0-and-4. That's the Third District Court of Appeal's record in California Environmental Quality Act cases at the state Supreme Court since 2007.

Earlier this month, in Stockton Citizens for Responsible Planning v. City of Stockton (see CP&DR Legal Digest, March 15, 2010), the state Supreme Court unanimously reversed a Third District ruling regarding the statute of limitations for filing a lawsuit that challenges a city's notice of exemption from CEQA review.

The state Supreme Court has issued eight CEQA rulings since mid-2006. Exactly half of the rulings have been reversals of Third District decisions. None of the other five appellate districts has been reversed more than once.

A few months ago, when the state high court overturned a Third District decisions concerning a Sacramento County general aviation airport, I suggested the justices in the Sacramento-based appellate district might not understand CEQA. Upon reflection, I don't want to try to defend that notion. But if I were a lawyer with a CEQA case in the Third District, I would be hesitant.

To figure out what's going on here, let's have quick look at the cases. In one case, the Third District rejected the programmatic EIR for the Cal-Fed Bay Delta project because the gigantic document lacked detail and did not consider a no-growth alternative for Southern California. In another case, the Third District said Sacramento County must analyze the impacts of not permitting continued operations at a general aviation airport that had skirted county codes for decades. Those two decisions struck me at the time as suspect, and the state Supreme Court later reversed both decisions.

In a third case, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, (2007) 40 Cal.4th 412, the Third District upheld as adequate the water analysis for a 20,000-unit community plan. Something else was in play here, though. The Third District was so strongly critical of the legal tactics employed by the Citizens' lawyer that the court mostly bypassed the merits. The State Supreme Court, however, had no trouble getting to the merits, and it rejected the water study.

In the latest case, the Third District in a 2-1 ruling forgave Stockton Citizens from missing the 35-day statute of limitations because the city's approval process was, should we say, nonstandard. The planning director had approved development of a Wal-Mart Supercenter where multi-family housing was not only planned, but was required by the city as a condition of a approval for a master development plan. The planning director's ministerial decision to permit the Wal-Mart store was made without any public notice or environmental review. The city simply filed a notice of exemption (NOE) from CEQA two months later. Not surprisingly, the episode flew under the radar and the normal collection of Wal-Mart opponents and smart-growth advocates was late getting to the courthouse.

Tough noogie, said the Cal Supremes. "Whatever the actual defects or flaws in its process of approving the Wal-Mart project under a CEQA exemption, [the] city attempted, by filing an NOE for the project, to comply with CEQA," Justice Marvin Baxter wrote. Thus, there was no excuse for missing the 35-day deadline to sue.

Essentially, the court said the law is the law. The justices declined to factor the city's, uh, nonstandard administrative process into their decision on the CEQA statute of limitations.

The high court's approach hints at the common thread in the overturned Third District decisions: In each instance, the Third District went beyond a strict interpretation of CEQA. The law does not require consideration of patently absurd project alternatives (e.g. no growth in Southern California), nor does it require a study of the impacts of a private business closure, permit exceptions when a city does a favor for a well-connected developer, or allow judges to blow off an annoying lawyer.

As of today, no CEQA decisions by the Third District or any other appellate district are on review at the state Supreme Court. Maybe this means that everybody now is clear on the rules. But I doubt it.

– Paul Shigley