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The California Supreme Court's Recent Flood of CEQA Decisions

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The California Supreme Court's Recent Flood of CEQA Decisions practice tips BY CHRISTIAN L. MARSH The California Supreme Court’s Recent Flood of CEQA Decisions THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA),1 with its use of feasible alternatives or mitigation measures.10 mandate on public agencies to lessen or avoid the unwelcome envi- When the lead agency finds that the project will have a less-than- ronmental effects of proposed projects, has generated hundreds of law- significant effect on the environment, the agency may adopt a nega- suits in the state’s trial courts and intermediate appeals courts over tive declaration instead of preparing an EIR.11 CEQA and its imple- the statute’s 40-year history. Perhaps no other California law matches menting guidelines also provide a series of exceptions or exemptions CEQA in this respect. With so many lawsuits, commentators have from CEQA’s environmental review requirements.12 If any apply, noted wryly that it is not difficult to find a CEQA case standing for the lead agency need not prepare a negative declaration or an EIR. almost any proposition. Lead agencies and project proponents expend Once the agency approves the project, it may issue a notice that trig- untold millions each year defending or settling those suits and in pay- gers a short 30- or 35-day statute of limitations period.13 ing their opponent’s attorney’s fees when public interest plaintiffs pre- The state supreme court first grappled with CEQA just two years vail under the state’s private attorney general statute.2 Moreover, these after its enactment. Referring to the statute as “EQA” at the time, sums do not account for the enormous expenses arising from the delays Justice Stanley Mosk authored the decision in Friends of Mammoth that can ensue once a project is challenged in court.3 v. Board of Supervisors that answered a simple but fateful question: While the supply of CEQA cases in the lower courts appears Does CEQA apply to private activities for which a government per- inexhaustible, historically only a minute fraction of those cases have mit or other entitlement is needed?14 The court’s answer is apparent been accepted for review by the California Supreme Court. The rel- to anyone familiar with the endless stream of litigation involving pri- atively few CEQA cases taken by the supreme court each year is not vate projects since that time. In Friends of Mammoth, the court first surprising given the court’s discretion to grant review and the narrow articulated the oft-cited rule of statutory construction that “the circumstances under which it does so. What is surprising, however, Legislature intended CEQA to be interpreted in such manner as to is the number of CEQA cases decided by the court in the last four years, afford the fullest possible protection to the environment….”15 and particularly in late 2009 and the first quarter of 2010. The court Following Friends of Mammoth, the court has had occasion to decided four CEQA cases in as many months—a new record eclips- resolve a number of seminal questions under CEQA. For example, ing by a wide margin the number of CEQA cases decided by the court in Laurel Heights Improvement Association v. Regents of University in previous years. of California (Laurel Heights I) the court first held that the “rule of Why is CEQA drawing so much attention from the court now? reason” governs the range of project alternatives that the agency must Have the supreme court’s actions revealed discernable trends? The consider in an EIR, as well as the level of detail and analysis that the answers to these questions may portend the direction of the court’s EIR must include concerning those alternatives.16 CEQA jurisprudence and the fate of future cases. In Western States Petroleum Association v. Superior Court, the In CEQA cases, like almost all civil cases,4 the California Supreme court considered the evidentiary standards that apply in CEQA cases. Court’s review is discretionary and typically granted in limited cir- It set considerable limits on the admissibility of extra-record evidence— cumstances when necessary to settle an important question of law or that is, evidence that was not before the agency when it made its deci- resolve a conflict in decisions among the state’s six appellate districts.5 sion.17 While the court did not entirely “foreclose” the admissibility Indeed, of the roughly 7,000 petitions received by the court each year, of extra-record evidence under “unusual circumstances or for very lim- only 1 to 2 percent are accepted for review.6 The court has decided ited purposes,” the court emphasized that extra-record evidence about 40 CEQA and CEQA-related cases since the statute was “can never be admitted merely to contradict the evidence the admin- approved by the California Legislature in 1970—an average of one istrative agency relied on in making a quasi-legislative decision or to per year.7 According to Justice Kathryn Werdegar, when a conflict raise a question regarding the wisdom of that decision.”18 emerges among the appellate districts, the court “almost always In balancing the earlier rule that CEQA be interpreted in a man- grants review” unless 1) the case at issue involves a “maverick opin- ner that affords the “fullest possible protection to the environment,” ion” that is nonetheless heading in the right direction, 2) the case is the court held in Napa Valley Wine Train, Inc. v. Public Utilities Com- not a good vehicle due to unusual facts or procedural difficulties, 3) mission that this general rule of construction does not apply when “the recent legislation may solve the problem, or 4) the court wants the Legislature has, for reasons of policy, expressly exempted several cat- issue to “percolate” further among the lower courts.8 Enacted to inform decision makers and the public about the Christian L. Marsh is a partner with Briscoe Ivester & Bazel LLP in San potentially significant environmental effects of proposed projects Francisco, where he represents public agencies and private clients in natural before those projects are approved, CEQA requires lead agencies to resources, water, and land use matters. He served as cocounsel to the pre- prepare an Environmental Impact Report (EIR) whenever the agency vailing appellant in Stockton Citizens for Sensible Planning v. City of Stockton finds that a project may have a significant impact on the environment.9 and is currently serving as counsel to amici curiae League of California Cities The EIR, in turn, must evaluate ways to avoid or reduce the envi- and California State Association of Counties in support of the appeal in eSav ronmental effects of the project through changes to the project or the the Plastic Bag Coalition v. City of Manhattan Beach. Los Angeles Lawyer January 2011 13 egories of projects from environmental court decisions. The only two lower court Coordinated Proceedings decided whether review.”19 In those circumstances, the court decisions to survive review (albeit on separate the state in its programmatic EIR for the “does not sit in review of the Legislature’s grounds) arose from the Second Appellate operation and restoration of the Sacra- wisdom in balancing these policies against District in Los Angeles.23 In the 11 decisions mento/San Joaquin Delta should have eval- the goal of environmental protection issued since 2006, the court has shown no uated an alternative to diverting water to because, no matter how important its orig- clear preference for plaintiffs or defendants or southern California—an alternative that pre- inal purpose, CEQA remains a legislative act, for environmental groups or public agencies. sumed an end to years of population growth subject to legislative limitation and legisla- Indeed, the decisions constitute an almost in California and would have rendered moot tive amendment.”20 even split. years of fierce political battles over the allo- Between 2006 and 2009 the court ruled cation of water between north and south.25 The 2006-2009 CEQA Docket on broad substantive issues of statewide Deferring to the public agencies’ discretion to Six of the seven justices currently seated on the importance. In 2007, for example, the court set program objectives, the court decided California Supreme Court have been together in Vineyard Area Citizens for Responsible that the state was not required to evaluate a since January 2006, when Justice Carol Growth, Inc. v. City of Rancho Cordova no-export alternative that conflicted with the Corrigan, the most junior justice, joined the held that an EIR for a 22,000-acre, multi- program’s overall purpose—to “achieve court. Since then, the court has rendered 11 phased development project should have ecosystem restoration goals and meet cur- CEQA or CEQA-related decisions, 6 of which identified and evaluated long-term water sup- rent and projected water export demands.”26 have been authored by Justice Werdegar.21 plies for future phases of the project.24 Within During the 2006-2009 period, the court Of those decisions, all but one were unani- the same year, the court in In re Bay-Delta also addressed more technical and narrow mous,22 and all but two reversed the lower Programmatic Environmental Impact Report procedural issues—from the standards for determining when a mitigation measure is Incoming Chief Justice Cantil Sakauye and CEQA “legally infeasible” to what sort of activity does or does not constitute a “project” under California Supreme Court Chief Justice Tani Cantil Sakauye—who this month replaces retiring Chief Justice CEQA. In City of Marina v. Board of Trustees Ronald George—may yet alter the fate of future CEQA cases. Justice Cantil Sakauye is a 20-year veteran of of the California State University and Save the California courts and has served on the Third Appellate District since 2005.
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