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THIRD DISTRICT HOLDS CAPITOL BUILDING ANNEX EIR FAILED TO ADEQUATELY DESCRIBE ANNEX DESIGN, ANALYZE IMPACTS TO HISTORIC CAPITOL BUILDING, AND CONSIDER REASONABLE PROJECT ALTERNATIVES

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In Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, the Third District Court of Appeal held that an EIR prepared by the Department of General Services and the Joint Committee on Rules of the California State Senate and Assembly (collectively, DGS) for the demolition and replacement of the State Capitol Building Annex in Sacramento (project) did not comply with CEQA. In particular, the court found that the EIR’s project description, analyses of aesthetics and historical resources, and analysis of alternatives were deficient.

Background

The Legislature enacted the State Capitol Building Annex Act of 2016 authorizing renovation or reconstruction of the Annex and streamlining CEQA review for the project. Pursuant to the Act, the project sought to demolish the existing Annex and construct a new Annex, underground visitor center, and underground parking structure.

In the draft EIR, DGS explained that the project would follow an accelerated design and construction process in which the initial project concept would evolve and become more refined as the process moved forward. After circulating the draft EIR for public comment, DGS redesigned the visitor center and recirculated the draft EIR.

After recirculating the draft EIR, DGS continued to develop and modify the project design. The final EIR included more modifications from the draft EIR. It changed the location and capacity of the underground parking garage and clarified the project’s impacts on trees and landscaping. Additionally, for the first time, the final EIR disclosed the exterior design of the new Annex. DGS concluded that none of the modifications in the final EIR constituted significant new information that would require recirculation, certified the EIR, and approved the modified project.

Save Our Capitol! and Save the Capitol, Save the Trees filed petitions for writ of mandate challenging the EIR’s compliance with CEQA. The trial court denied the petitions, and the cases were consolidated on appeal.

Court of Appeal’s Decision

Project Description

While the court rejected most of petitioner’s arguments, it agreed that DGS’s failure to disclose the exterior design of the Annex before preparing the final EIR rendered the project description inadequate.

The key inquiry in the court’s analysis was whether the changes in the project description “thwarted the public’s ability to participate in the process and comment meaningfully on the EIR.” The court emphasized that the EIR was required to consider the project’s aesthetic impacts on an important historical resource, the Capitol Building, and reasoned that without the description of the Annex design, neither the draft EIR nor the public could consider those impacts before the final EIR was prepared.

The court explained that while the draft EIR stated that the new Annex would be aesthetically “consistent” with the Capitol Building and would create a “one-building” feel, the final EIR described the Annex as aesthetically “compatible” with the Capitol Building and clarified that the “one-building” feel referred to the interior consistencies between the Annex and the Capitol Building. The court also found that the glass exterior, proposed in the final EIR design, was highly relevant to the analysis of impacts, including impacts to the historical Annex building.  The court concluded that the discrepancies between the draft and final EIR, and the important information disclosed in the final EIR, could have misled the public about the design and hindered the opportunity for meaningful public comment about the project’s impacts. Thus, the court determined, the EIR’s description of the Annex’s exterior design deprived the public of an opportunity to comment on environmental impacts and did not satisfy CEQA’s project description requirements.

Analysis of Impacts

The court found that substantial evidence supported much of the EIR’s analysis of impacts; however, it agreed with petitioners that the EIR did not adequately analyze the project’s impacts on historical resources and aesthetics.

First, the court found that the EIR’s analysis of impacts to historical resources was deficient. Because the exterior design of the Annex was never circulated for public comment, DGS did not receive public comments concerning the project’s aesthetic impacts on the historic Capitol Building. Thus, the final EIR did not include written responses to concerns about these impacts. Recognizing that public comments and responses are an essential part of an EIR’s analysis, the court concluded that the analysis of impacts to historical resources did not comply with CEQA.

Second, the court found that the EIR did not adequately analyze the project’s impacts on the scenic vista of the Capitol Building from the west. While the court acknowledged that “CEQA does not expressly require visual simulations,” it nevertheless concluded that the EIR was required to include a visual representation or rendering of the east-facing vista. The court reasoned that the importance of the view of the west façade of the Capitol “[could] not be overstated,” given the significance of the Capitol’s historic role as “the seat of state government” and the Legislature’s development of various programs for the beautification of the area. The court concluded that, without a visual depiction, the EIR did not allow either DGS or the public to meaningfully consider the project’s intrusion on the scenic vista. Thus, the court held, the EIR’s analysis of this aesthetic impact did not comply with CEQA.

Analysis of Alternatives

The court explained that CEQA requires an EIR to describe a range of reasonable alternatives that would both attain most of the project’s objectives and avoid or lessen the project’s environmental impacts. It concluded that DGS failed to meet this standard by selecting clearly inferior alternatives that would be easily eliminated—either by failing to obtain the project objectives or causing a greater environmental impact than the project.

Additionally, while the court concluded that DGS meaningfully considered and rejected alternatives involving Annex renovation instead of demolition, it disagreed with the EIR’s conclusion that a proposed alternative would not lessen any significant impacts and found the alternative would also meet the project’s objectives. Thus, because it deprived the public of the opportunity to participate in the evaluation of reasonable alternatives, the court concluded that the omission of this alternative violated CEQA.

Remedy

On rehearing, the court concluded that the deficient portions of the EIR were severable from the portions of the EIR that addressed the impacts of Annex demolition and the Annex renovation alternatives. Thus, recognizing that any new exterior Annex design will require demolition of the existing Annex, the court concluded that demolition activities could proceed during remand. However, the court prohibited DGS from proceeding with any project activities that would prejudice DGS’s ability to revise the new Annex design based on new analysis.

Accordingly, the court directed the trial court to issue a peremptory writ of mandate directing DGS to partially decertify the EIR and revise and recirculate the deficient portions before recertifying.

Concurring and Dissenting Opinion

Justice Mauro filed a separate opinion concurring with the majority, but dissenting with respect to the conclusion that the EIR did not adequately analyze the project’s aesthetic impacts. The dissent concluded that CEQA did not require the EIR to include additional visual renderings of the project’s impacts on the view of the Capitol Building from the west.

The dissent noted that the EIR discussed the extent to which the new structures west of the Capitol Building would obstruct the view. Additionally, the dissent pointed to visual depictions of the proposed structures from above and cross-sections of the proposed structures from the south of the project site contained in the EIR. The dissent emphasized that the manner of discussion of the project’s aesthetic impacts was left to DGS’s discretion. While DGS could have provided more or different details about the impact, the dissent concluded that the impact discussion and visual schematics, considered together, sufficiently notified the public and decisionmakers about the extent of the aesthetic impact to the east-facing view.

By Louisa I. Rogers

Administrative Appeal Does Not Toll CEQA’s Statute of Limitations Where the Administrative Appeal Process Does Not Cover CEQA Issues

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In American Chemistry Council v. Department of Toxic Substances Control (2022) 86 Cal.App.5th 146, the Department of Toxic Substances Control (DTSC) adopted a regulation listing spray polyurethane foam systems as a priority product of concern under California’s “Green Chemistry” law and the Safer Consumer Products regulations. The Fifth District Court of Appeal held that petitioners’ CEQA challenge to the listing decision was untimely. The court also held that the listing decision complied with the Administrative Procedure Act (APA) and was within the scope of DTSC’s authority.

Background

Spray foam systems are a popular type of spray-applied insulation. Since 2014, DTSC has identified spray foam systems as a potential priority product under its Safer Consumer Products program and the Green Chemical law. After preparing several technical studies, in March 2018, DTSC submitted a final regulatory package for the listing regulation to the Office of Administrative Law. At that time, DTSC also issued a notice of exemption under CEQA for the listing regulation. The Office of Administrative Law approved the listing on April 26, 2018.

On May 30, 2018, petitioner American Chemistry Council submitted an informal dispute resolution request to have the department withdraw the listing. This dispute resolution process was authorized by the Safer Consumer Products regulations. DTSC ultimately rejected the request and associated administrative appeal on February 25, 2019.

On August 9, 2019, the American Chemistry Council and General Coatings Manufacturing Corporation filed a petition for writ of mandate and complaint challenging the listing regulation under the APA and CEQA. The trial court rejected petitioners’ APA claims, but found that the department had violated CEQA. Both sides appealed.

The Court of Appeal’s Decision

DTSC argued that petitioners’ CEQA claim was time-barred under CEQA’s 180-day statute of limitations because petitioners did not file their lawsuit until more than a year after DTSC made its listing decision. Petitioners claimed that DTSC’s listing decision was not final until the informal dispute resolution and appeal process was complete, so the statute of limitations did not begin to run until that time. The Court of Appeal agreed with DTSC, holding petitioners’ CEQA claim was time-barred.

The Court of Appeal first explained that the Safer Consumer Products’ regulatory structure for administrative appeals does not cover CEQA issues. The court observed that the dispute resolution and appeal process set forth in the Safer Consumer Products regulations is limited to a subset of disputes arising out of those same regulations. Nothing in the dispute resolution regulations suggests that CEQA issues may be resolved as part of that process. Accordingly, petitioners were under no duty to exhaust their administrative remedies under CEQA through that dispute resolution process.

Petitioners argued that, even if they were not required to exhaust their administrative remedies on their CEQA claims through the Safer Consumer Product’s dispute resolution process, the statute of limitations under CEQA did not begin to run until the administrative appeal process was completed because there was no final agency action until that process was resolved. The court rejected this argument, explaining that CEQA’s limitations period begins to run on the date the project is approved by the public agency. That period is not retriggered on each subsequent date that the public agency takes some action toward implementing the project, such as DTSC’s decision to deny the administrative appeal.

Here, by the time the Office of Administrative Law approved and filed the regulatory packet on April 26, 2018, DTSC had publicly voiced its intent to list spray foam systems as a priority product, taken and responded to public comments on that decision, issued a notice of exemption under CEQA, and released a final statement of reasons for the action. At that point, DTSC had made a firm commitment to the listing. Thus, the court determined, the statute of limitations on the CEQA claim began to run no later than April 26, 2018, when the Office of Administrative Law approved the listing. Because petitioners did not file their lawsuit within 180 days of that date, the CEQA claim was time-barred.

The court also held that DTSC did not exceed its authority under the Green Chemistry law or violate the APA in listing spray foam systems as a priority product. Contrary to petitioners’ arguments, DTSC was not required to establish a set exposure level for the chemical in question because the Green Chemistry law focuses on potential for exposure, not the extent of exposure. Further, the record supported DTSC’s conclusion that even a miniscule exposure could harm certain individuals. Additionally, DTSC substantially complied with applicable requirements governing the listing’s economic-impact analysis. And DTSC had a rational basis for rejecting voluntary alternatives to the listing decision.

–Laura Harris

SECOND DISTRICT HOLDS 90-DAY LIMITATIONS PERIOD FOR ACTIONS TO “ATTACK, REVIEW, SET ASIDE, VOID, OR ANNUL” LAND USE DECISIONS, RATHER THAN 4-YEAR PERIOD PROVIDED BY POLITICAL REFORM ACT, APPLIED TO ACTION CHALLENGING ALLEGEDLY CORRUPT PERMITTING DECISIONS

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In AIDS Healthcare Foundation v. City of Los Angeles (2022) 86 Cal.App.5th 322, the Second District Court of Appeal held that the 90-day statute of limitations in Government Code section 65009, for actions to “attack, review, set aside, void, or annul” certain land use decisions, barred challenges to land use decisions made by City officials alleged to be involved in an extensive bribery scheme.

Background

The Los Angeles City Council planning and land use management (PLUM) committee has various roles, including reviewing and recommending proposed real estate development projects. In 2020, one former member of the PLUM committee was arrested, and another was indicted, for allegedly accepting bribes and engaging in other corrupt behaviors in relation to PLUM committee work. Both members left the PLUM committee in the fall of 2018.

In August 2020, AIDS Healthcare Foundation (AHF) filed suit against the City, alleging that an “ongoing corruption scandal regarding the approval of real estate projects” violated the Political Reform Act of 1974 (PRA or Act). AHF sought an order restraining all building permits granted by the City while the corrupt former members served on the PLUM committee, as well as an order restraining the City from supporting any of the affected projects with taxpayer money.

The City demurred to AHF’s complaint, arguing that the claims were time-barred. The superior court sustained the demurrer, concluding that the action had not been brought within the applicable 90-day statute of limitations. AHF appealed.

Court of Appeal’s Decision

Applicable Statute of Limitations

In the trial court, AHF argued that the PRA provided the applicable statute of limitations. The PRA permits suits for injunctive relief where public officials are alleged to have used their official position to influence government actions for their own personal financial interests. Relevant here, the PRA permits courts to set aside official actions tainted by violations of the Act. The PRA includes a four-year statute of limitations for civil actions brought under the Act.

On appeal, AHF argued instead that the three-year “catch-all” statute of limitations for statutorily-created liability in Code of Civil Procedure section 338, subdivision (a) applied to the action. The City consistently argued that the 90-day limitations period provided by Government Code section 65009 for actions “to attack, review, set aside, void, or annul” various land use and zoning decisions applied to the action.

The Second District agreed with the City that the 90-day statute of limitations barred the action. Citing Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888 (Ching), which addressed a similar question, the court reasoned that the plain language of section 65009 encompassed AHF’s action. The Ching court noted that section 65009 had no exceptions for actions brought under the PRA. Additionally, the Ching court explained that “specific statutes control general ones” and thus held that the more specific 90-day statute of limitations in section 65009 applied to the type of challenge at issue, rather than the general limitations period provided by the PRA. After reviewing Ching and other similar opinions, the court concluded that section 65009 provided the applicable limitations period for AHF’s action.

Gravamen of the Complaint

Seeking to avoid the 90-day limitations period, AHF argued that the gravamen of its action was a challenge to corruption by City officials, even if the ultimate relief sought was the invalidation of improperly-issued permits.

The court rejected AHF’s argument, explaining that AHF could not escape the short limitations period by characterizing its claim as “necessarily dependent on a finding of a violation of the PRA,” rather than a challenge of project approvals by the PLUM committee.

Constitutional Considerations

Acknowledging that the California Constitution generally limits the Legislature’s power to amend or repeal initiative statutes, the court nevertheless rejected AHF’s argument that applying the limitations period in section 65009 to the action constituted “an unconstitutional legislative amendment to a duly-enacted voter initiative” for several reasons.

First, the court noted that the PRA contained express provisions allowing amendments to the Act by the Legislature, and that AHF failed to address these provisions in its briefing. Second, recognizing that the limitations period in section 65009 pre-dated the PRA by almost 10 years, the court remarked that the Legislature could not have intended to limit or amend the PRA in enacting section 65009. Third, the court explained that the four-year limitations period in the PRA was added by a later legislative amendment, not by voter initiative. Thus, the limitations period in the PRA was not enacted by voter initiative, as AHF claimed. Finally, even if the electorate had enacted the PRA’s four-year limitations period through an initiative, the court reasoned that the electorate did nothing to expressly abrogate other existing and potentially applicable statutes of limitations when it passed the PRA. For these reasons, the court held that the application of the pre-existing 90-day limitations period provided in section 65009 to the PRA action did not conflict with or amend the original PRA.

Policy Arguments

While AHF urged that important policy reasons justified the application of a longer limitations period to “discover and ferret out corruption,” the court declined to consider the policy goals underlying both the PRA and section 65009. The court explained that the statutory language of 65009 contained no ambiguity, and thus, it was required to apply the 90-day limitations period contained therein to AHF’s action.

— Louisa Rogers

FIRST DISTRICT UPHOLDS LESS THAN SIGNIFICANT IMPACT DETERMINATION FOR BIOLOGICAL RESOURCES BASED ON SURVEY THAT PREDATES THE NOP, AND ON PUBLIC SAFETY BASED ON CITY STAFF EXPERTISE

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In Save North Petaluma River and Wetlands v. City of Petaluma (2022), 86 Cal.App.5th 207, the First District Court of Appeal upheld an EIR’s analysis of an apartment complex’s impacts on biological resources and public safety. The court concluded that the EIR’s reliance on a special status species survey conducted several years before the NOP was issued, as well as review of more recent databases, was sufficient to support its conclusion that the Project would have a less than significant impact. It also concluded that the City’s reliance on its staff’s expertise was sufficient to support its conclusion that the Project would not have a significant impact on public safety related to emergency evacuation.

Background

In 2007, the City published a Notice of Preparation (NOP) for a 312-unit apartment complex in the City of Petaluma. In May 2008, the applicant submitted an application for a smaller 278-unit complex to comport with the City’s newly adopted 2025 General Plan. In March 2018, the City published a draft EIR for the complex, which included a 2004 consultant report on special status species in the Project area. In October 2019, the City issued a final EIR for the Project, concluding that the changes made in the reduced-scale version of the complex eliminated or reduced several of the potentially significant impacts identified in the Draft EIR. The Planning Commission recommended that the City Council certify the final EIR, but did not recommend approving the necessary zoning amendments.

In January 2020, in response to public comment and input from public agencies, the applicant submitted a second reduced version of the Project with 180 units (hereinafter, the Project), reducing the building footprint and increasing the setback from the Petaluma River, preserving two wetlands near the river and avoiding development in the River Plan Corridor, and preserving additional trees with a flood terrace design adjustment. A City staff report determined that this second revised version of the Project reduced impacts and addressed the Planning Commission’s concerns regarding the zoning amendments, and concluded that the second revised Project was within the reasonable range of alternatives addressed in the EIR and would not result in new or more substantial impacts compared to prior versions. The City certified the EIR and overturned the Planning Commission’s denial of zoning amendments. In February 2020, the City approved the zoning amendments by ordinance.

Save North Petaluma River and Wetlands and Beverly Alexander (Petitioners) field a petition for writ of mandate challenging the adequacy of the EIR on several grounds. The trial court denied the petition and Petitioners appealed.

Court of Appeal’s Decision

Special Status Species Impact Analysis

The court rejected Petitioners’ argument that the EIR’s impact analysis of special status species was deficient.

It explained that the EIR did not fail to investigate the project’s baseline conditions as of 2007 when the NOP was published because the 2004 special status species survey was based on current data at the time, and the EIR included database reviews from more recent years—as recent as 2017. The court further explained that there is no authority suggesting that CEQA is violated where an EIR’s analysis is drawn from site visits, studies, and habitat evaluations undertaken both before and after the NOP. Further, the court noted that Petitioners did not cite any evidence that the biological conditions at the Project site differed from 2004 to 2007, or in later years when updated databases were consulted.

Moreover, the court reasoned that Petitioners failed to challenge the EIR’s description of existing conditions and habitats on the undeveloped Project site, and that there is no evidence that the EIR omitted or inaccurately described the material aspects of the biological conditions on or near the Project site. The court distinguished this case from a string of cases where an EIR purported to measure impacts based on conditions that did not exist on the Project site or on conditions that were forecasted to exist at some point in the distant future. (See, e.g., Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.)

The court held that the EIR’s references to studies and site visits constitute substantial evidence supporting its special status species analysis because factual information in the EIR itself may constitute substantial evidence in the record to support the agency’s action on the project. (CEQA Guidelines, § 15121, subd. (c).) The court explained that it is appropriate to cite, but not include such documents in the EIR.

Therefore, the court held that the EIR’s analysis and information upon which it relied regarding the Project’s impacts on special status species was sufficient, and accordingly rejected Petitioners’ further contend that the EIR failed to offer recommendations that would adequately mitigate the Projects impacts on these species.

Emergency Evacuation & Public Safety Impact Analysis

The court also rejected Petitioners’ argument that the EIR was deficient because it omitted an analysis of egress and evacuation safety based on public comment documenting flooding and grass fires in the area. The court instead held that the EIR’s conclusion that the Project would not impair implementation of, or physically interfere with, an adopted emergency response plan or emergency evacuation plan was supported by substantial evidence, noting thde EIR’s adoption of the 2013 California Fire Code, consultation with the Petaluma Fire Department, and incorporation of additional recommendations and approval from the City Fire Marshal.

The court also explained that an agency may rely on the expertise of its staff to determine that a project will not have a significant impact, and that the City therefore appropriately relied on a City staff memorandum corroborating the public safety analysis in the EIR and reflecting information from the City’s Assistant Fire Chief confirming that the Fire Department does not have significant flood or fire access or egress concerns with development above the 100-year floodplain at the site. Additionally, the court rejected Petitioners’ claim that the City staff memorandum is improper post-EIR analysis, distinguishing this case from Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

–Veronika Morrison

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

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