Saturday, November 01, 2008

State Supreme Court: CEQA environmental review must preceed project approval

The vexing question of when a project is approved and compliance required by the California Environemental Quality Act (CEQA) was perhaps definitively answered in Friday's carefully balanced decision by the state Supreme Court in the case of Tara v. City of West Hollywood 2008 WL 4741084.

(Curious, isn't it, that self-proclaimed "progressive" California cities are so willing to throw environmental review overboard when they want something?)

The decision is certain to throw shocks waves into California governments that have grown used to gaming the CEQA environmental review process with talismanic reservation of “final” CEQA approvals. No more. Under Tara, the “all-but-CEQA” method is over.

The case presented an egregious factual situation. West Hollywood had committed millions of dollars to the project, given approvals, delegated any CEQA followup to the City manager, given tenants relocation notices and generally made it known that the historic location would be redeveloped to include 32 low-income units.

The Court used the occasion to incisively set out the factors to be balanced. “This court, like the CEQA Guidelines, has thus recognized two considerations of legislative policy important to the timing of mandated EIR preparation: (1) that CEQA not be interpreted to require an EIR before the project is well enough defined to allow for meaningful environmental evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers.”

The Court left no question of the proper judicial review. An agency’s abuse of discretion can be from “failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence.” (Citing CEQA Guideline §21168.5.) Review given the two abuses differs significantly. Improper procedures, the Court held, are reviewed de novo and scrupulously enforced; review of an agency’s substantive factual conclusions on the other hand are given “greater deference.” This part of the Tara decision gives lower courts clear direction and discretion. The question is one of law, not facts. The courts will “scrupulously” and independently decide at one point CEQA review is required—not the agency.

But that discretion involves a balancing which the high court laid out clearly. “The CEQA Guidelines define ‘approval’ as ‘the decision by a public agency which commits the agency to a definite course of action in regard to a project.’” (Citing CEQA Guidelines §15352(a).)

“The problem is to determine when an agency's favoring of and assistance to a project ripens into a ‘commit[ment].’ To be consistent with CEQA's purposes, the line must be drawn neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects.

The League of California Cities had pushed the Court to allow deferring CEQA review until the stage of “unconditional agreements that irrevocably vest development rights.” The Court said no. ““A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.”

Still, local governments were left plenty of opportunity to pick a project before CEQA review is required. The Court recognized that certain development agreements, identification—even purchase—of a project site, exclusive negotiating agreements and the like need not be per se project “approvals” dictating CEQA review. The project can and should be sufficiently defined to be reviewed.

The bottom line: “…agencies must not ‘take any action’ that significantly furthers a project ‘in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.’”CEQA Guidelines §15004(b)(2)(B).

Monday, October 13, 2008

Fish protection equals unconstitutional taking

A decision by the Ninth Circuit court of appeal has found a taking resulting from endangered species protection.

The Bureau of Reclamation's (BOR) directive to a municipal water district requiring implementation of a fish ladder to protect the endangered steelhead trout, under the Endangered Species Act (ESA), and requiring diversion of water towards the fish ladder, thereby partially, but permanently, impairing the district's valid property right to use of the water, constituted a physical taking, requiring just compensation under the Fifth Amendment. The BOR commandeered physical possession of the water for government use by forced rerouting of the water to the fish ladder for the public purpose of protecting the trout.

The Ninth Circuit decision in Casitas Municipal Water District v. U.S. 2008 WL 4349234, deemed the regulatory action a "per se taking," noting that such taking occurs when “an owner to suffer a permanent physical invasion of her property-however minor,” citing Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419. "Such action effects a physical invasion of the property and therefore qualifies as a physical taking." The Court also based its ruling on the per se taking which occurs with the the regulation “completely deprive[s] an owner of ‘all economically beneficial use’ of her property.” citing Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003, 1019.

Tuesday, September 30, 2008

Public trust doctrine dramatically expanded

The California First District Court of Appeals has ruled to greatly expand the reach of the public trust doctrine. On September 18, the Court held that the public trust doctrine applies to wildlife, rather than just tidelands and navigable waters. The Court also recognized for the first time that members of the public have standing to bring claims under the doctrine. Center for Biological Diversity Inc. v. FLP Group, Inc. 2008 WL 4255789 (Sept. 18, 2008).

In Center for Biological Diversity Inc., the Center for Biological Diversity (“Center”) filed an action against FLP Group, Inc. (“FLP”), for declaratory and injunctive relief against the continuing operation of wind turbines in the Alameda County portion of Altamont Pass.

The center claimed that FLP’s operation of the wind farm was causing the injury and death of raptors and other birds in violation of the public trust doctrine. The trial court granted judgment on the pleadings for FLP, finding that private parties are not entitled to bring an action for the violation of the public trust doctrine.

On appeal by the Center, FLP argued to affirm the lower court decision on basis that (a) the public trust doctrine applied only to tidelands and navigable waters, not to wildlife; and (b) only public agencies are authorized to bring a claim for violation of public trust.

The First District Court ruled that the public trust doctrine applies to claims related to wildlife. The court stated that there are no holdings, analysis, or dicta stating that bird life or other wildlife are not within the scope of the public trust doctrine. (Id. at 5) The court, citing Ex Parte Maier (1894) 103 Cal. 476, 483, stated that it has long been recognized that the public has a property interest in the preservation of wildlife and that the state is responsible for preserving the public interest through “preservation and wise use of natural resources.” (Center at 6) Thus, the First Appeals Court held that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. (Pg. 6)

The court also held that members of the public have a standing to bring an action to enforce the public trust. The court stated that, the California Supreme Court has reiterated in the past that “any member of the general public… has standing to raise a claim of harm to the public trust.” (Pg. 7, citing National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435).

The court mentioned that while it is true that the public trust over wildlife has so far only been enforced in actions brought by public entities, there is no reason in principle why members of the public should be denied standing to maintain an appropriate action. (Pg. 7) While public agencies, as trustees of the public, have the police power to defend the public trust, the First District Court recognized that public agencies do not always strike an appropriate balance between protecting trust resources and accommodating other legitimate public interests. (Pg. 8) Thus, the court concluded, the public still retains the right to bring actions to enforce the trust when the public agency fails to discharge its duty. (Pg. 8) As result, members of the public may file a claim to enforce the public trust.

Nonetheless, the First District Court refused to extend the reach of the public trust doctrine as to permit the public to sue private parties. The Court affirmed the decision of the lower court, stating that plaintiff failed to bring the claim against the responsible public agencies. The Court stated that defendant’s claim was improper because it named only FPL as defendants. (Center at 8) The court indicated that under traditional trust concepts, plaintiffs viewed as beneficiaries of the public trust are not entitled to bring an action against those whom they allege are harming trust property. Rather, where a trustee cannot or will not enforce a valid cause of action against a third person, the trust beneficiary may seek judicial compulsion against the trustee. (Id. at 8) Therefore, plaintiff was required to name the necessary government agencies known to have regulatory oversight over windmill operators, rather than the windmill operators themselves.

Saturday, December 30, 2006

When is an EIR done?

When is an EIR done?

The recent decision of California's 3rd District Court of Appeal in Western Placer Citizens for an Agr. and Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890 dissects the California Environmental Quality Act's (CEQA) requirement to supplement and recirculate an environmental impact report with new information. Its conclusion: "...all new information occurring after release of the final EIR but prior to certification and project adoption need not be included in the EIR before the agency determines whether the new information is significant so as to trigger revision and recirculation." At p. 902.

The case involved gravel mining in western Placer County. Teichert Construction had engaged in almost a decade of applications for approval, greatly modifying the project in response to public and official comments and revised conditions. A final change to the phasing of the mining, decided after circulating a Final EIR, was intended avoid Williamson Act agricultural preservation on the project lands.

That last minute change may have added salt to the wounds of project opponents facing gaping open gravel mine pits for pretty much eternity: agriculture on "islands" preserved amidst gravel pits is a farce. Besides insisting that the changed project should be addressed in a recirclated EIR, opponents WPCARE also petitioned to throw out the EIR for failure to assure water supply.

The Court started analysis with Public Resources Code §21092.1 and its corresponding CEQA Guideline 15088.5. Supplement and recirculation of an EIR was only required after the close of public comment when "significant" new information was produced. Examples of "significant" are given in Guideline 15088.5.

How does one know if the project change is "significant" if the information isn't included in the EIR? That dilemma had convinced the Placer County trial court that the information--significant or not--had to amended to the EIR.

That conclusion was wrong, said the appeal court ruling. The test should be two-step:

"The California case closest to addressing the issue, Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 58 Cal.Rptr.2d 152 ( Chaparral Greens ), implies not all new information must be added to the EIR." At p. 807.

The Court also relied upon the state Supreme Court's Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553.