Five Important CEQA Cases in 2009

This decision applied the test of what constitutes a "project" for purposes of CEQA established in the 2008 Save Tara v. City of West Hollywood decision (45 Cal. 4th 116), which we wrote about in our March 2009 DHA eAlert. (Follow the Archive link at the beginning of this message to read a summary of the Tara case.)

In Riverwatch, a water district entered into an agreement with a landfill in San Diego County to supply the landfill with water. The original EIR for the landfill project was successfully challenged on the grounds that it did not adequately evaluate the impacts of providing water to the landfill.

Although the County subsequently prepared a new EIR, the water supply agreement was executed two years prior to the preparation of the new EIR. The contract included a clause stipulating that the landfill operator was responsible for any necessary CEQA review, but the Court of Appeal concluded that the water district had thereby neglected its duty as a responsible agency to retain discretionary review over the project.

The Court of Appeal further found that the water agreement constituted a part of the landfill project. The water district failed to comply with CEQA because it "approved" the project prior to conducting environmental review. You can read the full decision at: Riverwatch v. Olivehain

California Native Plant Society v. City Rancho Cordova

(March 24, 2009) 172 Cal. App. 4th 603

This Court of Appeals case is interesting because it highlights a gray area of CEQA when it comes to designing adequate mitigation measures. The CEQA Guidelines clearly prohibit deferring the formulation of mitigation to a future date. However, a mitigation measure may establish specific performance standards that must be met that would mitigate the significant impact, and this may be achieved in more than one specified way.

The Rancho Cordova case trends in a different direction from some previous CEQA decisions, such as the Citizens for a Better Environment v. City of Richmond case that was discussed in the last DHA eAlert. Such earlier decisions have invalidated mitigation measures that rely on future formulation of mitigation plans, even when they establish performance standards.

In the Rancho Cordova case, the California Native Plant Society claimed that mitigation for significant impacts to wetlands and vernal pool fairy shrimp habitat was inadequate because the requirement for creation and protection of replacement habitat did not identify a specific location for the replacement habitat. The Court rejected that argument, saying "the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project." The Court ruled that the City could defer the development of the specific manner in which off-site mitigation was provided.

While the decision affirmed the City's approach to the mitigation, it also found that the City violated Planning and Zoning Law because it failed to comply with a General Plan policy requiring the City to "coordinate" with the U.S. Fish and Wildlife Service and the California Department of Fish and Game when designing mitigation. The City had approved the mitigation over the objections of these agencies. The Court found that "coordination" required more than "the mere solicitation and rejection of input" from the agencies.

You can download the full decision at:

CNPS v. Rancho Cordova

California Native Plant Society v. City of Santa Cruz

(August 20, 2009) 177 Cal. App. 4th 957

This case centered on the alternatives selected for evaluation in the EIR for a master plan for a 60-acre greenbelt owned by the City of Santa Cruz. The plan included a network of paved bicycle/pedestrian trails, one of which would potentially cause a significant impact on the Santa Cruz tar plant.

The City evaluated four alternatives in the EIR, but determined that all four alternatives were infeasible because they failed to meet the objectives of the project and were undesirable from a policy standpoint. The Court of Appeal made several findings related to the adequacy of the alternatives:

Alernatives do not need to be literally impossible to be considered "infeasible." If an alternative conflicts with an adopted local policy, that provides sufficient grounds for rejection.

Alternatives evaluated in an EIR need only be potentially feasible. Actual feasibility may be determined at a later date.

The City did not error in omitting an off-site alternative. The multi-use trail was just one component of the project, and evaluation of an alternative to a project component is not required. Rather, an EIR is required to explore alternatives to the project as a whole, which satisfy most of the primary objectives of the project.

You can download the full decision at: CNPS v. Santa Cruz

California Native Plant Society v. County of El Dorado
(January 28, 2009) 170 Cal. App. 4th 1026

This was another case challenging the lead agency's approach to mitigation. El Dorado County passed an ordinance in 1998 establishing a rare plant impact fee program, and determined that the program was categorically exempt from CEQA review. In 2006, the County adopted a mitigated negative declaration for a congregate care facility that would have significant impacts on special-status plants. The project sponsor was required to pay a rare plant impact fee consistent with the County's fee program, in addition to other requirements for mitigating the impacts.

The Court of Appeal ruled that a fee program must be reviewed under CEQA, either programmatically or at the time of individual project review, neither of which occurred. Among other rulings in the case, the Court also dismissed mitigation measures that had been added following the close of public review. Because these measures were never circulated for comment, the court wrote, they "cannot be relied upon to dispel the fair argument of significant impacts."

You can read the full decision at: CNPS v. County of El Dorado