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CEQA Year in Review - 2017

examples of litigation, precedents
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ProLaw
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CEQA Year in Review - 2017

Сообщение ProLaw » Чт мар 08, 2018 3:31 pm

A Summary of Published Appellate Opinions Under the California Environmental Quality Act (CEQA)

The California Supreme Court decided three cases in 2017, two of which involved highly controversial questions of first impression.

In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal’s ruling that the EIR for SANDAG’s regional transportation plan was fatally flawed because it had not taken seriously enough the greenhouse gas emissions reduction goal for the year 2050 contained in an executive order issued by the Governor. The court held that SANDAG was not required by CEQA to use the targets in the executive order as a standard for gauging the significance of projected greenhouse gas emissions.

In a second decision that has attracted significant attention, the supreme court found an EIR certified by the City of Newport Beach deficient because it did not specifically identify which areas on the project site might qualify as Environmentally Sensitive Habitat Areas under the Coastal Act, even though the Coastal Commission had exclusive authority to decide what areas are ESHA during its permitting process. The court’s third decision addressed an issue of more limited interest: whether CEQA is preempted by a federal statute that regulates railroads. The court held CEQA is preempted when the project involves a privately-owned line, but not when the line is owned by a state agency.

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The courts of appeal also issued several opinions involving highly controversial issues. In a case involving an EIR on expansion of operations at an oil refinery, the court extended prior case law by endorsing use of operating data from 2007, the last year of full operations at the refinery, as a component of the EIR’s environmental baseline, even though the EIR’s notice of preparation was not issued until 2013. Addressing a second question, which had not previously been considered in a published decision, the same court upheld the EIR’s determination that the project’s GHG emissions would be less than significant because the project would comply with CARB’s GHG cap-and-trade program.

Another important EIR case involved the often-litigated question whether the project might lead to urban decay, with the court finding the evidence in the record sufficient to support the EIR’s conclusion urban decay impacts were unlikely. Two other EIR cases addressed issues relating to project alternatives; one upheld the EIR and the other did not. The two opinions make significant contributions to the continually developing body of law on this somewhat tricky subject.

Two of last year’s opinions involved challenges to categorical exemption determinations. Those two opinions provide useful insights into how the courts are likely to interpret and apply the guidance on the standards for court review of challenges to an exemption based on the “unusual circumstances” exception which the California Supreme Court provided two years ago in the Berkeley Hillside case.



Finally, several cases considered a court’s authority to limit the scope of the remedy it imposes after finding a violation of CEQA. In what is likely good news for public agencies faced with CEQA litigation, these decisions make it clear that a court that determines CEQA has been violated is not required to set aside all of the agency’s determinations and approvals, and may tailor the remedy to fit the specific circumstances of the case before it.

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