Calif. Supreme Court takes up ‘historic’ environmental docket

By Anne C. Mulkern | 03/13/2015 01:00 PM EDT

California’s landmark environmental law faces new scrutiny from the state’s Supreme Court, not just once, but in nine different pending cases, part of a docket packed with environmental litigation.

California’s landmark environmental law faces new scrutiny from the state’s Supreme Court, not just once, but in nine different pending cases, part of a docket packed with environmental litigation.

The state’s high court has agreed to decide multiple lawsuits involving the California Environmental Quality Act, or CEQA. That statute requires an intense look into how projects will affect land, water, air and species. Green groups embrace it as protective, while developers contend it’s costly.

CEQA cases the high court will tackle include two major ones involving climate change. One granted this week asks whether a San Diego County planning organization needs to examine how its transportation strategy meshes with California’s greenhouse gas reductions goals. Another CEQA case on the docket could affect how developments deal with sea-level rise. A third has implications for the state’s high-speed rail project and shipments of crude oil by rail into California.


The CEQA litigation represents about half of the environmental caseload. In total, the court has agreed to review 20 green battles, including a property rights challenge against a new water infrastructure project and a case dealing with suction-dredge mining in the state’s waterways.

It’s a historic number of environmental cases and goes against a traditional pattern of the court focusing on criminal appeals, said Richard Frank, director of the California Environmental Law & Policy Center at the University of California, Davis. The court in a recent years at any given time might have had one to three CEQA cases. The current number is "extraordinary," he said.

"This sudden group of CEQA cases, environmental cases in general is noteworthy," Frank said. "The court seems to be more and more interested in these environmental cases. It suggests that the topic is important to the court."

The high court’s actions have influence beyond California, as the judiciary deals with questions about some of the state’s first-in-the-nation policies on climate change and other environmental factors, he noted.

"Particularly in this era of congressional gridlock," Frank said, "California is the proverbial laboratory, and there is a lot of interest" in the state’s actions.

Others cautioned against reading too much into the California court’s current environmental caseload. The state Supreme Court does not "seek out specific policy issues to resolve," said David Carrillo, executive director of the California Constitution Center at the University of California, Berkeley, School of Law. "Its role in the state judiciary is to settle legal issues of statewide importance as they arise."

The California court’s multiple looks at CEQA take place at a time when the environmental law is under scrutiny. There have been repeated appeals to the state’s Legislature to pare back the statute.

Even among the Democratic Party in California, there’s "a concern that CEQA is hurting the economy," said Tom Henry, partner at Stoel Rives LLP and a CEQA expert. "It provides for burdensome review."

Governor, Legislature wrestle over CEQA rewrites

Gov. Jerry Brown (D) has called CEQA modification "the Lord’s work" and has backed changes that would reduce permitting delays. In 2013, then-state Senate President Pro Tem Darrell Steinberg (D) put forth legislation with a broad outline for CEQA modifications. It later stalled due to lack of Democratic support.

"The governor, as the former mayor of Oakland, he understands that CEQA needs to be reformed," Henry said, but "the Legislature hasn’t been really able to act on that. … Perhaps the court’s going to do that."

This year, there are at least 16 bills in the Legislature that would make some adjustment to CEQA, though most are small in scale. A.B. 323 from Assemblywoman Kristin Olsen, the Republican leader, would exempt from CEQA fixes and minor alterations to roadways by cities and counties with fewer than 100,000 residents.

"The idea of CEQA reform is not dead. It continues to be debated," said Frank of UC-Davis. But at the level of the Legislature, "an evisceration of CEQA is probably not in the cards, at least for the next year "

All of the 20 environmental cases on the court’s docket were granted before Brown recently appointed two new justices, Leondra Kruger and Mariana-Florentino Cuellar. Brown also has a third appointee, Goodwin Liu, tapped in 2011.

All three of those Brown put on the court are expected to be supportive of environmental protections, Frank said. Two of the new justices replaced those appointed by Gov. George Deukmejian (R): Kruger took over for Justice Joyce Kennard and Cuellar for Justice Marvin Baxter, considered a conservative voice.

Liu replaced Justice Carlos Moreno, appointed by Gov. Gray Davis (D).

With the addition of Kruger and Cuellar, Frank said, Brown has created "a relatively more progressive seven-member court."

The California Supreme Court requires a majority of its seven justices to support review, unlike the U.S. Supreme Court, where four of the nine justices can vote to grant a case.

Once a case is added to the docket in California, a decision can take two to four years. The Golden State’s court doesn’t operate on a set term like the one at the U.S. Supreme Court. In California, it’s only after oral arguments are heard and the chief justice declares that "the case stands submitted" that a 90-day clock starts for a court decision.

Climate change at issue

The court this week agreed to take on a case seen by environmentalists as important in ensuring the state’s climate goals are upheld.

Former Republican Gov. Arnold Schwarzenegger’s 2005 executive order set a goal of cutting California’s greenhouse gases to 1990 levels by 2020, and 80 percent below 1990 levels by 2050.

The state Supreme Court in reviewing Cleveland National Forest Foundation v. San Diego Association of Governments will look at whether the environmental impact report (EIR) that was part of a transportation plan from the San Diego Association of Governments, or SANDAG, needed to analyze whether it was consistent with Schwarzenegger’s executive order.

SANDAG’s transportation blueprint was the first completed under S.B. 375, a state law that required California’s 18 metropolitan planning organizations to shrink greenhouse gas emissions as they craft future plans.

The Cleveland National Forest Foundation and Center for Biological Diversity in a lawsuit charged that SANDAG failed to comply with CEQA because the agency’s EIR didn’t acknowledge an inconsistency between the transportation plan and the state’s climate goals. The moves plotted in the San Diego blueprint cut greenhouse gas emissions through 2020 but caused them to ratchet up again by 2035, the groups said..

The case is key "because it has to do with the long-term challenge of dealing with climate change, the need to really dramatically reduce emissions between now and 2050," said Kevin Bundy, senior attorney at Center for Biological Diversity. "This case really presents that issues squarely."

SANDAG Chairman and Santee Councilmember Jack Dale said yesterday that "the Supreme Court’s decision to grant review is a key step forward to help clarify state law on greenhouse gas emissions. The appellate court decision left agencies throughout the state with questions on what standards to apply. We are hopeful the Court will help resolve the confusion."

Julie Wylie, special counsel to SANDAG, said that "we just disagree that the executive order had to be utilized within our EIR as a metric" or for purposes of analysis, or consistency or inconsistency.

The green groups said SANDAG’s focus is misplaced. The case isn’t about whether SANDAG has to comply with the executive order, Bundy said, but whether it has to disclose that it’s not meeting the mandate.

"CEQA it’s the community’s right-to-know law," Bundy said. "It does not allow … problems to be swept under the rug."

Should projects plan for sea-level rise?

In another CEQA case dealing with climate change, California Building Industry Association v. Bay Area Air Quality Management District, the court will decide whether CEQA requires an analysis of how existing environmental conditions affect future users of a proposed project.

The Bay Area Air Quality Management District wanted developments to factor in how air quality would affect residents of a new apartment building near the freeway. The California Building Industry Association (CBIA) sued to stop the regulation.

CEQA is supposed to spur a review of a project’s impact on the environment and not compel a look at how the environment affects a development, said Nick Cammarota, general counsel for the builders group. There are other laws that require builders to look at the environment, including the likelihood of flooding and earthquakes, he said, but that’s not part of CEQA.

"There’s some people who think there is no law outside CEQA. If it’s not in CEQA, it doesn’t exist," Cammarota said. There are four cases in which the state’s courts of appeal have said that "CEQA requires you to consider the impacts of the project on the environment, not vice versa."

The case is being watched closely because of a court of appeals decision on an earlier case, Ballona Wetlands Land Trust, et al. v. City of Los Angeles, Frank said. Ballona Wetlands Trust and others had wanted the court to force an EIR under CEQA to examine the effect of sea-level rise on a project near Los Angeles International Airport. But the 2nd District Court of Appeal ruled that CEQA does not require a look at how the environment will affect a project.

Green advocates were disappointed by that ruling and are hoping they’ll get a better result in California Building Industry Association v. Bay Area Air Quality Management District, which essentially asks the same question, said Frank with UC-Davis. (The state Supreme Court declined to take up Ballona Wetlands.)

Aside from drought, Frank said, "in California, at least climate change and all its permutations is the biggest and most pressing environmental issue of the day." The case "raises the key question of whether and how CEQA deals with climate change," he said.

The Center for Biological Diversity, Sierra Club, Natural Resources Defense Council, and Planning and Conservation League filed a friend-of-the-court brief supporting the Bay Area Air Quality Management District’s position.

"Human beings are part of the environment CEQA aims to protect," the brief argued. "Indeed, the Legislature repeatedly and expressly cited protection of the health, safety, and well-being of the people of California among its primary purposes in enacting the law."

Bundy at the Center for Biological Diversity said that the groups want the Supreme Court to issue a ruling that effectively undoes the appellate court’s decision in Ballona Wetlands.

The Bay Area Air Quality Management case "has huge implications for how and whether sea-level rise is discussed in the context of development projects in California," Bundy said. He added that it’s an issue as construction is considered for places like the site of the former Naval base on man-made Treasure Island in the San Francisco Bay.

The high court also will hear Center for Biological Diversity v. California Department of Fish and Game. One of the questions it asks is how a 20,000-unit residential development project in Los Angeles County must account for its greenhouse gas emissions, given state mandates to shrink that pollution.

Federal vs. state law on rail

Another CEQA case before the court has implications for rail, including the state’s planned bullet train.

In Friends of the Eel River v. North Coast Railroad Authority, Friends of the Eel River and Californians for Alternatives to Toxics battled the reopening of a rail line between Napa and Humboldt counties.

The groups challenged the North Coast Railroad Authority’s certification of an environmental review of the project. The rail authority said that it considered itself exempt from CEQA for part of the repair work because it wouldn’t "involve any expansion of existing use and will not change the purpose or capacity of the structures being repaired."

Project critics argued in part that CEQA applied because the North Coast Railroad Authority had an agreement with the state Department of Transportation to conduct some environmental review voluntarily, in exchange for receiving $60 million in state funding.

The state’s 1st District Court of Appeal ruled that CEQA did not apply because it was pre-empted by the Interstate Commerce Commission Termination Act (ICCTA). That 1991 federal statute is "fairly sweeping" in its pre-emption of state and local laws, said Henry, the Stoel Rives attorney. The law is intended to prevent varying local laws from blocking a long rail line, he noted.

The state’s high court will decide whether the federal law pre-empts in a situation where a developer voluntarily does an ER because it’s receiving state funding.

The court also will look at whether CEQA applies under a legal principle known as "market participant." Groups and people with an interest in the project — but not the city or official body obligated to do an EIR — are known as market participants. Those third parties often are the ones suing under CEQA.

Friends of the Eel River and Californians for Alternatives to Toxics in their appeal to the high court said that the federal law doesn’t block advocates but "only prohibits states from regulating rail transportation, which furthers the ICCTA’s purpose of deregulating the industry and centralizing the economic regulation of rail transportation."

The Supreme Court’s decision could affect both crude-by-rail shipments into the state and California’s high-speed rail line, Henry said, because it likely will resolve a conflict between two lower courts.

In Town of Atherton v. California High Speed Rail Authority, the state’s 3rd District Court of Appeal ruled that the California High Speed Rail Authority had to comply with CEQA for part of the development because of the market participant exception to federal ICCTA pre-emption.

If the Supreme Court rules that the ICCTA broadly pre-empts CEQA, that will clear the path for high-speed rail, Henry said. For crude-by-rail shipments, he said, it would discourage challenges to railroads putting in new tracks.

If the court decides that the federal law doesn’t always pre-empt CEQA, that could mean more CEQA-based challenges to rail projects, he said.

But Henry said he’s inclined to believe the high court will rule that the federal pre-emption does apply.

"There has been a tendency to sort of reign in some of the aspects of CEQA over the last few years," Henry said.

CEQA ruling on single-family homes

The California Supreme Court already has made an important recent ruling involving CEQA.

In Berkeley Hillside Preservation v. City of Berkeley, a group of homeowners had wanted CEQA to apply to a new home that was larger than others nearby. But the court earlier this month agreed with a lower court’s decision that an existing exemption to CEQA for single family homes should mostly remain intact, regardless of the size of the house. Under the court’s ruling, opponents of a project must show that it will have negative environmental impact to force an EIR.

"The issue in the case winds up being pretty significant" because it covers so much development in the state, said Tony Francois, senior staff attorney with Pacific Legal Foundation, which advocates for property owner rights. "The court said that single family homes are exempt unless there’s an unusual circumstance that shows that the project will have environmental impacts."