Go to Source February 26, 2021
Public agencies prevailed in 68% of CEQA cases analyzed.
By James L. Arnone, Daniel P. Brunton, Nikki Buffa, Marc T. Campopiano, and Winston P. Stromberg
Latham & Watkins is pleased to present its fourth annual CEQA Case Report. Throughout 2020 Latham lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished. Below is a compilation of the information distilled from that annual review and a discussion of the patterns that emerged. Latham’s webcast discussing this publication and the key CEQA cases and trends of 2020 is available here.
In 2020, the California Courts of Appeal issued 34 opinions that substantially considered CEQA. Additionally, the California Supreme Court issued one opinion, and the Ninth Circuit Court of Appeal issued one opinion. Significantly, in Protecting Our Water & Environmental Resources v. County of Stanislaus, the California Supreme Court held that Stanislaus County could not categorically classify the issuance of all well construction permits as “ministerial.” The Supreme Court explained that the plain text of the local code, which incorporated state standards, gave the County health officer significant discretion to deviate from general well permitting standards; therefore, the County’s blanket classification of well permits as ministerial violated CEQA.
Other key cases from 2020 include:
Of the 34 appellate CEQA cases, 15 were published and 19 were unpublished. Figure 1 (right) shows all 34 cases sorted by topic. An equal number of cases focused on Environmental Impact Reports (EIRs) and Attorneys’ Fees, Justiciability, and Other Procedures, which includes issues such as mootness, statutes of limitations, waiver, and res judicata. Each topic was the focus of 12 of the 34 cases, or 35%. This represents a moderate shift from 2019, when the plurality of CEQA cases (44%) centered around Attorneys’ Fees, Justiciability, and Other Procedures, and 31% of cases focused on EIRs. In 2020, six cases focused on Supplemental Review, two cases focused on Exemptions and Exceptions, and two focused on Mitigated Negative Declarations.
Figure 2 (below) shows the distribution of cases among California’s six appellate districts, as well as the percentage of cases in each district where the public agency prevailed. As was the case in 2018 and 2019, the Sixth District was the only district in which the public agency prevailed in all cases. Unlike in 2019, in which public agencies did not prevail in a single case in the Fifth District, in 2020 the Fifth District saw public agencies prevail in half of its four cases.
Figure 3 (below) separates cases by topic and shows whether the public agency prevailed in each type of case. For purposes of this summary, if the public agency lost on any issue, then it was deemed not to have prevailed. Overall, public agencies prevailed in 23 of the 34 cases, or 68% of the time, down slightly from a 71% win rate in 2019 but consistent with the 65% win rate in 2018. The public agency prevailed in 83% of Attorneys’ Fees, Justiciability, and Other Procedures cases and in 58% of EIR cases.
For insights and commentary on environmental issues and developments impacting business in California, the rest of the US, and the world, visit Latham’s Environment, Land & Resources blog.
Read the full CEQA Case Report: 2020 Year in Review.
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