Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.
The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.
A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.
In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.
One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.
In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.
The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion.
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EXEMPTIONS FROM CEQAMinisterial Determinations: County Improperly Classified All Well Permits As Ministerial
Protecting Our Water and Environmental Resources v. County of Stanislaus
10 Cal.5th 479 (2020)
Projects that require only a ministerial approval are exempt from CEQA. A ministerial decision involves the application of fixed, objective standards in a statute, ordinance or other regulation and requires the exercise of little to no personal judgment by the decisionmaker regarding the wisdom or manner of carrying out the project. When an approval entails both ministerial and discretionary decision-making, the project must be treated as discretionary and is not exempt.
In Protecting Our Water, the California Supreme Court determined that while many of Stanislaus County’s well permitting decisions were ministerial, its permitting ordinance required discretionary decision-making in some situations. For example, a standard relating to the permissible distance between a well and a potential contamination source allowed the county to exercise discretion when deciding to approve or disapprove the permit, depending on the specific circumstances. Because the process required the exercise of independent judgment for at least some projects, the court determined that the county’s blanket classification of all well permits as ministerial violated CEQA.
NEGATIVE DECLARATIONSMitigated Negative Declarations: Deferred and Ineffective Measures Rejected
Save the Agoura Cornell Knoll v. City of Agoura Hills
46 Cal.App.5th 665 (2020)
The court of appeal determined that several mitigation measures in a negative declaration for a mixed-use development were ineffective or improperly deferred mitigation.
Impacts on cultural resources. Archaeological and tribal cultural resources were known to exist on the project site. The mitigation measures called for monitoring of the site during ground-disturbing activities coupled with excavation and data recovery if these resources could not be avoided. Absent, however, were performance standards or guidelines that would ensure the effectiveness of these actions. The MND also failed to define the boundaries of the archaeological site or consider whether resources could actually be avoided and did not contain criteria for assessing the feasibility of avoidance as an alternative to excavation.
Impacts on sensitive plant species. Special-status plant species on the site would be significantly affected by grading, landscaping, and fuel modification. The court found the mitigation plan, which included restoration, preservation and enhancement measures, failed to define performance criteria that would ensure effective mitigation, relied on outdated botanical surveys, and did not identify alternatives that would be implemented if proposed salvage and replanting efforts failed.
Impacts on native oak trees. The court found the mitigation measures for loss of native oak trees inadequate because they did not take account of the risk that grading might reduce subsurface water flow to the retained and replacement oak trees on the site and did not include any measures for mitigating that risk. Expert evidence in the record also showed that efforts to recreate or restore oak woodlands had failed in the past, so the city erred in presuming, without supporting evidence, that in-lieu fee payments for off-site tree planting would provide feasible and effective mitigation.
ENVIRONMENTAL IMPACT REPORTSMitigation Measures: Standards For Use of Greenhouse Gas Offset Credits Found Inadequate
Golden Door Properties v. County of San Diego
50 Cal.App.5th 467 (2020)
In the first published decision on the use of purchased offset credits to mitigate the impact of greenhouse gas emissions, the court held the measure was inadequate because it did not ensure that offset credits would represent emissions reductions that would be genuine, quantifiable, additional and verifiable.
The Golden Door case arose from San Diego...
