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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,…

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

By Christopher H. Norton, Lucas I. Quass and Megan K. Ampe

In a published opinion issued on October 23, 2018, Save Lafayette Trees v. City of Lafayette, Case No. A154168, the California Court of Appeal upheld the trial court’s decision to grant a demurrer without leave to amend with respect to challenges to the substantive and procedural requirements of applicable planning and zoning laws, but reversed with respect to a challenge brought pursuant to CEQA, concluding that the 180-day statute of limitations applicable to CEQA claims applied to the claim filed by Save Lafayette Trees, Michael Dawson, and David Kosters (together Petitioners) alleging non-compliance with CEQA.

In summary, the Court of Appeal determined:

  • If two statutes of limitation of equal authority apply to a claim brought pursuant to CEQA — one contained in a general state planning and zoning law and the other contained in a statute specific to CEQA — and the two cannot be reconciled, the more specific limitations period pursuant to CEQA prevails.

Petitioners filed a petition for writ of mandate challenging the City of Lafayette’s (City’s) approval of a letter agreement allowing a public utility company to remove trees without obtaining a permit. City filed a demurrer, claiming that the petition was time-barred under the 90-day limitations period applicable to zoning and planning decisions under state law. The trial court agreed, sustaining the demurrer without leave to amend. Petitioners appealed.

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

By Christopher W. Garrett, Daniel P. Brunton, Kimberly D. Farbota, and Natalie C. Rogers

In an unpublished opinion issued May 3, 2018, Endangered Habitats League, Inc. v. City of San Marcos, Case No. D072404, the California Court of Appeal determined that the Endangered Habitats League (Petitioner) substantially complied with procedural provisions of CEQA that require a petitioner to file a written request for a hearing, and the Court of Appeal reversed the trial court’s decision to dismiss Petitioner’s suit.

In summary, the court determined:

  • An oral request for a hearing on the merits of a CEQA petition, followed by written notice to all parties, fulfills the objectives of CEQA’s procedural requirement that a petitioner file a written request for a hearing, such that the substantial compliance doctrine applies.

The trial court dismissed the action based on its belief that the court was foreclosed from applying the substantial compliance doctrine to CEQA’s procedural requirements. Petitioner had orally requested a hearing on the merits of its CEQA action, provided timely written notice to City of San Marcos (City) and the real parties in interest (Real Parties). Petitioner had additionally filed and served a declaration attesting to the request for hearing, but had failed to file a document entitled, “request for a hearing.” Petitioner appealed the dismissal.

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

By Christopher W. Garrett, Daniel P. Brunton, Lauren Glaser, and Natalie C. Rogers

In an unpublished opinion issued June 19, 2018, Center for Biological Diversity v. County of Los Angeles, Case No. B284427, the California Court of Appeal rejected the Center for Biological Diversity’s (Petitioner) appeal and affirmed the trial court’s denial of a petition for writ of mandate to require the County of Los Angeles (County) to set aside its approval of the modified Antelope Valley Area Plan (Plan) and certification of a program environmental impact report (EIR).

In summary, the court determined:

  • When modifications to an area plan do not constitute “significant new information” or “substantial changes” as compared to the original area plan, an agency need not revise the EIR before certification, recirculate the EIR, prepare a subsequent or supplemental EIR, or prepare an addendum to the EIR.
  • When modifications to a plan do not require an agency to recirculate an EIR, or prepare a supplemental EIR or addendum, the agency is not required to make further CEQA findings or provide an updated statement of overriding considerations.

Petitioner sought a writ of mandate to compel the County to set aside its approval of the modified Plan and certification of the EIR. The trial court denied the petition, finding that the modifications at issue were not significant and that the EIR’s findings related to project impacts remained valid. The Court of Appeal affirmed the trial court’s denial of the petition.

California Air Resources Board lifts freeze on Low Carbon Fuel Standard.

By Joshua T. Bledsoe and Kimberly D. Farbota

On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel standards will revert to the schedule specified in the current LCFS Regulation.

The freeze, put in place by CARB to comply with a writ of mandate, will now be lifted following the discharge of the writ. As discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by CARB in 2009. In April 2017, the Court of Appeal ruled that CARB failed to faithfully execute a writ of peremptory mandate requiring the agency to properly address nitrogen oxide (NOx) emissions from biodiesel, and in October 2017, the Superior Court issued a modified writ of mandate to reflect the Court of Appeals holding. In accordance with the modified writ, in November 2017

Latham lawyers discuss the business implications of the new legislation.

By Tommy P. Beaudreau, Marc T. Campopiano, Michael J. Gergen, Joshua T. Bledsoe, and Jennifer K. Roy

Senate Bill 100, signed into law by Governor Jerry Brown on September 10, 2018, aims to raise California’s already ambitious renewable energy standards by 2030, with an ultimate mandate of 100% clean energy by 2045. On the same day, Brown issued Executive Order B-55-18, which sets a target of…

By Joshua T. Bledsoe and Kimberly D. Farbota

On September 27, 2018, the California Air Resources Board (CARB) passed Resolution 18-34, extending the Low Carbon Fuel Standard (LCFS) Program to 2030 and making significant changes to the design and implementation of the Program. This blog outlines seven takeaways for market participants and stakeholders.

1. CARB Appears Committed to the LCFS

While California’s Cap-and-Trade Program attracts the lion’s share of attention in the trade press, CARB may view the LCFS as an equally important greenhouse gas (GHG) emissions reduction measure. According to CARB, the Cap-and-Trade Program’s traditional role in the state’s overarching scheme has been to backstop GHG reductions, not drive them. Under this interpretation, the Cap-and-Trade Program has acted as an insurance policy guaranteeing the state’s GHG emissions reduction trajectory via operation of the program’s hard cap in the event that other, more direct emissions reduction measures fail to achieve expected reductions (e.g., the Renewables Portfolio Standard, Advanced Clean Car Standards, Title 24 Energy Efficiency Standards, the LCFS, etc.).

By Christopher W. Garrett, Daniel P. Brunton, Jennifer K. Roy and Derek Galey

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

In an unpublished opinion issued September 14, 2018, Inland Oversight Comm. v. City of San Bernardino, Case No. E064836, the California Court of Appeal affirmed the trial court’s decision dismissing the Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association’s (HOA’s) (collectively, Petitioners’) appeal challenging the City of San Bernardino’s (City’s) approval of real party in interest First American Title Insurance Company’s (Developer’s) changes to a proposed development. In summary, the court determined:

  • In the CEQA context, the doctrine of res judicata applies if two actions involve the same episode of purported noncompliance.
  • Adequacy of representation for privity purposes is measured by inference, in other words, examining whether the party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that party had a strong motive to assert that interest.
  • The Water Code does not require a water supply assessment if a proposed development is not subject to CEQA review.

By Christopher H. Norton, Lucas I. Quass, and Derek Galey

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

In an unpublished opinion issued July 10, 2018, Sierra Club v. County of Kern, Case No. F071133, the California Court of Appeal reversed the trial court’s decision and remanded for the issuance of a new writ of mandate directing the County of Kern (County) to address the improper deferral of mitigation measures for air quality impacts in the Kern River Valley Specific Plan’s (Specific Plan) Environmental Impact Report (EIR). In summary, the court determined:

  • The EIR’s analysis of the long-term significance of the Specific Plan’s greenhouse gas emissions was adequate at its time of release in 2011.
  • The EIR’s approach to mitigating greenhouse gas emissions was not a prejudicial abuse of discretion.
  • CEQA does not require greater than a 1:1 mitigation ratio for the amount of farmland to be placed under an agricultural conservation easement or similar program.
  • County violated CEQA by deferring the formulation of air quality mitigation measures without firmly committing to specific performance standards.

Companies may need to carefully consider practical business concerns to comply with the updated Prop 65 regulations, effective August 30.

By Michael G. Romey, Lucas I. Quass, and James A. Erselius

New regulations governing the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) will go into effect on August 30, 2018 that apply to products manufactured after the operative date of August 30, 2018. The new regulations update the content of the Prop 65 warning label that appears on products, in addition to other substantive changes.

Below is one example of how the new warning may look; however, the exact content will depend on the specifics of the exposure in question.