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FIRST DISTRICT HOLDS THAT A HIGH SCHOOL’S INSTALLATION OF FOUR 90-FOOT LIGHT TOWERS FOR ATHLETIC STADIUM IS NOT CATEGORICALLY EXEMPT FROM CEQA

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In Saint Ignatius Neighborhood Association v. City and County of San Francisco (2022) 85 Cal.App.5th 1063, the First District Court of Appeal held that the installation of four 90-foot light towers in a high school’s athletic stadium is not exempt from CEQA under the class 1 and class 3 categorical exemptions.

Background

Saint Ignatius College Preparatory High School is located in the City of San Francisco’s “Outer Sunset District.” The school has an athletic stadium with a 2,008-person capacity, situated across the from several two-story, single-family homes. In February 2018, the school applied for approval of the installation of four permanent 90-foot-tall outdoor light towers on its athletic field. In June 2020, the City’s planning department determined that the project was categorically exempt from CEQA under the class 1 exemption for existing facilities and the class 3 exemption for new construction or conversion of small structures. (See CEQA Guidelines, §§ 15301, 15303.)

In July 2020, the Planning Commission upheld the exemption determinations and approved a conditional use permit for the project with several conditions, including that the lights be used no more than 150 nights per year, as well as other various time and event size restrictions. The Planning Commission also required close communication with neighbors about events and the distribution of a large-event management plan and code of conduct for event attendees. The Board of Supervisors affirmed the planning department’s exemption determination and approved the conditional use authorization with additional and stricter conditions related to time restrictions, event size restrictions, required use reporting by the school, off-site parking accommodations, and the addition of trees to serve as a light screen for neighboring homes.

The Saint Ignatius Neighborhood Association filed suit, alleging that the City erred in exempting the project from CEQA, and that its approval was inconsistent with its planning code and General Plan. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

Class 1 “Existing Facilities” Exemption

The class 1 exemption applies to “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 the existing or former use.” (CEQA Guidelines, § 15301.)

While the court agreed with the City’s findings that the project will not increase the overall capacity and use of the stadium, it concluded that the project will significantly expand the nighttime use of the stadium. The court pointed to the “undisputed” fact that nighttime use, during which temporary lighting is used, will significantly expand from the current 40 to 50 nights per year, to potentially 150 nights. The court also noted petitioner’s assertion that the current use of temporary lighting is unauthorized. Accordingly, the court found that the class 1 exemption for “existing facilities” did not apply.

Class 3 “Small Structures” Exemption

The class 3 exemption applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.” (CEQA Guidelines, § 15303.) To determine what constitutes a “small” structure pursuant to the class 3 exemption the court looked to the examples listed in the exemption. While acknowledging that this list is not exhaustive, the court stated that “the examples do provide an indication of the type of projects to which the exemption applies.”

The court found that “[t]he light standards are fundamentally dissimilar from all of the examples,” which primarily include residential and commercial structures below certain unit and square footage maximums, utility structures, and accessory structures such as garages and fences. The court decided that looking at only the square footage of the base of the light towers was inapposite. It explained that commercial and residential structures were subject to applicable zoning requirements that ensure their height will be consistent with the surrounding neighborhood, whereas here, the 90-foot-tall light towers will be “significantly taller than any other structure in the neighborhood,” where homes are typically 20 to 25 feet tall with a zoning limitation of 40-feet. Consequently, the court determined that “a 90-foot tall light standard does not qualify as ‘small’ within the meaning of the exemption.”

The court also distinguished the instant case from a string of cases allowing the class 3 exemption to apply to several telecommunication projects, including a cell tower (Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338) and cell transmitters on utility poles (Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039), by highlighting that the light towers, unlike a 35-foot-tall cell tower to be situated amongst tall trees or the installation of transmitter boxes on existing utility poles, will be 90-feet tall and “by far the tallest structure in the surrounding area.” Accordingly, the court held that “the light standards cannot fairly be considered small structures within the meaning of the class 3 exemption.”

Unusual Circumstances Exception & General Plan Consistency

Because the court found against the use of both exemptions based on its interpretation of exemption language and the evidence in the record, it declined to address petitioner’s alternative argument that “unusual circumstances preclude application of the exemptions” or the claim that the City violated its code and General Plan.

By Casey Shorrock

IN A REVERSAL, SECOND DISTRICT FINDS CITY’S FAILURE TO INCLUDE CEQA EXEMPTION ON MEETING AGENDA VIOLATED THE BROWN ACT

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In G.I. Industries v. City of Thousand Oaks (2022) __ Cal.App.5th __ (Case No. B317201), the Second District Court of Appeal determined that the City of Thousand Oaks violated the Brown Act when it voted to adopt a CEQA exemption for a new waste-hauling Franchise Agreement without including the exemption on the meeting agenda at least 72 hours before the meeting.

Background

In 2020, the City of Thousand Oaks considered entering into a 15-year franchise agreement with Arakelian Enterprises, Inc., doing business as Athens Services, to provide solid waste management for the City. On March 4, 2021, the City posted an agenda for a March 9, 2021, City Council meeting, with an item to consider staff’s recommendation to approve the Athens franchise agreement. There was no indication on the agenda that the City also would consider finding the agreement exempt from CEQA.

On the day of the March 9th meeting, the City posted a supplemental agenda item and information packet with staff’s recommendation that the City find the agreement categorically exempt from CEQA under the Class 1 exemption for existing facilities, the Class 7 exemption for actions by regulatory agencies for the protection of the natural resources, and the so-called “common sense” exemption. At the meeting, the City attorney recommended adopting staff’s finding supporting the CEQA exemption. The City Council then moved to adopt a motion to approve the franchise agreement. At the suggestion of the Mayor, the Council amended the motion to also include the corresponding CEQA exemptions. The meeting minutes indicated that council took separate actions in approving the agreement and finding it exempt from CEQA.

The City filed a notice of exemption (NOE) on March 15, 2021. Thereafter, Waste Management sent a “cure and correct” letter asserting the City violated the Brown Act by voting to “adopt” the NOE before approving the franchise agreement. The City did not respond to the letter within 30 days, thus was deemed to not have cured or corrected the challenged action pursuant to Brown Act section 54960.1(c)(3). Waste Management filed a petition challenging the approval of the franchise agreement and exemption determination. Respondents filed a demurrer, which the trial court sustained without leave to amend. And, although it agreed with Waste Management that the CEQA exemption determination and franchise agreement approval were separate items of business, ruled that CEQA does not require a public hearing for an exemption determination, therefore, the Brown Act did not apply. Waste Management appealed.

Court of Appeal’s Decision

The Court of Appeal first held that the factual allegations in Waste Management’s petition were sufficient to state a Brown Act claim. Under the Brown Act, at least 72 hours prior to a regular meeting, the legislative body of a local agency must post an agenda containing a brief general description of each item of business to be transacted. (See Gov. Code § 54954.2, subd. (a)(1).) The agenda must provide the public with an opportunity to address the legislative body on any item of interest, effectively barring the agency from acting on any item that does not appear on the agenda.

The City argued that the CEQA exemption did not need to be on the agena because it was not a separate item of business was not a separate item of business within the meaning of the Brown Act. Rather, the City argued, it adopted the CEQA exemption only as a component of the agenda item awarding the franchise agreement to Athens. The court rejected this argument and cited San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, which, although involving the adoption of a mitigated negative declaration (MND), the court determined applied here. The court reasoned that, because members of the public are entitled to have notice of, and an opportunity to participate in, a local agency’s determination that an MND should be issued, they are also entitled to participate when an agency determines a project is exempt from CEQA.

The Second District noted that applying the Brown Act’s notice requirements do not alter an agency’s existing obligations under CEQA, which does not require public noticing of exemptions to CEQA. Rather, the Act requires only that the exemption, if it is to be discussed at a meeting of a local legislative body, must be placed on the meeting agenda so that the public be provided an opportunity for comment.

The City had argued that applying the Brown Act to a CEQA exemption determination would place an intolerable burden on local agencies. The court disagreed. According to the court, where an agency’s legislative body intends to vote on or discuss a CEQA exemption at a regular meeting, “it will require minimal effort to include it as an agenda item.” And while the agency may delegate some responsibility to staff before rendering a decision, the court cautioned that agencies cannot delegate its entire duty as the final decisionmaker on a project—i.e., approving an exemption—to avoid its Brown Act obligations. Accordingly, the court concluded that “[t]he addition of words to the agenda indicating the local agency is considering a project subject to staff determination of CEQA exemption will not unduly tax a local agency’s resources.”

The Second District also rejected the City’s claim that Waste Management’s “cure and correct” letter, pursuant to Brown Act section 54960.1(b)), was deficient because it stated the City “adopted,” rather than “filed,” an NOE. Section 54960.1(b) requires a prospective litigant to state, in writing, the nature of the alleged violation. The court determined that Waste Management’s letter satisfied this obligation because it informed the City that it violated section 54954.2 by considering the CEQA exemption without describing the action in the agenda for at least 72 hours before the meeting. That the letter stated the City had “adopted” an NOE, versus using the proper term filing, was immaterial—the letter adequately stated the substantive point in regards to the Brown Act violation. The court reiterated that the purpose of the section is to notify the local agency of its alleged violation so that it can cure it to avoid litigation; its purpose is “not to allow a local agency to avoid the consequences of Brown Act violations by launching nit-picking technical attacks on the language use in the cure and correct letter.”

By Bridget McDonald

*RMM represented Petitioner G.I. Industries (aka, Waste Management) in this litigation.

California Supreme Court Holds that CEQA is Not Preempted by the Federal Power Act When Used to Make Decisions that are Outside Federal Jurisdiction or Compatible with the Federal Government’s Licensing Authority

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In County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, the California Supreme Court partially reversed an opinion from the Third District Court of Appeal that CEQA is completely preempted by the Federal Power Act (FPA), finding instead that CEQA is only partly preempted. Specifically, the Supreme Court held the FPA preempts an agency’s application of CEQA to the extent that it interferes with the federally established licensing process, but not when CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority.

Background

This consolidated litigation addresses a license renewal for the Oroville Facilities, a collection of public works projects, including hydroelectric facilities, in Butte County. As part of the renewal process, the California Department of Water Resources (DWR) engaged the alternative licensing process (ALP) authorized by the Federal Energy Regulatory Commission (FERC) prior to applying for relicensing. The ALP process allowed DWR to engage with stakeholders and develop a settlement agreement addressing their concerns, which effectively functions as a first draft of the FERC license. Following five years of negotiations, all but two of the stakeholders signed on to the settlement agreement, which DWR submitted to FERC. The Counties of Butte and Plumas did not sign the agreement. Following submission of the settlement agreement and licensing application by DWR, FERC prepared an Environmental Impact Statement (EIS) pursuant to NEPA, which considered several alternatives, including a “staff alternative” with modifications from the FERC staff. The EIS concluded the “staff alternative” was the preferred alternative.

Also following submittal of the relicensing application, DWR prepared an EIR pursuant to CEQA, analyzing implementation of the settlement agreement and continued operation of the Oroville Facilities as the “project” under CEQA and the same alternatives considered by FERC. DWR prepared the EIR to comply with additional permitting requirements under the Clean Water Act, for which the State Water Resources Control Board was the lead agency, and to help DWR determine whether to accept a license containing the original terms or the “staff alternative.”

Procedural History

Butte County and Plumas County separately filed petitions for writ of mandate, each challenging DWR’s compliance with CEQA in connection with the relicensing of Oroville Facilities. The cases were later consolidated.

The trial court found DWR’s EIR adequate, and the Counties appealed. On appeal, the Third District declined to reach the merits of the case, holding that the Counties’ CEQA claims were entirely preempted by the FPA, the purpose of which is to “facilitate the development of the nation’s hydropower resources” by centralizing regulatory authority over dams, reservoirs, and hydroelectric power plants in the federal government. The California Supreme Court granted the Counties’ petition for review but subsequently transferred the matter back to the Court of Appeal for reconsideration in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (Friends), which held that the Interstate Commerce Commission Termination Act (ICCTA) does not necessarily preempt a State agency’ compliance with CEQA for a new railroad project, and that State, as a railroad operator, could voluntarily subject itself to compliance with CEQA without conflicting with the ICCTA. On remand, the Third District affirmed its earlier holding that CEQA was preempted by the FPA.

The California Supreme Court again granted the Counties’ petition for review to determine whether the FPA preempts CEQA when the state is acting on its own behalf and exercising discretion in relicensing a hydroelectric dam.

The California Supreme Court’s Decision on Preemption

A five justice majority of the California Supreme Court held that CEQA claims are preempted insofar as they conflict with the FPA’s licensing scheme, but not where CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority. Specifically, the court determined that any CEQA challenge to the ALP and the terms of the settlement agreement and license being considered by FERC were preempted by the FPA. However, because DWR’s compliance with CEQA was not limited to the FERC relicensing, the Counties’ broader challenges to the adequacy of DWR’s EIR were not preempted. The Court concluded that DWR could use the environmental conclusions reached through the CEQA process to aid its decision whether to accept FERC’s “staff alternative” or request modification to the terms of the license issued by FERC, which the FPA allows.

The Court discussed the federal and state law principles applicable to the case before it, including the presumption against preemption for a state-owned, or state-operated project. The FPA does not include an “express” preemption clause, so the issue was whether “conflict” or “field” preemption applied. The Court concluded that the distinction between the two types of preemption was not meaningful here, particularly considering the presumption that, absent a clear statement of Congressional intent that state regulation is preempted, federal law will not be interpreted as interfering with state-owned or state-operated projects. The Court also found federal caselaw applying “field” preemption to state regulatory schemes related to the FPA distinguishable because those cases addressed state attempts to regulate private actors seeking licensing under the FPA. The Court stated that CEQA, in the context of a state agency applying for a federal license, constitutes “self-governance” rather than traditional state regulation of private actors that has been held preempted in the past.

The Court acknowledged that state courts could not require a CEQA remedy inconsistent with federal law, including the FPA, but noted that the Counties had dropped their previous request to enjoin FERC’s licensing process pending DWR’s compliance with CEQA. The Court reasoned, however, that DWR’s compliance with both CEQA and the FPA was possible without creating any conflict. Specifically, DWR used CEQA analysis, in part, to determine whether it should accept a license from FERC containing the proposed terms or those modified by FERC staff. Similarly, the FPA allows applicants to amend their licensing applications or request that FERC modify the terms of the license. DWR could thus use the environmental conclusions reached in the CEQA process to make its own decisions and then make appropriate requests to FERC without intruding on FERC’s jurisdiction. Just as FERC was not required to issue a license wholly consistent with the terms of the settlement agreement, FERC retained jurisdiction to consider, but in no way be bound by, any subsequent requests from DWR. For these reason, environmental review at both levels of government did not overlap to invoke conflict preemption.

The Court also concluded that any preemption issues related to DWR’s adoption of specific mitigation measures demanded by the Counties were premature, as no court had ruled that any additional mitigation was required. The question before the Court was whether any CEQA challenge to DWR’s EIR was preempted by the FPA, the Court ruled such a challenge, in the abstract, was not inherently preempted. Additionally, the Court noted that it may be possible for DWR to adopt mitigation measures that are either outside of FERC’s jurisdiction or compatible with FERC’s licensing authority. Again, FERC could simply deny any request from DWR that conflicted with the FPA or FERC’s licensing authority.

In sum, where the Counties’ CEQA challenges seek to undermine a FERC license or associated terms, they are preempted by the federal government’s exclusive licensing authority under the FPA. However, Counties’ CEQA claims which implicate the sufficiency of an EIR to inform state self-governance and decision-making are not preempted.

The Concurring and Dissenting Opinion

Notably, the Chief Justice, and author of the Friends decision, filed a concurring and dissenting opinion. The Chief Justice agreed that any CEQA challenge to FERC’s licensing process including the settlement agreement was preempted but disagreed that broader CEQA challenges were not similarly preempted. The dissent reasoned that, in addition to “field” and “conflict” preemption, state law that constitutes an “obstacle” to the purposes and objectives of federal law would be similarly preempted. Here, given the history of federal caselaw concluding that state regulation of hydroelectric facilities is preempted by the FPA, and the express “savings clause” in the FPA reserving regulation of water rights to the states, the Chief Justice concluded that CEQA is an “obstacle” to the objectives and purpose of the FPA, particularly where the FPA licensing process included multiple equivalents of CEQA through the ALP and FERC’s compliance with NEPA and does not contemplate delays caused by state court review of CEQA compliance.

The dissent also concluded that CEQA was subject to “field” preemption because CEQA did not involve state regulation of water rights. The Chief Justice also noted that, while none of the federal FPA preemption cases addressed state-operated projects, the concept of “field” preemption (i.e., where Congress truly intends to “occupy the field”) is broad enough to preempt all state regulation, regardless of who the operator is.

Turning to Friends, the Chief Justice characterized her decision in that case as concluding that CEQA is exempt from preemption under the ICCTA as an example of “self-governance” by the State. Given the purpose of the ICCTA was to deregulate railroads, and thereby allow greater “self-governance” by railroad operators, the State’s voluntary compliance with CEQA was not preempted. In contrast, the dissent concluded that the FPA’s purpose and objectives is to vest exclusive regulation of hydroelectric facilities in FERC and to exclude all state regulation, with the exception of water rights. The Chief Justice concluded that, unlike the ICCTA, the FPA (including the federal caselaw interpreting the FPA) made it “unmistakably clear” that all state regulation of hydroelectricity facilities, except regulation of water rights, is preempted.

Lastly, the dissent concluded that finding CEQA only partially preempted was unworkable because a ruling that DWR’s CEQA compliance deficient would not impact FERC’s decision on whether to issue the license. Forcing DWR to perform additional analysis or consider additional mitigation or alternatives would be an exercise in generating paper, without any practical effect. As the Majority Opinion acknowledges, FERC has complete discretion to deny any request to alter the terms of the license, regardless of whether DWR believes such changes to be necessary to comply with CEQA. The dissent also found that requiring CEQA compliance in this case, where multiple environmental studies have been prepared for FERC’s consideration during the licensing process, would be redundant and have little practical benefit.

By Jordan Wright and Nathan George

FIRST DISTRICT HOLDS CITY’S CURTAILMENT OF WATER DELIVERY TO LEASED PROPERTIES WAS NOT A NEW PROJECT SUBJECT TO CEQA REVIEW

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In County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, the First District Court of Appeal held that the city’s 2018 water allocation to lessees was not a change in water use policy, but merely an exercise of the city’s discretion to curtail water deliveries for the purposes of increasing water deliveries to city residents, which was allowed subject to the terms of a lease agreement approved in 2010.

Background

In 2010, the city approved leases (2010 Leases) governing approximately 6,100 acres of city-owned land to petitioner and others. Relevant here, the 2010 Leases provide for the delivery of no more than 5 acre-feet of water per acre (AF/acre) per irrigation season subject to certain conditions. These conditions made clear that the city’s water use was paramount to rights under the 2010 Leases and that the actual amount of water delivered in any given year is to be determined solely by the city and may be reduced in dry years based on water availability. The 2010 Leases further provided that the supply of water could be discontinued at any time and that lessee has no claim against the city should the city exercise its right to withhold water for its own residents. The initial lease term ran from January 2009 to the end of 2013 after which the leases allow the lessees to holdover as tenant at will. Accordingly, the city and the lessees have proceeded under the 2010 Leases in holdover status since 2013.

In March 2018, the city sent copies of a new form of leases (Proposed Dry Leases), which provided that the city would no longer provide irrigation water to the lessee, but rather from time to time the city may spread water on the leased properties. The Proposed Dry Leases included similar provisions reserving the city’s rights to discontinue water delivery. The city issued a Notice of Preparation (NOP) that it would prepare an environmental impact report for the Proposed Dry Leases in August 2018.

In May 2018 correspondence between the city and petitioner, the city indicated that it was evaluating the impacts of reducing water on the leased ranch land, but that based on the snowpack and anticipated runoff it determined that the city could provide lessees 0.71 AF/acre of water, which was consistent with what it had provided two years earlier when the runoff was 82 percent of normal.

Petitioner challenged the city’s decision to curtail water deliveries in 2018 alleging it violated CEQA in that it committed to the Proposed Dry Leases without environmental review.

Court of Appeal’s Decision

The appellate court initially discussed the propriety of considering a declaration filed by the city which asserted that in 2019 and 2020 the city had delivered 6.6 AF/acre and 3 AF/acre of water, respectively. The trial court denied the city’s request to augment the record with the declaration because it was untimely (filed after the court had issued its tentative order granting the writ petition) yet the trial court relied on the 2019 and 2020 water allocations for purposes of setting the historical baseline and fashioning the remedy. The appellate court found that while the declaration was admissible extra-record evidence under Western States Petroleum Assn. v. Super. Ct. (29915) 9 Cal.4th 559, 576 because the 2018 water allocation is an informal or ministerial administrative action, it agreed with the trial court that the declaration was untimely. Nevertheless, the appellate court held that the trial court’s reliance on the contents of the declaration for purposes of the scope of the remedy was inappropriate given that the trial court had not considered the declaration for purposes of the merits.  Accordingly, the appellate court held that it would consider the declaration.

Next the court considered whether the 2018 water allocation was a new reduced water project or part of either the 2010 leases or the Proposed Dry Leases. In doing so, the court noted that the definition of a CEQA “project” involves three distinct components: “agency involvement, physical change to the environment, and whole of an action including multiple discretionary approvals.” Based on the terms of the 2010 Leases, the history of water allocations under them, and the city’s post-2018 water allocations set forth in the declaration, the court found that the 2018 water allocation was merely a “string of water allocations that the 2010 Leases” allowed the city to make. It was therefore not a new project subject to CEQA.

The court rejected petitioner’s contention that the terms of the 2010 Leases did not allow it to curtail water deliveries. Rather, based on the discussion of water supplies in the 2010 Leases, which expressly provided that lessee understood and acknowledged that any water supplied to leased land was “subject to the paramount rights” of the city and that the city could discontinue water deliveries in whole or in part at any time, the court held that the 2010 Leases reserve the city’s right to curtail water deliveries.

Petitioner argued that the court’s interpretation would allow the city to end all water deliveries under the 2010 Leases. However, the city agreed that eliminating water deliveries would require environmental review. Based on this concession, the court of appeal concluded that the 2010 Leases reserved the city’s rights to reduce water allocations subject to changing water availability so long as such reductions did not convert the 2010 Leases into dry leases.

The court further rejected petitioner’s reliance on Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310. While that case establishes that the city would need to consider the actual amounts of irrigation water provided in the past, rather than a hypothetical right to eliminate water deliveries, it further establishes that doing so does not prevent the city from exercising its right under the 2010 Leases to curtail or reduce water deliveries.

The court also found that the city’s past practices did not support petitioner’s claim that the 2018 allocation was an implementation of a new low- or zero-water delivery policy. While petitioner claimed that the city historically provided up to 5 AF/acre of water reduced proportionally based on deviations in snowpack and anticipated runoff, the court found that the actual water deliveries under the 2010 Leases did not have a linear relationship with runoff. In considering the declaration previously excluded by the trial court as evidence, the court also found that the higher allocations in 2019 and 2020 demonstrate that the 2018 water allocation was an implementation of the 2010 Leases, not a new project.

Finally, the court held that without some evidence beyond the simply the timing of correspondence between the city and petitioner and the city’s issuance of an NOP for the Proposed Dry Leases, it could not find that the NOP meant that the city’s reliance on the 2010 Leases for the 2018 allocation was a pretext for implementing that project.

Because the court found that the 2018 water allocation was within the scope of the 2010 Leases, it held that petitioner’s lawsuit effectively challenged the 2018 implementation of a project approved in 2010 and was therefore barred by CEQA’s statute of limitations.

By Christina L. Berglund

THIRD DISTRICT OVERTURNS DENIAL OF ATTORNEYS’ FEES MOTION UNDER “CATALYST” THEORY, HOLDS TRIAL COURT MUST CONSIDER WHETHER PLAINTIFFS’ LAWSUITS WERE A SUBSTANTIAL FACTOR IN GOVERNOR’S DECISION NOT TO MOVE FORWARD WITH “WATERFIX” PROJECT

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In Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, the Third District Court of Appeal found that the trial court did not apply the correct legal standard in rejecting plaintiffs’ motions for attorney fees following litigation challenging California’s WaterFix project under CEQA and other laws. Plaintiffs relied on the state’s private attorney general statute (Code of Civil Procedure § 1021.5), asserting that they were successful parties under a “catalyst” theory because the litigation motivated the Department of Water Resources (DWR) to rescind the project approvals and decertify the EIR. The trial court denied the motions, finding that although plaintiffs achieved the primary objectives of their litigation, this was caused by a directive from Governor Newsom, not their lawsuits. The appellate court, however, found that it was error to treat the Governor’s directive as an “external, superseding cause” of DWR’s decision. Instead, the trial court should have considered whether plaintiffs’ lawsuit was a substantial factor in the Governor’s decision to change course regarding the WaterFix project. The court therefore reversed and remanded the matter for redetermination.

BACKGROUND

In 2013, DWR issued a draft EIR for the Bay Delta Conservation Plan project under CEQA. The plan aimed to improve California’s water supply infrastructure by constructing two 35-mile-long tunnels that would convey fresh water from the Sacramento River to pumping stations in the southern Sacramento–San Joaquin Delta. In 2015, DWR replaced that plan with the WaterFix project, which differed from the original in that it decoupled the habitat conservation component from the water conveyance elements. On July 21, 2017, DWR certified a final EIR, adopted findings, a statement of overriding considerations, and a mitigation monitoring and reporting plan, and approved the WaterFix project.

Numerous plaintiffs filed petitions for writ of mandates challenging the WaterFix project and EIR. The lawsuits sought to compel DWR to rescind the WaterFix approvals, decertify the EIR, and suspend development pending compliance with applicable laws. Plaintiffs alleged a variety of violations under CEQA, as well as under the Sacramento–San Joaquin Delta Reform Act of 2009, the public trust doctrine, and the California Endangered Species Act. Plaintiffs’ lawsuits were coordinated for trial.

In November 2018, Governor-elect Newsom expressed doubt over whether the WaterFix project could overcome its various legal challenges, and officially voiced his opposition to the project (as Governor) three months later. On April 29, 2019, he issued Executive Order No. N-10-19, which established his new “water resilience portfolio” policy and encouraged DWR to “inventory and assess” the “[c]urrent planning to modernize conveyance through the Bay Delta with a new single tunnel project.” Less than one week later, as litigation was ongoing, DWR decertified the WaterFix EIR, vacated its findings, and rescinded the project’s approvals. Consequently, the coordinated cases were voluntarily dismissed.

After the cases were dismissed, plaintiffs filed motions for attorneys’ fees, asserting that they were “successful” parties under the catalyst theory because the litigation motivated DWR to voluntarily provide the relief sought (namely, rescission of the project approvals, decertification of the EIR, and dismissal of the validation action). DWR opposed the motions, arguing that the decision to rescind project approval was based on the Governor’s Executive Order, not the litigation.

The trial court denied plaintiffs’ motions, agreeing that the relief was caused by the Governor’s directive rather than the lawsuits. Plaintiffs appealed.

COURT OF APPEAL’S DECISION

The court of appeal agreed with plaintiffs that the trial court erred in treating Governor Newsom’s policy directive as an external, superseding cause of DWR’s actions. Although, as an agency within the executive branch, DWR was required to implement the Governor’s decision to shift from two tunnels to one, that did not mean that there was no connection between the lawsuits and the rescission of the WaterFix approvals and decertification of the EIR. Instead, the trial court should have asked whether the litigation was “a substantial factor” in the Governor’s decision.

The court suggested plaintiffs had presented evidence that the Governor’s decision was at least in part influenced by their lawsuits, such as his November 2018 statement that “‘I think if we walk down the path of two tunnels, we’re in litigation and no project.’” Plaintiffs also presented statements made by DWR’s director that the previous proposal might not have fully acknowledged and mitigated for impacts. The court of appeal held that, regardless of whether this evidence was sufficient to establish a causal relationship between the litigation and the Governor’s opposition to the WaterFix project, the trial court erred in refusing to consider this evidence.

The court of appeal also found error in the trial court’s refusal to consider plaintiffs’ argument that the chronology of events could raise an inference of causation, which it had rejected because EIR decertification was “expected.” The appellate court explained that even if the underlying project is abandoned or withdrawn, nothing in CEQA requires the lead agency to decertify that project’s EIR. Only when the previous environmental document is “wholly irrelevant” must the agency start anew. Further, nothing in the Governor’s Executive Order compelled DWR’s decertification and rescission, as it merely directed the agency to “inventory and assess”  the current plan “to modernize conveyance through the Bay Delta with a new single tunnel project.” Finally, in the wake of the Governor’s announced opposition, DWR’s attorneys advised the court that DWR could still proceed under CEQA using a supplemental or subsequent EIR—obviously contrary to the contention of inevitable decertification. Thus, because DWR’s decision to abandon the project was independently made, there was “a legitimate question as to why it made that choice.” And because the plaintiffs had properly relied on the chronology of events to raise an inference that the lawsuits had substantially motivated DWR’s decision, the burden had shifted to DWR to rebut that inference. The trial court’s refusal to consider plaintiff’s evidence was thus a prejudicial abuse of discretion.

—Griffin Williams

SIXTH DISTRICT HOLDS CEQA ACTION IS BARRED UNDER COVID-19 EMERGENCY RULE 9’S EXTENDED STATUTE OF LIMITATIONS

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In Committee for Sound Water and Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, certified for publication on June 1, 2022, the Sixth District Court of Appeal held that a nonprofit group’s CEQA claims were time-barred by the statute of limitations, even with the extended period afforded by Emergency rule 9, which the Judicial Council adopted in response to the COVID-19 pandemic.

Background

This case involves the City of Seaside’s certification of an EIR for the Campus Town 122-acre development project located on the former Ford Ord military base.

On March 6, 2020, the City issued a notice of determination for the Project. On April 5, the Committee for Sound Water and Land Development (the Committee), a nonprofit organization, submitted a request to the Fort Ord Reuse Authority (FORA) to receive written notice of (1) the City’s request of FORA to determine the Project’s consistency with the Fort Ord Reuse Plan (Reuse Plan), and (2) FORA’s consistency determination hearing. On June 6, FORA held a hearing at which it determined the Project was consistent with the Reuse Plan. It did not notify the Committee.

On April 6, 2020, the Committee filed a petition for writ of mandate challenging the City’s approval of the Project and FORA’s consistency determination under CEQA. The trial court subsequently granted its request to dismiss the petition without prejudice. On September 1, 2020, the Committee filed a second petition, alleging that the City violated CEQA and that FORA violated its constitutional due process rights.

The trial court sustained the City’s and Real Party’s demurrers on the grounds that (1) the CEQA claims were time-barred, (2) the due process causes were moot because FORA ceased existing as of June 30, 2020, and (3) the second writ petition was a sham pleading because it was only filed to cure the Committee’s failure to request a hearing within 90 days of filing the original petition, as required by Public Resources Code section 21167.4. The Court of Appeal affirmed the trial court’s dismissal.

The Court of Appeal’s Decision

Statute of Limitations

First, the court held that the petition was time-barred under the deadlines established by Public Resources Code section 21167, subdivision (c), as extended by Emergency Rule 9, subdivision (b).

The original Emergency rule, adopted by the Judicial Council on April 6, 2020 in response to the COVID-19 pandemic, tolled the statute of limitations in civil cases for 90 days until Governor Gavin Newsom lifts the state of emergency order that the Governor had declared on March 4, 2020. In response to requests from the CEQA bar, the rule was subsequently amended to end the tolling period on August 3, 2020 for 30-day statute of limitations applicable to CEQA causes of action. Thus, the last day for the Committee to file its CEQA petition was August 4, 2020. The Committee relied on the original version of Emergency rule 9 and claimed that its counsel was unaware of the amendment. The petition, filed on September 1, 2020, was therefore untimely.

The court was unpersuaded by the Committee’s argument that the amendment of the rule resulted in impermissible “truncation” of the limitations period. It explained that the rule was not unreasonable because the 30-day period would have ended on April 6, 2020—several months earlier—but for Emergency rule 9, as amended.

The court, consequently, did not address the sham pleading doctrine issue.

Mootness

The court also held that no effectual relief could be provided to the Committee for the alleged due process violation because the relief requested—that the City re-notice and conduct a new consistency determination hearing regarding the Project—could not be granted because the law requiring the consistency determination was repealed. By law, former Government Code sections 67650–67700 were repealed, dissolving FORA and eliminating the statutory requirement for FORA to determine whether projects at the base are consistent with the Reuse Plan.

The court rejected the Committee’s arguments that the City is a “successor in interest” to FORA’s obligations under the Reuse Plan and should be charged with correcting the improperly unnoticed hearing. It explained that the repeal of the law means that there is currently no requirement for a Reuse Plan consistency determination. Therefore, the Committee’s due process cause of action is moot.

Because the matter was moot, declaratory relief was also not available, and the court accordingly held that it was appropriate for the trial court to sustain the demurrers without leave to amend.

Third District Holds Bumble Bees are “fish” under the California Endangered Species Act, Can Be Listed as Endangered or Threatened Species

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In Almond Alliance of California v. Fish and Game Commission (2022) 79 Cal.App.5th 337, the Third District Court of Appeal held that bumble bees fall under the general definition of “fish,” as the term is defined in the California Fish and Game Code, because the definition includes terrestrial, as well as aquatic, invertebrates. Accordingly, bumble bees, which are terrestrial invertebrates, may receive protected status as endangered or threatened species under the California Endangered Species Act (“CESA”).

Background

In October 2018, several public interest groups petitioned the California Fish and Game Commission (“Commission”) to list four species of bumble bees as endangered. Soon after, the California Department of Fish and Wildlife (“Department”) issued a report declaring sufficient evidence for the Commission to accept the petition to list the species. The Commission acted accordingly, declaring the bee species as “candidate” species for further review by the Department.

In September 2019, Petitioners challenged the Commission’s decision to list the bumble bees as candidate species. They alleged the Commission violated its legal duty and abused its discretion because bumble bees are terrestrial invertebrates not included in CESA’s protections for “bird[s], mammal[s], fish, amphibian[s], reptile[s], or plant[s].” Furthermore, they asserted that section 45’s definition of “fish,” which includes invertebrates, refers only to aquatic invertebrates.

The trial court ruled for petitioners. The Commission, the Department, and several public interest groups appealed.

The Court of Appeal’s Decision

Section 45 Definition of “Fish” as Applied to Sections 2062, 2067, and 2068 of CESA

“Fish” as defined in section 45 of the California Fish and Game Code means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”  The Commission contended that this definition applies to the provisions of CESA which define endangered, threatened, and candidate species—sections 2062, 2067 and, 2068, respectively.

The Court agreed with the Commission, citing legal precedent and CESA’s legislative history. Specifically, the Court reaffirmed the holding in California Forestry Association v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535 that section 45 defines “fish” as the term is used in sections 2062 and 2067 of CESA. Additionally, the Court identified several instances in which the Legislature used or acquiesced to the use of the section 45 definition. For example, the Court highlighted that the Legislature expressly used the section 45 definition of “fish” when it enacted CESA, though it was within the purview the Legislature to create its own definition. Relatedly, the Legislature amended section 45 after the California Forestry Association decision, but stopped short of signaling its contrary intent from the holding in that case. Based on this evidence, the Court concluded that the Legislature intended for the word “fish” in sections 2062, 2067, and 2068 of CESA to take on the meaning as defined in section 45.

“Fish” Is a Term of Art Not Limited to Aquatic Species 

Petitioners asserted that even if section 45 applies to sections 2062, 2067, and 2068, the term invertebrates in the definition of “fish” should be read as being limited to aquatic invertebrates. However, the Court espoused the more technical definition of “fish” that encompasses all terrestrial and aquatic species that fall under the categories of “mollusks, invertebrates, amphibians, and crustaceans.”

The Court described how legislative history supports this definition. It explained that at the time CESA was enacted, several bill analysis reports noted that the Commission had the authority to designate insects as endangered or threatened. Additionally, the Court highlighted that the Commission previously approved a terrestrial mollusk and invertebrate, the Trinity Bristle Snail, as an endangered species and expressly reaffirmed its status upon CESA’s enaction. The Trinity Bristle Snail’s endangered status is an explicit example of the Commission using its authority to protect terrestrial invertebrates under the section 45 definition of “fish.”

Additionally, the Court noted that previous caselaw directs it to construe laws providing for the conservation of natural resources liberally.

Construing CESA liberally, and considering the legislative intent behind CESA, the Court concluded that “a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under [CESA].”

— Jordan Wright

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

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In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

First District Holds Stipulated Federal Court Judgments Do Not Preclude Independent Review Under CEQA

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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal held that Marin County properly limited the scope of its environmental review to comport with its legal obligations pursuant to two stipulated federal judgments. In the same vein, the Court rejected appellants’ claim challenging the scope of the EIR’s project description, which incorporated the constraints imposed by the judgments. The Court also rejected appellants’ claims that the County abused its discretion by rejecting a scaled down project alternative, and making several mitigation findings for impacts to traffic safety and density, a threatened species, and water supply and fire flow.

Background

Real Party in Interest, the Martha Company (Martha), owns a 110-acre property on a mountaintop in Marin County that overlooks the Town of Tiburon. For several decades, Martha attempted to develop single family homes on the property, yet all proposed projects befell to forceful opposition from residents of the Town of Tiburon and the County.

The current dispute is predated by two stints in federal court that resulted in stipulated judgements.

The first federal case occurred in 1975, when the County adopted a re-zoning measure that drastically reduced the number of residences Martha could build on the property from a minimum of 300 to a maximum of 34. Martha sued the County in federal district court, alleging the re-zoning constituted a regulatory taking of property. The case resolved in 1976 by stipulated settlement that (1) Martha could develop no fewer than 43 single family homes on a minimum of half-acre lots; (2) Martha could place some homes on portions of the property named the Ridge and the Upland Greenbelt; and (3) 43 single family homes on half-acre lots is consistent with the goals of the County’s general plan while allowing owners a feasible economic use of their property.

Between federal cases, Martha submitted a project proposal to the County, which directed Martha to file an application with the Town of Tiburon for approval. The Town conducted years of environmental study without rendering a decision, and eventually Martha withdrew its application. In 2005, Martha submitted a new project proposal. The County refused to process Martha’s second application just as it refused to process the first.

The County returned to federal court, seeking relief from the 1976 stipulated settlement. It alleged that California environmental laws had changed in the 30 years since 1976, such that it would be against public policy of the state to “allow a development of this magnitude, on environmentally sensitive and constrained land to proceed without the development and density being subject to CEQA review.” The district court dismissed the County’s complaint and granted the 2007 stipulated settlement, which set a timeline and procedures for enforcing the 1976 judgement.

Martha submitted a third development application for a 43-unit residential development project (the Project). The County circulated a draft EIR for the project in 2011.

In 2017, after years of administrative proceedings, further environmental review, and litigation concerning the project, Martha submitted a modified Master Plan of the development project to comply with the County Board of Supervisors’ request for a “more specific proposal.” Additionally, Martha agreed to a phased review of its development application. The Marin County Board of Supervisors certified the EIR by a 3-2 vote.

Tiburon Open Space Committee and the Town of Tiburon (collectively, the Town) each filed petitions for a Writ of Mandate against the County, alleging the EIR was legally inadequate in numerous respects, and the County’s review process was legally deficient. The trial court denied both petitions. The Town appealed.

The Court of Appeal’s Decision

Implications of the Stipulated Judgments

The Town’s principal allegation was that the County violated CEQA by failing to exercise the full measure of its statutory discretion when it complied with the stipulated judgements. In essence, the Town claimed the County illegally “contracted away its police powers.”

The Court of Appeal rejected these claims, explaining that the Board proceeded “along lines that are in fact expressly embedded in CEQA,” and did not circumvent its obligations under the statute.

First, the Court concluded that the EIR was not a “pro forma” exercise, nor had a preordained outcome as the Town contends. The Court underscored the fact that the EIR underwent several revisions, spanned 850 pages, involved consultation with other agencies, provided meaningful opportunity for public review and comment, and cost considerable time and money. Furthermore, the County retained discretion to shape the contours of the Project during the later phases of approval. Specifically, the Court noted, the EIR proceedings were not “rushed, perfunctory, or short circuited” and were “utterly at odds with the conduct of a public entity that believed itself free to blow off CEQA.”

Second, the County appropriately limited its CEQA analysis to the scope of its discretionary authority. The Court cited Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 for the holding that an agency’s discretion under CEQA is limited by its own legal obligations. For example, the Court remarked that CEQA imposes a duty to mitigate environmental impacts only to the extent feasible. Applied here, the County had a legal obligation to comply with the conditions imposed by the stipulated judgements. Since the stipulated judgments limit the scope of the County’s discretion by requiring certain conditions for the project be met, they also limited the scope of its environmental review. Thus, while legally feasible alternatives and mitigation measures had to be examined by the County, alternatives or mitigation measures that contradicted its obligations under the stipulated judgements were legally infeasible and did not need to be examined. Accordingly, the Court held that the County’s approval of a project that complied with the conditions set by the stipulated settlements was proper.

The Town also raised a corollary argument that the stipulated judgements deprived the members of the County Board of Supervisors from exercising their “independent judgement.” The Court refuted this argument by highlighting its logical flaw; that is, if it can be said that federal judgements are not binding on a public official’s independent discretion, then it can equally be said that inconvenient provisions of state law, namely CEQA, are not binding on independent discretion either.

The Court therefore concluded that the EIR fulfilled the central purpose of CEQA to “disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose,” and the County’s review process appropriately limited the scope of its environmental review to match its discretionary authority.

Project Description

The Court also rejected the Town’s claim that Final EIR’s 34-page project description was “artificially narrow” because it incorporated the legal constraints imposed by the stipulated judgments. The Court explained that the project description provided more detail than CEQA requires, and this argument was a mere variation of the claim that the County “abdicated” its responsibilities under CEQA by complying with the judgments—which it already rejected.

Alternatives

The Court held that the County did not abuse its discretion by rejecting a 32-unit alternative because that alternative was legally infeasible due to the legal requirements imposed by the stipulated judgments. It emphasized that an EIR is not required to review infeasible alternatives “even when such alternatives might be imagined to be environmentally superior.”

Environmental Impacts and Mitigation Findings

The Court of Appeal held that substantial evidence supported the County’s findings that several of the Project’s impacts would be mitigated to a less than significant level.

First, the Court upheld the County’s finding that traffic safety impacts could be mitigated by measures that required the Town to implement them—including removing traffic obstacles such as trash receptacles and enforcing speed limits on narrow winding road. The Court explained that CEQA only requires a “reasonable plan” for mitigation and allows for the approval of a project with a finding that mitigation should be adopted by another entity that has exclusive jurisdiction.

The Court also concluded that substantial evidence supported the EIR’s “level of service” (LOS) methodology for calculating the Project’s traffic density impacts, noting that LOS was an established standard required in the County. Quoting the trial court, the Court of Appeal held that the traffic analyst was entitled to rely on this methodology because it “had the prerogative to resolve conflicting factual conclusions” about the traffic congestion impacts of the Project.

The Court upheld the EIR’s use of best management practices (BMPs) for the mitigation of impacts on the threatened California red-legged frog. It explained that the BMPs did not defer mitigation, but rather qualified as “revisions in the project plans” agreed to by Martha because they were accepted as conditions of approval. Further, the Court noted, the BMPs were already in existence because they were included in the Project’s Stormwater Control Plan. Accordingly, the Court determined that the BMPs were incorporated by reference in the EIR.

The Town’s claims regarding the County’s water supply and fire flow mitigation measures were barred due to its failure to exhaust the issues during the County’s administrative process. The Court nonetheless concluded that the measures requiring Martha to work with local water and fire authorities were sufficient and would not allow Martha to do “nothing” because failing to comply would result in the County not issuing the permits required to proceed with the Project. The Court also concluded that the Town’s demand for more detail in the water supply plan went beyond what CEQA requires.

Lastly, the Court concluded that substantial evidence—specifically, construction and traffic experts’ opinions—supported the County’s determination that mitigation would reduce the Project’s safety impacts resulting from a temporary on-site construction road to less than significant. The Court explained that alternative evidence does not negate the substantial evidence that the County relied on, and that it is within the agency’s discretion to evaluate the credibility of such evidence. It also emphasized that the safety risks were limited to the workers building the Project, and CEQA only requires review of safety risks posed to the public in general.

The Court’s Closing Remarks

The Court of Appeal concluded its opinion by expressing its inclination to afford the trial court’s decision great weight in counties with designated CEQA judges. The Court also generally criticized the use of CEQA lawsuits as “tool[s] of obstruction,” especially for housing developments.

— Jordan Wright & Veronika Morrison

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