Five Important CEQA Cases in 2010February 2011
In This Issue
Five Important CEQA Cases in 2010
Who is Douglas Herring & Associates?


Once again, to keep you alerted to some of the potential pitfalls in complying with the California Environmental Quality Act (CEQA), we are providing in this issue of our periodic eAlerts a brief review of some of the significant rulings by California courts on CEQA litigation cases during the past year.  We have selected some cases that we think are most likely to be relevant to our clients and/or to guide future CEQA case law.  We briefly summarize the ramifications of each case, and provide you with links to the full decisions. 

  Our previous eAlerts are now archived at:  DHA eAlerts Archive

As always, let us know if there's anything else we can do to help lighten your work load.


Doug Herring, AICP

Five Important CEQA Cases in 2010 


In our March 2009 eAlert (available on our eAlert Archives Homepage) we told you about the Save Tara v. City of West Hollywood decision, which centered on what constitutes a "project" for purposes of CEQA.  The 2008 Save Tara decision has been cited as precedent in a number of subsequent CEQA lawsuits, including two of the 2010 decisions addressed below.



Parchester Village Neighborhood Council v. City of Richmond

(February 24, 2010) 182 Cal. App. 4th 305


Similar to the Save Tara v. City of West It Hollywood decision (45 Cal. 4th 116), in this case the court considered when a contract executed by a public agency constitutes a "project" subject to review under CEQA. The City of Richmond entered into a municipal services agreement (MSA) with a Native American tribe proposing a casino near the City. The City agreed to provide police and fire protection and other services to the casino. Because the casino would be located outside the City's incorporation boundaries, the City had no legal authority over the project.


The court found that the MSA was not a project for purposes of CEQA because the City had no discretionary approval authority over the project. In addition, the City did not commit to making any improvements or carrying out any activities that would be subject to CEQA, but committed to complying with CEQA for any such activities carried out in the future. Although the agreement anticipated construction of a new fire station or modifications to an existing fire station, the court found that there was no binding commitment, and insufficient information about what improvements might be made to trigger CEQA review.


Finally, the court determined that transportation infrastructure improvements that the tribe committed to in the MSA would not necessarily fall within the City's jurisdiction; it was therefore too speculative to conclude that the City would have responsibility to conduct CEQA review of the improvements.


You can download the full decision at: Parchester Village v. Richmond


City of Santee v. County of San Diego

(June 29, 2010) 186 Cal. 4th 55


This was another case that turned on when a contract made by a public agency requires CEQA review, and the court again relied on the 2008 Save Tara case for guidance.  In this instance, San Diego County entered into an agreement with the California Department of Corrections (DOC) to identify potential locations for a State prison reentry facility in exchange for preference in the award of State financing of county jail facilities.  The County agreed to convey to the State any County-owned land at a site selected for a facility, and required DOC to conduct CEQA review prior to constructing a facility.


The court rejected the plaintiff's claims that the agreement constituted a project requiring CEQA review because it committed the County to a reentry facility and to expansion of an existing jail facility in the City of Santee, and eliminated consideration of offsite alternatives.  The court found that the siting agreement did not preclude consideration of any alternatives, mitigation measures, or the alternative of not going forward with any facility, and therefore did not meet the test set in Save Tara in which an agency commits "to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project."


The lessons in City of Santee v. County of San Diego are that, in order for an agency contract related to siting a facility to not be considered a "project" pursuant to CEQA, the agreement: (1) should not commit the agency to a specific site; (2) should not commit money to development of a specific site (but can commit money to study a specific site); and (3) should require CEQA review of any site ultimately selected prior to project construction.


You can download the decision at: City of Santee v. County of San Diego 


Communities for a Better Environment v. South Coast Air Quality Management District

(March 15, 2010) 48 Cal. App. 4th 310 (Supreme Court)

Numerous previous CEQA cases have examined the definition of environmental setting that provides a baseline for evaluating the potential impacts of a project; this was the first decided by the California Supreme Court.  It has ramifications for how environmental review is conducted pursuant to CEQA, including how traffic studies are conducted, as emphasized in the next case discussed below.


ConocoPhillips sought a permit from the South Coast Air Quality Management District (SCAQMD) to modify equipment and operations at its Los Angeles refinery to allow it to produce an ultra-low sulfur diesel fuel. ConocoPhillips determined that new and modified operations would increase emissions of nitrogen oxides (NOx) by 201 to 420 pounds per day. Although this would exceed the SCAQMD's threshold of significance for NOx of 55 pounds per day, ConocoPhillips determined that these emissions would still be below already permitted emissions from existing operations, and therefore concluded that the project would not have a significant air quality impact. On that basis, the District adopted a Negative Declaration, which was challenged by the plaintiff.


Referencing a "long line of Court of Appeal decisions" holding that the impacts of the proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of the CEQA analysis, the Court reasserted that the environmental baseline is determined by the "real conditions on the ground."  It is not determined by the level of development or activity that could or should have been present according to a plan, permit, or regulation.


While the Court acknowledged that previous Court of Appeal decisions had supported the use of maximum operations allowed under a permit, rather than existing physical conditions, as a CEQA baseline, it noted that all of the previous cases involved modification of a previously analyzed project, hence requiring only limited CEQA review.


Because the proposed refining changes would have resulted in a significant increase in NOx emissions when measured against emissions existing at the time of analysis, the Court concluded that the record supported a fair argument that the project could have significant adverse effects, and an EIR should have been prepared.

You can download the full decision at: CBE v. SCAQMD


Sunnyvale West Neighborhood Association v. City of Sunnyvale
(December 16, 2010) 190 Cal. App. 4th 1351 (6th District)

This was another case that turned on what constitutes environmental baseline.  The City of Sunnyvale prepared an EIR on a roadway extension project anticipated for completion in 2020.  The traffic impacts were compared against predicted future traffic in 2020, but not against existing conditions.  The Court of Appeal upheld the trial court's decision invalidating the EIR, on the basis that it did not provide an analysis based on baseline conditions as they existed when the EIR was prepared.


The Court rejected the City's argument that their use of the 2020 baseline was a factual issue, to which the Court should grant deference if there was substantial evidence in the record to support it.  The Court ruled that an agency has an overriding obligation to act in accordance with applicable law, which it failed to do in omitting existing conditions from the environmental baseline, as required in the CEQA Guidelines.


The lesson from this case is not that the City shouldn't have evaluated 2020 conditions, but rather that they should have also evaluated the project's impacts relative to existing conditions.  The 2020 conditions should have been used as the baseline for future cumulative conditions.  One of the ramifications of such an approach is that prior to the future implementation of the project, if the City retains any discretionary authority over the project, it may need to revisit the previous environmental review to determine whether circumstances have changed in a way that could trigger the requirement for a subsequent or supplemental EIR.

You can download the full decision at: Sunnyvale West v. City of Sunnyvale


California Oak Foundation v. Regents of the University of California
(September 3, 2010) 188 Cal. App. 4th 227

Although this case considered (and the Court rejected) many CEQA claims of interest, we highlight it here because of the Court's ruling on a technical study completed after circulation of the Draft EIR.  The UC Regents certified a project-specific EIR for a new athletic center on the UC Berkeley campus that tiered off a 2005 program EIR prepared for the Long Range Development Plan for the campus. 


The California Oak Foundation asserted that the project EIR's analysis of geological conditions at the site was deficient because it noted that a geological investigation was being prepared, but did not include information from the report.  The Court acknowledged that an EIR must accurately describe existing environmental conditions before the impacts of a project can be assessed.  However, the Court concluded that the subsequently completed geotechnical report did not contain any information conflicting with the EIR or resulting in new or substantially more severe impacts.  Therefore, recirculation of the EIR prior to certification was not required as claimed by the appellants.

You can read the full decision at:  California Oaks v. UC Regents

Who Is Douglas Herring & Associates?

Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.
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