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Project applicants and agencies alike should think carefully about developing robust analyses that demonstrate the adequacy of water supply.

By Marc T. Campopiano, Diego Enrique Flores, and Lucas I. Quass

Mark Twain is often credited with saying, “Whiskey is for drinking; water is for fighting over.” This remains true in California, where drought conditions, climate change, and population growth throughout the state’s history have made water an increasingly valuable and regulated resource. The legal landscape involves complex questions related to water quality, water sustainability, and competing claims to water rights. One notable area of controversy involves the adequacy of water supply for new development projects.

Two decades ago, in 2001, the state legislature enacted Senate Bill (SB) 610 and SB 221 to promote sustainable long-term water planning. Collectively, SB 610 and SB 221 require public agencies to determine whether adequate water supply exists for certain large development projects as part of the environmental review process under the California Environmental Quality Act (CEQA) by, in part, requesting water supply assessments (WSAs) from water service providers.

Public agencies prevailed in 68% of CEQA cases analyzed.

By James L. Arnone, Daniel P. Brunton, Nikki Buffa, Marc T. Campopiano, and Winston P. Stromberg

Latham & Watkins is pleased to present its fourth annual CEQA Case Report. Throughout 2020 Latham lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished.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. Latham’s webcast discussing this publication and the key CEQA cases and trends of 2020 is available here.

California appeals court decision increases the potential for CEQA challenges to power plant projects under the CEC’s jurisdiction.

By Marc T. Campopiano, Charles C. Read, and Kevin A. Homrighausen

In Communities for a Better Environment v. Energy Resources Conservation & Development Commission, the California First District Court of Appeal recently held that the State Legislature violated the California Constitution by limiting the scope of judicial review for California Energy Commission (CEC) decisions involving power plant siting to the California Supreme Court. Although the California Constitution gives the Legislature express authority to limit the scope of judicial review for California Public Utilities Commission (CPUC) decisions, the court found there is no similar authority regarding appeals of CEC decisions.

The Supreme Court has rarely, if ever, agreed to hear CEQA challenges of CEC power plant decisions. Now, developers seeking to construct new power plants or modify existing power plants under the CEC’s jurisdiction may see an increase in legal challenges — including California Environmental Quality Act (CEQA) challenges — in California’s trial courts. As a result, CEQA challenges to power plants may closely resemble other land use challenges in the state.

Developers and municipalities must now evaluate potential wildfire impacts from projects under recent amendments to CEQA, among other legislative changes.

By Marc Campopiano and Shivaun Cooney

Wildfires pose an increasingly serious threat to the public and environment in California with respect to air quality, climate change, and utility power shutoffs. The state’s string of historic wildfire seasons has prompted a number of changes to environmental policies. With recent amendments to the California Environmental Quality Act (CEQA), Developers and local jurisdictions must evaluate wildfire impacts, among other changes. Understanding how wildfire risk affects new development and infrastructure has never been so important.

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.

A local air district is developing a rule that would require both existing and proposed warehouses to reduce trucking emissions or pay a mitigation fee.

By Joshua T. Bledsoe

The South Coast Air Quality Management District (SCAQMD or District) is developing a so-called Indirect Source Rule (ISR) that would require Southern California warehouses to reduce emissions associated with trucking activity and on-site equipment. Proposed Rule 2305, recently released by the District in discussion draft form, would establish the Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program — which would apply to owners and operators of warehouses located in the South Coast Air Basin (Basin) with greater than 100,000 square feet of indoor space in a single building. If the SCAQMD’s development timeline holds, Proposed Rule 2305 will phase in on July 1, 2020.

A new webcast reveals the latest trends and approaches to CEQA compliance as the development and environmental communities react to changing law.

By Marc T. Campopiano, Christopher W. Garrett, and Jennifer K. Roy

On July 24, 2019, Latham & Watkins’ Project Siting & Approvals Practice hosted a 60-minute webcast, “Friant Ranch: Impact of California Supreme Court’s Landmark Decision on CEQA Compliance,” to zero in on the landmark decision and its ramifications. Seven months on from the Court’s decision…

2018 Year in Review: Public agencies prevailed in 65% of CEQA cases analyzed.

By James L. Arnone, Marc T. Campopiano, Christopher W. Garrett, and Lucinda Starrett

Over the course of 2018, Latham & Watkins lawyers reviewed all 57 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2019, posting summaries to this blog.

The California Court of Appeal heard 55 CEQA cases, while the California Supreme Court heard one case: Sierra Club v. County of Fresno. This case concerned what constitutes sufficient detail in an environmental impact report (EIR) and has implications for the preparation of EIRs as well as judicial review of agency decisions certifying EIRs.

In addition to the 56 state cases, one federal CEQA case, AquAlliance v. U.S. Bureau of Reclamation, was heard by the Eastern District of California.

CEQA Case Report: Understanding the Judicial Landscape for Development[I]

By Christopher W. Garrett, Daniel Brunton, James Erselius, and Derek Galey

In a published decision issued June 12, 2018, County of Ventura v. City of Moorpark, Case No. B282466, the California Court of Appeal rejected part of the County of Ventura and the City of Fillmore’s (Petitioners’) appeal and affirmed the trial court’s decision that a beach restoration project undertaken by Broad Beach Geologic Hazard Abatement District (BBGHAD) and a related settlement agreement with the City of Moorpark (City) were exempt from CEQA review.

In summary, the court determined:

  • Two separate activities can constitute one “project” under CEQA so long as those activities serve a single purpose, have the same proponents, and are inextricably linked.
  • Courts do not balance the policies served by statutory exemptions against the goal of environmental protection because the legislature has already determined that the policy benefits of the exemption outweigh the benefits of environmental review.

The trial court determined that the beach restoration project and the related settlement agreement between BBGHAD and City were a single statutorily exempt project. Petitioners appealed on the grounds that even if the beach restoration was exempt, the settlement represented a separate, non-exempt project that was not properly reviewed under CEQA.

California Natural Resources Agency adopts final amendments to CEQA Guidelines, providing additional clarifying revisions to GHG impacts, baseline, and deferral of mitigation amendments.

By Marc Campopiano, Winston Stromberg, and Samantha Seikkula

The California Office of Administrative Law recently approved a suite of amendments to the CEQA Guidelines, which are now in effect. Latham wrote about these amendments last year, when the Natural Resources Agency began the rulemaking process under the Administrative Procedure Act. During this rulemaking process,…