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On April 23, 2020, California Governor Gavin Newsom issued Executive Order N-54-20 (EO) which, in part, addresses an outstanding question related to the California Environmental Quality Act’s (CEQA) “public review” requirements, which quickly became problematic upon closure of the locations typically used to house and post CEQA-related documents.  These closures, which impact government buildings like the County Recorder’s Office, are just one of the many consequences of the COVID-19 pandemic and resultant stay-at-home orders issued in an attempt to safeguard the public and flatten the curve.  Under this EO, while the time periods for public review remain the same, all requirements related to public filing, posting, notice, and public access to draft and final documents set forth in CEQA and the CEQA Guidelines, are exempted and suspended for the next 60 days (until June 22nd), including the Notice of Preparation, Notice of Comment Period, Notice of Intent to Adopt an EIR, Negative Declaration/Mitigated Negative Declaration, Notice of Determination and Notice of Exemption[1] so long as certain substitute procedures are followed.
Continue Reading Digital CEQA: New Executive Order Creates An Alternative Path For Complying With CEQA Notice, Posting And Public Review Requirements

On October 9, 2019, Governor Newsom signed into law Senate Bill (SB) 330, or the “Housing Crisis Act of 2019” in an effort to combat California’s current housing shortage, which has resulted in the highest rents and lowest homeownership rates in the nation. In a nutshell, the Housing Crisis Act of 2019 seeks to boost homebuilding throughout the State for at least the next 5 years, particularly in urbanized zones, by expediting the approval process for housing development. To accomplish this, the Housing Crisis Act of 2019 removes some local discretionary land use controls currently in place and requires municipalities to approve all developments that comply with current zoning codes and general plans. If not extended, SB 330 will only be effective from January 1, 2020 through January 1, 2025.
Continue Reading California’s “Housing Crisis Act of 2019” May Boost Housing Production or Just Boost Housing-Related Litigation

The Governor’s Office of Planning and Research (“OPR”) has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act (“CEQA”) Guidelines.[1] The updated text[2] (“Final Text”) ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address two hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency also released its “Final Statement of Reasons for the Regulatory Action Amendment to the State Guidelines” to give more history and context to each change to the Final Text.[3]


Continue Reading Five Years in the Making: California is One Step Closer to a Comprehensive Update to the CEQA Guidelines

Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603

Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum.  The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow.  However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”).  In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.”  The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline.  An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.


Continue Reading High Court Upholds Long-Term GHG Emissions Analysis, But Warns Agencies to Keep Pace with Regulatory Advancements: Lessons from Cleveland National Forest Foundation v. SANDAG

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120)

The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a building over the stated height in the certified EIR required Ventura County to prepare a supplemental EIR rather than an addendum; and (ii) the County’s failure to prepare a supplemental EIR including the taller height of the building made the County susceptible to a valid claim beyond the standard 30-day statute of limitations on CEQA claims.   The court’s conclusion highlights the need for EIRs and notices of decision (“NODs”) to more completely describe a project, with all its details, to avoid potential claims.


Continue Reading Undisclosed Change in Building Height Requires Supplemental EIR

Sierra Club v. County of San Diego (10/29/14, D064243)

On October 29, 2014, the Fourth District California Court of Appeal unanimously affirmed the trial court’s decision in favor of Sierra Club, agreeing that the County of San Diego’s adopted Climate Action Plan (CAP) violated CEQA. First, the court held the County’s adopted CAP failed to provide sufficiently detailed deadlines and enforceable measures to ensure specified greenhouse gas (GHG) emission reductions by 2020 or to put the County on a trajectory to achieve 2050 GHG emission reductions identified in Executive Order S-3-05 as required by the County’s General Plan Update.  Second, it held the County failed to analyze the environmental impacts of the CAP itself or to incorporate mitigation measures directly into the CAP as required by CEQA Guidelines 15183.5(b)(1)(D) and Public Resources Code 21081.6(b).  Accordingly, the court granted the Sierra Club’s petition to require enforceable mitigation and ordered the County to prepare a supplemental EIR.


Continue Reading County of San Diego’s Adopted Climate Action Plan Violates CEQA: Fails to Include Enforceable GHG Reduction Measures

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288)

In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR for San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Regional Transportation Plan). The court found the EIR in violation of CEQA for failing to adequately analyze and mitigate GHG emissions in light of the standards set forth in Executive Order S-03-05.  Despite the EIR’s analysis of the Regional Transportation Plan’s GHG emissions against specific regional reduction targets for 2020 and 2035, the majority determined the EIR did not amount to a reasonable, good faith effort to disclose and evaluate GHG emissions due to its lack of analysis surrounding the plan’s potential conflict with the Executive Order.


Continue Reading Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures – Dissent Warns Majority Opinion Will Weaken and Confuse the Law

Sierra Club et al. v. County of Fresno et al., (Friant Ranch, L.P.) (5th Dist., 05/27/2014, F066798)

Faced with an appeal of the Superior Court of Fresno’s approval of a controversial Environmental Impact Report, the Fifth District Court of Appeal reversed and found that the challenged EIR violated the California Environmental Quality Act by failing to adequately (1) analyze the health impacts associated with the project’s air quality impacts, (2) explain how proposed mitigation measures would be enforced, and (3) identify the extent to which “substantial” reductions in air quality impacts would be achieved.


Continue Reading EIR Air Quality Analysis Insufficient: Lack of Specificity Regarding Human Health Impacts, Mitigation Measure Enforceability, and Evidence Supporting Measures’ Effectiveness in Substantially Reducing Air Quality Impacts Blamed

In Save Panoche Valley et al. v. San Benito County, the Sixth District Court of Appeal held that San Benito County had not violated the Williamson Act or the California Environmental Quality Act when it approved construction of a 420-megawatt solar project on land designated as “agricultural rangeland.” The court sided with the County on both claims, holding that there was substantial evidence showing that cancellation of Williamson Act contracts was justified because other public concerns substantially outweighed the Williamson Act’s goals of preserving agricultural land. The court further held that the County adequately considered feasible project site alternatives and that the final environmental impact report properly analyzed the project’s impacts. The court’s holding on the adequacy of agricultural mitigation measures to mitigate agricultural impacts to below a level of significance may represent a departure from previous cases around the state.
Continue Reading Farming Solar Rays: County Decision to Approve Industrial-Scale Solar on Williamson Act Lands OK’d