CEQA Case Law Update

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December 23, 2015

I. Baseline

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439

  • A Lead Agency has discretion to use a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing that an “existing conditions” baseline analysis would be “misleading or without informational value.”

II. Segmentation

Neighbors for Fair Planning v. City and County of San Francisco (2013) 217 Cal.App.4th 540

City’s loan to community center was not an “approval” of the project under Save Tara.

  • Supervisor’s introduction of special use district ordinance was not an “approval” of the project under Save Tara.
  • Statements by the Supervisor, the project proponent and a nonprofit organization were not an “approval” of the project under Save Tara.

California Building Industry Association v. Bay Area Air Quality Management District (2013) 218 Cal.App.4th 1171

  • Adoption of CEQA thresholds of significance were not a “project” subject to formal CEQA review because potential impacts remote and speculative and not reasonable foreseeable.
  • Note: California Supreme Court review granted cert on separate issue: “Under what circumstances, if any, does the California Environmental Quality Act … require an analysis of how existing environmental conditions will impact future residents or users of the proposed project?” POET LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214
  • Cal. Air Resources Board’s (CARB) passage of a resolution “approving for adoption” Low Carbon Fuel Standards regulations constituted “approval” of a project requiring prior CEQA review, and thus CARB’s failure to complete environmental review before passing the resolution violated CEQA, even though the resolution did not cause the regulation to become final.

San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167

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  • The Brown Act (Open Meeting Act) requires that notice of proposed adoption of negative declaration be a separate item of business from proposed project approval.


California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325

City’s delegation to its planning commission of the obligation to certify that a final EIR was complete and in compliance with CEQA violated the provision of the CEQA concerning guidelines prohibiting a lead agency’s decision-making body from delegating its obligation to review and consider a final EIR to an inferior entity within its agency.

III. Conservation Easements

Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503

  • Conservation easements, combined with restoration of project site following solar use, were adequate mitigation under CEQA for loss of agricultural lands. Masonite Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230
  • EIR improperly rejected consideration of off-site agricultural conservation easements as infeasible.

IV. AB 32 / Threshold

North Coast Rivers Alliance v. Marin Municipal Water District (2013) 216 Cal.App.4th 614

  • Lead Agency may properly use the question of whether a proposed project will interfere with the County’s goal of reducing greenhouse gas emissions as its significance threshold.

Friends of Oroville v. City of Oroville (2013) 218 Cal.App.4th 1352

  • Global Warming Solutions Act (AB 32) greenhouse gas emission reduction targets were a proper threshold-of-significance standard.
  • EIR failed to calculate greenhouse gas emissions of the existing retail center that the project would replace.

V. Mitigation Measures

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, supra.

  • (Plurality opinion) Proposed parking mitigation that would require cooperation by other agencies to implement was adequate even though there was no guaranty that the other local agencies would provide such cooperation because the record supported the conclusion the municipalities “can and should” provide such support.

Save Panoche Valley v. San Benito County, supra.

  • Deferring determination of buffer areas for species mitigation until after qualified biologist surveys of the area were completed was adequate because the EIR set forth sufficient performance standards.

North Coast Rivers Alliance v. Marin Municipal Water District, supra.

  • Detailed analysis of aesthetic impacts of water tanks, including visual simulations, supported conclusion that impact was less than significant due to intervening topography.
  • Mitigation plan for impacts of second water tank was not impermissible deferral, itincluded a performance standard of reducing the visual contrast and required a specific landscaping plan.
  • District was not required to follow resource agency recommendation that a yearlong survey of entrainment impacts was needed – under substantial evidence standard, district was entitled to determine its own methodology and a disagreement among experts does not defeat that choice.

VI. Alternate Site Cases

Neighbors for Fair Planning v. City and County of San Francisco, supra.

  • EIR for community center and affordable housing on site of existing community center did not need to consider off-site alternatives.

Save Panoche Valley v. San Benito County, supra.

  • Sufficient evidence supported the county’s determination that alternative site for solar energy project was not proximate, non-contracted land.
  • Evidence was sufficient to support determination that alternative site for solar power project was infeasible because it could not be completed in a reasonable amount of time.

VII. Streamlining

San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1

  • Upheld EIR for by right development of boutique wineries
  • CEQA does not restrict agency selection of project objectives, as long as the objectives are not artificially narrow; given project purpose of streamlining the winery permit process with ministerial approval, county was not required to consider imposing discretionary permit review as a mitigation measure.
  • CEQA does not require discussion of every mitigation measure an agency rejects as infeasible.

VIII. Attorney-Client Privilege / Dealing with the Agencies

Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889

  • CEQA statute defining scope of record does not abrogate attorney-client and attorneywork product privileges, but common interest doctrine does not apply to communications between applicants’ attorney and lead agency while EIR being prepared.
  • Compare: Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296 - lead agency must show that public interest in nondisclosure outweighs public interest in disclosure to claim deliberative process privilege; and California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217 - common interest doctrine does apply to communications between counsel for lead agency and project applicant.

Sierra Club v. Superior Court (2013) 57 Cal.4th 157

  • The Geographic Information System (GIS) database is a public record under the Public Records Act, not covered by the exclusion for computer software and computer mapping systems, and must be provided to requesting parties at actual cost of duplication.

IX. Procedural Issues / Prejudice

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, supra.

  • (Plurality opinion) The failure to use existing conditions baseline not prejudicial. POET. LLC v. California Air Resources Board, supra.
  • Although the court voided the defective approval (the EIR), the court was not required to likewise void the operation of the Low Carbon Fuel Standards.
  • Allowing the Low Carbon Fuel Standards to remain in effect would not prejudice the consideration or implementation of mitigation measures or alternatives.

May v. City of Milpitas (2013) 217 Cal.App.4th 1307

  • Government Code exemption for projects consistent with specific plans has special 30 day statute of limitations running from project approval.

Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209

  • Because the County failed to identify the basis for the categorical exemption claimed until the day of the public hearing, such belated notice was not adequate notice to the public triggering the requirement to exhaust administrative remedies.

Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116

  • Community organization’s counsel’s calendaring error and resulting failure to file a request for a hearing on a CEQA petition until one week after the deadline constituted excusable neglect, and thus required relief from dismissal, where the one week delay in requesting a hearing was an isolated mistake in an otherwise vigorous and thorough presentation of the organization’s claims.

California Clean Energy Committee v. City of San Jose, supra.

  • Objector’s renewed one-page letter to the city planning commission after the commission’s purported “certification” of a final EIR adequately exhausted objector’s administrative remedies for its challenge to city’s certification and approval where no administrative appeal was available and the planning commission’s purported certification violated CEQA.

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