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CEQA News You Can Use – Volume 5, Issue 2

Welcome to CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!


Legislative update on CEQA bills

Three of the bills highlighted in the last CEQA News (AB 1907, SB 621 and SB 1302) are not moving forward this year (a risk of an early year legislative update!), while SB 950 was reintroduced as SB 55 (D-Jackson), and would substantially revise CEQA practice if it passes. Still pending are several CEQA exemption bills, a number of housing bills, and two bills that would revise CEQA litigation procedures. AB 2323 clarifies CEQA exemptions for projects consistent with a specific plan, certain housing projects, and infill projects. SB 288 would exempt certain transportation projects from CEQA, including transit improvement projects that increase passenger or commuter service, zero-emission vehicle fueling/charging stations, and bicycling infrastructure. SB 902 would enable a lead agency to pass an ordinance allowing up to 10 units of residential per parcel in transit- and job-rich areas, and would make that ordinance exempt from CEQA. SB 1120 would make approval of up to two residential units a ministerial action, therefore not subject to CEQA. SB 1385 would allow residential use on any lot zoned commercial or office use, and SB 1085 would modify the density bonus law for affordable housing, including removing environmental impacts as a reason why a lead agency could refuse to waive or reduce development standards. SB 995 would extend and modify the AB 900 environmental leadership project program for another five years. Finally, AB 3279 would revise certain CEQA litigation procedures, including but not limited to only allowing a petitioner to prepare the administrative record at the request of the lead agency, requiring courts to hold a CEQA hearing within 270 days, and limiting briefing to 60 days unless otherwise stipulated by the parties.


Streambed Alteration Agreement does not trigger supplemental CEQA review

Is a Streambed Alteration Agreement (SAA) a “further discretionary approval,” triggering supplemental environmental review under CEQA? Not according to the Sixth District Court of Appeal in Willow Glen Trestle Conservancy v. City of San Jose, in which the court rejected the petitioner and appellant’s claim that the city lead agency triggered CEQA by seeking a new SAA for a project approved in 2014 after the original SAA had expired. The city’s SAA application was not an “approval for the project.” Rather, in submitting the statutorily required notification to the California Department of Fish and Wildlife (CDFW), the lead agency “was simply implementing the project that had already been approved in 2014.” Likewise, the city’s acceptance of the SAA was not a project approval, “but simply another step in the implementation of the already approved project.” The only new “approval” associated with the SAA was CDFW’s, which the petitioner and appellant had not challenged.


Appellate court says “Knoll” to city’s use of MND for mixed use project

In Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, the Second District Court of Appeals upheld the trial court’s decision that the City of Agoura Hills could not rely on a mitigated negative declaration (MND) for a mixed use development on an undeveloped 8.2 acre parcel. Save Agoura Cornell Knoll (STACK) filed suit alleging substantial evidence of a “fair argument” that the city needed to prepare an EIR and violations of the city’s Oak Tree Ordinance. On appeal, the city and developer argued that STACK failed to exhaust administrative remedies, but the court found the STACK’s bare citations to the administrative record were sufficient to prove exhaustion. Applying the fair argument standard, the court determined that the MND did not adequately analyze the impacts or propose sufficient mitigation measures related to cultural resources, sensitive plant species, native oak trees, and aesthetics, triggering the need to prepare an EIR for the reconsideration of the mixed use project.


Much ado about an (inapplicable) categorical exemption

In Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, Caltrans’ misrepresentations and misleading conduct concerning CEQA precluded the court from dismissing the case based on statute of limitation grounds. After Caltrans circulated an EIR for two freeway interchange ramps as part of a larger project known as the North Coastal Corridor in San Diego, and indicated that it would publish a Notice of Determination (“NOD”) in compliance with CEQA, Caltrans changed course and instead relied on a categorical exemption found in the Streets and Highways Code to approve the project. Even though the petitioner filed suit after the 35-day statute of limitations ran from Caltrans’ filing of a Notice of Exemption (“NOE”), the appellate court held that the suit could go forward because nothing in the plain language of section 103 of the Streets & Highways Code expressed any intent to exempt Caltrans from CEQA’s requirement to prepare an EIR for the project. Additionally, the court held that the petitioner had alleged sufficient facts to show Caltrans was equitably estopped from relying on the statute of limitations for challenging NOEs based on Caltrans’ misdirection about whether it would file a NOE or a NOD for the project.


CEQA’s statute of limitations is not flexible

In Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, the Second District Court of Appeal upheld the trial court’s denial of a neighborhood coalition’s CEQA challenge to a Tentative Tract Map and MND. The court held that it could not address the merits of a petition where the statute of limitations had run. The city’s Deputy Advisory Agency approved the tract map, certified the MND, and timely filed the Notice of Determination, triggering the 30-day limitations period. Seven months later, the Planning Commission considered a general plan amendment necessary for the project, and plaintiff appealed. The City Council heard and denied the appeal, adopting the general plan amendment, triggering Coalition’s suit. When the city moved to dismiss on the basis of the statute of limitations, Coalition claimed that the limitations period was inapplicable because only the Planning Commission, not the Advisory Agency, had the authority to approve the project. Rejecting the claim, the court found that the suit was barred by the statute of limitations, and that Coalition had confused the timeliness of the lawsuit with its merits.


Ain’t no mountain high—Second District upholds agency’s use of peak baseline

In an explanatory decision, the Second District Court of Appeal in Communities for a Better Environment v. South Coast Air Quality Management District upheld an agency’s use of a “maximum” or “peak” baseline in analyzing an oil refinery project’s environmental impacts. The agency used the oil refinery’s “near-peak” (98th percentile) air pollution emissions for the two years preceding the project to analyze the project’s air quality impacts. The court found this approach satisfied CEQA as it would enable the agency to “measure and control the biggest health danger”—the worst pollution days—and, because establishing the baseline is not an exact science, the agency’s decision need only represent actual conditions and be supported by substantial evidence. The agency properly substantiated its approach by following the EPA’s practice of using peak emissions to regulate air pollution, an approach the court found reasonable given it is a “time-tested” way to notify the public of health impacts from the worst air pollution days.


San Diego County Climate Action Plan rejected again

In Golden Door Properties LLC v. County of San Diego, the Fourth District Court of Appeal rejected the county’s latest attempt to implement a Climate Action Plan (CAP). The CAP arose as a mitigation measure in the county’s 2011 General Plan Update Program EIR, but a decade of legal scrutiny by the Sierra Club, Golden Door Properties, the California Attorney General and others has resulted in two prior decisions rejecting the county’s attempts to implement the CAP. (See Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, and Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892.) In its latest decision, the court rejected mitigation measure GHG-1, which would have allowed projects to offset greenhouse gas (GHG) emissions by purchasing carbon offsets from outside the county (and potentially, outside the U.S.), as failing to meet CEQA standards for mitigation measures. Although the court noted that its decision is “not intended to be, and should not be construed as a blanket prohibition on using carbon offsets—even those originating outside of California—to mitigate GHG emissions under CEQA,” the decision may provide guidance to other agencies wrestling with how to mitigate GHG emissions. Also finding issues with the Supplemental EIR (SEIR) used to analyze the CAP and the CAP’s reliance on MM-GHG-1, the court affirmed the trial court’s order requiring the county to reverse its approval of the CAP, SEIR and other associated actions taken in February 2018.


Judicial Council clarifies tolling for CEQA statute of limitation in amended Emergency Rule 9

On May 28, 2020, the Judicial Council of California amended Emergency Rule 9 and clarified how it pauses statutes of limitation that are 180 days or less, including CEQA statutes of limitations, due to the coronavirus pandemic. The amended Rule 9 states that such statutes of limitation “are tolled from April 6, 2020, until August 3, 2020.” (See Emergency Rule 9(b).) This amendment clarifies the uncertainty surrounding CEQA actions filed during the coronavirus pandemic, as identified in our prior CEQA News edition.


Authors

Mack Carlson
Associate
      Beth Collins
Shareholder
 
Jessica Diaz
Associate
      Elisabeth L. Esposito
Associate
 
Christopher R. Guillen
Associate
      Susan Petrovich
Shareholder
 
Rebecca Tucker
Marketing & Business Development Director
      Brooke M. Wangsgard
Associate
 
Ryan Waterman
Shareholder
     

This document is intended to provide you with information regarding CEQA. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact one of the attorneys listed below or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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