By James Arnone, Lucinda Starrett, Marc Campopiano, and Christopher Garrett
California higher courts rule in favor of public agencies on small majority of environmental impact report cases.
Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2018, posting summaries to this blog.
The California Court of Appeal heard 43 CEQA cases, while the California Supreme Court heard the following three cases: Banning Ranch Conservancy v. City of Newport Beach, Friends of the Eel River v. North Coast Railroad Authority, and Cleveland National Forest Foundation v. San Diego Association of Governments. Exactly half of all CEQA cases decided in 2017 were published.
The chart on the right shows all 46 cases sorted by topic. The greatest number of cases (20 of the 46) focused on Environmental Impact Reports (EIRs). Attorneys’ Fees, Justiciability, and Other Procedures accounted for 12 cases. This category includes issues such as standing, preemption, statute of limitations, and res judicata. Six cases focused on negative declarations or mitigated negative declaration, while five cases focused on CEQA exemptions and exceptions to these exemptions. The remaining three cases involved supplemental review or certified regulatory programs.
In the below chart, cases are also sorted by topic but include additional information on whether the public agency prevailed in each kind of case. For purposes of this summary, if the public agency lost on any issue it is deemed to have not prevailed. Overall, public agencies prevailed in 30 of 46 cases, or 65%, but won only 55% of EIR cases. Public agencies saw their greatest level of success in exemption/exception, negative declaration, and supplemental review cases.
Read the full CEQA Case Report Year in Review 2017.