Public agencies prevailed in 71% of CEQA cases analyzed.

By James L. Arnone, Daniel P. Brunton, Marc T. Campopiano, Shivaun A. Cooney, Benjamin J. Hanelin, John C. Heintz, Maria Pilar Hoye, Aron Potash, and Winston P. Stromberg

Latham & Watkins is pleased to present its third annual CEQA Case Report. Throughout 2019 Latham lawyers reviewed each of the 45 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished. Below is a compilation of the information distilled from that review and a discussion of the patterns that emerged from those cases. Latham has continued to monitor CEQA cases throughout 2020 and regularly posts key summaries to this blog.

The California Courts of Appeal issued 44 CEQA opinions, while the California Supreme Court issued one CEQA opinion: Union of Medical Marijuana Patients, Inc. v. City of San Diego et al. Significantly, in Union of Medical Marijuana Patients, the Supreme Court considered CEQA’s definition of a project and held that a lead agency should consider reasonably foreseeable potential physical impacts on the environment at the beginning of the CEQA process and disagreed with arguments that a public agency may delay the environmental analysis of a zoning ordinance to a later date. The Supreme Court explained that the test for whether a proposed activity constitutes a “project” under CEQA is whether, by its general nature, such activity is capable of causing a direct or reasonably foreseeable indirect physical change in the environment, and the test is applied without considering the likely actual impact of the activity.

Of the 45 appellate CEQA cases in 2019, 13 were published, 28 were unpublished, and 4 were partially published. Figure 1 (right) shows all 45 cases sorted by topic. The greatest number of cases (20 of the 45, or 44%) focused on Attorneys’ Fees, Justiciability, and Other Procedures. This category includes issues such as mootness, statutes of limitations, waiver, and res judicata. This represents a shift from 2018, when the plurality of CEQA cases (49%) centered around Environmental Impact Reports (EIRs). In 2019, just 14 of the 45 cases (31%) focused on EIRs. In 2019, five cases focused on Supplemental Review, three cases focused on Exemptions and Exceptions, and three cases focused on Mitigated Negative Declarations.

Figure 2 (right) shows the distribution of cases among California’s six appellate districts, as well as the percentage of cases in each district where the public agency prevailed. As was the case in 2018, the Sixth District was the only district in which the public agency prevailed in all cases. In contrast, public agencies did not prevail in a single case in the Fifth District, albeit with a small sample size of just three CEQA cases.

Figure 3 (below) separates cases by topic and shows whether the public agency prevailed in each type of case. For purposes of this summary, if the public agency lost on any issue it was deemed not to have prevailed. Overall, public agencies prevailed in 32 of the 45 cases, or 71% of the time, up slightly from a 65% win rate in 2018 and 2017. The public agency prevailed in 65% of Attorneys’ Fees, Justiciability, and Other Procedures cases and 64% of EIR cases. Notably, the public agency prevailed in every Mitigated Negative Declaration case in 2019.

COVID-19 Update: Statutes of Limitations Tolled in 2020

COVID-19 reached California in early 2020 and resulted in statewide closures and shelter-in-place orders. The ongoing pandemic continues to impact civil litigation — including CEQA litigation — throughout the state.

On April 6, 2020, the Judicial Council of California issued Emergency Rule 9 tolling statutes of limitations for all “civil causes of action” until 90 days after the Governor lifts the COVID-19 pandemic state of emergency. Although the effect on all civil causes of action was significant, the rule was particularly remarkable with respect to limitation periods for challenging land use approvals, which are typically short — 30, 35, 90, or 180 days under CEQA and California’s Planning and Zoning Law.

However, on May 29, 2020, the Judicial Council amended Emergency Rule 9 to end the tolling for statutes of limitations and repose of 180 days or less on August 3, 2020. The Judicial Council stated that the amendment would “provide certainty and reasonable notice to litigants of the end of the tolling period, without overly impacting the construction industry and homebuilding or other areas in which the Legislature has mandated short statutes of limitation.” The result is a total tolling period of approximately four months. Some projects approved shortly before or during the COVID-19 emergency might be delayed as statutes of limitations run for longer than CEQA decrees. In light of the ongoing pandemic, Latham anticipates the issuance of some court opinions in CEQA cases to be delayed in 2020.

For insights and commentary on environmental issues and developments impacting business in California, the rest of the US, and the world, please visit Latham’s Environment, Land & Resources blog.

Read the full CEQA Case Report: 2019 Year in Review.