Author Archives: Christina Berglund

RMM Attorneys to Speak at AEP Advanced CEQA Workshop

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We’re pleased to share that two of our attorneys will be speaking at the Association of Environmental Professionals (AEP) Advanced CEQA Workshop on February 27.

• Nathan George will speak at the Superior Chapter workshop in West Sacramento
• Nina Berglund will speak at the San Francisco Bay Area Chapter workshop in Eureka

We look forward to engaging with planners, consultants, and agency staff on advanced CEQA issues across Northern California.

More information: https://www.califaep.org/2026_advanced_ceqa_workshop.php

U.S. DEPARTMENT OF THE INTERIOR DELAYS MONARCH BUTTERFLY LISTING AND OTHER ENDANGERED SPECIES DECISIONS

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Despite concern over the monarch butterfly’s population decline, the U.S. Department of the Interior has delayed—indefinitely—the decision to list the species as threatened under the Endangered Species Act (“ESA”). The listing was expected to be finalized in mid-December 2025, following a proposal issued by the U.S. Department of Fish and Wildlife in December 2024. Instead, the Department of the Interior placed the decision on its Spring 2025 Agency Rule List as a “long-term action”—a designation that carries no deadline and effectively places the decision on hold for an undetermined period of time. The change not only delays action on the monarch butterfly but also signals broader slowdowns for many other species awaiting listing decisions.

The U.S. Fish and Wildlife Service’s December 2024 Special Status Assessment Report identified habitat loss and degradation as primary drivers of the monarch’s health decline. Chief among these threats are the conversion of grasslands to agricultural uses, the widespread application of herbicides and insecticides, continued urban development, and the compounding effects of climate change. The report concluded that these largely human-driven stressors have contributed to the ongoing loss and degradation of breeding, migratory, and overwintering habitat throughout the monarch’s North American range

If finalized, the proposed listing of the monarch butterfly as threatened under the ESA would authorize the U.S. Fish and Wildlife Service to adopt species-specific protections tailored to preventing further population decline and designate approximately 4,395 acres of critical habitat. The U.S. Department of the Interior’s decision to classify the listing as a “long-term action,” however, signals that these protections are not expected to move forward in the near term.

– Veronika Morrison

FOURTH DISTRICT HOLDS THAT THE BOARD OF FORESTRY AND FIRE PROTECTION MUST CONSIDER TYPE CONVERSION IMPACTS IN PROGRAM EIR

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In an unpublished decision, California Chaparral Institute v. Board of Forestry and Fire Protection (May 30, 2025, No. D083484), the Court of Appeal for the Fourth District, Division One, held that the State Board of Forestry and Fire Protection’s (the Board’s) certification of the Program EIR (PEIR) for its vegetation management and treatment program (the Program) violated CEQA because it failed to make findings or discuss mitigation for vegetation type conversion impacts. The court emphasized the irony of the Board’s argument that type conversion—which results in a more flammable landscape—is not a significant impact of prescribed burns.

Background

To address the State’s wildfire crisis, the Governor issued an executive order directing the Cal Fire to improve forest management and reduce barriers for prescribed fires. The Board—the body within Cal Fire tasked with developing the State’s forest policy—proposed the Program to reduce wildfire risks via controlled burning and other techniques to decrease the types of vegetation that fuel wildfires.

Public Resources Code section 4483 requires that the PEIR for the Program provide additional consideration for sensitive chaparral and coastal sage scrub plant communities, and that treatments of these species should only occur if Cal Fire finds the activity will not cause “type conversion,” meaning a shift from native shrub-dominated vegetation to vegetation dominated by weedy or non-native grasses and herbs. The PEIR included standard project requirement (SPR) BIO-5, which would require future project proponents relying on the PEIR to avoid “type conversion” where chaparral and coastal sage scrub are present. To do so, proponents must work with qualified forestry or biological experts to design treatments that prevent type conversion, evaluate impacts at an appropriate site scale, and demonstrate that the habitat function of these species would be maintained for the affected vegetation communities.

Plaintiffs California Chaparral Institute and the Endangered Habitats League (Plaintiffs) filed a petition for writ of mandate alleging violations of CEQA and Public Resources Code section 4483. Plaintiffs argued that the PEIR fell short in several key respects. Specifically, they contended the PEIR failed to analyze the risk of vegetation type conversion from native shrublands to more flammable grasslands and improperly deferred key impact analysis to future project proponents without clear standards or guidance.

The trial court denied the petition. This appeal followed.

Appellate Decision

Vegetation Type Conversion Impacts

Regarding the effects of “type conversion,” the court explained that the PEIR acknowledged a basic problem: burning chaparral and coastal sage scrub too frequently can prevent shrubs from regenerating, converting native shrublands into grasslands that are more flammable and therefore more vulnerable to wildfire. The Board assumed that this risk would be avoided because projects must follow SPR BIO-5, which is designed to “mimic” natural fire cycles and would prevent the removal of immature shrubs. The court found this assumption was unsupported by the record. The court noted that the PEIR did not clearly prohibit burning immature shrubs. The court further observed that the PEIR acknowledged that chaparral and coastal sage scrub are already burning more frequently than under natural conditions. As a result, prescribed burns are not “restoring” a natural fire regime but instead add to already excessive fire frequency—making vegetation type conversion and increased fire risk more likely. Finally, the court explained that because wildfire timing cannot be controlled, deliberately burning these shrubs more frequently will essentially guarantee that one fire or another (wild or prescribed) will eventually cause type conversion.

For these same reasons, the court also found that the Board’s conclusion that the Program would avoid type conversion impacts by requiring treatment activities that return vegetation to their natural “condition class,” which refers to how closely an area’s current vegetation and fire behavior match what would be expected under natural fire cycles, taking into account plant composition and fire frequency.

The court also rejected the Board’s reliance on a requirement to design treatments to maintain or improve the habitat function of chaparral and coastal sage scrub. It reasoned that this standard allows prescribed burns even when shrublands are within their “natural fire return interval,” which the court explained would allow even at-risk chaparral and coastal sage scrub to be reduced by more than 65 percent—meeting the PEIR’s definition of type conversion. The court further found the Board failed to show how protecting habitat function would prevent increased fire risk, and that the record did not support the conclusion that this approach would avoid vegetation conversion or wildfire impacts.

Tiering of Impact Analysis to Future Project Proponents

The court rejected the Board’s claim that increased wildfire risk could be deferred to later project-level review, tiered off the PEIR. It held that the impact was “ripe” for program-level analysis because the PEIR already defined type conversion, acknowledged that fuel-reduction treatments could cause it, and recognized that resulting grasses are more flammable and spread fire more quickly. Citing Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 431, the court emphasized that tiering does not excuse agencies from analyzing reasonably foreseeable significant impacts. And even if tiering were appropriate, the PEIR failed to provide meaningful mitigation guidance or performance standards for future projects.

Additional Arguments

The court rejected several other defenses raised by the Board. It held that Plaintiffs were not required to submit independent expert evidence because they relied on the PEIR’s own admissions that vegetation treatments could cause type conversion, which the court found sufficient and applicable to future conditions. The court also rejected the Board’s claim that analyzing impacts solely in terms of “habitat function” satisfied CEQA, explaining that compliance with an agency’s chosen threshold does not excuse failure to address substantial evidence of other significant impacts, including increased wildfire risk.

The court further found irrelevant the Board’s argument that Public Resources Code section 4483 imposes duties only on Cal Fire and not the Board, explaining that this does not relieve the Board of its obligations under CEQA to consider reasonably foreseeable environmental impacts of the Program. Finally, the court rejected the Board’s characterization of the case as a policy dispute, noting that Plaintiffs did not challenge the general use of prescribed fire in forests and that requiring analysis of type conversion impacts does not prevent the Board from approving treatments with appropriate findings, including a statement of overriding considerations as necessary.

The court concluded the Board’s CEQA violations were prejudicial because the absence of findings left the public without meaningful information about how type conversion would be evaluated, avoided, or mitigated, and could allow continued loss of already threatened chaparral and coastal sage scrub habitats.

Remand to the Trial Court

The matter was remanded to the trial court with directions to vacate the denial of the writ petition and issue a writ consistent with the appellate court’s decision.

On November 14, 2025, the trial court issued its final judgment and writ directing the Board to correct the CEQA deficiencies in the PEIR. Until those deficiencies are remedied, the PEIR may not be used to approve projects affecting chaparral or coastal sage scrub. The court found the type-conversion issue severable, however, and allowed specified categories of critical safety projects involving these habitats to proceed.

The Board of Forestry will be publishing the Draft EIR for the forthcoming update to the Program EIR referenced in the writ in early to mid- 2026:

https://bof.fire.ca.gov/projects-and-programs/calvtp-homepage-and-storymap/

– Veronika Morrison & Christina Berglund 

CALIFORNIA CHAMBER OF COMMERCE ADVANCES BALLOT INITIATIVE AIMED AT STREAMLINING CEQA FOR “ESSENTIAL PROJECTS”

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On December 26, 2025, the California Chamber of Commerce (“CalChamber”) received title and summary for a statewide CEQA initiative titled “Building an Affordable California” (“BACA”), which would shorten lead agency review and permitting timelines, substantially narrow the scope of judicial review, and expedite litigation schedules for specific “essential projects.” If passed by a majority of voters in the fall of 2026, BACA would mark the most significant CEQA overhaul since its inception in 1970.

BACA would introduce substantial changes to CEQA review and litigation for a wide range of projects. To accomplish this, the initiative proposes the following series of key procedural and substantive reforms.

What counts as an “essential project”?

BACA broadly defines an “essential project” as one related to broadband, clean energy, housing, education, public health and safety, transportation, and water supply. The initiative further defines each category of “essential project,” ranging from residential and mixed-use developments to renewable energy generation and transmission infrastructure, medical facilities, wildfire risk-reduction projects, transit and roadway improvements, and water system upgrades.

BACA subjects all “essential projects” to labor standards. Essential housing projects must comply with AB 130’s labor requirements. In contrast, all other “essential projects” must adhere to the labor requirements applicable to environmental leadership development projects under Public Resources Code section 21183.5.

The initiative also allows an applicant with a pending application for a covered project to withdraw the application and resubmit it to avail itself of BACA’s streamlined framework. Essential housing projects receive additional protection: applications for qualifying “essential projects” may be withdrawn and resubmitted without losing vested rights under California housing laws, including the Subdivision Map Act and the Housing Accountability Act.

Strict deadlines for determination of application completeness

Agencies must issue a written determination of application completeness within 30 days of receipt; otherwise, the application is deemed complete by default. If an application is found incomplete, the lead agency must provide an exhaustive list of deficiencies. The applicant has 90 days to resubmit, and the agency may rely only on that original deficiency list when evaluating the resubmittal. Applicants may extend the 90-day resubmittal period by notifying the agency of the additional time needed and the reasons for the extension.  An applicant may challenge a determination of application incompleteness, and any appeal must be decided within 60 days; if not, the application is deemed complete by default. The initiative would provide applicants with a 90-day window to seek judicial review following a final adverse written determination.

Enhanced tribal consultation requirements

BACA would establish a two-step tribal consultation framework consisting of early initial screening followed by formal consultation. Initial screening would begin before an application is deemed complete and would require early record searches and information sharing with affiliated, federally recognized tribes, with opportunities for the tribe, lead agency, and the applicant to meet and identify resources and potential treatment measures.

Formal consultation then proceeds largely under existing CEQA law, but with enhanced requirements for early disclosure of studies and draft environmental documents, and with agreed-upon mitigation measures becoming enforceable conditions of project approval. In this way, BACA retains AB 52’s core consultation principles but moves tribal consultation earlier and includes defined timelines and outcomes directly tied to project approval.

Environmental review for “essential projects”

Once an application is deemed complete, the agency has 30 days to determine the required level of environmental review­—and that review must be completed within 365 days for an EIR, 180 days for a negative declaration or MND, or 90 days for an exemption. An applicant can request an extension of these deadlines. Notably, “days” in this context expressly excludes weekends and state holidays; all other deadlines in BACA are measured in calendar days.

If, however, an agency fails to meet the mandated deadlines, an applicant may require the agency to hold a public hearing on the project. Within 60 days of an applicant’s request for a hearing, the agency must either complete the environmental document, and the “highest-ranking decision-making body” must then hold a hearing at which the project must be approved or denied. If a recommendation from the planning commission or the planning director is needed, the initiative requires that it occur within 30 days of the applicant’s request for a hearing.

BACA also mandates public comment periods of 20 days for a negative declaration or MND and 45 days for EIRs, with extensions allowed only by court order.

Additionally, the initiative narrows the way agencies evaluate environmental impacts for “essential projects” and gives applicants greater control over the standards that apply. Agencies would be required to identify, assess, determine significance, and mitigate the project’s impacts based on compliance with “existing law,” in effect when the project application is submitted, with limited carve-outs for life-safety and building code updates. Applicants may “vest into” significance thresholds the agency published, adopted, or routinely used before the application was filed, and the agency must use those thresholds in its analysis.

Finally, after the lead agency completes CEQA review, BACA requires the lead agency to issue a final decision on any permit or approval concurrently with its final CEQA determination for the project, subject to a narrow exception for certain state agencies with evidentiary hearing requirements. Any non-lead agency with permitting jurisdiction over the project, e.g., responsible or trustee agencies, must issue a final decision 90 days from a determination of application completeness for the approval it is considering or within one day of the lead agency’s approval of the environmental document, whichever is later. If an agency fails to meet these permitting or approval deadlines, the applicant may demand that the agency approve or deny the permit or approval at a hearing that must occur within 45 days of the applicant’s demand.

Preliminary scoping and streamlined alternatives analysis process

BACA would create a voluntary preliminary scoping process paired with a streamlined alternatives analysis. Applicants who choose this path must provide advance written notice, which includes a high-level project description, to the lead agency. The lead agency and applicant must meet during this period to discuss the project, potential alternatives, and affected resources. Public input may be submitted by email, but the applicant is not required to respond. The preliminary scoping process must be completed within 60 days of the applicant’s written notice.

After which, the applicant must generate a single project alternative informed by the input received during the scoping process. The alternative must be consistent with the project’s fundamental purpose, should align with local zoning and land use policies where practicable, and should not need to be located on a different site. The alternative may include on- or off-site improvements and operational parameters designed to reduce environmental impacts.

Within 15 days following completion of the preliminary scoping process, the applicant must share a description of the project, the single proposed alternative, and the no project alternative, which must consider the reasonably foreseeable impacts in the absence of the project, including alternative uses and foregone project benefits. The lead agency then has 15 days to determine whether the applicant has complied with the streamlined scoping and alternatives requirements. If the agency does not act within that period, compliance is deemed certified by default. Any certification may be administratively appealed within 5 days, after which it becomes final.

If an applicant does not opt into this process, the standard CEQA alternatives analysis requirements would apply.

Streamlined judicial review of “essential project” approvals

BACA would require CEQA challenges to “essential projects” to be filed within 30 days of the notice of determination or exemption, and the entire case—including any appeal—must be completed within 270 days. A court may extend that deadline by up to 90 days, but otherwise extensions are permitted only with the mutual written consent of the petitioner, the public agency, and the applicant.

The initiative would also significantly restructure judicial review of “essential projects” by narrowing the scope of claims, altering standards of review, and limiting both the evidentiary record and available remedies.

  • Standard of Review: In actions challenging approval of an “essential project” for CEQA noncompliance, judicial review is confined to whether the approval complies with objective, pre-existing legal requirements, and the court may only determine whether the project approval is supported by substantial evidence in light of the whole record. Challenges based on alleged public-participation defects are further constrained to whether the error was arbitrary and capricious and resulted in prejudicial harm.
  • Administrative Record: Under BACA, the administrative record for an “essential project” is limited to materials that were publicly disclosed during the CEQA process. The record consists only of notices, studies, and other documents that the lead agency was required to distribute to the public, make available at a public repository, or post on its website; and public comments submitted during the comment period (and a narrow category of late comments), along with the agency’s responses to those comments. Materials outside this universe are excluded from the record.
  • Remedies: If a court finds that an approval is not supported by substantial evidence, it must issue a writ of mandate identifying the specific legal deficiency and the particular part, phase, or activity affected. The remedy is limited to temporarily halting only the noncompliant portion of the project until the deficiency is corrected. Courts are expressly prohibited from rescinding project approvals, and unaffected portions of the project may proceed and are insulated from further CEQA challenge once compliance is achieved.
  • Subsequent Approvals: Once a project approval is either not challenged, upheld in court, or brought into compliance through a court-approved return to the writ, no further CEQA actions may be filed to challenge later phases, construction, or subsequent approvals of the project. In addition, minor project modifications that do not create new significant impacts or substantially worsen previously identified impacts are expressly insulated from further CEQA challenge.
  • Injunctive Relief: A court may grant injunctive relief only upon a showing of clear and convincing evidence of an unmitigable adverse impact on public safety, and any such relief is limited to a temporary injunction.

The Building an Affordable California Initiative is available online at: https://oag.ca.gov/system/files/initiatives/pdfs/25-0023A1%20%28%26quot%3BEssential%20Projects%26quot%3B%29.pdf

For additional information or questions, please contact Christina L. Berglund (cberglund@rmmenvirolaw.com) or Blaine R. Dyas (bdyas@rmmenvirolaw.com)

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

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In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

FIRST DISTRICT HOLDS EIR FOR UC BERKELEY’S LONG RANGE DEVELOPMENT PLAN AND STUDENT HOUSING PROJECT INADEQUATE

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In Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the First District Court of Appeal found the EIR for the UC Berkeley long range development plan (LRDP) and a student housing project inadequate. While the court rejected most of the petitioners’ claims, it held that the EIR failed to consider alternative locations for the housing project, and it did not analyze potential noise impacts caused by students in residential neighborhoods near campus.

Background

In 2021, UC Berkeley adopted the LRDP to guide the university’s development decisions through the 2036-2037 academic year. The LRDP estimated future enrollment levels for planning purposes, but did not establish any enrollment levels. In part, the LRDP provides a strategy to increase housing in response to both a decades-long housing crisis in the region and a projected future increase in the campus population.

Consistent with the LRDP, the UC Regents began planning two student housing projects. One of those projects is located at People’s Park, a historically significant landmark associated with social and political activism in Berkeley. People’s Park is now occasionally used as a venue for special events, but is predominantly used “by transient and unhoused people in multiple encampments” and “is afflicted with crime.”

The Regents certified a hybrid EIR including a program-level review of the approval and implementation of the LRDP as well as a project-level review of the two housing projects.

Petitioners Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group filed a petition for writ of mandate alleging the EIR violated CEQA. The trial court denied the petition. Petitioners appealed.

Court of Appeal’s Decision

The court rejected petitioners’ arguments that (1) the EIR’s analysis of alternatives to the LRDP was insufficient, (2) the EIR improperly restricted the LRDP’s geographical scope to the campus, and (3) the EIR’s treatment of impacts related to population growth and displacement of existing residents was flawed. However, the court agreed with petitioners that the EIR’s failure to consider alternative locations for the People’s Park housing project was not adequately justified. Additionally, the court concluded that the EIR did not adequately consider potential noise impacts from student parties on nearby residential neighborhoods.

LRDP Alternatives

The court concluded that the Regents did not violate CEQA by omitting an alternative to the LRDP that would limit student enrollment. The court explained that, because the complicated process for determining enrollment levels is separate from the LRDP process, any alternative requiring a cap in future enrollment levels would change the nature and scope of the plan. Given the constrained purpose of the LRDP to “guide future development regardless of the actual amount of future enrollment,” the EIR did not need to include a capped enrollment alternative.

Scope of LRDP

The court also rejected petitioners’ argument that the Regents improperly segmented the LRDP by focusing only on the campus and neighboring properties and excluding more distant locations. While petitioners argued that the LRDP arbitrarily omitted more remote properties, the court reasoned that it was “perfectly rational” for the Regents to focus primarily on the campus and adjacent properties in the LRDP and develop separate plans for more distant locations.

Population Growth and Displacement

Rejecting a third argument by petitioners, the court concluded that the EIR sufficiently addressed impacts from population growth and displacement of existing residents. The EIR found that the LRDP would induce unplanned population growth, but concluded that this impact could be mitigated to a less-than-significant level by ensuring that the Regents provide local and regional planning entities with annual information about university-driven population growth. Despite petitioners’ assertion otherwise, the court declined to assume that these planning entities would fail to plan for the population growth projected in the LRDP.

Additionally, the court rejected petitioners’ argument that the EIR’s treatment of displacement impacts was inadequate. The court concluded that the EIR properly analyzed these impacts and that petitioners failed to produce sufficient evidence to demonstrate that displacement caused by the project would exacerbate homelessness and in turn lead to environmental impacts.

Site Alternatives to People’s Park

While the court found that the EIR sufficiently analyzed alternatives to the LRDP, it agreed with petitioners that the EIR failed to consider a reasonable range of alternative locations for the housing development at People’s Park. The EIR determined that the housing project would have a significant impact on historical resources, due to the demolition of People’s Park and construction of new housing that would be incompatible with other nearby historical resources. Nevertheless, the EIR did not contain an in-depth analysis of any alternative locations for the housing project.

The court concluded that the EIR’s reasons for declining to consider alternatives were insufficient. The EIR explained that an alternative location might reduce the amount of new housing or require the university to acquire new properties, and that many potential alternative sites were smaller than People’s Park or were close to historical resources. According to the court, these reasons were vague and unequivocal, and did not demonstrate that no feasible alternatives existed.

The Regents argued that developing another site would fail to meet one of the project’s primary objectives—to revitalize the People’s Park site—and the record demonstrated that this was one of the project’s main purposes. The court, however, noted that the cited objective referred generally to “a UC Berkeley property” and not to People’s Park, specifically. The court also determined that the Regent’s arguments for rejecting other locations, even if potentially valid, were not reflected in the EIR.  Similarly, the court concluded that the EIR did not support the Regents’ argument that all of the proposed housing sites would need to be developed to achieve the EIR’s objectives. Moreover, observing that these explanations differed from those in the EIR, the court concluded that the Regents “hid the ball” and failed to adequately inform the public about the project.

Noise impacts

Finally, the court held that the EIR was deficient because it did not analyze potential noise impacts from student parties. In doing so, it determined that substantial evidence in the record supported a fair argument that the LRDP and the housing projects might result in a significant noise impact.

The court acknowledged that “stereotypes, prejudice, and biased assumptions about people served by a CEQA project” cannot constitute substantial evidence for a CEQA claim; however, it rejected the Regents’ argument that concerns about noise impacts from student parties relied merely on improper stereotypes about “loud and unruly drunk college students.”

The court explained that the record revealed noise from student parties to be “a longstanding problem” in the residential neighborhoods near UC Berkeley’s campus. Among other things, the City of Berkeley had previously declared such parties to be a public nuisance and restricted high-density student housing in private homes, neighborhood groups pointed to hundreds of noise citations related to student parties, and the university itself had collaborated with various community groups to address complaints about noisy parties. Given the evidence demonstrating that student party noise was already a problem, the court concluded that there was a reasonable possibility that “adding thousands more students to these same residential neighborhoods would make the problem worse.”

Louisa Rogers

Federal District Court Holds the United States Army Corps of Engineers Violated the Endangered Species Act in Reissuing Nationwide Permit 12 Without Initiating Section 7 Consultation

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In Northern Plains Resource Council v. U.S. Army Corps of Engineers (D. Mont. 2020) 454 F.Supp.3d 985, the U.S. District Court for the District of Montana overturned Nationwide Permit 12 (“NWP 12”). Of practical importance, the court’s ruling on this matter applies throughout the nation.

Under the Clean Water Act (“CWA”) (33 U.S.C. § 1251 et seq.), the Army Corps of Engineers (“Corps”) is authorized to issue general nationwide permits to streamline the permitting process for certain categories of activities. Nationwide permits may last up to five years, at which point they must be reissued or allowed to expire. NWP 12 authorizes impacts to waters of the United States as a result of construction, repair, maintenance, and removal of utility infrastructure. All nationwide permits, including NWP 12, are subject to 32 general conditions contained in the federal regulations. As relevant here, General Condition 18 prohibits the use of any nationwide permit for activities that are likely to directly or indirectly jeopardize threatened or endangered species or designated critical habitat for such species under the Endangered Species Act (“ESA”) (16 U.S.C. § 1531 et seq.)

NWP 12 is one of 52 nationwide permits the Corps reissued in 2017. In reissuing NWP 12, the Corps determined that NWP 12 would result in no more than minimal individual and cumulative adverse effects on the aquatic environment under the CWA and further concluded that NWP 12 complied with both the ESA and the National Environmental Policy Act (“NEPA”) (42 U.S.C. § 4321, et seq.). The Corps determined there would be “no effect” to ESA-listed species or critical habitat and did not initiate consultation with the U.S. Fish and Wildlife or National Marine Fisheries Service (collectively, the “Services”). Pursuant to NEPA, the Corps prepared an Environmental Assessment and issued a Finding of No Significant Impact.

Northern Plains Resource Council, et al. challenged the Corps’ action to reissue NWP 12, alleging it violated the ESA, NEPA, and the CWA.

Specifically, plaintiffs argued that the Corps’ failure to initiate programmatic consultation with the Services violated the ESA. The Corps, in response, contended that it did not need to conduct programmatic consultation because project-level review and General Condition 18 ensure that NWP 12 will not affect listed species or critical habitat. The court disagreed, finding there was substantial evidence supporting the contrary conclusion, therefore requiring the Corps to initiate consultation to ensure that activities authorized by NWP 12 complied with the ESA. The court emphasized that the Corps had acknowledged the many risks associated with discharges authorized by NWP 12 when it was reissued in 2017. For example, the Corps found that the construction of utility lines “will fragment terrestrial and aquatic ecosystems” and further stated that activities under NWP 12 “will result in a minor incremental contribution to the cumulative effects to wetlands, streams and other aquatic resources.” Moreover, the Corps had initiated consultation when it reissued NWP 12 in 2007 and 2012. The court also relied on expert declarations submitted by plaintiffs stating that the Corps’ issuance of NWP 12 authorized discharges that may affect endangered species and their habitats.

The court further held that General Condition 18 fails to fulfill the Corps’ obligations under the ESA. General Condition 18 requires the permittee to submit a pre-construction notification to the district engineer if the permittee believes that its activity “might” affect listed species or critical habitat. The court found that this improperly delegated the Corps’ responsibility to make the initial effect determination under the ESA.

Holding that the Corps’ “no effect” determination and resulting failure to initiate consultation prior to reissuance of NWP 12 was arbitrary and capricious, the court remanded NWP 12 to the Corps for compliance with the ESA. The court determined that it need not decide the plaintiffs’ remaining claims as it anticipated that Section 7 consultation will inform the Corps’ assessment under NEPA and the CWA based on the findings of the consultation.

Second District Court of Appeal Upholds Dismissal of CEQA Action as Untimely

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On April 2, 2020, the Court of Appeal for the Second Appellate District in Coalition for an Equitable Westlake/Macarthur Park v. City of Los Angeles (2020) 7 Cal.App.5th 368 affirmed the trial court’s decision sustaining a demurrer without leave to amend because the petitioner’s claims were barred by the famously short statute of limitations for actions brought under CEQA. (Pub. Resources Code, § 21000 et seq.)

On March 3, 2017, after holding a public hearing, the advisory agency for the City of Los Angeles approved a vesting tentative tract map for the Lake on Wilshire Project, a mixed-use project consisting of a hotel, a residential tower, and a multi-purpose center with a theater. Prior to approving the tentative map, the advisory agency adopted a mitigated negative declaration. The city filed a notice of determination (NOD) on March 15, 2017.

Subsequently, on October 12, 2017, the planning commission approved conditional use permits for the project—finding that no subsequent review was required. Two tenants of an existing building on the project site appealed the planning commission’s decision. The city council denied the appeals on January 31, 2018, and further adopted a resolution approving general plan amendments in connection with the project.

On March 2, 2018, the petitioner filed a petition for writ of mandamus challenging the approval of the MND as violating CEQA. The city and real parties in interest filed a demurrer. The trial court sustained the demurrer without leave to amend on the grounds that the petitioner’s claims were time-barred under CEQA for failure to seek relief within 30 days after the NOD was filed on March 15, 2017.

In holding that the petitioner’s suit was untimely, the court found that application of the statute of limitations bar to the petitioner’s challenge was straightforward. The petitioner did not bring the CEQA action until March 2, 2018, nearly a year after the city approved the tentative map and posted the NOD. The court explained that there were only two situations where the filing of a NOD would not trigger CEQA’s statute of limitations—if the NOD is invalid on its face because the information required by the CEQA Guidelines is missing or incorrect, or where the NOD is filed before a decision-making body has approved the project. The court found neither of those circumstances existed.

Rather, the petitioner had attacked the validity of the NOD based on the advisory agency’s authority to make CEQA finding, including that: (1) the planning commission (not the advisory agency) was responsible for initial project approval and CEQA review; (2) the advisory agency lacked authority under the municipal code to make CEQA findings; (3) the advisory agency’s CEQA decisions were not properly appealable to an elected body; and (4) the authority to approve the project was improperly bifurcated from the authority for CEQA approval. In rejecting this argument, the court, quoting the California Supreme Court’s decision in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 499, stated that the petitioner ‘confuses the timeliness of a lawsuit with its merits.’” To the extent a petitioner wished to challenge the advisory agency’s authority to make the initial project approval or adopt the MND, the court held that those arguments needed to be made within the applicable statute of limitations period. Because they were not, the petitioner was precluded from raising such arguments.

Second District Court of Appeal Upholds EIR for Refinery Project

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The Second District Court of Appeal upheld an Environmental Impact Report (“EIR”) for a South Coast Air Quality Management District (SCAQMD) permit for operational changes to two existing refinery facilities. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2020) 47 Cal.App.5th 588.) Praising both the lead agency and the EIR, the Second District Court of Appeal considered and rejected four arguments made by petitioner. One justice dissented on the issue of baseline.

Tesoro Refining and Marketing Company proposed the Los Angeles Refinery Integration and Compliance Project (“project”), which would integrate two of Tesoro’s oil refining facilities so that Tesoro could more flexibly alter outputs of gasoline and jet fuel, and reduce emissions in order to reduce air pollution and increase compliance. The SCAQMD was required to issue a permit, which allowed the facility to generate more heat, for the project. The court described three key points about the permit: (i) it was a paper change only and did not allow for any physical changes to the heater or other hardware; (ii) it imposed new limitations on emissions; and (iii) it allowed the facility to either process a heavier blend of crude or increase throughput by 6,000 barrels per day, but not both. The project would also shut down a catalytic cracking unit, a major source of emissions.

The SCAQMD prepared and certified an EIR which determined that the project would reduce emissions by 36 percent. The court explained that the analysis of emissions was conservative, in part because the EIR assumed the heater had never operated above 252 million BTUs per hour, when in fact it had. The project also imposed limitations on emissions that did not exist before the project. Although, the project could increase throughput or weight of the crude blend, the facility could have no new emissions under the new permit.

The court cited the following facts as pertinent—the draft EIR included over 1,700 pages; the SCAQMD circulated the EIR for 49 days more than required, for a total of 94 days; the final EIR responded to 1,112 pages of comments with 5,700 pages of responses; the United States Environmental Protection Agency (“EPA”) reviewed the EIR and indicated it had no objection to issuing the permit; and the EIR was “many thousands of pages” with the index alone being 180 pages.

Communities for a Better Environment (“CBE”) challenged the project alleging the EIR was inadequate. The trial court rejected CBE’s arguments and upheld the EIR. On appeal, CBE made four arguments.

Baseline

The court rejected CBE’s argument that the baseline was insufficient under CEQA. The EIR relied on a near-peak 98% baseline, based on an average of the refinery’s worst air pollution emissions during the two years leading up to the project, excluding the top two percent of the data in order to leave out extreme outliers. The EIR compared this 98th percentile analysis with impacts from the project and determined the project would reduce air pollution. CBE argued that CEQA requires an average-value baseline, but the court disagreed. The court emphasized that both peak and average can measure actual situations that truly exist, and there is no one “normal” way to measure the baseline. The court concluded that it was rational, and not “sinister or wrong,” to care most about the worst effects of air pollution, which occur when emissions hit their highest levels. Because EPA relies on a similar approach to regulate air pollution at the federal level, the court concluded the use of the 98th percentile baseline was supported by substantial evidence. One justice, however, dissented because federal custom and practice, which “appear[] to be the only substantial evidence found by the majority,” are not enough to support use of the 98th percentile as the baseline.

Pre-Project Crude Oil Composition

The court also rejected CBE’s argument that the EIR was required to provide the information regarding the existing composition of crude oil at the facility. The EIR explained that in order for the refinery to process a different blend of crude oil, the entire system would need to be changed. The EIR clarified that the project would not make these changes, so the court agreed there was no need to include information regarding the composition of crude oil. The project included a fixed crude operating envelope that would be the same before and after the project, and therefore the court agreed that baseline crude oil data was not necessary.

Failure to Exhaust

CBE argued that the SCAQMD was required to explain how it calculated the amount of additional oil that could be processed with the project. But, the court concluded, neither CBE nor anyone else had raised that exact issue before the SCAQMD, and therefore the issue could not be raised on appeal. The court emphasized that “[m]aking ‘broad’ requests that ‘encompass’ an issue raised on appeal is not raising the ‘exact issue’ during the administrative process.”

Existing Volume of Crude and Refinery’s Unused Capacity

Finally, the court concluded the EIR was not required to disclose the existing volume of crude or the refinery’s unused capacity because this data was immaterial to evaluating the project’s air pollution impact. The EIR explained that in order to increase the crude oil processing rate, the facility would need bigger pipes and stronger pumps. Because the project would not make these changes, it would not increase the refinery’s overall throughput. Data about the existing volume of crude processed and the refinery’s unused capacity, therefore, was not necessary.

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