Author Archives: Chris Stiles


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


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

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

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

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

Court of Appeal’s Decision

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

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

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

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

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

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

– Adam Nir


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


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

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

Court of Appeal’s Decision

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

CEQA claim was not moot after project completion

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

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

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

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

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

– Natasha Roland

Environmental Organizations and Air District Secure Remand on Scope of CEQA Remedy in Case Challenging the Port of Los Angeles’ Air Pollution Mitigation Measures

In an opinion filed December 29, 2023, the Fourth District Court of Appeal ruled that the San Diego County Superior Court too narrowly interpreted CEQA’s remedy statute (Public Resources Code section 21168.9). Although the trial court had found that a supplemental EIR (SEIR) certified by the Los Angeles Board Harbor Commissioners violated CEQA in multiple ways, the trial court ordered LABHC only to prepare a revised SEIR, finding that it had no authority under CEQA to issue a broader remedy. The Court of Appeal concluded that the trial court misunderstood the full scope of remedial authority available to the trial court and remanded the case back to the trial court to reconsider the remedy. The Court of Appeal also held that the Port of Los Angeles (Port) lacked substantial evidence to modify certain air quality mitigation measures that had been adopted in connection with a prior EIR prepared for continued operation of the China Shipping Container Terminal at the Port.


The Port of Los Angeles is North America’s largest port, both in terms of container volume and the value of goods handled. Together with the Port of Long Beach, it oversees 64 percent of the West Coast’s maritime trade and 3 percent of the shipping activities across the United States. Spanning 23 cargo terminals, the Port stretches over 43 miles of waterfront. The Los Angeles Harbor Department functions as the Port’s landlord, renting out spaces to tenants who manage cargo operations.

One terminal within the Port is managed by China Shipping, under a lease agreement with Los Angeles Harbor Department. The lease agreement, signed in 2001, grants China Shipping the rights to build and manage the 142-acre terminal over a period of 25 years, with options for renewal. In the case of National Resources Defense Fund v. City of Los Angeles (2002) 103 Cal.App.4th 286 (NRDC I), the Court of Appeal held that the Port was required to prepare an EIR for three planned development phases of the China Shipping terminal.

In 2004, the plaintiffs in NRDC I and the Port reached a court-approved settlement that allowed the Port to finish building the China Shipping terminal and initiate its first operational phase while preparing the court-ordered EIR. In exchange, the Port agreed to incorporate multiple mitigation measures into the project. The settlement also stipulated that the Port must modify its leasing contract with China Shipping to ensure that China Shipping adhered to these mitigation measures, despite not being a party to the settlement.

In 2008, the Port completed an EIR (2008 EIR) for all three construction phases of the terminal and its ongoing operations under a new 40-year lease agreement with China Shipping. The EIR revealed that the operations at the terminal would have significant environmental impacts, particularly on air quality. To address these impacts, the EIR proposed several mitigation measures, including: (1) using 100 percent alternative maritime power by 2011; (2) limiting ship speeds consistent with an expanded vessel speed reduction program; (3) shifting towards the use of cleaner and zero-emission equipment for handling cargo; and (4) increasing the use of liquified natural gas for a larger share of drayage trucks.

Following the 2008 EIR’s certification, the Port failed to amend its leasing agreement with China Shipping to incorporate the recommended mitigation measures. Discussions between the Port and China Shipping reached an impasse, and public documents exposed that the Port had no intention of forcing China Shipping to implement the mitigation measures. Facing public criticism, the Port thereafter announced plans to prepare a SEIR.

In 2019, the Port released a SEIR, detailing revised mitigation measures and asserting that the mitigation measures would be included in the new lease agreement. Despite this, the document did not establish a legal mechanism to enforce the identified mitigation measures, although it did assume that the mitigation measures would be implemented.

Following the SEIR’s certification, environmental organizations and the South Coast Air Quality Management District (SCAQMD) filed separate petitions for writ of mandate, which were later consolidated. The California Air Resources Board and the California Attorney General intervened and the case was transferred to San Diego Superior Court.

The San Diego Superior Court held that the SEIR violated CEQA because none of the proposed mitigation measures was enforceable. Additionally, the trial court concluded that the Port did not have substantial evidence to justify the claim that two mitigation strategies outlined in the 2008 EIR were infeasible. With respect to the remedy, the court held that, in the absence of a consent decree, it could only declare the EIR invalid and order it set aside. In the trial court’s view, it could not order any other remedy because it must not direct the Port as to how to exercise its discretion.

The Court of Appeal’s Opinion

Mitigation Measures

The Court of Appeal first considered the petitioners’ various challenges to the Port’s rejection of suggested mitigation measures as well as the Port’s decision to modify certain mitigation measures adopted in connection with the 2008 EIR. The court held that although substantial evidence supported some of the Port’s mitigation determinations, others lacked sufficient evidentiary support and reasoned explanation.

Aero-Emission Technology for Cargo-Moving Equipment

The petitioners contended that the Port prematurely rejected a potential a pilot program and a subsequent requirement for zero-emission equipment in cargo operations. The Court of Appeal found, however, that substantial evidence supported the Port’s decision to reject this suggested mitigation measure. The Port’s examination of the available technology indicated that zero-emission solutions for cargo-moving equipment do not yet meet the commercial viability or technical standards required for operations at marine terminals. This position was supported by a 2018 Feasibility Study for Cargo-Handling Equipment, which was part of the 2017 Clean Air Action Plan jointly developed by the Ports of Long Beach and Los Angeles. The SEIR concluded that, although promising, zero-emission technologies require further development in terms of technical validation, reliability in operations, and broader industry support from equipment manufacturers. Therefore, at this stage, zero-emission options are not feasible for the existing cargo handling machinery at the terminal. The Court of Appeal found this rationale to be adequate and supported by substantial evidence.

The petitioners also argued that, even if zero-emission equipment is not currently available, the Port should have considered implementing a pilot program for zero or near-zero emission cargo handling machinery. The court rejected this argument, explaining that such a pilot program, being experimental, would not qualify as a mitigation measure because it would not guarantee a reduction in impacts.

Decision to Make a Greenhouse Gas Emissions Fund a Lease Measure (Rather Than a Mitigation Measure)

The 2019 SEIR reported that terminal operations would generate over 10,000 metric tons of carbon dioxide equivalent annually, resulting in a significant environmental impact. To minimize this impact, the 2019 SEIR proposed two initiatives: Mitigation Measure GHG-1, which called for upgrades to LED lighting, and “Lease Measure” (LM) GHG-1, which would establish a Greenhouse Gas (GHG) Emissions Fund under which China Shipping would contribute $250,000 annually for eight years to support Port-sanctioned emissions reduction projects or to buy CARB-approved credits. This $2 million total from China Shipping was intended to offset the anticipated excess GHG emissions by 2030, valued according to the carbon credit market rates of 2019.

Petitioner National Resources Defense Council criticized LM GHG-1 for not sufficiently addressing the long-term GHG emissions from the terminal and for the lack of constraints on purchasing offsets. The Port defended LM GHG-1 as a lease-specific initiative, arguing it was not designed as a mitigation measure for the terminal’s significant environmental impacts, and was thus not subject to CEQA’s rigorous standards for mitigation.

The Court of Appeal held that, despite the Port’s claim, LM GHG-1 is a mitigation measure. Indeed, the SEIR’s wording implied that the Port itself views LM GHG-1 as a form of mitigation, with the SEIR repeatedly mentioning that LM GHG-1 would “mitigate” GHG impacts.

More fundamentally, the 2019 SEIR failed to sufficiently inform the public and decisionmakers about why LM GHG-1 is a lease measure rather than a mitigation measure. In defense of this position, the SEIR stated only that LM GHG-1 could not be a mitigation measure because it was not possible to quantify the measure’s effectiveness. The court found that such an assertion, without a reasoned explanation, is insufficient under CEQA.

The court was also skeptical of the Port’s claim that it quantifying the GHG Fund’s effectiveness was not possible. The court emphasized that the CEQA Guidelines expressly allow for carbon offsets as a form of GHG mitigation when they adhere to specific criteria, including proper evidence and monitoring for fee-based, off-site mitigation efforts. Further, the SEIR included details on China Shipping’s payments to the GHG Fund based on projected excess GHG emissions and the prevailing market value of carbon, suggesting that quantification is possible.

Responses to Comments Suggesting a Third-Party Mitigation Compliance Monitor

Comments on the Draft SEIR requested that the Port appoint an independent third-party monitor to oversee compliance with the SEIR’s mitigation measures. In response, the Final SEIR explained that such a requirement would be beyond the scope of the SEIR and was not required by CEQA. The Court of Appeal upheld this response.

The court explained that the CEQA Guidelines provide that agencies must address significant environmental issues raised in comments, especially when an agency’s position varies from the comments. Here, the Port’s response to the comments requesting an independent mitigation monitor provided a legal rationale for rejecting that proposal, consistent with CEQA. The Port’s response was legally correct in that Port-wide independent oversight would be beyond the SEIR’s purview. CEQA did not require further response on this topic.

The court also observed that although the petitioners framed their argument as challenging the legal sufficiency of the response, their primary concern seemed to be the Port’s choice to monitor its own mitigation compliance. The court noted that, although the Port had historically failed to adequately enforce mitigation at the terminal, the Port’s decision to retain control over mitigation monitoring is allowed under CEQA.

Removal of Mitigation Measure MM AQ-20, Requiring Exclusive Use of Liquefied Natural Gas in Drayage Trucks

The 2008 EIR included mitigation measure MM AQ-20, which mandated a gradual shift away from diesel-powered drayage trucks to liquefied natural gas-powered trucks at the terminal, eventually requiring all trucks to use liquefied natural gas.

The Port retained an environmental consulting firm, Ramboll Environ, to study the feasibility of requiring the use of alternative-technology drayage trucks at container terminals. Ramboll prepared a report that evaluated the viability of imposing an alternative-fuel-only policy at a singular terminal. The report considered various strategies: engaging with trucking companies to exclusively use liquefied natural gas/zero-emission trucks; establishing a terminal-operated drayage service; or denying entry to trucks not powered by liquefied natural gas or zero-emission technologies at the terminal gates. The report concluded that none of these strategies was viable, citing the drayage industry’s structure, the technical challenges associated with liquefied natural gas-powered trucks, and the competitive disadvantage this would impose on a single terminal.

Petitioner SCAQMD argued that the Ramboll report failed to evaluate the economic feasibility of the Port purchasing new liquefied natural gas-powered trucks or promoting their use through subsidies or other financial incentives. The court found this argument mischaracterized the Ramboll report, which had concluded that a terminal-specific mandate for liquefied natural gas-powered trucks was not viable without broader industry-wide changes. The Ramboll report demonstrated that a requirement that one terminal use liquefied natural gas-powered trucks was infeasible, regardless of who would be responsible for purchasing the trucks.

Replacement Measure for Mitigation Measures MM AQ-20.

SCAQMD also argued that the Port violated CEQA by failing to adopt an alternative mitigation measure to Mitigation Measure MM AQ-20 (discussed above). SCAQMD contended that even if liquefied natural gas technology had not advanced since the 2008 EIR, other zero or near-zero emission truck technologies have progressed and have been successfully piloted at the Port. The court found substantial evidence supported the Port’s determination that there are no feasible replacement measures for MM AQ-20.

Firstly, the Ramboll report, which constitutes substantial evidence,  concluded that implementing a drayage truck mitigation measure specific to one terminal, rather than an industry-wide approach, was infeasible. Secondly, the SEIR reviewed ongoing trials of zero and near-zero emission trucks and found significant operational and infrastructural hurdles existed. Finally, the 2017 Clean Air Action Plan developed by the Ports of Los Angeles and Long Beach found that the majority of zero and near-zero emission technologies required further development to achieve commercial viability. These reports and findings constituted substantial evidence in support of the Port’s conclusion that no feasible replacement measures for MM AQ-20 exist.

SCAQMD criticized the Port for only considering technologies that are already extensively deployed, accusing it of interpreting “feasible” as something achievable immediately rather than within a reasonable future timeframe.  The court disagreed, finding that the SEIR did not impose an “immediacy” criterion for feasible mitigation measures. Instead, the SEIR evaluated the current and future states of the drayage truck industry, including technological progress, operational realities, and economic considerations, particularly the implications of enforcing a truck-type requirement at a single terminal. The Port’s decision, informed by these factors, did not constitute an abuse of discretion.

The Port’s Decision to Reduce Vessel Speed Compliance Target in Mitigation Measure MM AQ-10

Mitigation Measure MM AQ-10 from the 2008 EIR required that, by 2009, 100 percent of ships visiting the China Shipping terminal adhere to the Port’s Vessel Speed Reduction Program (VSRP). Introduced in 2001, the VSRP is a voluntary program to reduce emissions by decreasing ship speeds near the Port. Financial rewards were introduced to the program in 2005 to boost adherence within specific nautical mile zones. The 2019 SEIR concluded that achieving 100 percent compliance with the VRSP was infeasible, mandating instead a compliance target of 95 percent.

The Court of Appeal agreed with SCAQMD that the Port lacked substantial evidence and sufficient reason for modifying the compliance target. The court explained that the SEIR cited operational challenges as the rationale for the change, but failed to support that claim with specific evidence or data. Instead, the SEIR’s claim of infeasibility appeared to be largely based on statements from China Shipping, without substantiation.

In defense of its determination that a 100 percent compliance target is infeasible, the Port cited the 2017 Clean Air Action Plan which aimed for a 95 percent compliance level based on the achievements of the voluntary program. This reasoning, however,  failed to consider the voluntary nature of the VSRP and that existing data did not necessarily indicate the outcomes of a mandatory scheme. The court also observed that the China Shipping terminal had surpassed the 95 percent compliance rate, further undermining the Port’s position.

The court also rejected the Port’s argument that lowering the compliance target from 100 percent to 95 percent would result in minimal environmental benefits. The court observed that the Port’s own figures demonstrated a considerable difference in emissions, especially nitrogen oxides, between the two compliance levels. For this same reason, the court rejected the Port’s argument that the difference between 95 percent compliance and 100 percent compliance would not affect potential health impacts.


The court next considered the petitioners’ claim that the trial court had misapplied CEQA’s remedy provisions. The trial court had held that none of the mitigation measures in the 2019 SEIR was enforceable, a CEQA violation the trial court deemed “profound.” Nonetheless, the trial court only ordered the Port to rescind the SEIR, without ordering the Port to stop terminal operations or set a deadline to redress the CEQA violations.

The Court of Appeal agreed with the petitioners that the trial court misunderstood its remedial authority under Public Resources Code, section 21168.9 (“Section 21168.9”). The court reasoned that subdivision (c) of Section 21168.9 clarifies that courts retain equitable powers to remedy legal violations, albeit without prescribing how agencies should exercise their discretions. Moreover, subdivision (a) of that statute empowers the trial court to mandate measures that ensure compliance with CEQA, such as halting environmentally harmful project activities until regulatory compliance is secured. The trial court misinterpreted Section 21168.9 by not considering these broader corrective options.

The Court of Appeal stressed that the trial court in this case has a variety of interventions at its disposal, such as imposing a strict schedule for a revised SEIR or halting terminal operations until certain mitigation steps are taken. Additionally, the court observed, China Shipping is bound by the lease agreement to adhere to mitigation measures detailed in any officially approved environmental documentation.

The court remanded the case back to the trial court to exercise its discretion to remedy the CEQA violations based on the full remedial authority vested in the trial court under Section 21168.9.

Conclusions and Implications

This case affirms the principle that public agencies are permitted to revise previously adopted mitigation measures if there is substantial evidence demonstrating that the original measures are infeasible. Notably, however, the court rejected the perceived attempt by the Port to circumvent CEQA’s requirements for effective mitigation by categorizing a measure as a “lease measure” rather than a true mitigation measure. Emphasizing substance over labels, the court observed that the SEIR essentially treated the lease measure as a mitigation measures, as evidenced by its repeated assertions that the measure would help reduce and mitigate GHG impacts. The court also stressed the Port’s lack of a convincing rationale for not designating the lease measure as a mitigation measure.

This case also highlights the broad and flexible authority granted to trial courts in deciding on an appropriate remedy for CEQA violations. The court’s decision to send the case back to the trial court for reconsideration of a wider array of remedies underscores the critical role of judicial oversight in CEQA, especially in cases involving substantial environmental impacts from major operations like the Port of Los Angeles.







In Delia Guerrero v. City of Los Angeles (2024) ___ Cal.App.5th ___, the Second District Court of Appeal reversed the trial court, finding the petition for writ of mandate untimely under CEQA.


Real estate developers submitted an application to the City of Los Angeles to subdivide a parcel and build 42 single-family homes in Northeast Los Angeles. The City prepared an Initial Study/Mitigated Negative Declaration (MND) in June 2016. The applicants later redesigned the project, and the revised project required zoning changes and approvals for retaining walls. The City updated the MND to reflect the changes.

In March, 2017, after a noticed public hearing, the Department of City Planning adopted the MND and approved a vesting tentative tract map for the project. The Department issued a 30-page letter of determination which summarized the applicable conditions. The City filed a Notice of Determination (NOD) on March 25, 2020.

Two months later, on May 13, 2020, the East Los Angeles Area Planning Commission adopted the MND and made zoning determinations and adjustments necessary for the applicant to construct retaining walls. The Planning Commission also recommended that the City Council adopt the necessary zone change. The Commission issued a letter of determination and filed a second NOD on February 4, 2021.

On June 8, 2021, the City Council adopted the MND and the zone change. The City filed a third NOD on June 18, 2021.

The Trial Court’s Ruling

Delia Guerrero filed a petition for writ of mandate on July 16, 2021, and a first amended petition on August 13, 2021, alleging violations of CEQA, Planning and Zoning Law, and the Subdivision Map Act. The City and the project applicants demurred. The trial court sustained the demurrer as to the Planning and Zoning Law and Subdivision Map Act causes of action. As to the CEQA cause of action, the trial court concluded that the petition was timely because it was filed within thirty days of the final, June 18, 2021, NOD, and overruled the demurrer. After a hearing on the merits of the CEQA claim, the trial court granted the petition. The City and the applicants appealed.

The Court of Appeal’s Decision

The Court of Appeal reversed, holding the CEQA claims were also untimely.  According to the court, the petitioners were required to challenge the MND within 30 days of the first NOD, which was filed on March 25, 2020.

The court raised four key points in reaching its conclusion. First, the court said, CEQA requires public agencies to conduct environmental review as early as feasible. The City did that here when it prepared and adopted the MND prior to the initial March 2020 approval. Second, for projects that are subject to multiple discretionary approvals, the first approval triggers the statute of limitations and later approvals do not restart the clock. Here, the first approval occurred in March of 2020, which triggered the statute of limitations. Third, the purpose of a NOD is to trigger the statute of limitations. Fourth, the petitioners did not identify any changes to the project that might have triggered a requirement for subsequent or supplemental review.

Because Ms. Guerrero filed the petition over a year after the City filed the first NOD, the court dismissed the lawsuit as untimely.


In Santa Rita Union School Dist. v. City of Salinas (2023) 94 Cal.App.5th 298, the Sixth District Court of Appeal found indirect impacts resulting from inadequate funding to construct new schools included in specific plan to be speculative and therefore did not need to be evaluated under CEQA.


The project at issue was a specific plan for a 797-acre site in Salinas. The project included 4,340 housing units with up to 15,928 residents at full buildout, and was anticipated to occur over 20 to 30 years.

The City of Salinas prepared an EIR for the specific plan, which provided a very high level of design detail for certain project components. Where sufficient detail was available, the EIR also provided a full project-level analysis. The EIR stated that the design of school facilities and other public facilities was not known at the time of EIR preparation and so could not be analyzed at the project-level.

The EIR disclosed that the project was expected to generate between approximately 1,927 and 2,354 additional students in the neighborhood. To accommodate these new students, the project included three elementary schools, one of which was already operational, and one middle school, all located within the Santa Rita Union School District, and one high school which was already under construction in the Salinas Union High School District. Throughout the administrative proceedings, the two school districts sent comment letters raising concerns that sufficient funding may not be available for construction of the new schools. The districts argued that the EIR was therefore required to consider the possibility that the districts would need to accommodate the new students at existing schools and evaluate the associated environmental effects. In responses to comments, the city concluded that the information provided by the districts was “too speculative, uncertain, and vague” to give rise to meaningful environmental evaluation, and the city declined to conduct any additional analysis.

In December 2019, the city council approved the specific plan. The districts filed a petition for writ of mandate on the grounds that the EIR was inadequate because it did not evaluate the project’s impacts associated with enrolling new students at existing school sites. The districts also alleged the city failed to provide adequate responses to the districts’ comments.

The trial court granted the petition, finding the EIR inadequate for failing to address potential impacts arising from expansion of existing school facilities and concluding the city failed to adequately respond to the districts’ comments. The trial court delineated between indirect off-site impacts related to modification of existing facilities and direct impacts on those facilities.

On June 23, 2021, the trial court entered a written order ruling on the merits. On August 24, 2021, the trial court entered a stipulated order staying entry of judgment to allow time for settlement discussions and indicating that any appeal would be from the later judgment and not the June 23, 2021 written order. On December 27, 2021, the trial court held a hearing to clarify the judgment and orders. At the hearing, the trial court found that severance of portions of the project under Public Resources Code section 21168.9, whereby the court did not set aside project approvals and only required narrow relief related specifically to the analysis of impacts on schools, was appropriate. The court entered judgment on January 18, 2022. Real parties, but not the city, filed a notice of appeal on February 8, 2022.

Court of Appeal’s Decision


Initially, the court held that real parties’ appeal was not moot even though the city chose not to appeal and instead comply with the trial court’s judgment. Compliance by the lead agency does not eliminate real parties’ right to appeal where that party is exposed to an award of attorney fees.

Next, the court considered whether the appeal was timely. Specifically, the court considered whether the June 23, 2021, order constituted an appealable final judgment. The court explained that an order is final where it disposes of all issues and does not contemplate any further action. In contrast, where further judicial action is essential to a final determination of the rights of the parties, an order is interlocutory. As applied to this matter, the court concluded that the January 2022 judgment began the appeal period because not only did the earlier merits order contemplate and direct later preparation of a judgment and a separate writ, but that order also did not articulate the narrow statutory remedies the court ultimately directed in granting the petition.

School Facilities and Funding under CEQA

Reaching the merits of the case, the court explained that pursuant to the Government Code, including Senate Bill (SB 50), and relevant case law, payment of school impact fees “provide[s] full and complete mitigation” under CEQA for a project’s impacts on school facilities due to increased student enrollment. A project’s indirect impacts on the non-school physical environment and reasonably foreseeable impacts on the environment due to construction necessary to accommodate increased enrollment, however, must still be considered. Nevertheless, the court underscored that for an EIR to be required to analyze such indirect impacts, those impacts must be reasonably foreseeable.

Here, the court observed, the parties did not dispute that the EIR complied with CEQA in providing project-level mitigation measures for non-school physical impacts from construction of school facilities, and the city imposed the required developer impact fees.

The parties disagreed, though, regarding whether the city was required to conduct additional environmental review based on the districts’ assertion that there might be insufficient funding in the future to construct new schools. The court held that under CEQA, the city was not required to: (1) ensure additional school-funding mechanisms beyond school impact fees; (2) resolve the districts’ concerns regarding insufficient funding; or (3) analyze speculative, vague scenarios to accommodate increased enrollment at existing school sites as an alternative to the project.

Responses to Comments

The court characterized the districts’ comments as “non-specific, uncertain, and vague” information that identified only generally potential indirect and off-site impacts related to existing school facilities. The comments were based on decisions the districts might make in the future, and did not describe reasonably foreseeable indirect impacts that the EIR was required to analyze. The city’s response that the analysis requested by the districts was speculative, the court held, was therefore adequate under CEQA.

RMM is Hiring – Environmental Associate Attorney

RMM seeks a full-time Associate with a minimum of 2 years of CEQA/land use-related litigation experience. The position requires excellent written and verbal communication skills, the ability to work independently and efficiently, and membership in the California State Bar.

RMM offers a generous benefit package, pay commensurate with experience, and a hybrid work schedule.

Qualified candidates should submit their cover letter, resume, salary requirements, and writing sample to [email protected]

Court Upholds “Existing Facilities” Categorical Exemption for Diablo Canyon Nuclear Power Plant Lease Replacement

World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476.

The Diablo Canyon nuclear power plant is partially situated on state-owned submerged tidal lands managed by the State Land Commission. The Nuclear Regulatory Commission issued two 49-year leases before the plant began operating in 1985. In 2015, PG&E submitted an application to the State Lands Commission to replace the leases before they expired. In approving the application, the Commission found that the lease replacement was categorically exempt from CEQA under the Class 1 “existing facilities” categorical exemption.

Two non-profit organizations filed a petition for writ of mandate challenging the Commission’s decision. They argued that the lease replacement did not qualify for the “existing facilities” exemption, and even if it did, the “unusual circumstances” exception applied. The trial court rejected these contentions and the petitioners appealed.

Upholding the trial court’s decision, the Court of Appeal first rejected the petitioners’ assertion that the nuclear power plant was not an “existing facility” within the meaning of CEQA Guidelines section 15301. The “existing facilities” exemption covers “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” (Guidelines, § 15301.) The court held that the lease replacement plainly fit within these terms because the nuclear power plant was an existing facility and the lease replacement would not expand its use. According to the court, the petitioner did not point to any evidence that suggested the lease replacement would expand the plant’s current operative condition.

The court also rejected the petitioners’ contention that the “unusual circumstances” exception precluded the Commission for relying on the exemption. That exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).) The court explained that the party seeking to invoke the unusual circumstances exception is typically required to make a two-part showing: (1) that the project has some feature that distinguishes it from others in the exempt class, such as its size or location, and (2) that there is a reasonable possibility of a significant effect on the environment due to that unusual circumstance. The court found it unnecessary to determine whether the lease replacement presented unusual circumstances (the first part of the test) because, even assuming their existence, the petitioners failed to establish that there was a fair argument that any environmental impacts may occur. In making this determination, the court emphasized that the project was simply a lease replacement, and the environmental impacts alleged by the petitioners were not a change from conditions as they had previously existed under the current leases.