Public agencies prevailed in 71% of decisions involving the California Environmental Quality Act in 2022.
By Marc Campopiano, Lucas Quass, Natalie Rogers, and Kevin Homrighausen
Latham lawyers tracked key developments in California Environmental Quality Act (CEQA) case law throughout 2022. On April 20, 2023, Latham lawyers held a webcast highlighting important cases from the past year, summarizing practical takeaways, and covering trends in CEQA. (See the webcast and the corresponding 2022 CEQA Year in Review presentation.) Below is a compilation of the information from that annual review and patterns that emerged.
In 2022, we saw a slight decrease in CEQA opinions issued as compared to previous years, for a total of 49 decisions. In 2021, the California Courts of Appeal issued 51 opinions that substantially considered CEQA. In addition, in 2022, two opinions from the California Supreme Court in 2022 focused primarily on CEQA issues. In County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, the California Supreme Court determined that the Federal Power Act preempted a county’s CEQA claims arising out of a dispute over a settlement reached under the Federal Power Act’s licensing process for state-owned hydroelectric facilities. While the holding in this opinion was narrow, it nevertheless raised difficult questions about the state’s ability to enforce CEQA mitigation or alternatives when a federal agency ultimately controls the license.
Additionally, when the California Supreme Court denied a petition for review in Save Berkeley’s Neighborhoods v. The Regents of the University of California, Case No. S273160, Justices Goodwin Liu and Joshua Groban issued a dissenting opinion cautioning against the use of CEQA as part of a “zero-sum game.” In this case, the Justices noted that more than 3,000 students could lose the opportunity to attend UC Berkeley as a result of a CEQA challenge to a new housing project. The dissenting opinion highlighted alternative mechanisms for resolving potential CEQA disputes and suggested a potential legislative call to action to reestablish an appropriate balance under CEQA between developers and local communities.
The cases in 2021 marked an increased focus on CEQA wildfire analysis with cases like, Sierra Watch v. County of Placer and Newtown Preservation Society v. County of El Dorado — a trend that continued in 2022. For example, in League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, the Court of Appeal for the Third District concluded that a large development in a fire-prone area did not conflict with an existing emergency evacuation plan even though the project otherwise had a significant traffic impact on a local highway.
Low Tolerance for Meritless Claims
Another observation from last year was the rare occurrence in which a Court of Appeal affirmed the denial of an anti-SLAPP motion following a CEQA lawsuit. In Jenkins v. Brandt-Hawley (2022) 86 Cal.App.5th 1357, the Court of Appeal for the First District found that a homeowning couple seeking to demolish two structures and build as single home had a probability of prevailing on a malicious prosecution claim against counsel for a community group challenging the project. The Court determined that counsel, acting on behalf of its client in the underlying CEQA lawsuit, failed to exhaust administrative remedies, failed to grapple with the project’s applicable CEQA exemption, repeatedly misrepresented material facts, and failed to demonstrate the claim was supported by legal research. The case is part of a growing trend of decisions in which courts are demonstrating little tolerance for meritless CEQA claims.
Analysis of the 2022 Cases
Of the 49 appellate CEQA cases in 2022, 17 were published and 32 were unpublished. Figure 1 shows all 49 cases sorted by general topic.
The majority (25 cases) focused on the sufficiency of environmental impact reports, though a substantial number (18 cases) focused on attorneys’ fees, justiciability, and other CEQA procedures, which include issues such as mootness, statutes of limitations, waiver, and res judicata. These two topics (attorney’s fees, justiciability, and other procedures; and environmental impact reports) were the focus of 88% of all cases in 2022, a notable increase from 71% in 2021. Out of the remaining cases for 2022, three cases reviewed the agency’s decision to proceed with negative declarations, two focused on the agency’s decision to rely on CEQA exemptions, and one involved an agency’s Certified Regulatory Program.
Figure 2 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. Although the sample size was limited, the public agencies prevailed in all CEQA cases in the Fifth District — a noticeable change from 2019 and 2021 when public agencies did not prevail in a single Fifth District case. In the Second District, public agencies prevailed in 10 out of 11 total cases.
Figure 3 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 35 of the 49 cases, or 71%, consistent with last year and up slightly from 68% in 2020. Public agencies prevailed in 66% of attorneys’ fees, justiciability, and other procedures cases and 72% of environmental impact report cases.
Latham will continue to monitor CEQA case developments.
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