Author Archives: Christina Berglund

THIRD DISTRICT REFRAINS FROM AWARDING ATTORNEY FEES UNDER CATALYST THEORY AFTER PLAINTIFF’S CLAIM HAS FAILED ON THE MERITS

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In Physicians for Social Responsibility v. Department of Toxic Substances Control (Cal. Ct. App., Mar. 4, 2026, No. C100487) 2026 WL 607684, the Third District affirmed the denial of attorney fees, concluding the catalyst theory does not apply after a plaintiff loses the case on the merits.

Key Takeaways

  • Catalyst theory has limits after a merits loss. A plaintiff cannot recover attorney fees under Code of Civil Procedure §1021.5 when the underlying action has already been resolved against them on the merits. Once a court determines that the claims lack merit, there is no “threat of victory” to support catalyst fees.
  • Voluntary agency actions after litigation do not automatically trigger fees. Even where an agency later adopts an approach like what plaintiffs sought—here, analyzing demolition impacts in a later EIR—that action will not support catalyst fees if it occurs after the agency has already prevailed in the litigation.
  • Chronology alone is not enough to establish a catalyst. Courts will look for a causal connection between the lawsuit and the relief obtained, not merely the sequence of events. Where relief is provided after the defendant has won the case, the inference that litigation caused the change in conduct disappears.

Background

Area IV at the Santa Susanna Field Laboratory (SSFL) in Ventura County was leased by Boeing to the Department of Energy for nuclear research, resulting in significant soil and groundwater contamination. Following the program’s termination, cleanup efforts were overseen by several federal and state agencies, including the Department of Toxic Substances Control (DTSC). Concerned with Boeing’s plan to demolish four structures in Area IV, Physicians for Social Responsibility – Los Angeles (Physicians) filed suit alleging the demolition required CEQA review and that DTSC had failed to conduct the necessary environmental analysis. Both the trial court and the Third District rejected the claim, concluding the demolition was a private activity within Boeing’s discretion and therefore not subject to CEQA.

After prevailing in the litigation, DTSC issued a final EIR for the SSFL cleanup that analyzed the demolition impacts as part of the project’s overall environmental review. Although DTSC stated it was not required to evaluate the demolition, it included the analysis to provide a conservative assessment of cleanup impacts. Physicians then sought attorney fees under the catalyst theory, arguing the lawsuit prompted DTSC to analyze the demolition impacts. The trial court denied the request, finding Physicians were not a successful party, and the Third District affirmed.

Appellate Decision

The appellate court affirmed, holding that Physicians were not entitled to attorney fees under the catalyst theory. Under that theory, a plaintiff may recover fees without a judicial determination on the merits if the litigation prompts the defendant to change its conduct in the manner sought because of the threat of an adverse judgment. Here, however, the underlying case was fully litigated and resolved against Physicians, and the relief they sought was voluntarily provided only after DTSC had already prevailed.

The court distinguished Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, where the California Supreme Court upheld a catalyst-based fee award even though the plaintiffs did not obtain a favorable final judgment. In Graham, however, the defendant provided the requested relief during litigation under the “threat of victory,” rendering the case moot. By contrast, Physicians lost the case on the merits before DTSC later chose to analyze the demolition impacts in the final EIR.

Physicians also argued that the chronology of events showed the lawsuit was the catalyst for DTSC’s decision to include the demolition analysis. The court rejected this argument, noting that the final EIR was issued after the court had already ruled in DTSC’s favor, eliminating any “threat of victory.”

Finally, the court rejected Physicians’ public policy arguments, emphasizing that catalyst fees are included to reward litigation that successfully prompts a defendant to change its conduct. Because DTSC’s actions occurred only after it had prevailed in the litigation, the catalyst theory did not apply.

– Hannah Rider

RMM TRACKING CALIFORNIA ENVIRONMENTAL LEGISLATION

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Great day at the Capitol for the Legislation Committee of the California Lawyers Association Environmental Law Section.

RMM attorneys Blake Dyas, Adam Nir, and Nina Berglund attended Legislative Day, where environmental attorneys gathered to hear about key environmental legislation anticipated for the current session. Blaine currently serves as Co-Chair of the Legislation Committee.

The California Lawyers Association (CLA) Environmental Law Section Legislation Committee enables attorneys to track, review, and analyze pending California environmental legislation for legal sufficiency and technical issues. Volunteers work with legislative staff, attend briefings, and summarize chaptered bills, offering a low-commitment way to engage in policy.

COURT REJECTS DWR BOND VALIDATION FOR DELTA PROGRAM, HOLDING AGENCY EXCEEDED STATUTORY AUTHORITY

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In Department of Water Resources v. Metropolitan Water Dist. (2025) 117 Cal.App.5th 751, the Third District Court of Appeal affirmed the trial court’s decision that the Department of Water Resources (DWR) exceeded its statutory authority by issuing revenue bonds for the “Delta Program.”

Key Takeaway

  • Statutory authority for public financing must be clearly defined. The court held that DWR could not validate revenue bonds for the Delta Program because the program was defined too broadly to qualify as a “further modification” of the Feather River Project under Water Code section 11260.

Background

DWR operates the State Water Project, a statewide system of reservoirs, canals, and pumping facilities that deliver water from Northern California to water contractors throughout the state. The State Water Project was authorized by the Legislature in the 1950s, including the Feather River Project, which, under Water Code section 11260, authorizes DWR to construct, operate, and modify.

As part of the State Water Project, DWR has proposed the Delta Conveyance Project, a tunnel conveyance system intended to transport water through the Sacramento-San Joaquin Delta. In 2020, DWR adopted resolutions authorizing issuance of “Delta Program Revenue Bonds” to finance environmental review and planning, and—if approved—construction of water conveyance facilities associated with the “Delta Program.”

To confirm the legality of its public financing commitment, DWR filed a validation action on August 6, 2020, seeking judicial approval of the bond resolutions. DWR took the position that the Delta Program qualified as a “further modification” of the Feather River Project under Water Code section 11260. Various parties appeared both in support of and in opposition to validation, and opponents also filed a separate CEQA action that was consolidated with the validation proceeding. The trial court rejected the CEQA claims but concluded DWR exceeded its statutory authority in adopting the bond resolutions and therefore denied validation.

Appellate Decision

The Third District Court of Appeal considered whether the Delta Program, as defined in the Bond Resolutions, qualifies as a “further modification” of the Feather River Project within DWR’s statutory authority under Water Code section 11260. DWR argued that the Delta Program constituted an authorized modification because facilities conveying water in, about, and through the Delta would serve the purpose of the Feather River Project. Opponents countered that the Delta Program was too broadly defined to support validation and was not limited to facilities consistent with the Feather River Project.

The court agreed with the opponents, concluding that DWR’s definition of the Delta Program exceeded the scope of its authority under section 11260. The court found the Delta Program’s definition overly broad because it imposed no meaningful limits on the facilities that could be financed, the direction or use of the water, or the purpose of the program. As a result, the court observed that the bond resolutions would grant DWR “nearly unlimited discretion to specify the facilities for which the bonds will be issued.” The mere fact that a Delta Program facility would “convey water in, about, and through the Delta area” was insufficient to demonstrate a connection to the Feather River Project.

The court further reasoned that validating the bonds could effectively expand DWR’s discretion to define revenue sources for repayment or resolve whether DWR may charge state water contractors for Delta Program capital costs—issues beyond the scope of the validation proceeding. Because DWR failed to show that the Delta Program fell within its delegated authority, the court affirmed the denial of validation. Having resolved the case on that ground, the court declined to address the remaining claims, including those related to CEQA.

­ – Hannah Rider & Nina Berglund

SUPREME COURT HOLDS PUBLIC RECORDS ACT ALLOWS FOR DECLARATORY RELIEF AND DOES NOT REQUIRE A RECORDS RETENTION PERIOD

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In City of Gilroy v. Superior Court of Santa Clara County (2026) 19 Cal.5th 38, the California Supreme Court rejected the Sixth District Court of Appeal’s holding that declaratory relief under the California Public Records Act (CPRA) is only available to determine a public agency’s obligation to disclose records. Additionally, the Court upheld the appellate court’s conclusion that the CPRA does not impose a retention obligation for records an agency claims are exempt from disclosure.

Key Takeaways

  • Producing records does not automatically moot a CPRA case. Courts may issue declaratory relief to resolve ongoing disputes and guide future agency conduct.
  • CPRA does not require agencies to retain records. Any preservation obligations must come from other statutes or retention policies.
  • Agency practices matter. Courts may scrutinize recurring practices even if records are eventually produced.

Background

The Law Foundation of Silicon Valley (the Law Foundation) filed several CPRA requests with the City of Gilroy in 2018 and 2019 seeking documents and body camera footage related to the city police department’s homeless encampment cleanup enforcement actions. The City withheld certain records pursuant to Government Code section 7923.600, which exempts records related to police investigations from disclosure, and stated that body camera footage dated before early 2018 had been destroyed pursuant to its one-year records retention policy.

The Law Foundation filed a petition for writ of mandate and complaint for equitable relief alleging that the City violated the CPRA due to its inadequate search and disclosure of responsive records, as well as its destruction of the 2018 body camera footage. The trial court granted partial declaratory relief and found that the CPRA did not impose a record retention requirement. On appeal, the Sixth District reversed in part, concluding that declaratory relief is unavailable where all responsive nonexempt records have been produced, while agreeing that the CPRA does not impose a records retention duty. The Supreme Court granted the Law Foundation’s petition for review.

Supreme Court’s Decision

Declaratory Relief

Relying on the CPRA’s purpose of “increasing freedom of information,” the Court held that declaratory relief may be available even when an agency has already produced all responsive, nonexempt records. Disclosure of records in one instance does not necessarily moot a request for declaratory relief, if such relief would prevent the agency from repeating conduct that could frustrate CPRA rights.

Applying that principle, the Court concluded that declaratory relief was appropriate for declaring that the City violated the CPRA by conducting an inadequate search for records and breaching various duties in asserting an exemption for body camera footage. The Court declined to address whether such relief would be appropriate regarding the City’s late response to the 2018 request.

Record Retention

The Supreme Court agreed with the lower courts that the CPRA does not impose a records retention requirement. The statute is silent on preservation, and its legislative history confirms the Act was not intended to alter existing laws governing the destruction of public records. The Court also noted that other statutes address record preservation in the litigation context.

The Court distinguished this case from Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, which held that Public Resources Code section 21167.6 requires agencies to retain documents that must be included in a CEQA record of proceedings. The Court observed that, unlike the CPRA, section 21167.6, specifically defines the contents of a CEQA record to enable judicial review. The Court also noted that CEQA’s statute of limitations periods are far shorter than the three-year retention period urged by the Law Foundation and that CEQA’s legislative history lacks the CPRA’s explicit statement preserving existing records destruction laws.

Concurring Opinion

Justice Groban’s concurrence elaborated on when declaratory relief is appropriate under the CPRA, explaining that it may be warranted where a public agency continues to dispute a requester’s rights to the records, or has a pattern and practice of impeding access to records. He suggested such relief is generally inappropriate where the issue is moot and unlikely to affect future requests.

­- Veronika S. Morrison

NINTH CIRCUIT HOLDS EPA VIOLATED ENDANGERED SPECIES ACT IN FAILING TO CONSULT OVER CADMIUM WATER QUALITY RECOMMENDATION

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In Center for Biological Diversity v. United States Environmental Protection Agency (9th Cir., Mar. 3, 2026, No. 23-2946) 2026 WL 587981, the Ninth Circuit held that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service or the National Marine Fisheries Service (together, the Services) before promulgating its Clean Water Act (CWA) section 304(a) water quality criteria recommendation for cadmium. The court also affirmed that the Center for Biological Diversity (CBD) had standing to challenge the EPA’s failure to consult, reinforcing precedent recognizing a relatively low threshold for establishing standing in such cases.

Key Takeaways

  • An ESA consultation may be required even for nonbinding federal guidance that predictably influences downstream regulatory decisions. The Ninth Circuit held that EPA’s CWA section 304(a) water quality recommendations constituted an “agency action” that “may affect” listed species because states frequently rely on them when establishing water quality standards.
  • Plaintiffs alleging procedural violations of ESA section 7 can often establish standing with relatively modest showings of causation and redressability. The court found CBD had standing because it was reasonably foreseeable that states would adopt EPA’s recommended criteria and that consultation could lead to more protective standards benefiting listed species.

Background

Under the CWA, states establish water quality standards for waters within their jurisdiction, while EPA publishes national recommended criteria under CWA section 304(a) reflecting the latest scientific knowledge about the effects of pollutants. Although these criteria are not binding, states often rely on them when adopting or revising their own standards, and EPA may apply them when promulgating federal standards for noncompliant states.

In 2016, EPA issued updated section 304(a) recommended water quality criteria for cadmium. EPA did not consult with the Services before issuing the recommendations. EPA took the position that consultation under ESA section 7 was required only when it later approved or disapproved individual state water quality standards under CWA section 303.

CBD filed suit challenging EPA’s failure to consult and sought to invalidate the 2016 cadmium recommendations and compel ESA consultation. The district court granted summary judgment in CBD’s favor. EPA appealed.

Appellate Decision

Standing

The Ninth Circuit first addressed EPA’s argument that CBD lacked standing. To establish Article III standing, a plaintiff must show a concrete injury that is traceable to the challenged action and likely to be redressed by a favorable court decision. The court noted that because CBD alleged a procedural ESA violation, the usual causation and redressability requirements were relaxed.

CBD’s members submitted declarations stating that they regularly observe and study ESA-listed species in waters that are potentially affected by cadmium pollution. The court held this was sufficient to establish a concrete injury because elevated cadmium concentrations could harm those species and diminish members’ ability to enjoy those activities.

The court also rejected EPA’s argument that any harm was too attenuated. Although EPA’s section 304(a) recommendations are not binding, the court found it reasonably foreseeable that states would rely on them when establishing water quality criteria. Because states frequently adopt EPA’s recommended criteria—and EPA may impose federal standards where states fail to do so—the court concluded that CBD’s alleged injuries were traceable to EPA’s recommendations.

Finally, the court held the injuries were redressable. If EPA completed ESA consultation, the process could result in more protective recommended criteria, which in turn could lead states to adopt stricter water quality standards, benefiting the listed species CBD members seek to observe and enjoy.

ESA Section 7

The Ninth Circuit held that EPA’s issuance of the 2016 section 304(a) cadmium recommendations constituted an “agency action” that triggered ESA section 7 consultation. Under the ESA, federal agencies must consult with the Services when an action “may affect” listed species or their critical habitat—a threshold the court described as relatively low.

The court concluded that EPA’s publication of the section 304(a) recommendations qualified as agency action because it is a congressionally mandated activity carried out by the agency and has meaningful regulatory effects. Although the recommendations are not binding, the EPA uses them to establish federal standards for noncompliant states and tribal waters, and states frequently rely on them when setting their own water quality criteria.

Given that widespread reliance, the court found it reasonably foreseeable that at least one state would adopt the cadmium criteria in waters inhabited by listed species. Because the recommendations, therefore, “may affect” listed species, EPA was required to consult with the Services before issuing them. Its failure to do so violated ESA section 7.

Dissent

Justice Miller dissented, concluding the case should have been dismissed for lack of Article III standing. In his view, EPA’s section 304(a) water-quality criteria are nonbinding recommendations, and any resulting harm to listed species depends on independent decisions by states about whether to adopt those criteria. Because that discretionary state action breaks the causal chain, he concluded the alleged injuries were not fairly traceable to EPA’s conduct, and therefore, the court should not have reached the ESA consultation issue.

–Adam Nir & Nina Berglund

FIRST DISTRICT DENIES ATTORNEY FEES AFTER LEGISLATURE ABROGATES CEQA RULING IN PEOPLE’S PARK CASE

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In Make UC A Good Neighbor v. Regents of University of California (2025) 117 Cal.App.5th 282, the First District Court of Appeal affirmed the denial of a motion for attorneys’ fees. The Third District found that the petitioner was not a successful party under the law because the Legislature’s amendment to CEQA abrogated its claims while on appeal, resulting in the Supreme Court’s reversal and denial of the petitioner’s claims.

Key Takeaway

  • A party is not “successful” for purposes of recovering attorney fees under the private attorney general doctrine where intervening legislation and a subsequent Supreme Court decision eliminate the claims and relief sought in the petition.

Background

In 2021, UC Berkeley certified an Environmental Impact Report (EIR) for its Long-Range Development Plan and a student housing project at People’s Park. Make UC a Good Neighbor (Good Neighbor) filed suit alleging violations of CEQA. The trial court denied the petition.

On appeal, however, the First District Court of Appeal reversed in part. The court held that the EIR did not adequately analyze the project’s social noise impacts and failed to consider alternative locations for the People’s Park housing project. Both parties sought review in the California Supreme Court on the issues they had lost, and the Supreme Court granted review of the two issues on which Good Neighbor had prevailed.

While the case was pending before the Supreme Court, the Legislature enacted AB 1307. Among other things, AB 1307 clarified that noise generated by residents of housing projects—including student housing—is not a significant environmental effect under CEQA. The legislation further provides that public higher education institutions need not consider alternative locations for proposed residential and mixed-use housing projects under CEQA if certain statutory conditions are met.

In light of this intervening legislation, the Supreme Court concluded that the EIR was not inadequate for failing to analyze student-generated noise or for failing to consider alternative locations for the housing project. The Supreme Court therefore reversed the First District and instructed the lower courts to enter judgment in favor of the Regents.

Following entry of judgment for the Regents, Good Neighbor moved for an award of more than $1 million in attorney fees under the private attorney general doctrine. Good Neighbor argued that it was a “successful party” because the First District’s earlier rulings on social noise and alternative site analysis purportedly remained “good law” for nonresidential projects and therefore conferred a public benefit.

The trial court denied the fee motion, concluding that Good Neighbor was not a successful party on any of its claims. Good Neighbor appealed.

Appellate Decision

To recover attorney fees under the private attorney general doctrine, as Good Neighbor sought here, a party must establish—among other public interest requirements—that it was a “successful party” in the litigation. A party is considered “successful” if it prevails on a significant issue in the case and achieves some of the benefit sought in bringing the suit.

Good Neighbor argued that it met this standard despite the Supreme Court’s decision in favor of the Regents. According to Good Neighbor, the First District’s earlier opinion still had binding precedential effect with respect to the analysis of social noise impacts for nonresidential projects.

The First District disagreed. The appellate court explained that the Supreme Court had unambiguously disapproved the portions of the First District’s earlier opinion on which Good Neighbor claimed success. In reversing those holdings, the Supreme Court concluded that the Legislature had amended CEQA specifically to abrogate the First District’s rulings regarding social noise and alternative site analysis. As a result, the First District explained that its prior analyses on those issues were now “smoldering ruins, not citable precedent.”

The court did note, however, that other portions of its earlier opinion that were not reviewed by the Supreme Court remain precedential and continue to be “good law.”

Because the issues on which Good Neighbor claimed success had been expressly disapproved, the First District concluded that Good Neighbor did not obtain a favorable judgment or vindicate the legal principles on which it brought the action. Accordingly, the court held that Good Neighbor was not a successful party and affirmed the trial court’s denial of Good Neighbor’s motion for attorney fees.

– Sara Helms

FIRST DISTRICT HOLDS BERKELEY CITY COUNCIL VIOLATED BROWN ACT BY RELOCATING MEETING RATHER THAN REMOVING DISRUPTIVE ATTENDEES

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In Berkeley People’s Alliance v. City of Berkeley (2025) 114 Cal.App.5th 984, the First District Court of Appeal held that the Berkeley City Council violated the Brown Act by recessing public meetings and reconvening in a different room in response to disruptive attendees. Although the Brown Act permits a legislative body to address disruptions that prevent the orderly conduct of a meeting, the court held that relocating the meeting rather than clearing the room fell outside that exception.

Key Takeaways

  • The Brown Act exception for disruptive situations is literally construed and does not apply in “functionally equivalent” scenarios.
  • In his statement concurring with the Supreme Court’s denial of depublication, Justice Groban encourages the Legislature to consider local legislative bodies’ “legitimate concerns” about responding to unruly individuals at open meetings.

Background

The Brown Act includes various requirements intended to protect the public’s right to attend and participate in meetings of local governing bodies, subject to limited exceptions. One such exception, set forth in Government Code section 54957.9, permits a legislative body to clear the meeting room and continue in session if a group of attendees willfully disrupts the meeting to the point that it cannot proceed and order cannot be restored by removing the individuals responsible.

During three city council meetings in 2023 and 2024, the mayor determined that disruptive attendees prevented the council from continuing the meetings and that removing them was not feasible. The mayor therefore recessed and reconvened the meetings in a different room, allowing members of the press to attend in person while providing the public with access via video.

Plaintiffs filed suit seeking declaratory and injunctive relief, arguing that the City Council failed to comply with Government Code section 54957.9 because it did not “order the meeting room cleared and continue in session” as the statute requires. The City demurred, contending that the council had effectively cleared the room by recessing and relocating the meetings. The trial court sustained the demurrer without leave to amend, and the plaintiffs appealed.

Appellate Decision

The Court of Appeal reversed. Interpreting Government Code section 54957.9 de novo, the court emphasized that exceptions to the Brown Act must be narrowly construed. Looking to the statute’s plain language, the court explained that relocating a meeting to a different room is not equivalent to “clear[ing] the meeting room and continu[ing] in session,” as the statute expressly requires. Because the Council recessed the meetings and reconvened them in a new location rather than clearing the original meeting room, the court held that the statutory exception did not apply.

Subsequent Proceedings

The California State Association of Cities and the League of California Cities requested an order to depublish the opinion, and the Supreme Court declined. In a concurring statement, however, Justice Groban encouraged the Legislature to revisit the statute, citing local legislative bodies’ “legitimate concerns that attempting to clear a room of unruly members of the public could create a dangerous situation for attendees and government officials alike.”

— Louisa I. Rogers

FIRST DISTRICT REVERSES DECISION SETTING ASIDE TOWN OF TIBURON’S GENERAL PLAN UPDATE

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In The Committee for Tiburon LLC v. Town of Tiburon (Cal. Ct. App., Feb. 2, 2026, No. A171983) 2026 WL 266411, the First District Court of Appeal reversed a trial court decision setting aside the Town of Tiburon’s general plan update and housing element. The court held that a program EIR for a general plan need not include site-specific environmental analysis for housing element sites where no development project has been proposed.

Key Takeaway

  • Identifying housing sites to meet RHNA obligations when no specific housing project has been proposed does not trigger a duty to analyze site-specific impacts in a program EIR.

Background

The Town adopted a general plan update that incorporated its 2023–2031 Housing Element, which identified the Town’s RHNA as 639 units and identified 17 sites for rezoning to accommodate 916 total units.

The Town prepared a program EIR that modeled a full buildout of the 17 sites. Rather than analyzing site-specific impacts, the EIR evaluated the townwide environmental effects of adding 916 housing units. The Town certified the EIR, adopted the general plan update, and later implemented rezonings through amendments to the municipal code.

The Committee for Tiburon LLC (“Committee”) challenged the EIR, asserting the Town violated CEQA by failing to analyze the site-specific impacts of rezoning Site H for very high-density residential use. The trial court granted the petition. The Town appealed.

Appellate Decision

The appellate court reversed, holding that the Town properly used a program EIR to analyze the broad environmental effects of increased housing under the general plan update, and that CEQA did not require site-specific analysis of Site H in the absence of a proposed development project.

The court rejected the Committee’s reliance on Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard), distinguishing Vineyard as involving a concrete, multi-phase development project with foreseeable long-term impacts requiring project-specific analysis. The court observed that the Town’s identified housing sites were not phases of a single project but rather components of a planning document adopted to satisfy RHNA obligations, and there was no certainty that any particular site would be developed. The court emphasized that CEQA’s core purposes cannot be fulfilled without a concrete project, making deferral appropriate when no site-specific proposal exists.

The court also disagreed with the Committee’s argument that reports submitted to HCD during housing element review demonstrated the feasibility of a site-specific CEQA analysis of Site H. The court explained that while the reports described existing conditions, they did not analyze environmental impacts or mitigation measures associated with any proposed project and therefore did not support a requirement for a site-specific CEQA review.

Moreover, the court was not persuaded that deferring site-specific environmental review does not eliminate future CEQA review. Rather, the court explained that if development on Site H would result in impacts not addressed in the program EIR, CEQA would require additional project-level review tiered from that EIR.

Finally, the court remanded the matter to the trial court to determine whether rezoning of Site H is exempt under SB 131 for rezonings that implement actions contained in an approved housing element, and, if not, whether substantial evidence supports the Town’s determination that the EIR adequately analyzed the zoning amendments and that no supplemental or subsequent EIR is required.

–Adam D. Nir

THIRD DISTRICT AFFIRMS EIR AND WATER SUPPLY ANALYSIS FOR GIOVANNONI LOGISTICS CENTER PROJECT

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In City of Vallejo v. City of American Canyon (Cal. Ct. App., Jan. 14, 2026, No. C102070) 2026 WL 100754, the Third District Court of Appeal affirmed the denial of a CEQA and Water Code challenge to the City of American Canyon’s certification of an environmental impact report (EIR) for the Giovannioni Logistics Center.

This published decision represents a strong result for RMM client, Buzz Oates LLC, confirming that the project’s environmental review and water supply analysis were legally sound and allowing the Giovannioni Logistics Center to move forward. The outcome reflects the effective defense of the EIR by RMM attorneys James Moose and Christina Berglund.

Key Takeaways

  • Once incorporated into and certified with EIR, a water supply assessment is justiciable.
  • Lower historical water purchases do not make EIR speculative absent evidence of actual supply or deliverability constraints.

Background

The project involves developing a 2.4-million-square-foot warehouse complex on industrially zoned land in American Canyon. Once operational, the project is expected to require approximately 23.9 acre-feet per year of potable water—an amount the EIR characterized as modest relative to citywide demand. American Canyon relies primarily on the State Water Project, supplemented by water purchased from the City of Vallejo pursuant to a 1996 agreement. Vallejo also holds an appropriative water right under License 7848.

Vallejo challenged the EIR’s water supply assessment under CEQA and Water Code sections 10910 and 10911, arguing that the analysis overstated water availability and failed to address several asserted constraints. The trial court denied the petition. Vallejo appealed.

Appellate Decision

CEQA Claims

The Court of Appeal rejected each of Vallejo’s CEQA claims, emphasizing that CEQA requires a reasoned analysis of water availability—not certainty, perfection, or exhaustive detail.

  • Authorized vs. actual water purchases. Vallejo argued that the EIR was misleading because it relied on American Canyon’s contractual entitlement to purchase water rather than the lesser amount it historically purchased. The court disagreed, explaining that the record contained no evidence showing that the difference reflected supply constraints, rather than economic decisions by American Canyon. Critically, the court noted that the EIR properly relied on American Canyon’s urban water management plan, which explained that while Vallejo treated water is a reliable source, American Canyon typically purchases less than its full contractual allotment because of its higher costs, not because the water is unavailable.
  • Place of use restrictions. Vallejo also contended the EIR was deficient for failing to discuss place-of-use restrictions associated with License 7848 water. The court acknowledged that such restrictions could, in a narrow sense, affect where the water may be used, but emphasized that they did not reduce the overall volume of water available to the citywide system. Even assuming disclosure might have been appropriate, the court held Vallejo failed to show prejudice—because the EIR evaluated water supply and demand on a citywide basis and substantial evidence supported its conclusion that supplies were sufficient under all modeled scenarios.
  • Curtailment analysis. Vallejo argued the EIR should have analyzed water availability on a monthly basis and addressed the risk of “simultaneous curtailment” affecting multiple imported sources. The court rejected both arguments. CEQA Guidelines section 15155 requires consideration of drought and curtailment risks but does not mandate monthly projections. The court also found the EIR adequately disclosed that American Canyon’s imported supplies share common infrastructure and hydrologic constraints and described contingency planning for dry years.
  • Alternative water sources. Vallejo’s argument that the EIR was required to analyze alternative water sources failed for two reasons. First, the issue was not preserved in the trial court. Second, an alternative analysis is required only when a lead agency cannot determine that sufficient water will be available—a finding American Canyon never made.
  • Related contract litigation. Finally, Vallejo argued the EIR should have disclosed separate litigation over the 1996 agreement. The court declined to find error, noting that the record contained no information about the litigation’s substance or potential effect on water availability. Without such evidence, Vallejo could not demonstrate that the omission was material or prejudicial.

Water Code Claims

The court also rejected Vallejo’s claims under Water Code sections 10910 and 10911. Although water supply assessments are often treated as preliminary informational documents, the court held Vallejo’s claims were justiciable because the assessment had been incorporated into and certified in the EIR.

On the merits, the court concluded the assessment adequately identified relevant water supply contracts and relied on American Canyon’s urban water management plan to describe historical deliveries. The Water Code does not require the level of detail Vallejo sought, nor does it require a contingency plan unless the agency determines supplies will be insufficient—which American Canyon did not.

– Adam Nir

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