Archives: February 2025

Adam D. Nir

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ADAM D. NIR

ASSOCIATE

Adam Nir is an associate attorney with Remy Moose Manley, LLP. His practice specializes in environmental law, land use and planning, water law, initiatives and referenda, and administrative law generally. Mr. Nir joined the firm in 2024.

Mr. Nir received his Juris Doctorate from the University of the Pacific, McGeorge School of Law in 2024, with a certificate of concentration in Capital Lawyering. He attended McGeorge on the full, merit-based Pacific Law Scholarship. As a law student, he served as Chief Legislation Editor of the University of the Pacific Law Review, using his experience as an intern at the Office of Legislative Counsel to mentor staff writers on the dynamics of the legislative process. Mr. Nir also participated in several national competitions as a member of McGeorge’s negotiation team and in the school’s Capital Lawyering Clinic—working as a lobbyist to pass his own legislation in the California State Legislature. Mr. Nir gained first-hand experience in the executive branch of California’s government as well, working as a legal extern at California State Parks during his final semester of law school.

Prior to attending law school, Mr. Nir attended Florida State University, where he received a Bachelor of Arts degree in history and graduated cum laude and with honors.

In his free time, Mr. Nir enjoys reading about history, following college football, spending time with his family and friends, and going to the park with his adorable dog, Gus.

Education

  • J.D., University of the Pacific, McGeorge School of Law, 2024 
  • B.A., History, Florida State University, 2020

Professional Affiliations

  • California Lawyers Association, Environmental Law Section
  • Sacramento County Bar Association, Environmental Law Section

Hannah Rider

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HANNAH RIDER

ASSOCIATE

Hannah Rider is an associate attorney at Remy Moose Manley LLP.  She specializes in environmental law, land use and planning, and administrative law generally. Ms. Rider joined the firm in 2024. 

Ms. Rider received her Bachelor of Arts degree in Environmental Policy from Colorado College in 2018. She earned her Juris Doctorate from University of California Davis King Hall School of Law, where she attended on a Dean’s Merit Scholarship. During law school, she served as an Executive Editor for Environs, the school’s environmental law and policy journal. She also worked as an intern with the Environment and Natural Resources Sections of the California Attorney General’s Office, the California Department of Toxic Substances Control, and the California Tahoe Conservancy. 

Outside of work, Ms. Rider enjoys spending time outdoors, especially biking, skiing, and hiking with her dog, Winnie.

Education

  • J.D., University of California Davis, King Hall School of Law, 2024
  • B.A., Environmental Policy, Colorado College, 2018

Professional Affiliations

  • State Bar of California, Environmental Law Section

Blaine R Dyas

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BLAINE R. DYAS

ASSOCIATE

Blaine Dyas is an associate attorney at Remy Moose Manley LLP.  His practice focuses on environmental law, land use and planning, water law, initiatives and referenda, and administrative law generally. Mr. Dyas joined the firm in 2024.

Mr. Dyas earned his Juris Doctorate from the University of California, Davis, King Hall School of Law, where he attended on a Dean’s Merit Scholarship. He served as Senior Article Editor for Environs, an environmental law and policy journal. 

During his time in law school, Mr. Dyas worked with the Office of Legislative Counsel, the Aoki Water Justice Clinic, and Oppenheimer Investigations Group. He also founded the King Hall Renewable Energy Law Society (RELS), a student-led organization that facilitates energy policy discussions and career panels featuring energy law and policy professionals from the public, nonprofit, private, and policymaking sectors. Mr. Dyas was also the first student-member of the California Lawyers Association Environmental Legislative Review Committee.

Mr. Dyas earned a Bachelor of Science in Civil Engineering from Texas Tech University in his hometown of Lubbock, Texas. As an undergraduate, he externed with Manhard Consulting as a civil engineering consultant and with Holder Construction as a construction manager. After graduating from Texas Tech, and before law school, he spent two and a half years working as an aerospace structures engineer.

In his spare time, Mr. Dyas enjoys shopping for vintage clothing, furniture, and décor, going on adventures with his Great Pyrenees, Goose, and networking and socializing with the Sacramento LGBTQ+ community.

Education

  • B.S., Civil Engineering, Texas Tech University, Whitacre College of Engineering, 2018
  • J.D., University of California Davis, King Hall School of Law, 2024.

Professional Affiliations

  • California Lawyers Association, Environmental Law Section
  • Admitted to Practice Law in California

Sara Helms

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SARA HELMS

ASSOCIATE

Sara Helms specializes in environmental law, land use and planning, water law, initiatives and referenda, and administrative law generally. 

Ms. Helms attended the University of the Pacific, McGeorge School of Law on a full merit-based scholarship. She earned her Juris Doctorate with concentrations in Water and Environmental Law as well as Capital Lawyering. 

As a law student, Ms. Helms was a member of McGeorge’s Moot Court Honors Board and a Staff Writer for the University of the Pacific Law Review, Greensheets Volume. During law school, she interned with the California Air Resources Board, the Department of Toxic Substances Control, and the State Water Resources Control Board. 

In her free time, Ms. Helms enjoys hiking, traveling, cooking, spending time with her family and friends, and playing with her dog, Gunther, and cat, Doodle.

Education

  • J.D., University of the Pacific, McGeorge School of Law, 2024 (Water & Environmental Law and Capital Lawyering Concentrations)
  • B.A., Sociology with an emphasis in Law and Society (minor in Human Rights), University of California Davis, 2019

Professional Affiliations

  • California Lawyers Association, Environmental Law Section
  • Sacramento County Bar Association, Environmental Law Section

FIRST DISTRICT COURT OF APPEAL HOLDS POST-FEIR WILDFIRE IMPACT ANALYSIS LEGALLY DEFICIENT

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In Bonta v. County of Lake (2024) 105 Cal.App.5th 1222, the First District Court of Appeal ruled that the EIR for a proposed luxury resort in an unincorporated portion of Lake County was deficient for failing to provide a timely, project-specific disclosure of increased wildfire risk.

Background

Lotusland Investment Holdings proposed construction of a luxury resort on 16,000 acres in an unincorporated and undeveloped portion of Lake County.  During the public comment period on the Draft EIR, commenters raised several issues, including the discussion of impacts related to wildfire, GHG emissions, and groundwater. The County included additional information in an “errata” after the Final EIR was released. In particular, the errata included a discussion of wildfire risks and additional mitigation for GHG impacts that required the developer to purchase offset credits if feasible.

Several petitioners filed lawsuits challenging the EIR, alleging (among other things) that its analysis of wildfire, GHG, and groundwater impacts was inadequate, and that the Couty improperly rejected feasible alternatives. The trial court ruled that the EIR violated CEQA by failing to consider the project’s impact on the community’s ability to evacuate from a wildfire but rejected the petitioners’ other contentions. The petitioners appealed.

The Court of Appeal’s Decision

Wildfire

First addressing the petitioners’ wildfire arguments, the court noted that CEQA requires public agencies to meaningfully consider and mitigate the potential adverse environmental impacts of their actions and communicate those potential impacts to the public via an EIR. To properly communicate those impacts to the public, the court explained, an EIR must include enough information to allow a person who is unfamiliar with the project to understand and meaningfully consider the potential impacts of the project.

Here, the court found that the EIR failed as an informational document. Specifically, neither the Draft or Final EIR addressed the increase in wildfire risk associated with the Project. Instead, the environmental documents discussed project features that would reduce the wildfire impacts of the Project to a less-than-significant level without explicitly outlining the Project’s wildfire impacts.

The court found that the 11th-hour errata to the FEIR did not remedy this informational deficiency for two reasons. First, the errata was substantively deficient because it only generically identified the sorts of human activities that increase wildfire risk in previously undeveloped areas. Instead, the County should have tailored the wildfire impact discussion to include project-specific analysis focused on the development of a luxury resort in undeveloped and unincorporated Lake County.

Second, the court found that the errata was published too late in the CEQA process to be effective as a tool to inform the public of the potential environmental impacts of the Project. The court found that the County’s process did not allow the public to meaningfully evaluate the potential environmental impacts of the project prior to the certification of the FEIR, which in this case occurred less than a week after the errata was published.

GHG Emissions

The Court of Appeal agreed with the petitioners’ argument that the carbon offset program, which was added to the final EIR via the errata, was legally infeasible by the County’s own rationale: the developer could not guarantee that quality carbon credits would be available to purchase when necessary. However, the court found no authority for the contention that CEQA bars considering potentially beneficial measures that agencies deem too uncertain to be feasible. Importantly, moreover, the environmental analysis did not rely on the offset program to eliminate the project’s impacts, and therefore, any error in including the carbon credit program in Final EIR was not prejudicial.

Groundwater

The petitioners argued that the EIR was legally deficient for failing to calculate the amount of water that the project would draw from an off-site well. The court rejected this argument, finding that the EIR need not speculate as to how much water would be drawn from the well because the EIR clearly stated that the off-site well would only be used in extreme circumstances, and that the project would ordinarily be fully supplied with on-site sources.

D.C. CIRCUIT COURT OF APPEALS FINDS COUNCIL ON ENVIRONMENTAL QUALITY LACKS AUTHORITY TO ISSUE NEPA REGULATIONS

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In an opinion published on November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir. 2024) 121 F.4th 902, found that the Council on Environmental Quality’s (CEQ’s) regulations implementing the National Environmental Protection Act (NEPA) were ultra vires and thus invalid. The court held that CEQ lacked authority to issue such regulations because its rulemaking authority was tied not to a Congressional act but to a presidential Executive Order.

BACKGROUND

The National Parks Air Tour Management Act of 2000 requires the Federal Aviation Administration (FAA) and the National Park Service (NPS) to develop plans regulating tour flights over national parks throughout the United States. Pursuant to the Act, the FAA and NPS issued an Air Tour Management Plan governing tourist flights over four Bay Area, California national parks: the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore. The Agencies determined that they did not need to prepare an environmental analysis under NEPA because the Plan, as compared to what currently existed, would cause little to no additional environmental impacts.

THE COURT OF APPEALS’ OPINION

Several environmental organizations and one area resident petitioned for review of the Plan, arguing that the Agencies violated NEPA and the CEQ’s NEPA regulations. Petitioners argued that the Agencies violated CEQ’s regulations by foregoing an environmental assessment; the Agencies denied the claim and defended their action by invoking the same regulations.

The D.C. Circuit declined to address the merits of these arguments and instead independently held that CEQ’s regulations—which purport to govern how all federal agencies must comply with NEPA—are ultra vires and thus invalid.

Historical Legal Background

The CEQ traces its rulemaking authority not to a legislative act, but to a presidential Executive Order (EO). But because an EO is neither legally binding nor has the force of law, CEQ’s authority to issue regulations raises a separation of powers issue.  NEPA, on the other hand, is a legislative act that Congress adopted in 1969, which requires each federal agency to issue a detailed statement addressing the environmental impact of any proposed major federal action that significantly affects the quality of the human environment. All federal agencies must develop procedures that implement NEPA. The Act also created the CEQ within the Executive Office of the President, to be run by three presidentially appointed Commissioners who are confirmed by the Senate. CEQ’s job is to “review and appraise” agencies’ compliance with NEPA, make recommendations to the President with respect thereto, and develop and recommend to the President national policies to foster and promote the improvement of environmental quality.

In 1970, President Nixon issued an EO instructing CEQ to issue guidelines on how federal agencies should prepare the detailed environmental analyses NEPA required. CEQ subsequently published a memorandum with guidelines for federal agencies to consider when considering or preparing environmental impact statements. At the time, several courts regarded CEQ’s role as “merely advisory” because it lacked authority to prescribe regulations that governed or mandated compliance with NEPA. CEQ, however, held a different view, and considered its NEPA guidelines to be mandatory non-discretionary standards that federal agencies must comply with. The D.C. Circuit in Sierra Club v. Morton (1975) 514 F.2d 856 agreed that CEQ could equivocate its guidelines as legally binding rules that were entitled to great respect and heightened deference.

In 1977, President Carder issued an EO that empowered CEQ to issue “regulations,” as opposed to “guidelines,” which required all federal agencies to comply with CEQ’s NEPA regulations unless doing so would violate federal law. In response, CEQ invoked the EO and “the President’s Constitutional and statutory authority” to issue 92 new regulations, which prescribed uniform standards that were binding on all federal agencies, courts, and NEPA litigants. The framework promulgated by those largely remains in effect today.

CEQ’s NEPA Regulations are Ultra Vires

Based on CEQ’s and NEPA’s historical background, the D.C. Circuit explained that executive agencies, such as the FAA and the NPS, are statutory creatures that have no power to act except to the extent authorized by Congress. Thus, for CEQ’s regulations to be legally binding on those agencies, a nexus must be established between the regulations and some delegation of Congressional legislative authority. In other words, the court must determine whether CEQ, as an executive or independent agency, has statutory authority from Congress to issue its NEPA regulations.

Although CEQ publishes its NEPA regulations in the Code of Federal Regulations, such publication is no measure of the agency’s authority to issue the rules that appear there. Here, NEPA’s provisions provide no support for CEQ’s authority to issue binding regulations. No statutory language states or suggests that Congress empower CEQ to issue rules binding on other agencies—that is, to act as a regulatory, rather than advisory, agency. The court reiterated: “NEPA contains nothing close to the sort of language Congress typically uses to confer rulemaking authority.”

The court also noted that “[n]o statute confers rulemaking authority on CEQ.” The court cited the Environmental Quality Improvement Act of 1970 as an example, which established the Office of Environmental Quality that is headed by the CEQ Chairman. Even as the director of that office, CEQ’s chairman only has the authority to “assist” other federal agencies and may only “promulgate regulations” related to the Office’s funding for research studies and projects.

The court qualified that the Supreme Court’s prior pronouncements on CEQ’s regulations could not rescue them. Although the Court once wrote that those regulations were “entitled to substantial deference,” the statement did not result from the Court’s examination of CEQ’s authority to issue judicially enforceable regulations.

The court further concluded that CEQ’s regulations were not a delegation of the President’s authority under the Constitution’s “Take Care Clause.” While EOs are focused solely on the internal management of the Executive Branch—and thus create no private rights and are not judicially reviewable—NEPA imposes statutory obligations that agencies must execute, which in turn affect private parties who make seek judicial review of those agencies’ actions. The court reasoned: “If all federal agencies are bound by the CEQ regulations and must follow them in carrying out their obligations under NEPA, and if the regulations are enforceable by courts, then those regulations cannot be justified solely as an exercise in a President’s oversight of his Administration.” To this end, the Supreme Court has previously held that the Take Care Clause cannot be used to bypass agencies’ limited status as “creatures of statute” because the Constitution does not permit the President to seize Congress’ lawmaking power by issuing an order that, like a statute, authorizes a government official to promulgate rules and regulations.

Based on these foregoing reasons, the court held that CEQ had no lawful authority to promulgate NEPA regulations that are binding on federal agencies.

– Bridget McDonald

SECOND DISTRICT HOLDS AGENCY’S ADOPTION OF A MODIFIED PROJECT THAT DEVIATED FROM THAT DESCRIBED IN THE EIR DID NOT RENDER THE PROJECT DESCRIPTION UNSTABLE

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In a partially published opinion, Gooden v. County of Los Angeles (2024) 106 Cal.App.5th 1, the Second District Court of Appeal held that the Los Angeles County Board of Supervisors’ decision to prohibit new vineyards as part of an area plan update—a proposal not included in the EIR—did not violate CEQA’s requirement that a project description be accurate, stable, and finite. In doing so, the court applied the de novo standard of review to whether the project description contained an accurate, stable, and finite project description.

Background

The Project was a “comprehensive update” to the North Area Plan (NAP) and Community Standards District (CSD), enacted in the years 2000 and 2002 respectively, to serve as part of the County’s General Plan governing 21,000 acres in an unincorporated portion of the Santa Monica Mountains. The NAP served as a “planning tool” with “area-specific policies”; the CSD was a “zoning overlay” to implement the policies of the NAP.

The County issued a Draft EIR in May 2020 which identified revisions to the NAP and CSD including a proposal to reduce the minimum threshold for when grape-growing would be considered a “vineyard” and therefore subject to more stringent development standards and new standards for pest management. The Draft EIR did not include a proposal to ban new vineyards.  While several commenters expressed support for a complete ban, the Final EIR likewise did not propose a ban on new vineyards. The Department of Regional Planning recommended certification of the Final EIR and approval of the NAP and CSD as proposed.

The Board of Supervisors later certified the Final EIR and approved the Project with one pertinent change: prohibiting new vineyards of any size.

A group of petitioners filed a petition for writ of mandate alleging that the Board’s change to the project rendered the project description unstable and thus violated CEQA. The trial court denied the petition. One of the Petitioners, Gooden, appealed.

The Court of Appeal’s Decision

In the published portion of the decision, the Court of Appeal found that the Board’s adoption of the modified Project did not violate CEQA’s requirement of an accurate and stable project description.

The court first noted that CEQA allows flexibility for agencies to adopt a project that deviates from what was described in the EIR to allow for alterations in response to public feedback – the very purpose of CEQA’s requisite information exchange. However, the court said, when the later deviation is so great that the project description misleads the public, thwarting the public’s ability to participate in the process and comment meaningfully on the project, the earlier description may be unstable and inadequate.

Applying the “de novo” standard of review, the court concluded that the Board’s approval of the project including a ban on all new vineyards did not render the project description unstable. According to the court, the portion of land dedicated to agricultural land use was small within the greater NAP and CSD and constituted a small portion of the project plan, just half of one page of a total 91 pages. The court found it significant that the topic of vineyard regulation was discussed within the plan, preserving the project and its main features. The court noted the while change was significant to new vintners, a different rule would implicate all subsequent changes to a project description.

THIRD DISTRICT UPHOLDS AWARD OF COSTS INCURRED BY RESPONDENT AGENCY FOR PREPARATION OF THE ADMINISTRATIVE RECORD, DESPITE PETITIONERS’ ELECTION TO PREPARE THE RECORD

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In Yolo Land and Water Defense v. County of Yolo (2024) 105 Cal.App.5th 710, the Third District Court of Appeal affirmed the trial court’s denial of a CEQA petition and upheld the County’s memorandum of costs. In the published portion of the opinion, the court upheld the lower court’s award of costs to the County for record preparation, despite the petitioners’ election to prepare the record.

Background

Teichert, Inc. sought permission from the County of Yolo to mine sand and gravel at a 319.3-acre site for the Teichert Shifler Mining and Reclamation Project. Following mining activities, approximately 113 acres of the Project site would be reclaimed to agricultural use with another portion reclaimed to a lake, grassland, and riparian woodland. The project included a proposal to transfer specified tonnage allocations from two of Teichert’s existing mining operations to the Shifler location upon their completion, which are anticipated to cease either on January 1, 2028, or when the maximum amount of permitted removal is reached.

Following the County’s certification of an EIR, and approval of the project, project opponents filed a petition for writ of mandate alleging the County violated CEQA. The petitioners also filed a notice electing to prepare the administrative record under Public Resources Code section 21176.6, subdivision (b)(2). The petitioners then submitted a Public Record Act request to the County, requesting the documents for the record. The trial court denied the petition and awarded the County $3,813.45 for costs it had incurred in facilitating the preparation of the record by the petitioners. The petitioners appealed.

The Court of Appeal’s Decision

In the published portion of its decision, the Court of Appeal upheld the lower court’s award of costs to the County for record preparation.

The petitioners first argued that the respondent agency could not recover costs for preparing the record because the petitioners had elected to, and did, prepare the record in the case. The court, however, held that section 21167, subdivision (b)(2), does not preclude an award of costs to the respondent agency under these circumstances. According to the court, despite the petitioners’ election to prepare the record, the County incurred costs in producing the documents that comprised the record and the agency is required certify the record’s accuracy under subdivision (b)(1).

The court explained that generally, under Civil Code of Procedure (CCP) section 1032, a prevailing party is entitled to recover costs unless otherwise provided by statute. Further, CCP 1094.5, subdivision (a), requires the petitioner to bear the cost of preparing the record unless otherwise specified by statute. According to the court, nothing in section 21167.6 bars a prevailing public agency from recovering those costs.

The petitioners also argued that Couty could not recover costs because the petitioners obtained the documents through the Public Records Act, which prohibits recovery of staff and consultant time associated with production of documents. The court again disagreed, ultimately finding that the County was entitled to recover its costs as the prevailing party, and that the petitioners failed to show that the County’s account of staff time and hourly rates were unreasonable.

SIXTH DISTRICT UPHOLDS CLASS 32 URBAN INFILL CATEGORICAL EXEMPTION FOR GROCERY OUTLET STORE

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In Working Families of Monterey County v. King City Planning Commission (2024) 106 Cal.App.5th 833, the Sixth District Court of Appeal upheld King City’s determination that a proposed Grocery Outlet store qualified for CEQA’s Class 32 “urban infill” categorical exemption.

Background

In April 2021, Real Party in Interest Best Development Group, LLC applied for permits to develop a Grocery Outlet store in King City.  The project would be located on a 1.6-acre former car sales lot adjacent to Highway 101 and surrounded by commercial buildings, parking lots, a cemetery, vacant land, and the Monterey County Sheriffs’ Department. The project included an 18,187-square-foot building with 72 parking spaces and 13,908 square feet of landscaping.

The City approved the project, finding it exempt from CEQA under the Class 32 “urban infill development” categorical exemption under CEQA Guidelines section 15332.

Project opponents filed a writ petition, alleging that the Class 32 exemption did not apply because the project was not located in an “urbanized area,” and was not an “infill site” because it was not previously developed for “qualified urban uses.”

The trial court denied the petition, finding that the Class 32 exemption does not require a project to be located on an “infill site” in an “urbanized area” as those terms are defined in CEQA. The court also determined that substantial evidence supported the City’s application of the exemption because aerial photographs showed the project site was substantially surrounded by urban uses and met all other Class 32 requirements. Petitioners appealed.

The Court of Appeal’s Opinion

The dispute on appeal was over the interpretation of CEQA Guidelines section 15332, subdivision (b), which provides that a project may qualify for the urban infill exemption if the “proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.” Petitioners maintained that, because the Guideline does not define “infill development” or “substantially surrounded by urban uses,” those terms must be interpreted under CEQA’s statutory definitions for “infill site,” “urbanized area,” and “qualified urban uses.” According to Petitioners, based on those respective definitions, the project did not qualify for the exemption because King City is not located in an “urbanized area” and the Project site is not an “infill site.”

After discussing the legislative history of Guidelines section 15332, the court concluded that the State’s regulators did not intend to limit the categorical exemption to infill projects that met the criteria set forth in CEQA’s definitions of “infill site,” “urbanized area,” and “qualified urban uses.” Not only are those terms absent from the plain language of Guidelines section 15332, but the regulatory intent lacked any indication that the population requirements prescribed by CEQA’s definition of an “urbanized area” were intended to limit the types of “cities” where categorically exempted infill projects could be developed.

The court similarly found that the rules of statutory interpretation barred Petitioners’ interpretation of Guidelines section 15332. Because the Guideline omitted specific terms such as “infill site,” “urbanized area,” and “qualified urban uses,” the court could not broaden or narrow its scope by reading into it language that did not appear.

Because the court found no merit to Petitioners’ contention that Guidelines section 15332 should be interpreted by applying CEQA’s statutory definitions of “infill site,” “urbanized area”, and “qualified urban uses,” it held that the City did not err in determining that the Grocery Outlet project came within the Class 32 categorical exemption for infill development.

– Bridget McDonald