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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lawyers reviewed each of the 51 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished.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.

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lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished.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.

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.

By Marc Campopiano, Lucas I. Quass and Samantha Seikkula

In a published decision, following the Supreme Court’s decision in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the First District Court of Appeal upheld California Environmental Quality Act (CEQA) thresholds of significance adopted by the Bay Area Air Quality Management District (the District) in California Building Industry Association v. Bay Area Air Quality Management Dist. (2016) 2016 Cal. App. LEXIS 683. While the Court upheld limited use of the District’s thresholds, it determined that the thresholds “may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

Adopted in 2010, the District’s thresholds set “construction-related” and “operational-related” significance levels for TACs and PM2.5 emissions, broken down into four separate categories, including categories for new receptors (Receptor Thresholds). The District also published new “CEQA Air Quality Guidelines” (District Guidelines), which include the thresholds and suggest methods of assessing and mitigating impacts found to be significant. The California Building Industry Association challenged the Receptor Thresholds on the grounds that CEQA does not require an analysis of an existing condition’s impact on a project’s future occupants. The Supreme Court agreed, finding that CEQA does not require an agency to consider a project’s existing conditions on future users and residents of a proposed project. The Supreme Court remanded the case to the Court of Appeal to determine whether the Receptor Thresholds were consistent with its decision.

By Chris Garrett and Ana De Santiago Ayon

On January 20, 2016, the Governor’s Office of Planning and Research (OPR) released a new draft proposal for implementing Senate Bill 743 (Steinberg 2013) (SB 743), which would require traffic analysis to be based on vehicle miles traveled (VMT) instead of auto delay, commonly measured by Level of Service (LOS). The proposal is an update to an earlier draft released in August 2014. OPR will be accepting public comments until February 29, 2016 before finalizing the proposal for formal rulemaking by the Natural Resources Agency.

Background

As discussed in a previous client alert, SB 743 directs OPR to update the California Environmental Quality Act (CEQA) Guidelines to establish new criteria for determining the significance of transportation impacts for projects within transit priority areas. The new criteria are intended to promote reduced greenhouse gas emissions, multimodal transportation network development and diverse land uses. SB 743 also provides that the new transportation methodologies may be based on, but are not limited to, VMT. Once the new transportation guidelines are certified, SB 743 eliminates automobile delay as a significant impact for a limited category of infill projects located in transit priority areas and infill opportunity zones.

By Christopher Garrett, James Arnone and Joshua Bledsoe,

On Monday November 30, 2015, the California Supreme Court overturned the Department of Fish and Wildlife’s (the Department) Environmental Impact Report (EIR) for the Department’s approvals of the Newhall Ranch project. The Newhall Ranch project includes plans to develop almost 12,000 acres along the Santa Clara River west of the City of Santa Clarita, with up to 20,885 dwelling units housing nearly 58,000 residents as well as areas for commercial …

By Chris Garrett, Shivaun Cooney and Shannon Lankenau

On October 7, 2015, the California Supreme Court heard oral argument in California Building Industry Association v. Bay Area Air Quality Management District (Supreme Court Case No. S213478), a case which calls into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of the California Environmental Quality Act (CEQA) is inconsistent with the statute’s language and intent. While the California Building Industry Association’s (CBIA) challenge to the Bay Area Air Quality Management District’s (BAAQMD) guidelines raised numerous legal issues, the Supreme Court’s order granting review in the matter expressly limited briefing and argument to the following issue: “Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” In other words, is CEQA review limited to an analysis of a project’s impact on the existing environment, or does it also require an analysis of the existing environment’s impact on the project and its future occupants and users?

CBIA’s Challenge to BAAQMD’s Thresholds of Significance

On November 29, 2010, CBIA filed a petition for writ of mandate challenging BAAQMD’s 2010 thresholds of significance for certain air contaminants (Thresholds), adopted pursuant to Section 15064.7 of the CEQA Guidelines. The trial court agreed with CBIA that BAAQMD should have conducted an environmental review under CEQA before issuing the Thresholds, but declined to address CBIA’s remaining arguments, including that the Thresholds were arbitrary and capricious to the extent they required an evaluation of the impacts the environment would have on a given project (referred to by some as CEQA in reverse).[i]