Environmental Review Cases Stack Up At State High Court

Development of a home improvement store and realignment of an adjacent road in Sonora constituted one project, and the combined activities should have been subject to a single environmental analysis, the Fifth District Court of Appeal has ruled.

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 ("South Orange"), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (EIR) be prepared to assess the impact on the environment of a proposed project pursuant to the California Environmental Quality Act (CEQA). The Court of Appeal declined to order such an EIR.

As the state's public disclosure statute, the California Environmental Quality Act directs lead agencies to disclose the likely impacts associated with agency approval of projects. And while legal caution dictates that more disclosure is preferable to less disclosure, lead agencies have to recognize that there are two notable exceptions to this practice: information relating to cultural resources, as outlined in Government Code section 6254, CEQA Guidelines section 15120(d), and trade secrets, per CEQA Guidelines section 15120(d).

In a feat of chronological gymnastics regarding a proposed development in the City of Napa, the Court of Appeal for the First Appellate District held that a Notice of Determination posted over the course of 31 calendar days was not posted long enough to satisfy the California Environmental Quality Act's requirement that it be posted for 30 days. 

Overview

A development project in Redding that would destroy critical habitat for endangered species may proceed because the affected habitat constitutes a small percentage of habitat available nationwide, the Ninth U.S. Circuit Court of Appeal has ruled. 

The Ninth Circuit's decision puts a new twist on the debate over what constitutes "adverse modification" to critical habitat by upholding a black and white mathematical percentage formula applied by the U.S. Fish and Wildlife Service (FWS). Using the formula, a FWS biological opinion determine there would not be adverse modification or destruction of critical habitat of three species native to the Central Valley.

The First District Court of Appeal determined that the California Environmental Quality Act exemption for infill development applies only to projects within the limits of an incorporated city.

In the first-ever appellate court decision regarding the California Environmental Quality Act and climate change, the First District Court of Appeal has held that the future development of a plan for greenhouse gas mitigation constituted improperly deferred mitigation. For that reason and others, the court ruled the environmental impact report for an oil refinery project was invalid.

In supporting the City of Stockton's refusal to accept a lawsuit filed by a citizens group against a proposed big-box store, the California Supreme Court has, for the second time in two months, made clear that if a public agency provides notice of a California Environmental Quality Act decision, legal challenges to that decision may be barred by the shortest statute of limitations, among several that the CEQA statute provides for, applies to legal challenges regardless of the context of the challenge.

In yet another California Environmental Quality Act case involving whether an agreement between a tribe and a city constitutes a "project," the First District Court of Appeal has held that the law did not apply to an agreement requiring a city's formal support of a proposed casino in exchange for the tribe's funding of undefined city services and improvements.