Author Archives: Chris Stiles

SECOND DISTRICT COURT OF APPEAL INVALIDATES EIR FOR SPECIFIC PLAN PROJECT BASED ON DEFECTIVE ANALYSIS IF GHG AND WILDFIRE IMPACTS

General Posted by   

In Center for Biological Diversity v. County of Los Angeles (2025) 112 Cal.App.5th 317, the Second District Court of Appeal invalidated an EIR for a specific plan that contemplated expansive development on 12,000 acres in the Antelope Valley.  The Court of Appeal held that the EIR improperly relied on the State’s cap-and-trade program to account for the project’s GHG impacts.  In an unpublished portion of the opinion, the Court also held that the EIR’s analysis of wildfire impacts was inadequate.

Background

In 2019, the County of Los Angeles approved the Centennial Specific Plan, an expansive development on 12,000 acres of land in the Antelope Valley. The project, proposed by Tejon Ranch Company (Tejan), included residential, commercial, and industrial uses. Shortly after the County approved the project and certified its associated EIR, two environmental groups (Center for Biological Diversity and Climate Resolve) filed writ petitions alleging that the EIR lacked adequate analysis and mitigation regarding the project’s GHG emissions and wildfire risk.

The trial court granted the petitions in part. The trial court determined (1) the EIR’s discussion of GHG emissions improperly relied on state cap-and-trade regulations to reduce greenhouse gas emissions impacts below the level of significance, and (2) the EIR failed to analyze off-site wildfire impacts beyond the Centennial project site. Tejan appealed and the environmental groups cross-appealed.

The Court of Appeal’s Decision

The Court of Appeal affirmed the trial court’s decision—holding that the EIR’s discussion of both GHG emissions and wildfire risks were deficient.

GHG Impacts

The Court concluded that the EIR violated CEQA by applying the cap-and-trade program to the project’s estimated unmitigated emissions, minimizing the scope of the project’s impact and thus rendering the EIR prejudicially misleading.

The cap-and-trade program sets a statewide cap on GHG emissions and allows covered entities to buy, bank or sell allowances. Tejon argued that the EIR could utilize cap-and-trade offsets from the project’s energy and fuel suppliers in its analysis of the project’s GHG emissions even though it was not itself a “covered entity” under the program. In applying these “offsets,” the EIR concluded the program would reduce unmitigated emissions from 157,642 to 6,834 metric tons of carbon dioxide per year, and therefore, GHG emissions stemming from the project were “less than significant.”

The Court rejected this approach. According to the Court, though the project’s energy suppliers may be required to surrender compliance instruments to counterbalance the emission increases associated with the project’s electricity and fuel usage, CEQA does not contemplate the application of cap-and-trade offsets to a project’s GHG emissions if it is not a “covered entity” under the program. The Court explained that land use developments such as the Centennial project are not covered by cap-and-trade, and therefore, it was inappropriate to claim the project’s emissions from electricity and mobile sources would be offset by cap-and-trade.

The Court also deemed Tejon’s crediting of offsite emissions reductions to the Centennial project’s analysis unlawful as it violated the “additionality” requirement. Under CEQA Guidelines section 15126.4, subdivision (c)(3), GHG emissions reductions must be “additional” to other emissions reductions required by law, such as those under the cap-and-trade program. The Court stressed the importance of this requirement, noting that if non-additional projects were credited with offsets, it would result in the “double-counting” of emissions that have already been identified in calculating the emissions reductions necessary to achieve the cap-and-trade program’s statewide goals.

Tejon also argued the EIR’s GHG analysis was not misleading as the EIR did not actually claim “mitigation credit” for the emissions it asserted would be offset under cap-and-trade. The mitigation measures section of the EIR, however, included a table showing a 100-percent reduction in total emissions when accounting for cap-and-trade. That table was accompanied by an analysis which stated that cap-and-trade was a “lawful CEQA mitigation measure to reduce GHG emissions.” The Court concluded that this discussion would reasonably lead readers to presume that the cap-and-trade program would offset the project’s unmitigated emissions to zero, which was misleading.

Wildfire Impacts

The Court also affirmed the trial court’s ruling that the EIR’s wildfire impacts discussion was inadequate. Though the project included “substantial” off-site features that were linked to wildfires, the analysis concluded there were no dangerous fire hazards from such features without providing support to reach that conclusion. The Court found the discussion lacked any connection between the threshold criterion for off-site wildfire impacts and the County’s conclusion that the off-site features would not result in significant wildfire impacts.

The County concluded that overall wildfire hazard impacts would be reduced to less than significant with the application of Mitigation Measure 3-9, which required the preparation of an on-site Fuel Modification Plan in compliance with local fire safety ordinances. But the Court found that the EIR provided no specifics or analytical link as to how this mitigation measure would apply to off-site features or reduce off-site risks.

CALIFORNIA ENACTS CEQA AMENDMENTS TO HELP FACILITATE HOUSING

General Posted by   

On June 30, 2025, Governor Newsom signed into law two bills, AB 130 and SB 131, which are intended as a multifaceted approach to address the state’s housing crisis. Among other things, the bills amend CEQA to reduce barriers to constructing new housing in the state.

AB 130

AB 130 exempts infill housing projects from CEQA review. The exemption requires tribal consultation to address impacts to tribal cultural resources. It also includes various requirements related to wages and labor, hazardous material sites, and air quality mitigation for projects near freeways. Projects must meet the following conditions to be exempt under AB 130:

  • The project is smaller than 20 acres, or 5 acres if the builder’s remedy applies.
  • The project is in an incorporated municipality or US Census-defined urban area.
  • The parcel previously had an urban use, 75% of the perimeter is parcels with urban uses, 75% of the area in a quarter mile radius of the site has urban uses, OR 3 out of 4 sides of a quadrilateral parcel and 2/3 of its perimeter have urban uses.
  • The project is consistent with the applicable general plan and zoning ordinance, based on substantial evidence that would allow a reasonable person to find the project consistent.
  • The project creates minimum housing density consistent with California zoning law. In metropolitan counties this would be at least 15 units per acre.
  • The project is not located on protected lands, such as certain coastal zones; prime farmland; wetlands; very high fire hazard severity zones; hazardous waste sites; earthquake fault zones; special flood hazard areas; regulatory floodways; land identified in a natural community conservation plan, habitat conservation plan, or other natural resource protection plan; habitat for protected species under the ESA, CESA, or Native Plant Protection Act; and conservation easements.
  • The project does not require demolition of a registered historic structure.
  • The project does not include a hotel, motel, bed and breakfast inn, or other transient lodging, other than a residential hotel or short-term lodging (Airbnb and similar).

Additionally, to mitigate transportation impacts, AB 130 allows developers to contribute to a Transit-Oriented Development Implementation Fund, which provides loans for affordable, high-density housing near transit stations. The fund is intended to provide another tool for transportation mitigation, with other options still available.

SB 131

For qualifying housing projects that meet all but one condition of a statutory or categorical CEQA exemption, SB 131 limits the scope of CEQA review to the effects of that single condition. This provision does not apply to housing projects that include a distribution center or oil and gas infrastructure or that are on natural and protected lands.

For most projects (but not those including distribution centers or oil and gas infrastructure), SB 131 also narrows the scope of the administrative record for CEQA litigation to exclude internal agency emails not presented to the final decision-making body or reviewed by a supervisory agency official.

Additionally, SB 131 directs the Office of Land Use and Climate Innovation to identify and map eligible infill sites that are consistent with local general plan land use designations and that: (1) reduce travel-related greenhouse gas emissions, (2) reduce conversion of open space for development, (3) facilitate environmentally friendly active transportation, (4) reduce stormwater runoff, and/or (5) bring vibrancy, community, and social connection to neighborhoods.

Finally, SB 131 creates or expands statutory exemptions for various projects:

  • Rezoning to implement a schedule of actions in an approved housing element (which has already gone through CEQA), unless it would allow oil and gas infrastructure or a distribution center, or would allow construction in natural and protected lands.
  • New farmworker housing that receives public funding, or maintenance of existing farmworker housing.
  • Projects to provide sewer service to disadvantage communities with inadequate sewage treatment programs.
  • Community water systems funded by certain programs that (1) result in long term benefits to climate resiliency, biodiversity, and sensitive species recovery, and (2) include procedures and ongoing management for environmental protection.
  • Wildfire risk reduction projects, including prescribed fire and fuel reduction projects less than 50 acres in area and within 0.5 miles of a subdivision, defensible space along egress routes, and home hardening, defensible space, and fuel breaks around structures.
  • Linear broadband deployment.
  • Updates to Natural Resources Agency’s climate adaptation strategy.
  • Activities and approvals necessary or incidental to creating, operating, or maintaining public park nonmotorized recreational trail facilities funded at least in part by the Safe Drinking Water, Wildfire Prevention, Drought Preparedness, and Clean Air Bond Act of 2024.
  • Projects that consist exclusively of a day care center not in a residential area, a rural health clinic or federally qualified health center less than 50,000 square feet, a nonprofit food bank or pantry on a site zoned exclusively for industrial use, or an advanced manufacturing facility on a site zoned exclusively for industrial use. The project cannot be on natural and protected lands.
  • Heavy maintenance facilities within a mile of rail right of way and passenger rail stations for the California high-speed rail project, if an EIR has already been prepared for a similar maintenance facility or the rail station is within the resource study area of a previous EIR, and the project incorporates applicable mitigation measures. The project cannot be on natural and protected lands.

– Hilary K. Sanders

DEVELOPER MUST BE JOINED AS A DEFENDANT ONCE NAMED IN A NOTICE OF EXEMPTION, EVEN IF IDENTIFIED AFTER INITIAL PROJECT APPROVAL

General Posted by   

In Citizens for a Better Eureka v. City of Eureka (June 11, 2025, A170214) __Cal.App.5th__ , the First District Court of Appeal upheld the trial court’s dismissal of a CEQA challenge for failure to timely join a necessary and indispensable party. Petitioner failed to name the developer of an affordable housing redevelopment project in its petition challenging the Eureka City Council’s approval of the sale of a parking lot for the project. The developer was identified in the Notice of Exemption (NOE) that was published after Petitioner filed its lawsuit challenging the City’s first approval related to the project. The case provides guidance on how courts interpret the scope of a “project” under CEQA and clarifies petitioners’ obligations under Public Resources Code section 21167.6.5 when a developer is identified after initial agency action.

Background: Approval of Affordable Housing on Surplus Parking Lot

In April 2023, the Eureka City Council adopted a resolution authorizing the removal of public parking from a City-owned lot to facilitate development of affordable housing. The Council determined that the action was exempt from CEQA under the Class 12 categorical exemption for sales of surplus government property. (CEQA Guidelines, § 15312.) At the same meeting, the City issued an RFP for affordable housing proposals on the site.

One month later, Petitioner Citizens for a Better Eureka filed a petition for writ of mandate challenging the April resolution under CEQA. The petition named only the City and the City Council as respondents. It alleged that the City’s reliance on a Class 12 exemption improperly “piecemealed” the project by focusing on the sale of the parking lot and ignoring the foreseeable redevelopment of the site.

In July, the City Council adopted a second resolution selecting the Wiyot Tribe (Tribe) as the preferred developer and authorizing the City to enter into a memorandum of agreement with the Tribe. The City then filed an NOE citing CEQA’s affordable housing exemptions. (Pub. Resources Code, §§ 21159.21, 21159.23; CEQA Guidelines, §§ 15192, 15194.) The NOE identified the Tribe as the project developer.

Seven months later, Petitioner filed a motion for preliminary injunction. The Tribe later moved to dismiss the petition, arguing that it was a necessary and indispensable party that could not be joined due to sovereign immunity, and, in any event, could no longer be joined because the 35-day statute of limitations following the NOE had expired. The trial court granted the Tribe’s motion to dismiss the petition. Petitioner appealed.

Court of Appeal: The Tribe Was a Required Real Party in Interest

The Court of Appeal affirmed the trial court’s dismissal of the petition. As a threshold matter, the Court rejected Petitioner’s attempt to limit the scope of its petition to just the April resolution authorizing the removal of parking. The Court emphasized that CEQA defines a “project” as the whole of the action, not just isolated approvals. (CEQA Guidelines, § 15378.) Here, although the petition nominally targeted the April resolution, the substance of the petition challenged the environmental effects of the full redevelopment of the site into affordable housing.

Because the Tribe was publicly named as the developer in the July NOE, the Court held that Petitioner was required to name and serve the Tribe as a real party in interest under PRC section 21167.6.5, subdivision (a). The Tribe had contractual development rights, had invested time and resources into planning and funding, and was directly affected by the litigation. Petitioner reiterated its argument that the petition only challenged the City’s authorization of parking removal before the Tribe was identified in the NOE. The Court again rejected this assertion, noting that such an interpretation would circumvent PRC § 21167.6.5’s goal of joining all necessary parties in “one bite” before proceeding to the merits of the action.

Statute of Limitations and Indispensable Party Analysis

The Court next determined that Petitioner’s failure to name and serve the Tribe within 35 days of the NOE barred its joinder. Because the Tribe could not be joined, the Court considered whether it was also indispensable under the four-factor test in Code of Civil Procedure section 389(b). The Court concluded that the Tribe was indispensable.

First, the Court determined the Tribe would be prejudiced by a judgment rendered in its absence, as this would prevent the project from moving forward or at least jeopardize the time and resources the Tribe already contributed to the project. Moreover, Petitioner’s failure to reduce uncertainty in the litigation, such as by seeking a temporary stay to halt progress on the parking lot site, exacerbated prejudice to the Tribe. The Court also concluded that the public rights exception to the traditional joinder rules did not apply because the project was expressly required to comply with all applicable local, state, and federal laws, and there was no evidence that finding the Tribe to be an indispensable party would place the project beyond the reach of the state’s police powers.

Second, Petitioner did not offer any argument that there is some way to avoid or lessen prejudice to the Tribe.

Third, the Court determined a judgment rendered in the Tribe’s absence would not be adequate because the Tribe’s role in developing, building, managing, and operating the project creates a distinct economic interest from the City’s interest in adding affordable housing.

Fourth, the Court explained that it was neutral regarding whether Petitioner would have an adequate remedy if the action were dismissed. While there was no record of other ongoing litigation by Petitioner related to the project, any lack of an adequate remedy was a result of Petitioner’s own failure to timely join the Tribe, and it was not clear that Petitioner would be precluded from challenging future approvals related to the project.

– Veronika Morrison

THIRD DISTRICT CLARIFIES LIMITS ON PERMIT CHECKLISTS UNDER THE PERMIT STREAMLINING ACT

General Posted by   

In Old Golden Oaks LLC v. County of Amador (May 30, 2025, C09948) __Cal.App. ___, the Third District Court of Appeal struck down a vague “catch-all” provision in Amador County’s encroachment permit checklist as inconsistent with the Permit Streamlining Act (Gov. Code, § 65920 et seq.), which requires agencies to “specify in detail” what information is required to process a development application. But this victory for the developer was largely Pyrrhic, as the court simultaneously upheld the County’s authority to demand nearly all the same information under CEQA, based on requirements embedded in the grading permit checklist and municipal code. The opinion underscores the importance of clear submittal requirements, while affirming agencies’ discretion to require environmental documentation under CEQA.

Background

Old Golden Oaks LLC is the owner of a residential subdivision in Amador County. In 2023, Old Golden Oaks applied to the County for encroachment and grading permits for a housing development project. The County deemed both applications incomplete and requested a range of additional materials, including wastewater treatment design plans, a water service agreement, fire protection documentation, and several items particular to the grading permit, including a stormwater pollution prevention plan and an erosion control plan.

Old Golden Oaks responded with a writ petition, arguing that the County’s request for additional information violated the Permit Streamlining Act because the requests were not included in the County’s published checklists. The trial court sustained the County’s demurrer without leave to amend. Old Golden Oaks appealed.

The Court of Appeal’s Decision

The Permit Streamlining Act was enacted to bring clarity and efficiency to the land use development review process. Among other requirements, it obligates public agencies to maintain checklists identifying in detail the information needed to process a permit application. (Gov. Code, §§ 65940, 65941.) These checklists function as procedural safeguards, enabling applicants to know up front what is required for a complete application and preventing agencies from rejecting applications based on unlisted or vague requirements. Old Golden Oaks argued that the County violated the Act by declaring its application incomplete based on information that was not listed in the County’s checklist, particularly under the encroachment permit’s catch-all provision allowed the director to require “[o]ther information.” In the developer’s view, this undermined the Act’s purposes of transparency and predictability.

The County countered that it is impossible to enumerate every potential environmental document that an agency may need to review a project’s impacts, particularly under CEQA. It argued that the open-ended language in the encroachment permit, along with CEQA-related references in the grading permit materials, gave it flexibility to request such environmental information. The court split the difference. It held that the catch-all provision in the encroachment permit checklist violated the Permit Streamlining Act’s requirement to “specify in detail” what must be submitted, explaining that agencies cannot condition application completeness on vague or discretionary demands. On the other hand, the court upheld the County’s treatment of the grading permit, finding that the relevant provisions of the municipal code and permit materials provided sufficient notice that CEQA compliance would be required. Old Golden Oaks had acknowledged that its proposed grading (nearly 59,000 cubic yards) triggered CEQA review under the County’s municipal code. The court agreed with the County that requiring agencies to maintain exhaustive lists of CEQA-related documentation would be impractical and contrary to the goal of obtaining necessary project-specific environmental information. The Permit Streamlining Act prohibits agencies from requiring CEQA compliance prior to deeming an application complete, but it does not prohibit agencies from requiring enough information to determine the appropriate level of CEQA review.

Finally, the court rejected Old Golden Oaks’s argument that the County must house all permit application requirements in a single checklist. The Permit Streamlining Act permits agencies to use “one or more lists,” and including some requirements through cross-referenced sections of the municipal code was sufficient.

U.S. SUPREME COURT NARROWLY CONSTRUES THE UNIVERSE OF INDIRECT EFFECTS TO BE ADDRESSED IN AN EIS UNDER NEPA

General Posted by   

In Seven County Infrastructure Coalition v. Eagle County, Colorado (2025) (May 29, 2025, No. 23-975) 605 U.S. ___, the U.S. Supreme Court held that NEPA affords substantial deference to an agency’s decisions about where to draw the line when considering indirect environmental effects. An agency is not inherently required to analyze impacts of a separate project that might foreseeably result from the project the agency is reviewing, particularly where those separate projects fall outside the agency’s regulatory authority.

Justice Kavanaugh delivered the opinion, and Chief Justice Roberts and Justices Thomas, Alito, and Barrett joined. Justice Sotomayor filed a concurring opinion, in which Justices Kagan and Jackson joined. Justice Gorsuch took no part in the consideration or decision of the case.

Background

In August 2021, the U.S. Surface Transportation Board (Board) prepared a 3,600 page EIS for the Seven County Infrastructure Coalition’s (the Coalition’s) proposed construction and operation of an 88-mile railroad line to connect Utah’s Uinta Basin to the national rail network to facilitate the transportation of crude oil from Utah to refineries in Louisiana, Texas, and elsewhere. The Board approved the project in December 2021.

The EIS noted, but did not fully analyze, the potential effects of increased upstream oil drilling in the Uinta Basin and increased downstream refining of crude oil carried by the railroad. The EIS did not analyze upstream drilling because (i) the project was not an oil well or drilling permit, (ii) the Board has no authority or control over potential future oil and gas development in the Uinta Basin and any such future projects would be subject to the approval processes of other agencies, and (iii) any such future development is speculative and attenuated from the railroad line project. The EIS also explained that downstream oil refining was not analyzed because (i) the Board was not privy to or in charge of the identity of the specific destinations for such projects, and (ii) the Board would have no role in approving or regulating the production, refining, or use of Uinta Basin crude oil.

A Colorado county and several environmental organizations filed petitions for review in the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit vacated the Board’s EIS and approval, concluding that the Board failed to take the requisite “hard look” under NEPA at all of the environmental impacts—specifically the effects of upstream oil drilling and downstream oil refining which were “reasonably foreseeable impacts” that the EIS should have analyzed.

The Coalition and the Uinta Basin Railway sought review. The Supreme Court granted certiorari.

The United States Supreme Court’s Decision

The Supreme Court reversed the D.C. Circuit’s decision, concluding that the Board’s EIS was sufficient under NEPA. The Court explained that the D.C. Circuit did not afford the Board the substantial deference required in NEPA cases, and that the D.C. Circuit erroneously ordered the Board to address environmental effects outside the scope of what NEPA requires.

Agency Deference

The Court concluded that when determining whether an EIS complied with NEPA, courts should afford substantial deference to the agency pursuant to the “arbitrary-and-capricious” standard, under which a court asks only whether the agency action was reasonable and reasonably explained, regardless of whether it agrees with the agency’s decision.

The Court emphasized that NEPA is a purely procedural statute and imposes no substantive constraints on an agency’s ultimate decision on a project. The adequacy of an EIS is therefore relevant only to whether an agency’s final decision to approve the project was reasonably explained. In other words, courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.

The Court further explained that courts should not “micromanage” an agency’s choices regarding the length, content, and level of detail of the resulting EIS, so long as it falls within a “broad zone of reasonableness.” As specifically relevant here, courts should defer to agencies’ decisions about where to draw the line regarding (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand.

The Court noted that court decisions that have not applied this level of deference have “slowed down or blocked many projects,” resulting in fewer and costlier projects.

Moreover, the Court held that an EIS deficiency may not necessarily require a court to vacate the agency’s approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS. In this case, it explained, even if the EIS drew the line on the effects of separate upstream or downstream projects too narrowly, that mistake would not require a court to vacate the approval of the project.

Analysis of Projects Separate in Time or Place

The Court determined that the D.C. Circuit erroneously required the Board to address environmental effects from projects separate in time or place from the railroad line. It stated that the Board’s decision to exclude the upstream oil drilling and downstream oil refining from the proposed project assessed in the EIS complied with NEPA and the Court’s NEPA precedents.

The Court explained that while NEPA might require analysis of the environmental effects of a project that extend outside the geographical territory of the project or occur later in time, if the project at issue might lead to the construction or increased use of a separate project—the agency need not consider the environmental effects of that separate project because the separate project breaks the chain of proximate causation. Effects from a separate project may be foreseeable, but that does not mean that they are relevant to the agency’s decisionmaking process or that it is reasonable to hold the agency responsible for those effects. Agencies may draw a “manageable line” that encompasses the effects of the project at hand, but not the effects of projects separate in time or place.

The Court emphasized that agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority. If other projects are interrelated or close in time to the project at issue, the question is whether that other project is a single project within the authority of the agency at issue—a question that is also deferential to the agency.

Here, the Court concluded that the EIS correctly explained that the environmental effects of future upstream oil drilling are distinct from construction and operation of the railroad line, and that any effects from downstream oil refineries are outside the railroad project. The Court explained that more importantly, the Board has no regulatory authority over the separate upstream drilling and downstream refinery projects, as it does not regulate oil drilling, oil wells, oil and gas leases, or oil refineries, and there is no “reasonably close causal relationship” between the railroad line and the effects of the separate projects.

The Court stated that courts should strive for “clarity and predictability” in deciding cases involving the American economy, noting that some courts have failed to meet that objective. It also explained that citizens may not enlist federal courts to delay or block projects based on the environmental effects of other, separate projects, and that the political process is the appropriate forum in which to air such policy disagreements.

Concurring Opinion (Justice Sotomayor, joined by Justices Kagan and Jackson)

The concurring opinion explained that the majority’s analysis is unnecessarily grounded in matters of policy, and that legal precedent results in the same outcome.

Citing two previous SCOTUS cases, the concurrence reasoned that an agency is not responsible for environmental impacts it could not lawfully have acted to avoid, nor for impacts that are so causally attenuated from the agency’s statutorily assigned tasks that it could not reasonably have been expected to consider them as part of its decisionmaking process.

Here, the concurrence concluded, the Board’s organic statute, the Interstate Commerce Commission Termination Act, provides a clear presumption in favor of approving new railways, and confirms that the Board has no authority or jurisdiction over development of oil and gas in the Basin nor any authority to control or mitigate the impacts of any such development. Therefore, the Board correctly determined that it could not have rejected the railroad line application to prevent effects of oil drilling and refining.

– Veronika Morrison

FIFTH DISTRICT HOLDS THAT COURTS MUST ALWAYS CONSIDER REASONABLENESS IN WATER USE DISPUTES; ENVIRONMENTAL LITIGATION NOT EXEMPT FROM INJUNCTION BOND REQUIREMENT

General Posted by   

FIFTH DISTRICT HOLDS THAT COURTS MUST ALWAYS CONSIDER REASONABLENESS IN WATER USE DISPUTES; ENVIRONMENTAL LITIGATION NOT EXEMPT FROM INJUNCTION BOND REQUIREMENT

In Bring Back the Kern v. City of Bakersfield (2025) 110 Cal.App.5th 322, the Fifth District Court of Appeal held that under Article X, Section 2 of the California Constitution, courts must always consider reasonableness when adjudicating the use of water, even if legislation exists that does not require such determination. The ruling also clarified that nominal bonds are not permissible in environmental litigation under Code of Civil Procedure section 529.

Background

Numerous public and private entities hold claims to the waters of the Kern River through a web of contracts, decrees, and agreements. The City of Bakersfield diverts water through multiple weirs along the river to manage and allocate flows under these rights. Historically, these diversions have prevented water from reaching Bakersfield. However, in 2023, an unusually large snowpack caused increased river flows, allowing water to flow into the City’s riverbeds.

Bring Back the Kern, along with several other non-governmental organizations, sued the City of Bakersfield, alleging violations of Fish & Game Code section 5937. Plaintiffs argued that the City was operating the weirs in a manner that reduced river flows below a volume sufficient to keep fish populations downstream in “good condition.” In addition, Plaintiffs sought and obtained a preliminary injunction directing the City to act in accordance with section 5937.

The City appealed the injunction, arguing that the court erroneously failed to consider the reasonableness of the imposed water use as mandated by Article X, Section 2 of the California Constitution.

The Court of Appeal’s Decision

“Reasonableness” Requirement

The Fifth District reversed the trial court, holding that because the provisions of Section 2 are self-executing, courts must always consider reasonableness when adjudicating competing water use claims, even when relevant statutes exist that have determined a certain use is per se reasonable.

The Court of Appeal determined that because Section 2 expressly requires the use of water be both “beneficial” and “reasonable,” the trial court should have conducted this analysis based on the facts before it prior to granting the injunction. According to the Court, though the California State Legislature deemed the use of water to keep fish in good condition reasonable, courts must make this determination based on the totality of the circumstances in each specific case.  A use determined to be reasonable by the Legislature in one instance may be unreasonable in another—and unreasonable or non-beneficial uses of water are prohibited under the California Constitution. Therefore, while statutes governing the use of water may operate “alongside” Section 2, they cannot outright supplant its provisions.

Bond Requirement

The Fifth District also made an impactful determination regarding the bond requirement for injunctions granted in environmental litigation.

The trial court required that the plaintiffs post only a nominal $1,000 bond as an undertaking for the preliminary injunction. The trial court noted, however, that there was a lack of clarity and conflicting case law regarding whether nominal bonds or waivers were permissible in environmental litigation.

Disagreeing with the trial court, the Court of Appeal found that Code of Civil Procedure section 529 was “quite clear” in its requirement that moving parties must post a bond tethered to the potential damages or costs associated with the injunction. The court noted that the statute provided only four exemptions to this rule, and environmental litigation was not one of them. The court could not insert an exception to Section 529 that did not exist, regardless of whether it was beneficial as a matter of public policy. Upon its order for remand, the Fifth District instructed that no future preliminary injunction could be permitted unless it was conditioned upon the furnishing of an appropriate bond.

– Adam Nir

Fourth District Court of Appeal Strikes Down San Diego County’s VMT Significance Thresholds

General Posted by   

In Cleveland National Forest Foundation v. County of San Diego __Cal.App.5th__, the Fourth District Court of Appeal held that San Diego County’s thresholds of significance for VMT-related impacts were not supported by substantial evidence.

Background

In 2022, following the shift from traffic congestion to vehicle miles traveled (VMT) as the measure of transportation impacts under CEQA, San Diego County adopted transportation-related thresholds of significance for CEQA review as part of a Transportation Study Guide. Among thresholds for other types of projects, the Transportation Guide included thresholds for infill and small projects. Projects that fell under the applicable threshold would have a less than significant transportation impact and be screened from further VMT analysis.

Cleveland National Forest Foundation and another environmental group sued the County, alleging that the infill threshold violated CEQA because it omitted a numeric VMT target, and that both the infill and the small project thresholds were not supported by substantial evidence.

The trial court upheld both thresholds, finding that they were consistent with CEQA and OPR guidance. The petitioners appealed.

The Court of Appeal’s Decision

Reversing the trial court in part, the Court of Appeal held that the thresholds were not supported by substantial evidence.

The petitioners first argued that the infill threshold violated CEQA because it did not have a numerical VMT target. The court disagreed, finding that CEQA does not prohibit a qualitative infill threshold as a matter of law. The petitioners cited CEQA Guidelines section 15064.3, subdivision (b)(3), which “allows agencies to rely on VMT analysis but only where existing models or methods are not available to estimate VMT.”  The court found, however, that this provision did not apply to thresholds, but rather for individual projects. Additionally, OPR’s Technical Advisory on Transportation Impacts recommends using transportation screening thresholds based on qualitative project characteristics. As such, the absence of a numerical threshold did not violate CEQA.

The court next considered the petitioners’ argument that the thresholds were not supported with substantial evidence. Looking first at the infill threshold, the petitioners argued that the County improperly assumed that because infill development generally results in fewer VMT than non-infill development, any infill development under the threshold would have a less than significant impact. The County countered by pointing to  County staff’s opinion that SB 743 was premised on a legislative conclusion that infill development will typically reduce VMT and greenhouse gas emissions. Siding with the petitioners, the court explained that, while the County may rely on staff opinions for substantial evidence, the opinions must be based on a “firm factual foundation.” The court found the County’s justifications were based on the general assumption rather than facts. The court determined that the County was required to make some showing that development consistent with the infill threshold would normally or likely result in an insignificant transportation effect.

Additionally, the court found other evidence in the record indicating that the County’s assumptions were doubtful. For example, consultant reports in the record stated that additional evidence to support the determination that the infill locations would have a less than significant impact would be required and that most locations in the County tend to generate VMT at or about the regional mean. These statements indicated that the infill threshold did not preclude significant impacts. The court also stated that the California Air Pollution Control Officer’s Association’s Handbook was not helpful to the County’s findings because it expressly exempts infill from its methodologies and is inconsistent with the County’s Transportation Study Guide.

Lastly, the court considered whether there was substantial evidence to support the small project threshold. The petitioners argued that the County utilized a recommendation by OPR but failed to support its adoption of this recommendation with evidence that projects under this threshold would have a less than significant transportation impact based on local conditions in San Diego County. The court again sided with the petitioners. According to the court, the fact that OPR recommended thresholds does not excuse the County from providing evidentiary support for the assumption that projects under the threshold would not create significant transportation impacts under local conditions. Accordingly, the court concluded that the small project threshold was also not supported by substantial evidence.

First District Court of Appeal Clarifies CEQA’s Consultation Requirements Under AB 52

General Posted by   

In Koi Nation of Northern California v. City of Clearlake (2025) ___Cal.App.5th__, the First District Court of Appeal set aside a mitigated negative declaration (MND) for a proposed hotel, holding the City failed to comply with CEQA’s tribal consultation requirements under Assembly Bill (AB) 52. The court found the City did not maintain a sufficient record of tribal consultation, failed to engage in meaningful and agreement-seeking consultation, and failed to properly conclude the consultation.

Background

AB 52, signed into law in 2014, amended CEQA to provide that “[a] project with an effect that may cause a substantial change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment.” (Public Resources Code, § 21084.2) As amended by AB 52, CEQA includes definitions for tribal cultural resources and includes formal tribal notification and consultation requirements to facilitate agencies’ consideration of tribal “expertise concerning their tribal cultural resources.” (Public Resources Code sec. 21080.3.1, subd. (a).)

This case arose out of a proposed four-story hotel on 2.8 acres in the City of Clearlake. During initial planning, the City informed the Koi Nation of the proposed project and learned that the site was located near property where a Koi Nation ancestor had resided. Following formal notification from the City, and a meeting between the Koi Nation and City representatives, the Koi Nation submitted a letter requesting mitigation measures to avoid potential impacts to tribal cultural resources. Despite this letter and other follow-up letters, the Koi Nation did not receive any other communication from the City until the Notice of Intent to adopt an MND was circulated.

After the City adopted the MND, the Koi Nation filed a petition for writ of mandate alleging that City failed violated CEQA, including the requirements of AB 52. The trial court denied the petition, finding the Koi Nation did not satisfy the formal response requirements to initiate consultation. The Koi Nation appealed.

The Court of Appeal’s Decision

Formal Notice and Request for Consultation Were Satisfied

The court held that formal notification and response requirements were satisfied by both the City and the Koi Nation. The City sent formal notification to the Koi Nation representative and the Koi Nation representative responded with a written request for consultation. Despite some lack of clarity, the court held there was sufficient context to establish the City was aware the request for consultation was on behalf of the Koi Nation.

The City Failed to Maintain a Sufficient Administrative Record

Following the court’s determination that consultation was properly requested, the court found that the administrative record was insufficient to conclude that the consultation met CEQA’s statutory requirements. CEQA requires that an environmental document must include a general description of the information obtained during consultation, which in this case should have been included in the MND (or in a confidential appendix). Here, the City did not include any information discussed in their meetings with the Koi Nation, the Koi Nation’s concerns, nor any information regarding the mitigation measures requested by Koi Nation. Additionally, there was no record to indicate why the City had adopted some mitigation measures but not others. Rather, the MND only indicated that a meeting with the Koi Nation occurred. Given the lack of information, the court held that the MND did not sufficiently inform decisionmakers or the public.

The City Failed to Engage in Meaningful Consultation

The court also held that the City did not meet AB 52’s consultation requirements.  Consultation is defined as the “[m]eaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement.” (Gov. Code, § 65352.4.) The court determined there was no discussion with the Koi Nation regarding the City’s decision to reject some of the tribe’s requested mitigation measures, nor did the City inform the Koi Nation of such decisions.

The court also found that the City failed to consult with the Koi Nation regarding its determination that the project would have no significant impacts on tribal cultural resources. The City and the Koi Nation did not discuss the contents of the archeological consultant’s report upon which the City’s determination was based, and despite their requests, the City did not give the Koi Nation a copy of the report.  As a result, the court found that the City failed to consider the value and significance of resources to the Koi Nation, which is the purpose of AB 52.

Additionally, AB 52 requires agencies to seek agreement where feasible during consultation. Specifically, the parties in the consultation are required to act in good faith and make reasonable effort to reach a mutual agreement. (Pub. Resources Code, § 21080.3.2, subd. (b)(2).) The court found nothing in the record to indicate that the City sought an agreement with the Koi Nation or that an agreement was infeasible. Since there was no discussion about the City’s reasoning or conclusions related to the project, there was no opportunity for the parties to come to a mutual agreement.

The City Failed to Complete Consultation

While not necessary for the court to consider since there was no meaningful consultation, the court also noted that the City never concluded the consultation process. An agency may certify an EIR or adopt an MND for a project with a significant impact on an identified tribal resource only if: (1) the consultation process occurred and concluded, or (2) the tribe requested consultation and failed to engage in the consultation process, or  (3) the agency provided formal notification and the tribe failed to request consultation within 30 days. (Pub. Resources Code, § 21082.3, subd. (d).) Consultation is considered concluded when the “parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource,” or when “[a] party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.” (Pub. Resources Code, § 21080.3.2, subd. (b).)

The City argued there was no evidence of a significant effect on tribal cultural resources, and therefore, consultation was properly concluded. The court held, however, that the “report did not obviate the need for the City to consider the significance of resources to the Koi Nation in identifying tribal cultural resources.” Without such consideration, the City’s determination that there would be no significant impacts to tribal cultural resources carried no weight. And since there was no evidence that the City made a reasonable effort to reach a mutual agreement with the Koi Nation, the consultation could not be deemed concluded.

The court concluded that the City’s failure to comply with AB 52 was a failure to proceed in a manner required by law. The court also found the City’s failure to comply with the AB 52 consultation requirements meant that information the Legislature has deemed necessary for informed decision-making and public participation was not provided to the decisionmakers or the public, resulting in a prejudicial abuse of discretion.

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

General Posted by   

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.

1234