CEQA Case Report: Understanding the Judicial Landscape for Development[i]
By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula
In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:
- An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
- When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
- An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.
Background for Appeal
After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:
- The environmental impact report (EIR) failed to adequately analyze impacts
- The County failed to adopt feasible mitigation measures
- The County’s findings were not supported by substantial evidence
- The County failed to recirculate the final EIR after making changes that constituted significant new information
The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.
SB 100, Senator Kevin De Leon’s renewable energy bill, would increase California’s already ambitious renewable energy standards by 2030 with an ultimate goal of 100% clean energy by 2045. On July 3, the California Assembly Committee on Utilities and Energy passed the bill out of committee. In 2017, the bill was approved in the Senate but did not progress through the Assembly before the term ended. In 2018, SB 100 is expected to again reach the Assembly floor for consideration.
Enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65), will change significantly on August 30, 2018. Two years earlier, on August 30, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for implementing Prop 65, issued regulations that increased businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxicants. Among other requirements, under these new regulations (2016 Regulations) businesses must provide consumers in California with more specific information about potentially harmful chemicals in their consumer products. The 2016 Regulations also specify which entities in the stream of commerce are responsible for providing the Prop 65 warnings and the information that goes into the warnings.
The European Union has published a directive aimed at improving building energy efficiency and reducing carbon emissions. EU Member States are required to transpose the directive (Directive (EU) 2018/844) by March 10, 2020.
MPs in France have adopted an amendment to include a new paragraph in Article 1 of the French Constitution. The amendment reads:
The annual update of the Green Bond Principles (now also including the Social Bond Principles, and the Sustainability Bond Guidelines, collectively, the Principles) on June 14, 2018 created few surprises. The Principles, highly influential in the sustainable finance space, are subject to annual revision by an executive committee comprised of a set of underwriters, issuers and investors (with the support of the International Capital Market Association (ICMA) as secretariat). Each year, members and observers of the Principles (including Latham & Watkins) submit proposals for amendments to the Principles, with the final amendments formally announced at an annual conference. This year’s conference was held in Hong Kong, in a move to highlight the importance of Asian markets for sustainable finance and the global reach of the Principles.
The EU has agreed that by 2030, just under one third of energy use in the EU should be from renewable sources. The trade body for European energy utilities has described the deal as a “well-balanced compromise”. Miguel Arias Cañete, the climate and energy commissioner, noted that “the binding nature of the target will also provide additional certainty to the investors”. 
The Circular Economy Package includes four directives that were adopted by the European Parliament on 18 April 2018 (see Latham’s 
The Council of the European Union (the EU) has recently issued a formal decision requesting that the European Commission submit a study to identify options for addressing identified non-compliance with the United Nations Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dated 25 June 1998 (the Aarhus Convention). Additionally, to submit a proposal, if appropriate, to amend the current EU Regulation 1367/2006 (together, the Decision).