further action. See §§1.23, 13.5, 13.14, 13.60, 20.81A, 20.120, 23.35.
Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2016) 1 C5th 937. The substantial evidence standard applies to review of an agency determination whether a follow-up action is a new project or a modification of a previously approved project. See §§1.23, 1.27, 1.30, 19.2, 19.13, 19.33–19.34, 19.37, 19.43, 19.54–19.55, 22.4.
Center for Biological Diversity v County of San Bernardino (2016) 247 CA4th 326. In a public/private partnership for a water pumping and conveyance project whereby a landowner would transfer water to several water districts, the water district as a partner in the public/private partnership was an appropriate lead agency because it would be carrying out the project, one of the principal criteria set forth in Guideline 15051. See §§3.4, 12.9–12.11, 12.13.
Union of Medical Marijuana Patients, Inc. v City of San Diego (review granted Jan. 11, 2017, S238563; superseded opinion at 4 CA5th 103). The city's adoption of a zoning ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a "project" subject to CEQA because the evidence was insufficient to show that indirect environmental impacts were reasonably foreseeable. See §§4.5, 4.17, 4.20, 4.22, 4.31.
Delaware Tetra Technols., Inc. v County of San Bernardino (2016) 247 CA4th 352. An agency's approval of a memorandum of understanding (MOU) calling for development of a groundwater management, monitoring, and mitigation plan simultaneously with preparation of the EIR was not a "project" under CEQA because the MOU preserved full agency discretion to respond to the EIR's findings. See §4.15.
Union of Medical Marijuana Patients, Inc. v City of Upland (2016) 245 CA4th 1265. The city's adoption of an ordinance prohibiting mobile marijuana dispensaries was not a "project" for CEQA purposes because the ordinance restated restrictions that were already in effect and because the arguments of potential impact were based on layers of speculation and assumptions. See §§4.20, 4.22, 4.31, 6.30.
Walters v City of Redondo Beach (2016) 1 CA5th 809. The categorical exemption for construction of small structures under 14 Cal Code Regs §15303 applied to a car wash and attached coffee shop on the basis that the use was similar to the examples of commercial uses set forth in the exemption; the specified examples are not exclusive. See §§5.69, 5.72, 5.75, 5.80, 5.126, 13.66D.
North Coast Rivers Alliance v Kawamura (2015) 243 CA4th 647. A program EIR may not be used to support approval of a multiphase project if the program EIR does not cover all phases of the project. This case also stands for the general rules that the level of specificity required for an EIR depends on the nature of the project, and that an EIR's analysis need not be perfect. See §§10.13, 10.15–10.16, 11.30, 11.39, 12.13, 13.26, 15.8, 15.12, 17.11, 23.26–23.37, 23.125.
Bay Area Citizens v Association of Bay Area Gov'ts (2016) 248 CA4th 966. The EIR on a regional plan for reducing GHG emissions did not have to include an alternative proposed by the petitioners, because that alternative was inconsistent with the basic purposes of the plan. Infeasible alternatives also need not be considered. See §§11.36, 15.8–15.9, 15.9B, 15.11, 15.17, 15.20, 15.22, 15.41, 16.11, 20.81, 20.88A.
Crenshaw Subway Coalition v Los Angeles County Metro. Transp. Auth. (CD Cal, Sept. 23, 2015, No. CV 11-9603 FMO (JCx)) 2015 US Dist Lexis 143642, 2015 WL 6150847. Environmental impact reports are required only to discuss "any inconsistencies" with plans; 14 Cal Code Regs §15125(d) does not require an EIR to explain why the project is consistent with applicable plans or to provide support for a conclusion that there are no plan inconsistencies. See §§12.28, 13.66E, 15.9A, 15.12, 15.17, 17.25, 22.9, 22.16, 22.22.
Naraghi Lakes Neighborhood Preservation Ass'n v City of Modesto (2016) 1 CA5th 9. Agencies have particularly broad discretion in determining a project's consistency with general plan goals and policies. See §12.33.
Spring Valley Lake Ass'n v City of Victorville (2016) 248 CA4th 91. Overall consistency with general plan policies is not sufficient to excuse a project's inconsistency with plan standards that are specific, mandatory, and fundamental. See §§12.33–12.34, 13.26, 13.59, 13.66, 16.15A, 16.15C–16.15D, 20.81D, 20.86.
Ukiah Citizens for Safety First v City of Ukiah (2016) 248 CA4th 256. An EIR should not rely solely on compliance with Title 24 standards to mitigate operational and construction energy impacts and should not assume that mitigation for GHG emissions will serve as a substitute for an analysis of energy use impacts. See §§13.59, 16.15E, 17.7, 23.49.
Friends of the Willow Glen Trestle v City of San Jose (2016) 2 CA5th 457. An agency's discretionary determination that a structure or object is or is not a historical resource need only be supported by substantial evidence. See §§20.94, 20.96–20.97, 23.114.
Communities for a Better Env't v Bay Area Air Quality Mgmt. Dist. (2016) 1 CA5th 715. Failure to discover a CEQA claim does not extend the statutory limitations period. See §§23.22, 23.25.
Citizens for Ceres v City of Ceres (2016) 3 CA5th 237. When the agency prepares the record and the real party in interest reimburses the agency for that record preparation cost, the real party may recover that reimbursed record cost from the petitioner as an allowable cost. See §23.72.
A new section has been added to chapter 23 (§23.72A) on the new optional process for expediting the preparation of the administrative record, authorized by Pub Res C §21167.6.2 (added by SB 122 (Stats 2016, ch 476), effective Jan. 1, 2017).
Center for Biological Diversity v Department of Fish & Wildlife (2016) 1 CA5th 452. Under Pub Res C §21168.9, a court of appeal may give instructions on the scope and contents of a writ of mandate the trial court should issue when the case is remitted to it, but the statute does not give a court of appeal authority to itself issue a writ of mandate directly. See §23.144.
City of Montebello v Vasquez (2016) 1 C5th 409. Votes by public officials, and statements made in the course of their deliberations at the meeting where the votes were taken, qualify as protected speech under CCP §425.16 (the anti-SLAPP statute). See §23.159.