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CEQA Case Report
Understanding the Judicial Landscape for Development
2021 Year in Review
CEQA Case Report: Understanding the Judicial Landscape for Development
Public agencies prevailed in 71% of CEQA cases analyzed.
Latham & Watkins is pleased to present its fifth annual CEQA Case Report. Throughout 2021
Latham lawyers reviewed each of the 51 California Environmental Quality Act (CEQA)
appellate cases, whether published or unpublished. Below is a compilation of the information
distilled from that annual review and a discussion of the patterns that emerged.
In 2021, the California Courts of Appeal issued 51 opinions that substantially considered
CEQA while the US District Court for the Northern District of California issued one opinion.
Notably, 2021 saw an increased focus on CEQA wildfire analysis. In cases like Sierra Watch v.
County of Placer, the Court of Appeal ruled that the County of Placer failed to adequately
analyze wildfire risks by wrongly assuming first responders would provide traffic control in the
event of an emergency. And in Newtown Preservation Society v. County of El Dorado, the
Court upheld a mitigated negative declaration in the face of public concerns that a bridge
reconstruction project would result in significant impacts on resident safety and emergency
evacuation in case of a wildfire.
Also notable in 2021 was the rare occurrence of a Court of Appeal partially affirming the denial
of an anti-SLAPP motion following a CEQA lawsuit. In Dunning v. Johnson, the Court found
that a project developer had established a probability of demonstrating lack of probable cause for
the underlying CEQA petition, as well as a probability of demonstrating that the petitioners
pursued the CEQA litigation with malice.
Of the 51 appellate CEQA cases in
2021, 15 were published, six were
partially published, and 30 were
unpublished. Figure 1 (left) shows
all 51 cases sorted by topic.
A nearly equal number of cases
focused on Environmental Impact
Reports (19 cases) and Attorneys’
Fees, Justiciability, and Other
Procedures (18 cases), which includes
issues such as mootness, statutes of
limitations, waiver, and res judicata.
These two topics were the focus of
71% of all cases in 2021 — which is
consistent with 2020, when these two topics were the focus of 70% of all cases.
Also in 2021, 10 cases focused on Exemptions and Exceptions, two focused on Mitigated
Negative Declarations, two focused on Supplemental Review, and one focused on Certified
Regulatory Programs.
Figure 2 (right) shows the
distribution of cases
among California’s six
appellate districts, as well
as the percentage of cases
in each district where the
public agency prevailed.
Unlike 2018, 2019, and
2020, there was not a
single district where the
public agency prevailed in
all cases. However, the
First District had the most
favorable record for public
agencies, which prevailed
in 89% of all cases. As was the case in 2019, in the Fifth District, public agencies did not
prevail in a single case.
Figure 3 (below) separates cases by topic and shows whether the public agency prevailed in
each type of case. For purposes of this summary, if the public agency lost on any issue, it was
deemed not to have
prevailed.
Overall, public agencies
prevailed in 38 of the 52
cases, or 71%, up slightly
from 68% in 2020 and
consistent with the 71% win
rate in 2019. The public
agency prevailed in 88% of
Attorneys’ Fees,
Justiciability, and Other
Procedures cases and 79% of
Environmental Impact
Report cases.
For more insights and commentary on environmental issues and developments impacting
business in California, visit Latham’s Environment, Land & Resources blog.
