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Questions Arise Regarding Cal Supremes' CEQA Decision

Jul 12, 2007

Sometimes even journalists get it right.

Three weeks ago, the California Supreme Court ruled that an airport land use compatibility plan qualified for a "common sense" exemption from the California Environmental Quality Act. In my story about the decision in Muzzy Ranch Co. v. Solano County Airport Land Use Commission, I noted that the court applied the substantial evidence test "even though the CEQA Guidelines and previous cases suggest that an exemption is not appropriate if an argument can be made that a project may have a significant effect on the environment."

I wasn't exactly saying the court got it wrong, but I did detect an apparent inconsistency.

Two respected CEQA lawyers are willing to go further. They flat out say that a unanimous state Supreme Court got it wrong. More importantly, the court appears willing to listen to their arguments.

Richard Jacobs, the losing attorney in the case, has asked the court for a new hearing. Susan Brandt-Hawley, whom I once heard called "petitioner's lethal weapon" in CEQA cases, has asked the court to modify its decision without changing the judgment. (Brandt-Hawley has not been involved in the case but submitted the request nonetheless.) Both attorneys point to the court's standard of review for the exemption. Shortly after the attorneys filed their requests, the court extended the period of time for reconsideration until September 19 a sign that the justices are taking the requests very seriously.

This might seem like something of interest only to CEQA fanatics. (OK, I'm one, but so are you if you're reading this.) Still, there are potentially major implications here for future development.

Citing the CEQA Guidelines and more than 30 years of case law, Jacobs and Brandt-Hawley argue that the "fair argument" standard applies to any nonstatutory exemption. That means that if a fair argument can be made than an activity may have a significant effect on the environment, the activity is not exempt from CEQA review. The fair argument standard favors environmental analysis.

On the other hand, the substantial evidence standard means that a project is exempt from review if an agency can cite enough evidence supporting the exemption. The fact that there might be contrary evidence does not necessarily matter. The substantial evidence standard is deferential to the lead agency and favors exempting projects from environmental review.

If the test becomes one of substantial evidence, you can expect to see a whole lot more developers and local governments claim that their projects are exempt from CEQA.

We'll let you know if the court reconsiders.

- Paul Shigley

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