Environmental Impact Report

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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.

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

By Marc T. Campopiano, Christopher W. Garrett, Nathaniel L. Glynn, and Natalie C. Rogers

In a published opinion issued December 24, 2018, Sierra Club v. County of Fresno, Case No. S219783, the California Supreme Court determined that an environmental impact report (EIR) prepared and certified by Fresno County (County) for a development project failed to include certain information and analysis required by CEQA. The California Supreme Court held that the EIR did not adequately discuss potential health consequences that could be caused by a significant increase in pollutants resulting from the development project. In summary, the California Supreme Court determined:

  • A discussion of potential environmental impacts in an EIR must include sufficient detail to enable those who did not participate in its preparation to understand and to meaningfully consider the issues raised by the proposed project.
  • The issue of whether a discussion in an EIR is sufficient is a mixed question of law and fact subject to de novo review, though underlying factual determinations in an EIR are subject to a more deferential standard.
  • An EIR must either make a reasonable effort to correlate a project’s significant air quality impacts to potential health consequences, or explain why providing such an analysis is not feasible.
  • A lead agency does not impermissibly defer mitigation if it leaves open the possibility of employing better mitigation efforts consistent with improvements in technology.
  • A lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than-significant level, so long as the agency can demonstrate in good faith that the mitigation measures will be at least partially effective in mitigating impacts.

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

By Lucas I. Quass, Peter J. Gutierrez, and Roopika Subramanian

In a partially published opinion issued September 18, 2018, Atwell v. City of Rohnert Park, Case No. SCV256891, the California Court of Appeal affirmed the trial court’s judgment that the petition for writ of mandate challenging the City of Rohnert Park’s (City’s) approval of a Walmart expansion project (the Project) was barred by res judicata because a prior petition challenging City’s initial approval raised the same claim of inconsistency with City’s General Plan. In summary, the court held:

  • In determining whether two challenges constitute the same cause of action under the doctrine of res judicata, if a subsequent claim is based on a project proposal that has not changed since the prior action, then a city’s approval will only raise a new issue or injury if the city included new or revised conditions or measures that are at issue in the subsequent petition.

In 2015, Petitioner Nancy Atwell (Petitioner) filed a petition for writ of mandate seeking an order to vacate City’s project approvals alleging inconsistency with the General Plan. After a briefing on the merits was complete, City filed a motion for judgment on the pleadings, asserting that Petitioner’s claims were barred by the doctrine of res judicata. The trial court concluded that the petition was barred by res judicata and the statute of limitations, and that substantial evidence supported the City Council’s determination that the Project complied with the General Plan.

By Christopher W. Garrett, David Amerikaner, Lucas I. Quass and Samantha Seikkula

In an opinion by Justice Kruger, the Supreme Court of California unanimously reversed the Court of Appeal in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, Cal. Supreme Court, Case No. S214061 (September 19, 2016). The Court concluded the Court of Appeal erred in its application of a “new project” test in determining whether a subsequent or supplemental environmental impact report (EIR) is appropriate.

The Court held that the California Environmental Quality Act (CEQA) does not authorize courts to invalidate an agency’s CEQA action when it proposes changes to a previously approved project, based solely on the court’s own independent evaluation of whether the agency’s proposal is a new project, rather than a modified version of an old one. Instead of focusing on a possibly abstract characterization of whether the project is “new” or “old,” the court must evaluate the lead agency’s determination of whether the previous environmental document retains any relevance in light of the proposed changes, and if any major revisions to the document are required due to the involvement of new, previously unstudied significant environmental effects. Importantly, the Court clarified

By Christopher Garrett, Daniel Brunton and Shannon Lankenau

On May 4, 2016, the California Supreme Court heard oral argument in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Case No. S214061), which addresses the standard of review that applies when a lead agency decides that changes or additions to a previously approved project can be treated as a modified version of the original project instead of as an entirely new project. Under the California Environmental Quality Act (CEQA), a modified version of a project will often be analyzed with an expedited “addendum” to the previous CEQA document while an entirely new project may require starting the CEQA review from the beginning.  The Supreme Court’s opinion will likely provide important guidance on this frequently encountered situation. The Court is expected to issue its opinion by early August.

Factual and Procedural Background

Friends of the College of San Mateo Gardens (Friends) challenged the San Mateo County Community College District’s (the District) decision to demolish a building complex on the District’s College of San Mateo campus. The District previously approved a project plan to renovate ten campus buildings and demolish sixteen others, using a mitigated negative declaration to address the project’s environmental impacts. The District later revised its plans to include demolition of one building that had been set for renovation and renovation of two buildings previously slated for demolition. The District evaluated the possible environmental consequences of the change in plans, concluded that the revisions were not extensive enough to require preparation of a subsequent Environmental Impact Report (EIR), and adopted an addendum to the previously approved mitigated negative declaration.

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]