CEQA Judicial Outcomes:
Fifteen Years of Reported California Appellate and Supreme Court Decisions
By Jennifer L. Hernandez, Spencer B. Potter, Dan Golub and Joanna Meldrum
SUMMARY
This report analyzes all published opinions from 1997 through 2012 litigated to the California
Court of Appeal or the California Supreme Court concerning the analytical validity of an
Environmental Impact Report (EIR) or Negative Declaration – or the applicability of a
Categorical Exemption – under the California Environmental Quality Act (CEQA).1
This 15-year report of CEQA jurisprudence presents information about the kinds of projects that
are targeted by these CEQA lawsuits, identifies the "win-loss" record of CEQA petitioners
seeking to overturn an agency decision based on alleged CEQA compliance flaws, describes the
types of parties that file CEQA lawsuits and notes the environmental study topics that appellate
courts most often consider in CEQA lawsuits. The survey excludes CEQA cases that turned
exclusively on a procedural question, such as whether the case was timely filed under the statute
of limitations or whether proper notice was provided of the availability of CEQA documentation
for public review.
Among the survey's primary findings:
• From 1997 through 2012, the adequacy of an agency's compliance with CEQA was upheld in
only 56% of the decisions. In a remarkable departure from other types of agency
administrative law challenges, a CEQA petitioner has a nearly 50/50 chance of securing a
court victory overturning an agency decision, on the grounds of an alleged substantive
deficiency in an environmental study topic area.
• Of the total cases that could be characterized as involving "greenfield" or "infill" construction
projects, the clear majority (62%) involved infill development projects. Only 38% involved
greenfield projects.
• Over one-third of the projects challenged (36%) were public projects (physical or regulatory
projects proposed by a public agency for the benefit of the public, such as infrastructure,
schools, and regulations or plans), rather than projects proposed by a private sector applicant
such as a developer or hospital.
• Only 9% of the cases involved industrial, manufacturing or port cargo projects, despite the
alleged importance of CEQA in fighting industrial pollution. The most commonly challenged
types of projects were residential housing projects (17%), followed closely by commercial
(retail or office) projects (16%), followed by public infrastructure projects (water supply,
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waste management, etc.) undertaken by government entities (15%), followed by agency
adoption of a plan (e.g., general plan, habitat conservation plan) (12%).
• In reviewing the substantive adequacy of the environmental studies prepared by the agency
during the CEQA process, the topic most frequently found to be insufficiently analyzed (in
33% of cases) were utilities (e.g., water and sewer systems) and public services (e.g., fire and
police services). The other most frequently criticized topical study areas were biological
resources (28%), transportation/traffic (27%), air quality (27%) and hydrology/water quality
(20%).
• Two-thirds of cases (67%) were brought, at least in part, by a local organization such as a
neighborhood group, homeowner association or a new entity created for the purpose of filing
a CEQA lawsuit. Of the local organizations joining lawsuits, almost half (47%) were
unincorporated. Individuals joined as plaintiffs in only 30% of cases, and state and regional
organizations with a wider than local scope (e.g., the Sierra Club or Center for Biological
Diversity) joined as plaintiffs in less than a quarter of cases (22%). CEQA lawsuits were
brought by governments and public agencies in 16% of cases.
Because CEQA petitioners are not required to disclose the identity of organizational members or
the economic interests of those funding or litigating lawsuits, reported appellate court cases do
not typically describe the identify or funding sources for CEQA petitioners. However, media
reports on challenged projects typically include more detailed accounts of the true motivation
behind CEQA challenges. In recent years, the use of CEQA by labor unions, economic
competitors and "bounty-hunter" attorneys seeking cash settlements without affected clients has
been reported widely.2
Like many works of legal scholarship, this report is based on published case law. Published
appellate court cases comprise the majority of appellate court CEQA decisions, and since
published opinions are the only decisions that may be relied upon in California courts, they
comprise the "CEQA caselaw" that establishes judicial precedent for the proper interpretation
and application of CEQA. While only a relatively small subset of CEQA lawsuits actually result
in published appellate court decisions,3 this report is one of the most comprehensive reviews of
CEQA case law ever published.
2 See, e.g., William Fulton, Insight: Everyone wants to keep leverage under CEQA, California Planning &
Development Report (Oct. 31, 2014, 2:03 PM), http://www.cp-dr.com/node/3585. ("CEQA provides a way for
anybody who wants an ything out of a public agency to get some leve rage over the situation – whether that's u nions,
environmentalists, businesses, developers, and even local governments themselves.")
3 During the 15-year study period, just under 10 published appellate court decisions on the substantive adequacy of
an agency's environme ntal analysis were published annuall y. A companion study evaluating the CEQ A lawsuits
filed during the last three years of the same study period found that more than 200 CEQA lawsuits were filed
annually. Some commentators have speculated (without evidence) that published cases might be unrepresentative of
the “win-loss” rate of CEQA litigation on the whole, but there is no reason to suspect that published cases are
significantly unrepresentative of the kinds of projects targeted in CEQA lawsuits, the types of parties that file CEQA
lawsuits, or the other major findings of this report.
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BACKGROUND
The present study is an expansion of Holland & Knight's 2012 report, "Analysis of Recent
Challenges to Environmental Impacts Reports."4 It provides an update to the findings of the 2012
report5 along with a parallel analysis of all non-procedural Categorical Exemption cases and
cases concerning the analytical validity of a Negative Declaration from 1997 through 2012.
Holland & Knight's 2012 report analyzed all published opinions from 1997 to February 2012 in
which CEQA plaintiffs litigated the validity of an EIR to the California Court of Appeal or
Supreme Court. As shown in the comparison table below (see pp. 21-22), the findings for
Categorical Exemption and Negative Declaration cases are relatively consistent with the findings
for EIRs. The conclusions of the present survey are therefore largely similar to the 2012 report
(which analyzed EIRs only). However, the present report enlarges the sampling size of CEQA
cases surveyed (thereby decreasing the margin of error), and allows for a comparison between
EIRs, Categorical Exemptions and Negative Declarations, based on a variety of factors.
Our goal here is to continue to shed light on CEQA as the debate about the future of the law
continues, and as many stakeholders seek better data about how CEQA works, generally
speaking, and how CEQA litigation and court decisions affect how CEQA functions.
Both Holland & Knight studies build on several earlier important evaluations of CEQA court
decisions:
• In 2011, Clem Shute, a founding partner of the San Francisco law firm Shute, Mihaly &
Weinberger, reported that in 43% of published CEQA appellate and Supreme Court cases in
California since CEQA was enacted, plaintiffs successfully challenged the adequacy of an
agency's CEQA compliance.6 This is a remarkable statistical anomaly in administrative law
litigation both generally and in relation to other laws similar to CEQA:
In lawsuits pursued under the National Environmental Policy Act (NEPA), the
national equivalent of (and model for) CEQA, there have been no successful
United States Supreme Court challenges to NEPA compliance in the 44 years
since NEPA was enacted. Rather, the Court has upheld the adequacy of agency
NEPA compliance in 100% of cases, nearly all the time in unanimous rulings.7
4 Available: http://www.hklaw.com/publications/Analysi s-of-Recent-Challenges-to-Environmental-Impact-Reports-
12-01-2012/
5 Although the 2012 Holland & Knight survey included results from 1997 through February 2012, the present study
updates the sample size to include all cases through December 31, 2012.
6 Remarks, "CEQA at 40: A Look Back, and Ahead" Conference, University of California, Davis School of Law,
November 4, 2011; PowerPoint available: http://www.law.ucdavis.edu/centers/environmental/files/Shute_PP.pptx
& video available:
http://mediasite.ucdavis.edu/Mediasite/SilverlightPlayer/Default.aspx?peid=3881aae481214b5cab28dd58ae72debd1
d&playFrom=3455000
7 Lazarus, Richard. The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek
Behind the Curtains, 100 GEO. L.J. 1507, 1510 (2012), available: http://georgetownlawjournal.org/articles/the-
national-environmental-policy-act-in-the-u-s-supreme-court-a-reappraisal-and-a-peek-behind-the-curtains/
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