In Upland Community First v. City of Upland (2024) __Cal.App.5th__, the Fourth District Court of Appeal reversed a trial court order setting aside an MND for a warehouse project.  The Court of Appeal rejected the petitioner’s claims that impacts related to GHG emissions and traffic triggered the need for an EIR.

Background

The project, as initially proposed, included three warehouse buildings totaling 977,246 square feet located on a 50-acre parcel used for a rock and gravel crushing operation. In response to concerns that the project was too large, the applicant reduced the size to a single, one-level warehouse of 201,096 square feet.

The city prepared an MND for the project. The MND concluded that the project’s GHG emissions would be less than significant based on the South Coast Air Quality Management District’s 10,000 MTCO₂e/yr threshold for “heavy industrial stationary projects,” as well as a qualitative evaluation of the project’s consistency with the city’s general plan and climate action plan. In response to comments urging the city to use SCAQMD’s 3,000 MTCO₂e/yr threshold for mixed-use commercial/non-industrial projects, the project was revised to include sustainability features that reduced GHG emissions to below the 3,000 MTCO₂e/yr threshold. In connection with the project revisions, a supplemental GHG analysis was prepared using revised (increased) baseline emissions, which included the existing rock and gravel crushing activity on the project site. The revised GHG analysis concluded that the project would generate less than 3,000 MTCO₂e/yr.

The petitioner filed a petition for writ of mandate alleging that an EIR was required because a fair argument could be made that the project would have significant impacts on traffic, transportation, air quality, and GHG emissions. The trial court granted the petition on the sole ground that substantial evidence failed to support the use of the 10,000 MTCO₂e/yr threshold. Additionally, the trial court found that even if the 3,000 MTCO₂e/yr had been applied, there was no explanation for the revised baseline used in the supplemental analysis.

The developer and the petitioner both appealed.

Court of Appeal’s Decision

Reversing the trial court, the Court of Appeal held that substantial evidence supported the city’s determination that the 3,000 MTCO₂e/yr was an appropriate numerical threshold for measuring the project’s GHG emissions. The court found that expert evidence explaining why the 10,000 MTCO₂e/yr threshold was inappropriate and urging the city to use instead the more stringent standard demonstrated a scientific and factual basis for use of the 3,000 MTCO₂e/yr threshold.

The court further held that the 3,000 MTCO₂e/yr threshold was an appropriate threshold for cumulative impacts resulting from a project’s GHG emissions. The court reasoned that in developing the 3,000 MTCO₂e/yr, SCAQMD relied on data collected by the Governor’s Office of Planning and Research, which shows that the 90 percent capture rate for commercial/mixed use commercial projects ranged from 1,390 to 1,481 MTCO₂e/yr.

As applied to this project, the court observed that the use of the 3,000 MTCO₂e/yr was conservative since the project is mixed-use commercial/industrial which would generally have higher GHG emissions compared to a mixed-use commercial/residential project.

Regarding the increase in baseline emissions used in the supplemental GHG analysis, the court agreed with the petitioner that the MND did not explain the reason for the increase in baseline emissions. The court nevertheless found that circumstantial evidence in the record showed that the increase was attributable to 78 truck trips used in the existing rock and gravel crushing operation that had not been included in the initial GHG analysis. The court therefore upheld the baseline emissions used in the supplemental GHG analysis.

Regarding the project’s traffic impacts, the petitioner argued that the MND’s analysis was inadequate because it underestimated the project’s daily passenger car equivalent (PCE) trips by using the incorrect trip generation rate classification. The court determined, however, that evidence in the record showed the project would not result in significant impacts using either classification.

The court also rejected the petitioner’s claim that the MND did not explain how delivery vans and truck trips were accounted for in the trip estimates. The court found that the trip generation rate classification used in the traffic analysis included delivery vans and truck traffic, and that additional discussion in the MND was not required.

Finally, the court held that the petitioner’s traffic claims related to congestion were moot given CEQA’s shift to using VMT as the metric for traffic impacts pursuant to CEQA Guidelines section 15064.3.

In Sunflower Alliance v. California Department of Conservation, the First District Court of Appeal found that conversion of a former oil well into an injection constituted a negligible expansion of use and upheld the agency’s factual determination that the project fell within the scope of the Class 1 categorical exemption for existing facilitates.

Background

The project at issue involves the conversion of a former oil well into an injection well. The project involves modest changes to the existing injection well site, including removal of a well plug, installation of injection equipment inside the well, with the same continued use of the existing well pad and access road. The injected water will be confined to the aquifer by a barrier of about 1,000 vertical feet of shale.

The project was reviewed by Department of Conservation’s Division of Geologic Energy Management (CalGEM), the State Water Resources Control Board, and the Regional Water Quality Control Board. As the lead agency, CalGEM found that the project fit within the Class 1 categorical exemption. According to CEQA Guidelines section 15301, Class 1 consists of “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.” CalGEM found that the injection equipment would be installed within the existing well boring and would require no significant surface equipment or new drilling and would further eliminate the need for routine trucking of produced water from the applicant’s active oil wells.

The petitioner filed a petition for writ of mandate challenging CalGEM’s determination that the project was categorically exempt from CEQA. The trial court granted the petition on grounds that injection, rather than extraction, constitutes a “significantly different use” and issued a writ directing CalGEM to set aside its approval of the project.

CalGEM complied with the writ, but the project applicant appealed.

The Court of Appeal’s Decision

The First District Court of Appeal reversed. The court considered whether well conversion projects, as a group, are beyond the scope of the Class 1 exemption. The petitioner argued that any new use of a modified well is an impermissible expansion. In contrast, the applicant argued that the applicability of the Class 1 exemption turns on the degree of change occurring as part of a project.

The court did not fully agree with either the petitioner or applicant. The court found that adopting petitioner’s approach would render the term “negligible” superfluous contrary to established principles of statutory interpretation. Instead, the court focused on the environmental consequences of a change in use to conclude that application of the Class 1 exemption is appropriate where the risk of environmental harm resulting from a change in use is negligible. The court also noted this interpretation aligns with the fundamental purpose of categorical exemptions, which is to exclude from CEQA review certain classes of projects that have been determined to not have significant environmental impacts.

As applied here, the court found that the project fell within the scope of the Class 1 categorical exemption. The court reasoned that not only does the project involve only minor alteration to existing equipment, but also that the environmental risks of the conversion are negligible because the project’s approval includes a regulatory determination ensuring that the injected water cannot escape the underlying aquifer and harm people, property, or the environment.

The court found petitioner’s claims regarding environmental impacts were unsupported by substantial evidence and speculative. The court similarly rejected the petitioner’s claim that CalGEM’s request for additional technical information regarding migration of injected water as part of its review was evidence of a potentially significant environmental effect. The court noted that based on additional analysis and a requirement to conduct testing to confirm that analysis, any concerns regarding impacts to water quality had been resolved.

Finally, the petitioner argued that imposition of mitigation measures to eliminate the project’s alleged environmental impacts precluded use of the Class 1 categorical exemption. The court disagreed, finding that although numerous special conditions had been imposed as part of the project approval, the conditions were standards required for issuance of the permit, and therefore were not appropriately construed as CEQA mitigation measures.

– Hannah Rider

In Nassiri v. City of Lafayette (2024) (June 27, 2024, No. A165324) ___ Cal.App.5th ___, the First District Court of Appeal held that the City of Lafayette properly relied on the “Class 32” infill exemption under CEQA Guidelines section 15332 for a 12-unit condominium project located adjacent to commercial buildings and a creek that provided habitat for Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service. The Court clarified the circumstances in which a species may be considered “rare” under CEQA for purposes of the infill exemption.

Background

In 2018, a developer applied to demolish a vacant building and construct a new 4-story, 12-unit condominium building on a 0.3-acre lot adjacent to commercial buildings and a creek. The City Council adopted a resolution approving the project and finding it exempt from CEQA pursuant to the infill exemption under CEQA Guidelines section 15332.

The owner of an office building adjacent to the project filed a petition for writ of mandate, alleging that the approval of the project violated CEQA. The trial court granted the petition based on its finding that substantial evidence did not support the City’s determination that the project site held no value as a habitat for endangered, rare or threatened species, but rejected the other CEQA claims.

The developer and the City filed a motion for new trial arguing that the only potential habitat for rare birds near the project was an area not part of the project site under CEQA Guidelines section 15332, subdivision (b) (citing Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951 (Tustin Ranch)). The trial court granted the motion for based on its finding that substantial evidence in the administrative record supported the developer’s and City’s position. The trial court subsequently entered judgment denying the petition for writ of mandate. Petitioner appealed.

The Court of Appeal’s Decision

Habitat for Rare Species

The Court of Appeal concluded that substantial evidence supported the City’s finding that the project site was not known to have any value as habitat for rare species.

To qualify for the infill exemption, the project site must have no value as habitat for endangered, rare or threatened species. A species is considered “rare” under CEQA when it meets the criteria of CEQA Guidelines section 15380, subdivision (b)(2), and either: (A) “exist[s] in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens,” or (B) “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.”

The Court explained that while two bird species listed as Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service were observed on the parcel near the proposed project, Petitioner provided no authority or legal analysis to support its claim that said species are “rare” under the CEQA Guidelines section 15380, subdivision (b)(2). The Court noted that Petitioner’s expert biologist never specifically addressed the definition of “rare” under the CEQA Guidelines, and only opined that the project site provided habitat value for “special-status species” without connecting this opinion to a conclusion that the species were therefore “rare.” The Court concluded that the City, on the other hand, provided substantial evidence in the form of expert reports explaining that the bird species were not “rare” based on the criteria listed under CEQA Guidelines section 15380. Moreover, the Court noted that even if Petitioner’s expert had provided an opinion that the bird species are rare, such a conclusion would only serve as evidence that the Court could weigh against evidence to the contrary.

While the Court did not reach the City’s argument that the “creek area” of the parcel where the bird species were observed was not part of the “project site” based on Tustin Ranch, supra, 70 Cal.App.5th 951, it did distinguish that case. Tustin Ranch held that an agency can consider a project site to be only part of an existing parcel for purposes of calculating the required 5-acre maximum site size for the CEQA infill development exemption. Here, the court explained, nothing suggested that the City considered the project site to exclude the “creek area.”

Air Quality

The Court also rejected Petitioner’s argument that the City lacked substantial evidence to conclude that the project would not result in a significant effect on air quality, another one of the criteria that must be satisfied before an agency can rely on the infill exemption.  Specifically, the Court disagreed with Petitioner’s argument that evidence in the form of a consultant firm’s report submitted by Petitioner constituted evidence that the project “would” result in significant effects on air quality, because the report only concluded that the project “may” result in impacts on the surrounding environment and “could” result in a potentially significant impact on air quality. The Court emphasized this distinction because the infill exemption “depends on if [a project] will have a significant effect.” Moreover, the Court agreed with the City that the consultant’s report did not constitute substantial evidence because it did not accurately reflect the scope of construction for the project or provide an accurate estimate of the associated health risks.

In Save the Capitol, Save the Trees v. Department of General Services (2024) 101 Cal.App.5th 1237, the Third District Court of Appeal reversed the trial court’s discharge of a peremptory writ of mandate and found that on remand, the trial court must determine whether a revised Final EIR remedied the CEQA violations identified by the appellate court in its earlier opinion before discharging the writ. The court held that the matter could be brought by a challenge to the writ return because the court retained jurisdiction to address issues within the scope of the previous merits challenge.

Background

In an earlier case, Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 711 (Save Our Capitol), the Court of Appeal determined that an EIR analyzing alterations to the California State Capitol violated CEQA. The court remanded the matter with directions to the trial court to issue a writ “directing [the Department of General Services] (DGS) to partially vacate its certification of the EIR and to revise and recirculate the deficient portions of the EIR consistent with this opinion before it considers recertifying the EIR.” On remand, the trial court ordered: (1) partial EIR decertification and vacation of the project approvals “consistent with the Opinion of the Court of Appeal”; (2) suspension of activities that would physically alter the capitol and no further discretionary approvals in reliance on the decertified EIR; and (3) for DGS to file a final return to the writ “upon certification of a revised EIR.”

DGS partially vacated its certification of the EIR and the associated project approvals and revised, recirculated, and certified the Final EIR. DGS then partially reapproved the project without a visitor center component that was part of the originally approved project. DGS then filed a final return, requesting that the court discharge the writ. The trial court discharged the writ, over plaintiff Save the Capitol’s objection, without determining whether the revised Final EIR remedied the CEQA violations identified by the appellate court.

The Court of Appeal’s Opinion

Remedial Action Ordered

The Court of Appeal held that the trial court could not discharge the writ without determining whether the revised EIR remedied the CEQA deficiencies identified earlier in Save Our Capitol. The trial court’s peremptory writ issued all three types of mandates authorized by Public Resources Code section 21168.9: (1) to void the action or decision by the agency under subdivision (a)(1); (2) to suspend project activities that affect the physical environment until action is taken to bring the situation into compliance under subdivision (a)(2); and (3) to take specific action to bring the determination into compliance under subdivision (a)(3). The court emphasized that the third directive required DGS to remedy the CEQA deficiencies consistent with the appellate court’s earlier opinion. In addition, section 21168.9, subdivision (b), required the trial court to retain jurisdiction, pending compliance with CEQA. The court noted that “ensur[ing] CEQA compliance after violations have been identified” is the “manifest purpose of a peremptory writ in this context.”

The court distinguished McCann v. City of San Diego (2023) 94 Cal.App.5th 284, as an instance where the appellate court’s prior direction to the trial court did not order remedial action in compliance with CEQA.

Writ Return Challenge

The parties disagreed whether Save the Capitol was permitted to challenge the sufficiency of the discharge of the writ by writ return or whether it was required to file a new action. The court held that it was acceptable for Save the Capitol to proceed by writ return challenge because the court retained jurisdiction under Public Resources Code section 21168.9, subdivision (b), as expressly stated in the writ.

The court rejected DGS’s argument that Save the Capitol should have used clearer language in the writ to make its preferred interpretation explicit, finding instead that the writ properly encompassed applicable law, the purpose of the writ, and the court’s order. The court also rejected DGS’s argument that requiring remedial action could result in inconsistent adjudications of the same issue if one plaintiff challenges the adequacy of the revised EIR via a new writ, while another does so by objection to the writ return. The court explained that such a result could be eliminated through a consolidation order. The court was similarly unpersuaded by DGS’s argument that allowing Save the Capitol to challenge the revised EIR via objection to the writ return would open the door to new merits challenges because no new issues are permitted to be raised in this manner.

Lastly, the court disagreed with Save the Capitol’s argument that discharge of the writ was premature because one component of the project was not yet reapproved. The court held that that because that component was not reapproved, it was no longer part of the project, and any later approval of that component would trigger a new deadline to challenge the action under CEQA.

In Make UC a Good Neighbor v. The Regents of the University of California (2024) 16 Cal.5th 43, the California Supreme Court held that the EIR for UC Berkeley’s Long-Range Development Plan (LRDP) and the People’s Park housing project complied with CEQA, reversing an earlier decision by the First District Court of Appeal. In doing so, the Court relied on new CEQA amendments (“AB 1307”) enacted by the Legislature for the purpose of abrogating the Court of Appeal’s decision. Pursuant to AB 1307, the Court held that: (1) the EIR was not required to analyze potential impacts related to student noise that could result from either the LRDP or the People’s Park housing project, and (2) the EIR was not required to analyze alternative locations for the People’s Park housing project.

Factual and Procedural History

The Regents approved UC Berkeley’s LRDP in July 2021. The LRDP identifies campus space, housing, and parking needs and describes development strategies generally intended to assist the university in addressing these needs. Among other things, the LRDP proposed the development of 11,073 student beds and 549 faculty and staff beds, in anticipation of enrollment increases.

Shortly after, in September 2021, the Regents approved the People’s Park housing project. Consistent with the LRDP, the People’s Park housing project sought to redevelop the People’s Park site near the UC Berkeley campus to provide 1,113 new student beds, 125 affordable and supporting housing beds, and 1.7 acres of open landscape.

In the summer of 2021, ahead of these approvals, the Regents certified an EIR that analyzed the environmental impacts of both the LRDP (on a programmatic level) and the People’s Park housing project (on a project level).

CEQA Litigation

Petitioners Make UC a Good Neighbor and People’s Park Historic District Advocacy Group (together, “Good Neighbor”) filed a petition for writ of mandate in October 2021, seeking to void the certification of the EIR and overturn the approvals of the LRDP and the People’s Park housing project. The trial court denied the petition. Good Neighbor appealed.

The Court of Appeal reversed, holding that the EIR violated CEQA in two ways: (1) by failing to study the noise impacts resulting from an increase in loud student parties, and (2) by failing to consider a reasonable range of alternative sites for the People’s Park housing project.

Both Good Neighbor and the Regents petitioned for review. The Supreme Court granted the Regents’ petition and denied Good Neighbor’s petition.

AB 1307

While the case was pending in the Supreme Court, and in response to the appellate court’s decision, the Legislature passed AB 1307. Under CEQA, as amended by AB 1307, (1) “for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment” and (2) “institutions of public higher education shall not be required, in an environmental impact report prepared for a residential or mixed-use housing project, to consider alternatives to the location [if certain requirements are met].”

The Supreme Court’s Decision

Applying AB 1307, the Supreme Court held that none of Good Neighbors’ claims had merit.

Good Neighbor conceded—and the Court agreed—that under AB 1307, social noise could not be considered an impact of the People’s Park housing project, and the Regents were not required to analyze alternative locations for the People’s Park housing project.

Good Neighbor argued, however, that the EIR was still required to consider social noise impacts resulting from the LRDP because, unlike the People’s Park housing project, the LRDP was not a “residential project” for purposes of AB 1307. The Court disagreed. After finding the meaning of the statutory term “residential projects” to be ambiguous and acknowledging the Legislature’s intent to abrogate the appellate court’s interpretation that CEQA covered social noise from students and their guests, the Court determined that the Legislature intended for AB 1307 to apply to the residential aspects of the LRDP as well as the People’s Park housing project.

Additionally, Good Neighbor argued that the Court should decide its “moot” claim regarding the need to consider alternative locations because it raised issues that involved the public interest and were likely to recur. The Court declined. The Court explained that the mootness doctrine only applies where it is impossible for a court to provide effective relief—not where, as in this case, a petitioner is not entitled to any relief. Accordingly, the Court found that Good Neighbor’s request to consider AB 1307’s application to future projects constituted an impermissible request for an advisory opinion.

Accordingly, the Court reversed the appellate court’s opinion and held that judgment should be entered in favor of the Regents.

-Louisa Rogers

In AIDS Healthcare Foundation v. Bonta (2024) 101 Cal.App.5th 73, the Third District Court of Appeal affirmed the trial court’s judgment that Senate Bill 10 (SB 10), which allows local legislative bodies to supersede local housing density caps on a parcel-by-parcel basis, did not unconstitutionally interfere with the initiative power.

Background

Article II, section 11, of the California Constitution authorizes city and county voters to enact local laws through the voter initiative process. Generally, unlike laws enacted by a legislative body, laws enacted by voter initiative may only be altered by another vote of the electorate or in a manner specified in the text of the initiative measure.

SB 10, which the Legislature enacted in response to a “severe shortage of housing at all income levels in this state,” grants counties and cities discretion to supersede local housing density caps—even those adopted via the voter initiative process—on a parcel-by-parcel basis. For qualifying parcels, local legislative bodies may supersede density caps enacted by a local ordinance with a simple majority vote, and those enacted by a voter initiative with a supermajority, two-thirds vote.

Petitioners AIDS Healthcare Foundation and City of Redondo Beach filed a petition for writ of mandate seeking an injunction compelling the State of California to cease enforcement of SB 10 and a declaration that SB 10, on its face, unconstitutionally “eviscerates the fundamental protection against subsequent legislative amendment of initiatives without a vote of the people.”

The trial court concluded that SB 10 did not unconstitutionally impair the initiative power and, accordingly, denied the petition. Petitioners appealed.

Court of Appeal’s Decision

Employing a multi-step analysis, the Third District Court of Appeal affirmed the trial court’s decision.

First, the court considered the circumstances in which the Legislature can supersede local zoning and land use laws. The court explained that, generally, state laws generally have supremacy over conflicting local ordinances enacted by non-charter cities and counties. With respect to charter cities, however, any state laws concerning “municipal affairs” supersede conflicting ordinances enacted by charter cities only if the state law (1) pertains to subject matter of regional or statewide concern and (2) is reasonably related to resolving that concern. The court concluded that, given the statewide housing crisis and the reasonable connection between housing shortages and restrictive housing density caps, the circumstances permitted the Legislature to displace local zoning and land use laws by enacting SB 10.

Second, the court determined that SB 10 did in fact displace local laws that set housing density caps. The court explained that local housing density caps expressly prohibited actions authorized by SB 10 (i.e., exceeding the cap), and moreover, that density caps frustrated SB 10’s purpose of promoting higher density housing projects. With respect to local density caps enacted through the voter initiative process, the court explained that statutes may preempt local initiative measures so long as the Legislature clearly intended such an outcome. Accordingly, because SB 10 expressly granted local governments the authority to supersede both legislatively enacted and initiative-based density caps, the court held that SB 10 preempted both types of housing density cap.

Third, the court held that the Legislature’s approach of providing local legislative bodies the power to supersede local housing density caps on a parcel-by-parcel basis—as opposed to outright nullifying these caps statewide—was constitutional. In so holding, the court first pointed out earlier case law in which the California Supreme Court held that the Legislature may grant local legislative bodies discretion regarding local decisions while simultaneously preventing initiatives and local ordinances from impairing that discretion. Additionally, the court reasoned that SB 10’s parcel-by-parcel approach was more protective of the local initiative process than a statewide invalidation of all local housing density caps, especially because it did not prevent voters from passing housing density caps that would require a two-thirds vote by the local legislative body to exceed.

Fourth, the court held that SB 10 did not apply differently to housing density caps already in existence. The court pointed out the SB 10 did not include any exemption for existing density caps, and further reasoned that such an exemption would frustrate the legislative intent behind SB 10’s enactment by substantially limiting local legislative bodies’ discretion to supersede housing density caps.

Accordingly, the court concluded that the Legislature’s enactment of SB 10 did not violate the California Constitution.

– Adam Nir

In Vichy Springs Resort, Inc. v. City of Ukiah (2024) 101 Cal.App.5th 46, the First District Court of Appeal reversed the trial court’s judgment sustaining a demurrer to claims that a project to demolish an existing shooting range, and construct a new one, should have been subjected to CEQA review. In the published portion of the opinion, the court held that the claim raised by Petitioner Vichy Springs Resort, Inc. that Mendocino County improperly declined to exercise its regulatory authority over the project, was sufficient to state a CEQA cause of action. The court also held that completion of the project did not moot the CEQA claims.

Background

Ukiah Rifle and Pistol Club operates a shooting range in an unincorporated area of the County, on land that it leases from the City of Ukiah. When the Club sought to demolish the existing range and construct a new range, Vichy sued the City and County, alleging that both entities violated CEQA. According to Vichy’s petition for writ of mandate, the County erroneously determined that it had no regulatory authority over the project, and therefore improperly allowed the project to proceed without first completing CEQA review. Vichy similarly alleged that the City improperly determined that the project was not subject to CEQA. Vichy did not seek a preliminary injunction and the Club completed the project while the case was pending in the trial court.

The County demurred to Vichy’s CEQA cause of action, arguing that the County’s alleged failure to exercise its regulatory authority was not a “project” subject to CEQA. Additionally, the Club and the City demurred to the CEQA cause of action, arguing that it became moot when the Club completed the project. The trial court sustained the demurrers without leave to amend. Vichy appealed.

Court of Appeal’s Decision

The Court of Appeal reversed the trial court’s judgment. In the published portion of its opinion, the court held that the Petition properly alleged a violation of CEQA by the County and that the Project’s completion did not render Vichy’s CEQA cause of action moot.

CEQA claim was not moot after project completion

As a threshold matter, the court held that the CEQA claims were not moot because the petition alleged that some of the project’s environmental impacts could still be alleviated. The court noted that the petition included examples of post-completion measures that could mitigate the project’s alleged significant environmental impacts, such as developing a lead removal program, implementing a pollution prevention plan, limiting the hours and scope of shooting range operations, and requiring lead-free ammunition. Additionally, while acknowledging that it would have been preferable for Vichy to seek a preliminary injunction to halt the project, the court nevertheless concluded that Vichy’s failure to do so did not require a finding that the CEQA claims were moot.

The court distinguished other cases holding that completion of the project rendered CEQA claims moot, explaining that the petitioners in those cases did not adequately allege or demonstrate that post-completion modifications or mitigation measures could remedy the claimed CEQA violations.

County’s failure to exercise its regulatory authority could give rise to a CEQA violation

The court also held that the petition properly alleged a CEQA violation by the County. The County argued that its decision to not regulate the project did not rest on any provision of CEQA such that Vichy could properly sue the County “on the grounds of noncompliance” with CEQA’s statutory requirements. The court, however, concluded that the County’s proposed interpretation of CEQA was “overly formalistic,” as Vichy’s ultimate contention was that the County would have been required to comply with CEQA had it properly exercised its authority.

The court similarly rejected the County’s arguments that the petition did not describe a “project” for purposes of CEQA and that CEQA applies only to project approvals but not to governmental inaction. The court explained that the “project” at issue in the litigation was the shooting range demolition and construction—not the County’s alleged failure to regulate. Thus, because the County’s inaction allowed the project to proceed without environmental review that might have otherwise been required had the County exercised its authority over the project, Vichy properly alleged a CEQA violation by the County.

– Natasha Roland