Downey Brand Compilation of Published CEQA Cases in 2023

January 23, 2024

2023 served up roughly the same number of published appellate CEQA cases as 2022 with a defense win percentage of over 80 percent, which has been the case in many, if not all, of the past ten years.  A prominent theme of upholding exemptions emerged, in particular the infill exemption and the commonsense exemption which are reviewed with the application of the substantial evidence standard of review.  The cases also demonstrate that agencies often rely on multiple exemptions as a “belt and suspenders” defense tactic.  The courts sanctioned the use of exemptions, striking down only one infill exemption citing a lack of evidence to support the agency’s conclusions in that instance and underscoring the necessity of preparing detailed findings and citing to supportive evidence when using an exemption.  (United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074.)

In two of the more interesting cases of the year, the courts lashed back at petitioners (and their attorneys) who abused the CEQA process.  In Jenkins et al. v. Brandt-Hawley et al. (2022) 86 Cal.App.5th 1357, the court permitted a complaint for malicious prosecution to proceed against an attorney who had unsuccessfully challenged approval of a single-family dwelling under CEQA, finding that the attorney had misled the court by citing to incorrect and misleading citations to the administrative record and misciting, in fact not citing, the actual text of the Municipal Code.  These infractions were sufficient for the court to conclude that plaintiffs, the former project applicants, were likely to prevail on a malicious prosecution claim.  More specifically the court held that the plaintiffs were likely to prevail on the malice prong because the action was brought for an improper purpose.  Similarly, in Save Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116, the court not only upheld the city’s determination that a residential housing project was exempt from further environmental review under the specific plan exemption, but also upheld the trial court’s issuance of an order requiring that petitioners post a $500,000.00 bond as security for costs the defendants might incur a result of delay in carrying out the affordable housing project.  Both of these cases are an indication that the courts are watching CEQA litigation closely and punishing petitioners with improper motives and those that harm or delay the production of affordable housing.

The EIR cases are interesting in multiple respects  First, in the Make UC A Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the California Supreme Court granted the University of California’s Petition for Review, agreeing to consider two important issues regarding “community noise” and alternatives analyses.  In a rare move, Governor Gavin Newsom joined in that request for the Supreme Court to grant the Petition citing the need for CEQA change.  I am looking forward to that oral argument at the Supreme Court and to any CEQA changes the Governor or the Legislature might propose.  The results of the Little Hoover Commission Study will also provide insights into that Commission’s year-long survey of the debate surrounding CEQA.

Another interesting case in the EIR section of this compilation is the Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655.  In this case, the court bent over backwards to rule in the petitioners favor and the dissent, in the opinion of the authors, provides a more reasoned explanation of the project description obligations under CEQA.  In Save Our Capitol the court required the agency to prepare visual renderings, even though CEQA is silent with regard to that obligation.  The court’s interpretation seems to rest on the conclusion that the Capitol is a “treasured historical resource,” a term found nowhere in the statute or the Guidelines.  Both agencies and applicants need to know precisely what their obligations are under CEQA and the CEQA Guidelines.  If an obligation is not clearly set forth in the statute or Guidelines, agencies and applicants should not be held to a judicially interpreted “higher standard.”  Is the neighboring Senator Hotel or Sutter’s Fort or the Sutter Club, for that matter, a “treasured historical resources” requiring a more detailed project description than that set forth in the statute?  Unfortunately, the case law remains somewhat muddied.

In that same case, the respondents petitioned the court for a rehearing with regard to the remedy section of CEQA, section 21168.9.  The court recognized the flexibility of the statute and allowed for partial decertification of the EIR and for demolition of the annex to continue.  Remedies has been a hot topic in recent years and the recognition that the statute mandates flexibility is welcomed.  (See also McCann v. City of San Diego (2023) 94 Cal.App.5th 284 (McCann II).)

Although not specifically mentioned in the Guidelines, wind impacts, and mitigation for these impacts in particular, were discussed at length in two published opinions in 2023: East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226 and Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California (2023) 95 Cal.App.5th 779.  In East Oakland Stadium Alliance, which had to do with the city’s approval of a proposed stadium project for the Oakland A’s baseball team, the court determined that the wind mitigation in place to address the stadium’s adverse wind impact lacked specificity.  Though the city won on all other claims, the EIR’s lack of specific performance standards and promise to “work with wind consultant” to mitigate these impacts shelved the city’s approval of the project.  Notably, the same appellate district in Yerba Buena Neighborhood Consortium, found that similar mitigation for wind impacts in that case were adequate, as those measures set specific wind hazard criteria and contained reasonably clear and objective boundaries regarding what types of actions would or would not be considered.

Finally it looks like the Third Appellate District may have finally resolved the confusion surrounding environmental review of greenhouse gas analyses since Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 and Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.  In Tsakopolulos Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th 280, the court provided a detailed overview of the statutes and case law governing greenhouse gases and concluded that the County of Sacramento’s threshold properly took into account countywide data  when establishing significance thresholds by sector.

This compilation is a useful tool for understanding certain CEQA provisions interpreted by the courts last year.  This introduction should be interpreted as the opinion of this author, Tina Thomas, and not that of Downey Brand LLP or its clients.

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