California Court of Appeal Overturns Specific Plan EIR for Inadequate Air Quality Impact Mitigation

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In an unpublished opinion issued July 10, 2018, Sierra Club v. County of Kern, Case No. F071133, the California Court of Appeal reversed the trial court’s decision and remanded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.

California Court of Appeal Rejects City’s MND in Historic District Due to Aesthetic and Traffic Impacts

By Latham & Watkins LLP on August 30, 2018 Posted in California, CEQA, Environmental Litigation

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

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.

Viewpoints Video Examines California’s Cap-and-Trade Program

By Latham & Watkins LLP on August 29, 2018 Posted in California, Environmental Regulation

Harvard professor Robert Stavins joins Latham partner Bob Wyman to review key climate change mitigation policies.

California’s climate change mitigation program is widely viewed as one of the most comprehensive of its kind — encompassing a cap-and-trade component and a series of complementary measures with specific performance targets for important sectors such as motor vehicles, transportation fuels, power plants, and emissions related to land use decisions.

In this Viewpoints video, Latham partner Bob Wyman, a leader in the firm’s Environment, Land & Resources Department, discusses unique aspects of the California program with Harvard University professor Robert Stavins, the A.J. Meyer Professor of Energy & Economic Development at the John F. Kennedy School of Government.

The two veterans of climate change policy explore the purpose and design of climate change programs in California and globally that deliver environmental performance at lower cost, and they explain key terms such as a price ceiling, “speed bumps,” and the banking of carbon emissions allowances.

Latham Viewpoints is a video series spotlighting hot topics in the practice and business of law.

California Appeals Court: Petitioner Must Show Prejudice for Brown Act Violation

By Latham & Watkins LLP on August 28, 2018 Posted in CEQA, Environmental and approvals, Permitting

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

By Christopher W. Garrett, Daniel P. Brunton, Robert C. Hull, and Natalie C. Rogers

In an unpublished opinion issued January 31, 2018, Citizens for Open & Public Participation v. City of Montebello, Case No. B277060, the California Court of Appeal affirmed the trial court’s denial of a petition for writ of mandate, upholding the City of Montebello’s (City) approval of a residential development project (Project). In summary, the court determined:

The trial court properly struck portions of the plaintiff’s opening brief that were inconsistent with the petition, in which the plaintiff had filed no statement of issues, and when the local rules required briefing to be consistent with the statement of issues.

A petitioner challenging an action as violating the Brown Act must show prejudice.

A city’s determination that a project is consistent with its general plan carries a strong presumption of regularity that a project opponent can overcome only by showing the city abused its discretion.

California Court of Appeal Ruling Exempts Parking Requirements From CEQA Review

By Latham & Watkins LLP on August 28, 2018 Posted in California, CEQA, Environmental and approvals

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

By Christopher W. Garrett, Daniel P. Brunton, Natalie C. Rogers, and Roopika Subramanian

In a published opinion issued February 28, 2018, Covina Residents for Responsible Development v. City of Covina, Case No. B279590, the Court of Appeal affirmed the trial court’s judgment and upheld the City of Covina’s (the City) approval of a 68-unit mixed-use infill project (Project). In summary, the court determined:

An EIR must address secondary parking impacts caused by traffic congestion, but parking impacts, in and of themselves, are exempt from CEQA review.

An agency is permitted to tier from a specific plan EIR if (1) the proposed action falls under an exemption, or (2) potential project impacts have been adequately analyzed and mitigated in the specific plan EIR.

In determining whether to approve a tentative map for a project, local agencies must make findings showing the proposed map’s compatibility with objectives, policies, and programs in the specific plan, but need not show perfect conformity.

California Court of Appeal Determines State Law Preempts Local Ordinance Provisions in Specific Instances

By Latham & Watkins LLP on August 28, 2018 Posted in California, CEQA, Environmental and approvals

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

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

In a partially published opinion issued April 4, 2018, Small Property Owners of San Francisco Institute v. City and County of San Francisco, Case No. CPF14513453, the California Court of Appeal reversed the trial court’s judgment. The court held that state law preempted the City and County of San Francisco’s (City and County) ordinance provision prohibiting changes to nonconforming residential units for up to 10 years if the units’ tenants were evicted pursuant to the Ellis Act. In summary, the court determined:

Petitioner waived its Planning Code and CEQA claims for failure to exhaust its administrative remedies.
The Ellis Act preempted the City and County’s 10-year waiting period for alterations to non-conforming units if the owner had evicted a non-fault tenant.

The petitioner, a local property owners’ organization (Petitioner), petitioned for writ of mandate seeking to invalidate the City and County’s ordinance that limited the ability of owners of nonconforming housing units to alter those units if a non-fault eviction had occurred within the prior 10 years (the Ordinance). Petitioner argued:

The adoption of the Ordinance violated the Planning Code because the Board of Supervisors (Board) amended the Ordinance prior to adoption and those changes were not reviewed by the Planning Commission (Commission)
The City and County’s determination that the Ordinance was not a “project” subject to environmental review violated CEQA
The Ellis Act preempted the Ordinance

California Appeals Court: Statewide Emissions Goals May Inform Mitigation Measures

By Latham & Watkins LLP on July 17, 2018 Posted in California, CEQA, Environmental Litigation

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

By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula

In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:

An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.

Background for Appeal

After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:

The environmental impact report (EIR) failed to adequately analyze impacts
The County failed to adopt feasible mitigation measures
The County’s findings were not supported by substantial evidence
The County failed to recirculate the final EIR after making changes that constituted significant new information

The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.

California Appeals Court Dismisses As Moot Litigant’s Challenge to Planned Development Approval

By Latham & Watkins LLP on July 17, 2018 Posted in California, CEQA, Environmental and approvals, Environmental Litigation

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, John D. Niemeyer, and Samantha K. Seikkula

In an unpublished opinion issued February 20, 2018, Advocates for Better Cmty. Dev. v. City of Palm Springs, Case No. E066193, the California Court of Appeal dismissed as moot an appeal from the trial court’s judgment and upheld the City of Palm Springs’ (City’s) decision to approve changes to a planned development in downtown Palm Springs. In summary, the court determined:

On appeal, a CEQA challenge is moot where, due to events that occur while the appeal is pending, the court is no longer able to grant effective relief

Advocates for Better Community Development (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to invalidate the City’s addendum to an environmental impact report (EIR) for the changes to the planned development. Petitioner argued that that the City’s approval was inconsistent with the Museum Market Plaza Specific Plan (Specific Plan) and that the approval violated CEQA because the changes were substantial and required additional environmental review. The court held that these issues were moot due to an ordinance that the City passed modifying the Specific Plan before Petitioner filed its notice of appeal.

California Legislature Eyes 100% Clean Energy Target

By Latham & Watkins LLP on July 16, 2018 Posted in Energy regulatory

The California Assembly is expected to vote this summer to establish increased renewable energy targets and set a target of 100% clean energy by 2045.

By Marc T. Campopiano, Jennifer K. Roy, Diego Enrique Flores

SB 100, Senator Kevin De Leon’s renewable energy bill, would increase California’s already ambitious renewable energy standards by 2030 with an ultimate goal of 100% clean energy by 2045. On July 3, the California Assembly Committee on Utilities and Energy passed the bill out of committee. In 2017, the bill was approved in the Senate but did not progress through the Assembly before the term ended. In 2018, SB 100 is expected to again reach the Assembly floor for consideration.

As currently drafted, SB 100 would increase California’s Renewables Portfolio Standard (RPS) requirement from 50% to 60% by 2030, and set a goal of 100% clean energy by December 31, 2045 through RPS-eligible and zero-carbon resources. Clean energy could be defined more broadly than the current definition of renewable energy, to include energy resources such as large-scale hydro power that qualify as zero-carbon.

CEQ Seeks Input on Potential Revisions to NEPA Regulations

By Latham & Watkins LLP on June 25, 2018 Posted in Environmental and approvals, Permitting

Trump Administration is weighing potentially comprehensive overhaul to regulations governing federal environmental review to cut red tape and avoid excessive delay to process.

By Janice M. Schneider, Tommy P. Beaudreau, Jennifer K. Roy, Bobbi-Jo B. Dobush, and Diego Enrique Flores

The White House Council on Environmental Quality (CEQ) recently published an Advance Notice of Proposed Rulemaking (Advance Notice) in the Federal Register, requesting public comment on potential updates to the National Environmental Policy Act’s (NEPA’s) implementing regulations intended to “ensure a more efficient, timely, and effective NEPA process[.]” The public comment period currently lasts 30 days, until July 20, 2018.

The CEQ NEPA regulations, which were first promulgated in 1978, have only been revised once (to eliminate the “worst case” analysis requirement) in 40 years. The Advance Notice was prompted by an executive order issued by President Trump on August 15, 2017, directing CEQ to enhance and modernize the federal environmental review and authorization process. Streamlining the environmental review process and cutting red tape has been a hallmark priority of the Trump Administration. CEQ subsequently identified reviewing NEPA regulations as a priority for complying with President Trump’s executive order — consistent with the Trump Administration’s many actions — including the recently issued “One Federal Decision” Memorandum of Agreement. In particular, the Department of Interior has issued Secretarial orders and policy memoranda aimed at, among other things, compressing the time and length for agency preparation of environmental impact statements and other NEPA reviews. The potentially sweeping changes to CEQ’s NEPA regulations, signaled by the Advance Notice, may prove to be the Trump Administration’s most consequential reforms of the federal environmental review process. Continue Reading