CEQA News You Can Use - August 2023 - Volume 8, Issue 2
See all Insights

CEQA News You Can Use - August 2023 - Volume 8, Issue 2

Brownstein Client Alert, Aug. 1, 2023

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!

Historic buildings face wrecking ball without mitigation if there is no comparable historic resource

In Preservation Action Council of San Jose v. City of San Jose (2023) 91 Cal.App.5th 517, project opponents raised a variety of challenges against the city’s final supplemental EIR for three 19-story office towers that would replace eligible historic buildings. Arguments focused on the inadequacy of mitigation, inadequate responses to comments, and failure to consider an alternative sparing one building from demolition, the latter of which was subsequently found moot due to the buildings’ demolition after the trial court upheld the city’s approvals. While the Sixth District Court of Appeal agreed that compensatory mitigation (in the form of funding other historic buildings) could theoretically apply despite no prior case law on this point, it held the city’s findings of infeasibility were supported. In order to consider compensatory mitigation, there need to be comparable architectural-styled structures to accept such support, of which there were none in the city. Subsumed in this conclusion is the basic premise that mitigation also must satisfy the rough proportionality and nexus requirements set forth in the seminal U.S. Supreme Court decisions in Nollan and Dolan, which are expressed in CEQA Guidelines 15126.4(a)(4). Here, the City of San Jose found there was no nexus for this project to support preservation funding of dissimilar type buildings. The court also held the responses to comments were legally sufficient despite a lack of detail. It reasoned that the findings’ discussion regarding the unique historic value of the impacted resources with the SEIR itself was sufficient.

Dam straight—Oroville Dam relicensing upheld after 15 years of litigation

California has been working for more than two decades towards relicensing its hydropower facilities at the Oroville Dam (the Oroville Facilities), which is part of the State Water Project (SWP). Federal authorities initially licensed the facilities in 1957 for a 50-year period. Before the license expired, the Department of Water Resources (DWR) began the relicensing process, including preparation of an EIR. In 2008, three local governments—Butte County, Plumas County and Plumas County Flood Control and Water Conservation District (the counties)—filed writ petitions challenging the sufficiency of DWR’s EIR, triggering decades of litigation that has been up to the Supreme Court. In County of Butte v. Dep’t of Water Resources (2023) 90 Cal.App.5th 147, the Third District Court of Appeal considered the case for a third time but for the first time on the merits. The court found that, given the information available in 2008 when the EIR was certified, its conclusion that the potential impacts of climate change on the project were too speculative to warrant further evaluation passed muster. (Although the court warned, “None of this, however, is to say that DWR could reach the same conclusion today.”) The court also rejected the counties’ claim that DWR needed to quantify potential fiscal impacts, that DWR failed to analyze compliance with relevant water quality control plan standards, and that the EIR did not adequately explain why upcoming potential changes to the SWP would not affect the project’s release requirements because such changes were unforeseeable.

Going . . . going . . . gone. (Mostly) satisfactory EIR may not be enough to keep the A’s in Oakland

After losing the Warriors to San Francisco and the Raiders to Las Vegas, Oakland has been working to retain its MLB team, the Athletics, with a proposal to construct a new stadium, including a large adjoining development featuring commercial and residential buildings in the Port of Oakland. In East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, the First District Court of Appeal affirmed the trial court’s ruling that the EIR prepared for the proposed Oakland A’s stadium was satisfactory, except for an inadequate wind mitigation measure. The court found the wind mitigation measure improperly deferred mitigation by not providing an adequate performance standard. The city's near-complete victory may ultimately be hollow, however, as only a few weeks after issuance of the opinion, the A’s announced they are moving to Las Vegas.

Good enough for non-government work

Southern California Edison Company (SCE), an investor-owned public utility, filed a complaint in eminent domain to condemn an easement across a landowner’s property for the purpose of maintaining transmission lines. The landowners filed a petition for writ of mandate asserting, among other things, that SCE failed to comply with CEQA before commencing the eminent domain action. In Robinson v. Superior Court (2023) 88 Cal.App.5th 1144, the Fifth District Court of Appeal noted that CEQA only applies to “discretionary projects proposed to be carried out or approved by public agencies.” The court held that because SCE is not a public agency, its actions are not subject to CEQA. The court pointed out that if SCE had been required to obtain approval from the California Public Utilities Commission (CPUC), however, then the CPUC would have been required to comply with CEQA. Since no such approval was required here, CEQA was not triggered.

Regional Water Board need not issue CEQA findings for discharge permit for water treatment plant

In 2017, the Los Angeles Regional Water Quality Control Board issued water discharge permits to several LA County water treatment plants. Los Angeles Waterkeeper challenged those permits on several grounds, seeking to force the regional board to require the water treatment plants to recycle more water than they already do. In Los Angeles Waterkeeper v. State Water Resources Control Bd. (2023) 92 Cal.App.5th 230, the Second District Court of Appeal rejected all of Waterkeepers’ claims, including the claim that the regional board should have made CEQA findings when it approved the permits. Citing the Water Code exemption that excuses regional boards from preparing an EIR before issuing such permits, the court concluded that the regional board need not make CEQA findings under Public Resources Code section 21002 either, because those findings are only required when a lead agency prepares an EIR. Although Waterkeeper is seeking Supreme Court review of the court’s other holdings, it is not challenging its holding with respect to CEQA. (Brownstein represents the City of Burbank in this litigation.)

Berkeley saga continues with the legislature’s finger on the scale

This case takes us back to the ongoing saga between the Regents of UC Berkeley and its Berkeley neighbors. Most recently, in 2020, the state legislature stepped in to pass SB 118 to give UC an 18-month grace period when the Supreme Court refused to review an appellate decision finding that UC improperly admitted more students than called for in its long-range development plan (LRDP) without CEQA review. This case concerns an academic, residential and parking development (the Upper Hearst project), and the neighbors’ claims that the supplemental EIR for the project was inadequate. In Save Berkeley’s Neighborhoods v. Regents of the Univ. of Cal. (2023) 91 Cal.App.5th 872, the First District Court of Appeal ended the long dispute over UC Berkeley’s “excessive enrollment” by finding that a 2021 EIR for an LRDP update and SB 118 together moot the neighbors’ challenge to student enrollment and, subsequently, bar their arguments regarding that portion of the Upper Hearst project’s SEIR. In the unpublished portion of the decision, the court also rejected the neighbors’ claims about the SEIR’s project description, concluding that no feasible mitigation measures were available to rectify historical resource impacts and aesthetic impacts.

People’s Park, noisy college parties, and the California Supreme Court

Can college students be noisy? Yes. Is that a CEQA impact? Well, the jury (or rather, the California Supreme Court) is still out on that question. In our last Issue of CEQA News You Can Use (see Volume 8, Issue 1), we discussed how the First District Court of Appeal ruled on a high-profile CEQA case regarding UC Berkeley’s plans for new student housing located at People’s Park in Make UC a Good Neighbor v. Regents of Univ. of Cal. (2023) 88 Cal.App.5th 656. The court held that UC failed to comply with CEQA because the EIR (1) failed to justify the decision not to consider alternative locations to People’s Park, and (2) failed to assess potential noise impacts from noisy parties in residential neighborhoods near the campus. Since then, UC's petition for review to the California Supreme Court, to which Gov. Gavin Newsom and the City of Berkeley submitted amici letters of support, has been granted to consider these two issues. Relatedly, the California legislature is working on AB 1307, a bill that would directly address the issues in this case, specifying that human noise impacts from projects are not a significant impact under CEQA and that institutions of public higher education, in an EIR for a residential or mixed-use housing project, are not required to consider alternative locations if certain requirements are met.

Pipeline paused for CEQA review

In Tulare Lake Canal Co. v. Stratford Pub. Util. Dist. (2023) 92 Cal.App.5th 380, Tulare Lake Canal Company sought a preliminary injunction to halt construction and operation of a 48-inch water pipeline approved by the Stratford Public Utility District without preliminary CEQA review. Using the interrelated factors test, the Fifth District Court of Appeal held the pipeline was a discretionary project, so the district’s non-compliance with CEQA was a “near certainty” and its failure to inform the public about the potential significant environmental effects of the proposed activity caused harm to the public interest. The court held that (1) harm to the public interest in informed decision-making is a type of harm that must be considered in balancing the relative harms of granting or denying a preliminary injunction in a CEQA proceeding, and (2) it is not necessary for such harm to be accompanied by a showing of a likely environmental harm to justify granting a preliminary injunction when the CEQA violation occurs at the initial stage of CEQA review. To hold otherwise would incentivize project proponents to withhold information and complete construction before the environmental consequences could be evaluated. The court therefore reversed the order denying the preliminary injunction and remanded for the trial court to reconsider the application of California’s interrelated factors test. (A petition for review with the California Supreme Court was filed on July 13, 2023.)

Seeing the project description for the trees

Does CEQA impose a bright-line rule requiring a tree-by-tree inventory for wildfire risk reduction projects? Not according to the appellate court in one of the newest project description cases, Claremont Canyon Conservancy v. Regents of University of California (2023) 92 Cal.App.5th 474. There, the plan to implement fuel break and fire hazard reduction projects in the Berkeley hills was compliant with CEQA where it identified the precise locations and boundaries of the proposed projects, described their underlying purpose, explained why vegetation removal was required, described the vegetation in each project area, listed objective vegetation removal criteria and summarized applicable vegetation removal methods. This was enough to satisfy the test for “adequacy, completeness and a good-faith effort at full disclosure” and enable the public to understand the relevant environmental impacts. What’s more, UC’s factual determinations as to why it was not reasonably feasible to implement a tree inventory were worthy of deference.

Pomona’s commercial cannabis overlay gives CEQA exemption the green light

Following the legalization of cannabis, the City of Pomona enacted a series of ordinances to regulate and tax cannabis-related businesses, including a Commercial Cannabis Permit Program Overlay District (Cannabis Overlay). The Cannabis Overlay permits commercial cannabis operations on a subset of commercial parcels located away from sensitive receptors. Relying on the CEQA exemption in CEQA Guidelines Section 15183 for projects consistent with the existing General Plan and zoning, the city approved the Cannabis Overlay without CEQA review on the basis that all the impacts associated with cannabis operations were already considered in the city’s 2014 EIR for its General Plan update. A prospective cannabis operator, whose property was in the draft but not the final Cannabis Overlay, saw his dreams go up in smoke. He challenged the city’s CEQA exemption and related findings that commercial cannabis operations within the Cannabis Overlay would not result in project-specific impacts. In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District Court of Appeal dismissed each of Lucas’ claims, finding that the city properly relied on Section 15183 because the city’s prior 2014 EIR evaluated environmental impacts of commercial uses that were substantially similar to those anticipated by the Cannabis Overlay.

This document is intended to provide you with general 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 the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

Recent Insights