CEQA Case Report: 2020 Year in Review : Clean Energy Law Report : Renewable Energy Lawyer and Environmental Law Attorney : Latham & Watkins Law Firm

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lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished.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:

• Save the Agoura Cornell Knoll v. City of Agoura Hills, in which the Court of Appeal concluded that conflicting evidence in the record for a mixed-use development project required preparation of an environmental impact report, rather than a mitigated negative declaration, and that failure to raise a statute of limitations in a general demurrer or answer forfeits the defense.
• Environmental Council of Sacramento v. County of Sacramento, in which the Court of Appeal concluded that project completion can be presumed for CEQA purposes and that the project description for a master planned community did not need to speculate whether a portion of the project would actually be built.
• King & Gardiner Farms, LLC v. County of Kern, in which the Court of Appeal held that agricultural land conversion mitigation measures violated CEQA because conservation easements did not create new agricultural land to replace the land lost.
• Parkford Owners for a Better Community v. County of Placer, in which the Court of Appeal held that a petitioner’s challenge to a self-storage facility project was moot after the project was already completed due to the petitioner’s failure to take steps to maintain the status quo pending the resolution of its claims.
• Golden Door Properties, et al. v. County of San Diego, in which the Court of Appeal held that San Diego County’s adoption of a Climate Action Plan to reduce greenhouse gas emissions violated CEQA by improperly deferring mitigation and failing to provide specific performance standards.
• Golden Door Properties, LLC v. Superior Court, in which the Court of Appeal concluded that a lead agency must maintain and include in the record all written materials, including correspondence, relevant to its CEQA compliance and project evaluation.
• San Francisco Taxi Coalition v. City and County of San Francisco, in which the Ninth Circuit Court of Appeal concluded that local regulations prioritizing certain taxi medallion holders did not constitute a “project” under CEQA, despite the claim that the regulations would potentially increase the number of passenger-less trips that taxi drivers took as well as the general demand for rides.

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.

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Read the full CEQA Case Report: 2020 Year in Review.