The Council on Environmental Quality (CEQ) issued new guidance to federal agencies implementing the National Environmental Policy Act (NEPA) on two topics: tracking mitigation and use of mitigation in the context of a Finding of No Significant Impact (FONSI). The guidance became effective through publication in the Federal Register on January 21, 2011 (76 Fed. Reg. 3843). Continue reading →

In Association of Irritated Residents, et al. v. California Air Resources Board, et al. (Case No. CPF-09-509562), the San Francisco Superior Court issued a tentative statement of decision on January 21, 2011, that effectively blocks the California Air Resources Board (CARB) from implementing any greenhouse gas reducing actions outlined in the Scoping Plan passed under Assembly Bill (AB) 32 until CARB complies with CEQA. Continue reading →

Redevelopment statutes have been on the books in California since 1945 when the State became the second in the nation to adopt local redevelopment authorizing statutes. Beginning in the mid-1970s after the end of most federal urban renewal programs, redevelopment became a hugely important economic development tool for local governments. Today, however, the role of redevelopment agencies is much more uncertain. In early January 2011, Governor Brown announced sweeping cuts to the State’s budget to help close the $24 billion budget gap. Among these cuts is a proposal to eliminate redevelopment agencies. The Governor proposed to eliminate redevelopment agencies by July 1, 2011, and shift approximately $1.7 billion to state programs and schools. The potential shift in funding could stop numerous redevelopment projects from going forward. Continue reading →

Lawmakers may be asked once again to approve a bar on suits filed under CEQA for a proposed sports facility. Developer Philip Anschutz is developing plans to build a 64,000-seat NFL stadium in Los Angeles with the ability to expand the seating capacity up to 78,000. At this time, the proposed stadium project has not been officially submitted to the city council. The project would be required to complete an environmental impact report, but there is a possibility that the project proponent may ask the Legislature to protect the project from being sued under CEQA, similar to the immunity granted in 2009 to a rival stadium project in the City of Industry. So far, the stadium proposal has been endorsed by Los Angeles Mayor Antonio Villaraigosa and former basketball player Magic Johnson, among others. At least one state senator has also openly stated it would be fair for the Legislature to grant the same immunity granted to the project proponent in the City of Industry stadium. Continue reading →

The Sixth District Court of Appeal in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 held that the City of Sunnyvale violated CEQA because its EIR for a proposed roadway improvement project failed to analyze the project’s impacts against existing, present day conditions. Instead, the EIR used as its baseline for analyzing project impacts projected traffic conditions in the year 2020, the year the project is expected to go on line. According to the court of appeal, the failure to analyze the project’s impacts against existing conditions constituted a failure to proceed in a manner required by law. Although CEQA states that the existing setting at the time the Notice of Preparation is published “normally” is the baseline for assessing project impacts (CEQA Guidelines, § 15125, subd. (a)), where conditions are expected to change during environmental review, project effects might reasonably be compared to predicted conditions at the date of project approval. But the court drew the line there. “We do not construe the word ‘normally’ … to mean that a lead agency has carte blanche to select conditions on some future, post-approval date as the ‘baseline’ so long as it acts reasonably as shown by substantial evidence.” The Court noted that “The Supreme Court never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as a ‘baseline’ for assessing a project’s environmental consequence.” The Court of Appeal, therefore, found that doing so was a failure to proceed in the manner required by law.

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On December 16, 2010, the California Air Resource Board (CARB) adopted a resolution to approve the proposed “California Cap and Trade Program” with certain modifications that will be completed through a series of 15-day rulemakings.   The cap-and-trade program is designed as a key element in implementing AB 32, the California Global Warming Solutions Act of 2006.  The final regulation must be submitted to the Office of Administrative Law prior to October 28, 2011, and the program will begin in 2012. Continue reading →

In Building Industry Association of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582 , the Fifth Appellate District of the Court of Appeal upheld the County of Stanislaus Farmland Mitigation Program against an attack brought by the Building Industry Association. The Farmland Mitigation Program (FMP) was designed to mitigate for the loss of farmland due to residential development in the County. In essence, the scheme requires mitigation for loss of agricultural land at a 1:1 ratio and requires anyone proposing to develop agricultural land to acquire agricultural conservation easements over an equivalent area of comparable farmland prior to development. The Building Industry Association (BIA) argued that this requirement violates the restrictions in Civil Code section 815.3, which specifically prohibits an agency from conditioning an entitlement on an “applicant’s granting of a conservation easement.” The Court held that the FMP complied with this provision because, under the County’s scheme, “applicant” was not charged solely with granting an easement on its own property, but could also acquire it from a willing seller.

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Friends of the Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286 (Case No. H033275). On November 22, 2010, the Sixth District published its decision in Friends of the Juana Briones House v. City of Palo Alto holding that the approval of a demolition permit under the governing municipal code provision was a ministerial act, and thus was not subject to CEQA. In reaching this conclusion, the court reversed the trial court’s judgment, which had granted the petitioner’s requested writ of mandate. The Sixth District held that under the plain language of the governing municipal code section, Palo Alto Municipal Code section 16.49.070, the city had no authority to impose permit conditions that would render the permit discretionary. The Court also determined that this conclusion was not affected by the possibility that a ministerial building permit might also be issued by the City. Therefore, there was no basis for requiring CEQA review under the “whole of the action” theory.
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In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217 (A108410, Nov. 19, 2010), the First Appellate District, in the published portion of its opinion, held that the partial success of two plaintiffs groups (an environmental group and a labor union) conferred a sufficient public benefit to warrant an award of attorneys’ fees under the private attorney general doctrine (Code Civ. Proc. §1021.5), even though their success at trial was not upheld in its entirety on appeal. The court reversed post-judgment orders awarding attorney fees following the original trial court judgment and remanded the case to the trial court to determine whether the environmental plaintiffs’ actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award.
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