Welcome to Abbott & Kindermann’s 2018 2nd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.
- 2017 CEQA UPDATE
To read the 2017 cumulative CEQA review, click here:
- CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?
Sierra Club v. County of Fresno, S219783. (F066798, 226 Cal.App.4th 704; Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)
3. UPDATE
A. Exempt From CEQA Review
World Business Academy v. California State Lands Commission (June 13, 2018, case no. B284300) ___ Cal.App.5th ___.
In 2015, PG&E sought an extension of a lease from the State Lands Commission to continue operating the Diablo Canyon Nuclear Power Plant until 2025 when it is planned for decommission at the conclusion of its FERC-issued operating license term. The Commission approved the extended lease, citing to the Existing Facilities exemption (CEQA Guidelines §15301), to comply with CEQA. Petitioners filed suit, arguing that the project was not eligible for the categorical exemption due to: (1) the significant impacts on the environment that are inherent from the nuclear power plant’s operation; and (2) from the unusual circumstances of the plant’s location and operation. Petitioner also claimed that the approval violated the Public Trust Doctrine. The trial court rejected Petitioner’s claims and Petitioner appealed. The appellate court first admonished the parties for failure to lodge the full administrative record and citing only to excerpts in a jointly filed appendix of pertinent administrative records. It ultimately chose not to exercise its discretion to rule against Petitioner for that failure because the Petitioner belatedly filed the record with the court.
Moving to the substantive claims, the court first rejected Petitioner’s claim that the plant was not eligible for the existing facilities exemption due to the inherent risks associated with a nuclear power plant. Relying on CEQA Guidelines section 15301, subdivision (b), it reasoned that the plant fit squarely into the “investor and publicly-owned utilities used to provide electric power…” category contemplated by the exemption, and that the record confirmed that there would be no expansion of the plant’s operational capacity. The court then rejected Petitioner’s unusual circumstances claims. Assuming for the purposes of the analysis that the project presents unusual circumstances, the court nonetheless found that there was no substantial evidence supporting a fair argument that a significant effect on the environment would result.
Relying on the existing baseline of a fully-operational plant in accordance with North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, the court reasoned that:
- Petitioner could point to no evidence in the record to identify an environmental impact that would result from the size of the plant, its location, health effects on populations near the site, or impacts on marine life in light of the existing conditions;
- The Commission was not obligated to follow a hyperlink in a comment letter to identify purported evidence supporting its claim that the extension would lead to an enhanced risk of reactor failure to “embrittlement” and no other evidence was in the record to support the claim;
- Petitioner submitted no evidence supporting its claims that the extension would: (i) increase risk of fuel rod storage which is already occurring at the site; (ii) heighten any seismic risk from its existing location near fault lines; or (iii) make the plant more likely to be a terrorist target than currently exists; and
- Petitioner failed to demonstrate how its claims that the plant will be the sole remaining plant in the state and that PG&E was convicted of “safety-related and agency obstruction felony counts” would have an effect on the environment.
County of Ventura v. City of Moorpark (June 12, 2018, case no. B282466) ___ Cal.App.5th ___.
Petitioners challenged the City’s settlement agreement with the Broad Beach Geologic Hazard Abatement District (“GHAD”) to address haul routes for trucks used for a beach and sand dune erosion restoration project at Broad Beach, and the City’s determination that the agreement, and the related project activities it contemplated, as a single project were statutorily exempt from CEQA as an activity “to prevent or mitigate an emergency.” (Public Resources Code §§26601 and 21080(b)(4). Petitioners argued the actions were improper under several theories, including: (1) the City’s interpretation of the statute to find the action exempt is inconsistent with the purpose of CEQA; (2) the approval of the agreement and the contemplated activities were discrete actions under CEQA; (3) the traffic restrictions on trucks outlined in the agreement were preempted by state law; (4) the traffic restrictions constituted an illegal attempt to regulate traffic outside city limits; and (5) GHAD improperly abdicated its police power when granting the City the power to dictate sand hauling routes to be used by GHAD contractors. The trial court rejected all of Petitioners’ claims, except for the abdication of the police power, holding that such portions of the agreement that prohibited GHAD from modifying hauling routes in response to changed circumstances were void. The appellate court reversed in part, affirmed in part and remanded.
The appellate court held that the agreement and the contemplated activities were not distinct actions and were exempt from CEQA, as they represented the “whole of the project” and that a plain reading of the statutes grant this exemption to the proposed actions. As for preemption, the court found that Petitioners’ citation to Vehicle Code section 21 was inapplicable, because it did not apply to contracts, only to ordinance’s or resolutions. The court also rejected the claim of extraterritorial regulation by the City, reasoning that the hauling route limitations in the agreement were voluntarily agreed to by GHAD and the remedies under the agreement are limited to effects only within the city limits. Regarding Petitioners’ claim that GHAD abdicated its police power, the appellate court agreed with the trial court that one section improperly prohibited GHAD from adjusting hauling routes in the future, but went further to void additional portions of the agreement that limited future route options that may be chosen by GHAD as a result of future changed circumstances.
Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039.
Petitioners challenged the County’s approval of a distributed antenna system for wireless cellphone coverage which included 13 microcell transmitters placed on utility poles in the Day Valley area in Aptos. The microcells are two-foot by one-foot antennas mounted on an extender pole and attached to a utility pole. The applicant filed individual permits for each microcell and the County had found that the project, both individually and as a whole, was exempt from CEQA, pursuant to the small structures exemption (14 C.C.R. §15303). Petitioners argued that: (1) the County improperly segmented its analysis of the project; (2) there was a cumulative impact resulting from the whole of the project, as well as Petitioner’s assertion that AT&T was likely to file for its own distributed system in the area soon; (3) the project fell under a “location exception” for a “mapped protective designation”; and (4) that there were unusual circumstances that precluded use of the exemption. The trial court denied petitioners’ claims and petitioners appealed.
The court of appeal affirmed. The court found the County did not improperly segment the project, nor fail to consider the cumulative impacts of the project. It reasoned that despite the fact that the applicant filed for separate permits for each microcell, the record was clear that the County had always treated the microcells together as one project which was authorized under the terms of the Section 15303 exemption which uses the plural when describing the number and type of structures eligible for the exemption. The court next...
