Protecting Our Water & Envtl. Res. v. Cnty. of Stanislaus

10 Cal.5th 479

472 P.3d 459

268 Cal.Rptr.3d 148

PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES et al., Plaintiffs and Appellants,

v.COUNTY OF STANISLAUS et al., Defendants and Respondents.

S251709

Supreme Court of California.

August 27, 2020

Law Offices of Thomas N. Lippe and Thomas N. Lippe, San Francisco, for Plaintiffs and Appellants.

Law Offices of Stephan C. Volker, Stephan C. Volker, Alexis E. Krieg, Stephanie L. Clarke and Jamey M.B. Volker, Berkeley, for North Coast Rivers Alliance as Amicus Curiae on behalf of Plaintiffs and Appellants.

Law Office of Babak Naficy, Babak Naficy ; M. R. Wolfe & Associates and Mark R. Wolfe, San Francisco, for California Water Impact Network, California Wildlife Foundation and Landwatch Monterey County as Amici Curiae on behalf of Plaintiffs and Appellants.

Shute, Mihaly & Weinberger, Matthew D. Zinn, Sarah H. Sigman, Lauren M. Tarpey, Peter J. Broderick, San Francisco; John P. Doering and Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Defendants and Respondents.

Dennis Bunting, County Counsel (Solano), Peter R. Miljanich, Deputy County Counsel; Jennifer Henning; and Laura E. Hirahara for the California State Association of Counties as Amicus Curiae on behalf of Defendants and Respondents.

Herum\Crabtree\Suntag, Steven A. Herum and Jeanne M. Zolezzi, Stockton, for Association of California Water Agencies and California Special Districts Association as Amici Curiae on behalf of Defendants and Respondents.

Holland & Knight, Jennifer L. Hernandez, Daniel R. Golub and Emily Lieban, San Francisco, for California Building Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

June Babiracki Barlow, and Jenny Li, Los Angeles, for California Association of Realtors as Amicus Curiae on behalf of Defendants and Respondents.

Miller Starr Regalia, Arthur F. Coon and Matthew C. Henderson for League of California Cities as Amicus Curiae on behalf of Defendants and Respondents.

Rita L. Neal, County Counsel (San Luis Obispo), Erica A. Stuckey, Deputy County Counsel; Roll Law Group, Courtney Vaudreuil ; Stoel Rives, Timothy M. Taylor, Allison C. Smith, Sacramento; Adamski Moroski Madden Cumberland & Green, Thomas D. Greene and Michelle L. Gearhart, Avila Beach, for County of San Luis Obispo, JUSTIN Vineyards and Winery LLC, Lapis Land Company, LLC, Paso Robles Vineyards, Inc., and Moondance Partners, LP, as Amici Curiae on behalf of Defendants and Respondents.

Opinion of the Court by Corrigan, J.

The California Environmental Quality Act (CEQA or the Act; Pub. Resources Code, § 21000 et seq. )¹ regulates activities carried out, funded, or approved by the government. Any government action that may directly or indirectly cause a physical change to the environment is a "project." (§ 21065; see § 21060.5 [" ‘[e]nvironment’ " defined].) Generally, the issuance of a permit is a project (§ 21065, subd. (c)) because it could authorize a physical environmental change. Projects can be either discretionary or ministerial actions. Unless exempted, discretionary projects require some level of environmental review; ministerial projects do not. (§ 21080, subds. (a), (b)(1).)

This case involves the distinction between discretionary and ministerial projects.

Stanislaus County (County) issues well construction permits under an ordinance that incorporates state well construction standards. It categorically classifies a subset of those projects as ministerial. Plaintiffs² challenge that classification practice, alleging the permit issuances are actually discretionary projects requiring CEQA review. They seek declaratory and injunctive relief to stop the classification practice. The trial court found the permit issuances are ministerial and the Court of Appeal reversed. We hold the blanket classification of all these permit issuances as ministerial is unlawful. County may be correct that many of its decisions are ministerial. However, as we explain, under the ordinance authorizing the issuance of these permits, some of County's decisions may be discretionary. Accordingly, classifying all issuances as ministerial violates CEQA. Plaintiffs are entitled to a declaration to that effect. But they are not entitled to injunctive relief at this stage, because they have not demonstrated that all permit decisions covered by the classification practice are discretionary.

I. BACKGROUND

A. The CEQA Framework

CEQA was enacted to (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, those impacts; (3) require project changes through alternatives or mitigation measures when feasible; and (4) disclose the government's rationale for approving a project. ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382, 196 Cal.Rptr.3d 94, 362 P.3d 792 ( Building Industry ).) CEQA embodies a central state policy requiring "state and local governmental entities to perform their duties ‘so that major consideration is given to preventing environmental damage.’ " ( Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 711, 220 Cal.Rptr.3d 812, 399 P.3d 37, quoting § 21000, subd. (g).) Accordingly, CEQA prescribes how governmental decisions will be made whenever an agency undertakes, approves, or funds a project. ( Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185, 250 Cal.Rptr.3d 818, 446 P.3d 317 ( Medical Marijuana Patients ).)

Under CEQA, an agency uses "a multistep decision tree." ( Medical Marijuana Patients , supra , 7 Cal.5th at p. 1185, 250 Cal.Rptr.3d 818, 446 P.3d 317 ; see also Cal. Code Regs., tit. 14, § 15002, subd. (k).)³ Once an activity is determined to be a project, the next question is whether the project is exempt. (CEQA Guidelines, §§ 15002, subd. (k)(1), 15061, subd. (a).) Many types of projects, as well as all ministerial ones, are exempted. (§ 21080, subd. (b)(1) [exemption for ministerial projects]; CEQA Guidelines, § 15268, subd. (a) [same]; see generally §§ 21080, subd. (b), 21080.01–21080.07; CEQA Guidelines, §§ 15300–15333.)

If an agency concludes a particular project is exempt, it may file a notice of exemption, citing legal and factual support for its conclusion. (§ 21152, subd. (b); CEQA Guidelines, § 15062, subd. (a).) If the project is discretionary and does not qualify for any other exemption, the agency must conduct an environmental review. ( Medical Marijuana Patients , supra , 7 Cal.5th at p. 1186, 250 Cal.Rptr.3d 818, 446 P.3d 317.) A required environmental review proceeds in stages. The agency conducts an initial study to assess potential environmental impacts. (CEQA Guidelines, §§ 15002, subd. (k)(2), 15063, subd. (a).) If there is no substantial evidence that the project may significantly affect the environment, the agency prepares a negative declaration and environmental review ends. (§ 21080, subd. (c)(1); CEQA Guidelines, §§ 15002, subd. (k)(2), 15063, subd. (b)(2), 15070, subd. (a).) If potentially significant environmental effects are discovered, but the project applicant agrees to changes that would avoid or mitigate them, the agency prepares a mitigated negative declaration (§ 21080, subd. (c)(2); CEQA Guidelines, § 15070, subd. (b) ), which also ends CEQA review. ( Medical Marijuana Patients , at pp. 1186–1187, 250 Cal.Rptr.3d 818, 446 P.3d 317.) Finally, if the initial study reveals substantial evidence that the project may have a significant environmental impact and a mitigated negative declaration is inappropriate, the agency must prepare and certify an environmental impact report (EIR) before approving the project. (§ 21080, subd. (d); CEQA Guidelines, §§ 15002, subd. (k)(3), 15063, subd. (b)(1) ; Medical Marijuana Patients , at p. 1187, 250 Cal.Rptr.3d 818, 446 P.3d 317.)

B. Rules Regarding Project Classification

A permit issuance decision can be discretionary or ministerial depending on the circumstances. Those terms are defined in the CEQA Guidelines. A project is discretionary when an agency is required to exercise judgment or deliberation in deciding whether to approve an activity. (CEQA Guidelines, § 15357.) It is distinguished from a ministerial project, for which the agency merely determines whether applicable statutes, ordinances, regulations, or other fixed standards have been satisfied. (Ibid .) Ministerial projects are those for which "the law requires [an] agency to act ... in a set way without allowing the agency to use its own judgment ...." (CEQA Guidelines, § 15002, subd. (i)(1).) They involve "little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision." (CEQA Guidelines, § 15369.)

The CEQA Guidelines encourage agencies to classify ministerial projects on either a categorical or individual basis. (CEQA Guidelines, § 15268, subds. (a), (c).) That classification may be challenged for abuse of discretion. ( Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 23, 217 Cal.Rptr.3d 327 ( County of Sonoma ).) As explained below, the nature and scope of judicial review under this standard depends on whether the determination being evaluated is factual or legal in character. (See post , Pt. II.B.)

C. County Well Permitting Ordinances

Two chapters of the Stanislaus County Code govern well permit issuance. Chapter 9.36 regulates the location, construction, maintenance, abandonment, and destruction of wells that might affect the quality and potability of groundwater. (Stanislaus County Code, § 9.36.010.) Chapter 9.37 regulates the extraction and export of groundwater. (Stanislaus County Code, § 9.37.040.)⁴

1. Chapter 9.36

Chapter 9.36, enacted in 1973, requires a permit from the county health officer to construct, repair, or destroy a water well. (...