My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year. I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse. David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling – something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Appropriate for Halloween, the cases have been a mixed bag. The Supreme Court helped clarify the existing/future baseline issue (Neighbors For Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439), and promises to provide further clarity on the standard of review for categorical exemptions and their exceptions (Berkeley Hillside Preservation, et al. v. City of Berkeley, et al., Supreme Ct. Case No. S201116), and the nature of discretionary action subject to CEQA. (Tuolumne Jobs and Small Business Alliance v. Superior Court, Supreme Ct. Case No. S207173). However, it disappointingly declined to depublish a Fifth District decision that created a split in authority and significantly weakened the non-waiver protection for privileged communications shared between lead agency and real party counsel to further their common interest in enhancing the legal defensibility of CEQA documents. (Citizens For Ceres v. Superior Court of Stanislaus County, et al. (5th Dist. 2013) 217 Cal.App.4th 889.)
Some important principles and issues of first impression were decided. (Masonite Corporation v. County of Mendocino (1st Dist. 2013) 218 Cal.App.4th 230 [agricultural conservation easements are legally-feasible mitigation for direct loss of prime farmland]; Mt. Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 2012) 210 Cal.App.4th 184 [“reasonable range” of alternatives examined in EIR may include only “no project” alternative if all others infeasible].) Pointed and helpful reminders of the judicial deference owed to an EIR’s findings and conclusions, and of CEQA plaintiffs’ burden to show prejudicial error, were given. (North...
