Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316. On November 22, 1010, the Fourth District Court of Appeal upheld the City of Beaumont’s environmental impact report (EIR) prepared for the Sunny-Cal Specific Plan, which called for the development of 560 residential units on a 200-acre site long used for agricultural purposes. The court heard and rejected claims that the city relied on an improper baseline in assessing the project’s impacts on water supplies and claims that the EIR’s water supply analysis was deficient due to inconsistencies between the Water Supply Assessment (WSA) prepared for the project and other pertinent water supply planning documents. The court also concluded that substantial evidence supported the city’s conclusion that mitigation measures and alternatives to reduce the project’s significant impact to agricultural resources were economically infeasible.
Continue reading
Blog
Fifth District Court of Appeal Finds CEQA Required a County to Consider Environmental Effects of Surface Mining Project on Federal Land, Not Just the Effects of the Project’s Reclamation Plan under Local Jurisdiction
Nelson v. County of Kern (2010) __Cal.App.4th__ (Case No. F05932)
On November 19, 2010, the First District Court of Appeal concluded the County of Kern, as lead agency, had violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) and the Surface Mining and Reclamation Act of 1975 (§§ 2710 et seq.; SMARA) when approving a mitigated negative declaration and reclamation plan for a mining project located on federal land. The court held the County erred in failing to issue a permit for the mining operation under SMARA and in failing to consider the impacts of the surface mining project in its environmental review. The Court also held that because a fair argument could be made that the mining project may have a significant effect on the environment, CEQA required the county to prepare an EIR for the mining project and reclamation plan. Continue reading
First Appellate District Upholds the Sonoma County Water Agency’s Adoption of its Urban Water Management Plan
In Sonoma County Water Coalition v. Sonoma County Water Agency (Oct. 8, 2010, A124556), the First District Court of Appeal held that the Sonoma County Water Agency (SCWA) appropriately adopted an urban water management plan. Continue reading
After Rehearing, First Appellate District, Division Five, Holds Exhaustion Requirement Has No Preclusive Effect in Challenge to Exemption Determination and Upholds Previous Decision
In Tomlinson v. County of Alameda (2010) 188 Cal.App.4th 1406 (Tomlinson II), the First Appellate District, Division Five, reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029 (Tomlinson I), where the court found that the County of Alameda abused its discretion in deeming a proposed subdivision project exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), under the categorical exemption for in-fill development (Cal. Code Regs., tit. 14 (CEQA Guidelines), § 15332). Continue reading
Ninth Circuit Holds Clean Water Act Pre-Enforcement Compliance Orders Are Not Subject to Judicial Review
In Sackett v. United States Environmental Protection Agency, (9th Cir. 2010) 622 F.3d 1139, the Ninth Circuit held that the Clean Water Act (CWA) precludes judicial review of compliance orders until after an enforcement action is filed, and that preclusion of judicial review of pre-enforcement compliance orders under the CWA’s statutory scheme did not violate due process. The Court first determined the language and structure of CWA demonstrates that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders under 33 U.S.C. § 1319(a)(3). The Court further found that the CWA civil penalty provision does not authorize the EPA to bring enforcement actions for mere violations of compliance orders. In reaching this result, the Court held the EPA must bring an action alleging a violation of the CWA itself in order to enforce a compliance order under the CWA. Continue reading
Governor Schwarzenegger Signs Into Law Two Bills Amending CEQA
On September 30, 2010, Governor Schwarzenegger signed into law AB 231 and SB 1456, which provide moderate amendments to the California Environmental Quality Act’s provisions relating to tiering, mediation, litigation, and exhaustion of administrative remedies. The amendments will remain in effect until January 1, 2016. Continue reading
Ninth Circuit Holds the Bureau of Land Management Failed to Take a “Hard Look” at the Environmental Consequences of a Proposed Land Exchange
In Center for Biological Diversity v. U.S. Department of the Interior (9th Cir. 2010) 623 F.3d 633, the Ninth Circuit held that the Bureau of Land Management (BLM) acted arbitrarily and capriciously by failing to take a “hard look” at the likely environmental consequences of a proposed land exchange. The court found that the BLM did not compare the environmental effects of the proposed land exchange with the effects of no land exchange. As a result, the BLM violated the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). The court declined to address Appellants’ claimed violation of the Mining Law of 1872. Continue reading
Fourth Appellate District Finds Trial Court Erred in Refusing to Consider Motion for Supplemental Attorneys’ Fee Award Following Successful Appeal
In Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603 (hereinafter “CBD II”), appellants Center for Biological Diversity (“CBD”) asserted that the trial court abused its discretion by awarding substantially lower attorney fees than CBD sought on remand in Center for Biological Diversity v. County of San Bernardino (Oct. 27, 2008, E-042316) [unpublished opinion] (hereinafter “CBD I”). In CBD I, at trial CBD lost on each of its two claims brought under the California Environmental Quality Act (“CEQA”), but prevailed on a claim relating to consistency with the San Bernardino County General Plan. CBD subsequently filed a motion for fees (“1st Fee Motion”). The trial court awarded CBD approximately 1/4 of the fee award sought by CBD “[d]ue to the limited relief granted on the underlying petition. . .” (“1st Fee Order”). CBD appealed the 1st Fee Order. However, CBD entered a stipulation to dismiss the appeal of the 1st Fee Order after the County and Real Parties filed an appeal of the underlying judgment, which CBD cross-appealed. On the appeal from the judgment, the Fourth Appellate District held that the trial court erred in denying the CEQA claims and modified the judgment issuing the writ of mandate accordingly. Continue reading
CAPCOA Issues New Guidance On Quantifying GHG Emissions
The California Air Pollution Control Officers Association (CAPCOA) recently published a report entitled “Quantifying Greenhouse Gas Mitigation Measures: A Resource for Local Government to Assess Emission Reductions from Greenhouse Gas Mitigation Measures” (August 2010). The Report provides local governments and environmental consultants guidance on how to quantify GHG emissions in the environmental review of projects and for planning efforts. The Report focuses on quantifying GHG reductions from mitigation measures in the areas of land use, transportation, energy use, recycling and waste management, among others. The Report suggests the methodologies used in the Report should also be acceptable for use to quantify GHGs for the EPA Mandatory Reporting rule, both inside and outside California. Continue reading