Public agencies prevailed in 71% of CEQA cases analyzed.
By James L. Arnone, Daniel P. Brunton, Nikki Buffa, Marc T. Campopiano, Peter J. Gutierrez, John C. Heintz, Lauren E. Paull, Aron Potash, Lucas I. Quass, Natalie C. Rogers, Jennifer K. Roy, and Winston P. Stromberg
Latham & Watkins is pleased to present its fifth annual CEQA Case Report. Throughout 2021 Latham lawyers reviewed each of the 51 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished. Below is a compilation of the information distilled from that annual review and a discussion of the patterns that emerged.
In 2021, the California Courts of Appeal issued 51 opinions that substantially considered CEQA while the US District Court for the Northern District of California issued one opinion. Notably, 2021 saw an increased focus on CEQA wildfire analysis. In cases like Sierra Watch v. County of Placer, the Court of Appeal ruled that the County of Placer failed to adequately analyze wildfire risks by wrongly assuming first responders would provide traffic control in the event of an emergency. And in Newtown Preservation Society v. County of El Dorado, the Court upheld a mitigated negative declaration in the face of public concerns that a bridge reconstruction project would result in significant impacts on resident safety and emergency evacuation in case of a wildfire.
Also notable in 2021 was the rare occurrence of a Court of Appeal partially affirming the denial of an anti-SLAPP motion following a CEQA lawsuit. In Dunning v. Johnson, the Court found that a project developer had established a probability of demonstrating lack of probable cause for the underlying CEQA petition, as well as a probability of demonstrating that the petitioners pursued the CEQA litigation with malice.
Of the 51 appellate CEQA cases in 2021, 15 were published, six were partially published, and 30 were unpublished. A nearly equal number of cases focused on Environmental Impact Reports (19 cases) and Attorneys’ Fees, Justiciability, and Other Procedures (18 cases), which includes issues such as mootness, statutes of limitations, waiver, and res judicata. These two topics were the focus of 71% of all cases in 2021 — which is consistent with 2020, when these two topics were the focus of 70% of all cases. Also in 2021, 10 cases focused on Exemptions and Exceptions, two focused on Mitigated Negative Declarations, two focused on Supplemental Review, and one focused on Certified Regulatory Programs.
Unlike 2018, 2019, and 2020, there was not a single district where the public agency prevailed in all cases. However, the First District had the most favorable record for public agencies, which prevailed in 89% of all cases. As was the case in 2019, in the Fifth District, public agencies did not prevail in a single case.
Overall, public agencies prevailed in 38 of the 52 cases, or 71%, up slightly from 68% in 2020 and consistent with the 71% win rate in 2019. The public agency prevailed in 88% of Attorneys’ Fees, Justiciability, and Other Procedures cases and 79% of Exemptions and Exceptions cases.