Category: GDB Insights

Kennedy Commission v. Superior Court
(Cal. Ct. App., Sept. 11, 2025, No. D085237)

Introduction

California’s Housing Element Law requires every city and county to plan for its share of regional housing needs. Huntington Beach, a charter city, missed its October 15, 2021 deadline and never adopted a compliant plan. The California Attorney General, on behalf of the People and the Department of Housing and Community Development (HCD) (collectively, the State), sued, and the Kennedy Commission intervened, seeking a writ of mandate to compel the City to adopt a revised housing element.

The writ petition invoked Planning and Zoning Law, Chapter 3, Article 14 enforcement tools: Government Code section 65754(a), which imposes a 120-day deadline to achieve compliance, and section 65755(a), which directs one or more provisional remedies to limit the City’s authority over permitting, zoning, and subdivision approvals until compliance is achieved. The trial court granted the writ but declined to impose these remedies.

On appeal, the Fourth District Court of Appeal held Article 14 applies to charter cities; as such, the trial court erred when it failed to impose the strict 120-day compliance deadline and one or more mandatory provisional remedies.

Factual Background

The City was required to approve its most recent housing element update by October 15, 2021, but failed to do so. The City submitted a late draft to HCD in August 2022 and received confirmation from HCD it would comply with the Housing Element Law once adopted; however, the City never adopted the update. In February 2023, HCD issued a notice of violation. The City responded by filing a federal lawsuit challenging the Housing Element Law and later rejected the draft housing element update entirely, citing concerns over inflated housing allocations, affordable housing, environmental impacts, and preservation of the City’s suburban character. Thereafter, the State filed the lawsuit that is the subject of the decision summarized here.

Issues and Court’s Analysis

The main issue the court focused on was whether Article 14 applied to legal enforcement actions against charter cities. The key provision requires a city or county to bring its general plan or mandatory element (here, the housing element) into compliance within 120 days of a court’s finding that the general plan or mandatory element does not substantially comply with general plan laws.

The City argued charter cities are exempt from Article 14 entirely, but the court rejected that position. In interpreting the statute, the court emphasized that multiple provisions of Article 14 use broad language indicating they apply to “any action,” regardless of city type. Notably, Government Code section 65754(b) expressly references charter cities and authorizes judgments under Article 14 requiring such cities to bring zoning ordinances into consistency with their general plans. This explicit statutory reference demonstrates that the Legislature intended Article 14 to apply to charter cities.

The court also relied on Government Code section 65700, which requires all cities, including charter cities, to adopt general plans containing certain mandatory elements. When read together with Article 14, section 65700 establishes both the substantive obligation to adopt a compliant general plan and the judicial procedures and remedies available to enforce that obligation. Harmonizing these provisions, the court concluded Article 14’s enforcement mechanisms apply equally to charter cities.

Notably, while this case was pending, the Legislature enacted Senate Bill 1037 (2024), which added section 65009.1 to the Government Code, effective January 1, 2025. Section 65009.1 clarifies the enforcement remedies in Article 14 apply to all cities, including charter cities, for actions to enforce the Housing Element Law. The City asserted the enactment of section 65009.1(e)(2) violated its home-rule authority as a charter city.

Importantly, while charter cities generally control municipal affairs, state law may override when addressing matters of statewide concern. The parties agreed housing is a statewide concern, so the question before the court was whether section 65009.1(e)(2) is reasonably related and narrowly tailored. The court held that it is, finding section 65009.1(e)(2) promotes the state’s housing goals without dictating how cities must comply, and its provisional remedies are temporary, applying only after a judicial finding of noncompliance. The court found such enforcement tools are necessary to overcome local resistance to housing and do not unduly interfere with local governance.

Conclusion

In summary, the court concluded that Article 14’s judicial enforcement provisions are mandatory and apply to charter cities just as they do to general law cities. The decision solidifies that charter cities cannot avoid their obligation to adopt legally compliant housing elements or evade enforcement measures — including strict deadlines and temporary provisions taking away local control over zoning and permitting — intended to drive timely compliance. Trial courts must impose these remedies in cases of noncompliance, ensuring that charter cities face the same consequences as general law cities.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Sheetz v. County of El Dorado, California
(Cal. Ct. App., July 29, 2025, No. C093682)

Sheetz v. County of El Dorado returned to the California Court of Appeal’s Third District following its remand from the U.S. Supreme Court, which held that the heightened judicial scrutiny established in the Nollan and Dolan cases applies to legislatively-enacted permit conditions.[1] In the decision summarized here, the appellate court reconsidered the validity of the County of El Dorado’s traffic impact mitigation fee, ultimately affirming the fee once again and concluding that it satisfied both the “essential nexus” and “rough proportionality” standards required under federal law.

Background

The County required Sheetz to pay a $23,420 traffic impact mitigation fee as a condition of obtaining a building permit for the construction of a single-family home on a residential parcel. Under the County’s General Plan, land use developers must pay traffic impact mitigation fees as a condition of receiving a building permit. The fees, set by a rate schedule based on development type and location, fund road improvements. Sheetz paid the fee under protest, and then filed suit alleging it constituted an unlawful taking without just compensation in violation of the U.S. Constitution’s Fifth Amendment.

In 2024, Sheetz’s case reached the U.S. Supreme Court, which held that the heightened scrutiny of Nollan/Dolan applies to legislatively-imposed permit conditions, not only administrative exactions. The firm’s summary of that decision is available here. In that decision, the U.S. Supreme Court did not determine whether the County’s fee satisfied that scrutiny and instead remanded the case back to the appellate court for further proceedings.

Analysis

As a threshold matter, the court first considered whether the traffic impact mitigation fee would constitute a compensable taking if imposed outside the permitting process. Under Nollan/Dolan, the heightened scrutiny standard applies in the land use regulation context only when the government could not lawfully require the condition outright, making this determination a prerequisite to further analysis. Citing Koontz,[2] the court noted that government demands for money linked to a specific property are treated the same as demands for land. Because the fee was directly tied to Sheetz’s parcel and imposed as a condition of getting his building permit, the court found it to be a monetary exaction subject to Nollan/Dolan requirements.

The court next turned to Nollan’s “essential nexus” requirement, which asks whether there is a logical connection between the government’s legitimate interest and the permit condition. The court found that reducing traffic congestion is a legitimate public interest, and requiring Sheetz to pay a traffic impact mitigation fee directly relates to offsetting the traffic his new home would generate. Because the County’s fee is imposed on all new developments to fund roadway improvements needed due to growth, it advances the same purpose the County could have pursued by denying the permit outright.

As to the Dolan test, that requires a showing of “rough proportionality” between the permit condition and the impact of the proposed development. This means the government must make “some sort of individualized determination” that the condition is reasonably related in extent to the project’s anticipated effects. The court found the County satisfied this requirement as the traffic impact mitigation fee was calculated under a countywide rate schedule based on development type and location, and supported by traffic studies quantifying the impacts of each category of development and the costs of necessary roadway improvements. Because the fee for Sheetz’s single-family home represented his project’s proportionate share of the traffic burden from new development, the court concluded it met the “rough proportionality” standard.

Conclusion

Whether this outcome – continued affirmation of the County’s traffic impact mitigation fee – is what the U.S. Supreme Court anticipated with its 2024 decision and remand is debatable. What is clear is the California Court of Appeal’s frustration with that 2024 decision; indeed, look no further than the references to the U.S. Supreme Court as having “invalidated settled California law” and issued a decision “contrary to settled California law.”

Further, amidst this ongoing tug-of-war between California and the federal government (including their judicial branches) is California’s continued housing crisis.  And regardless of the constitutional standards at play, it seems fair to ask whether the County’s traffic impact mitigation fee, particularly in relation to what was described as Sheetz’s “modest prefabricated house,” serves to perpetuate that crisis.

[1] See Nollan v. Cal. Coastal Commission (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.

[2] See Koontz v. St. Johns River Water Management District (2013) 570 U.S. 595.

 

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

2025 CEQA Amendments:

Enough of a Step in the Right Direction?

 Recognizing that, since its inception in 1970, the California Environmental Quality Act (CEQA) has been used and abused to delay the processing of development projects throughout the state, the California Legislature championed much-needed changes to CEQA through reforms in two budget trailer bills – Assembly Bill (AB) 130 and Senate Bill (SB) 131. Both bills were signed into law on June 30, 2025 and went into effect immediately upon enactment, with the goal of expediting the development approval process and addressing the state’s long-standing housing crisis.

While both bills reflect pro-housing intent and have been lauded by some media outlets as constituting a game-changing shift in California’s development policies, their practical impact remains uncertain. Only time itself will tell whether these CEQA amendments reduce procedural barriers and result in more housing units actually being built or simply add to a growing list of well-intentioned but ineffective reforms that fail to deliver real relief from burdensome regulations.

A brief summary of key highlights from AB 130 and SB 131 follows below. Each bill contains numerous, detailed provisions that require careful, project-specific analysis. As such, this summary is not exhaustive and intended only to provide a general overview. GDB attorneys are available to assist with an evaluation of whether and how these new CEQA amendments may be relevant to specific projects.

Assembly Bill 130

AB 130 provides a new statutory exemption from CEQA review for infill housing development projects within an urban area that are not more than 20 acres in size and meet certain conditions relating to location, density and use. The exemption’s eligibility criteria incorporate a laundry list of siting criteria from SB 35 (Gov. Code, §65913.4, subd. (a)(6)).  Exempt projects must be consistent with applicable local plans; however, the bill clarifies that a project’s use of the State Density Bonus Law (Gov. Code, §65915) is not grounds upon which to determine that a project is inconsistent with the applicable general plan, zoning ordinance, or local coastal program.

The bill includes tribal consultation provisions, as well as prevailing wage and labor requirements for projects meeting specified design attributes. Under AB 130, local governments also must require the development proponent to assess hazardous substance releases and, if such a condition is discovered, complete a preliminary endangerment assessment and mitigation based on that assessment.

In addition, there is now a 30-day limit for the lead agency to approve or deny a project that qualifies for the new infill exemption, which runs from the conclusion of the environmental assessment. In the event the agency fails to act within 30 days, the project is deemed approved.

On the housing law front, AB 130 repeals the January 1, 2034 sunset date for the Housing Crisis Act of 2019, which prohibits an affected county or city from enacting certain development policies, standards, or conditions with respect to land where housing is an allowable use. Thus, AB 130 extends application of the Housing Crisis Act of 2019 indefinitely. Sunset dates were also eliminated for specified Permit Streamlining Act and Housing Accountability Act provisions.

AB 130 also addresses building standards. It imposes a temporary freeze – effective October 1, 2025 through June 1, 2031 – on local governments’ ability to adopt residential building standards more restrictive than state code, including green building requirements, unless narrow exceptions apply.

AB 130 further introduces a new vehicle miles traveled (VMT) mitigation framework that could drive up housing costs. The bill directs a mitigation banking scheme under which homebuilders may offset a project’s VMT impacts by funding or facilitating affordable infill housing or related infrastructure. The Governor’s Office of Land Use and Climate Innovation (formerly OPR) is tasked to develop the methodology for this approach. If the VMT mitigation bank fee is then adopted by local governments, an applicant cannot refuse to use it as a mitigation measure.

Senate Bill 131

Returning to the theme of expedited housing and CEQA compliance opportunities, SB 131 also introduces a number of new statutory exemptions from CEQA review, including:

• A rezoning that implements the schedule of actions contained in an approved housing element.
• New agricultural employee housing projects and projects consisting exclusively of the repair or maintenance of an existing farmworker housing project.
• Wildfire risk reduction projects, including, among other things, projects for prescribed fire, defensible space clearance, and fuel breaks (until January 1, 2030).
• Public park or nonmotorized recreational trail facilities.
• Unless located on natural and protected lands, a day care center, a federally qualified health center or a rural health clinic, a nonprofit food bank or food pantry, and a facility for advanced manufacturing.
• A heavy maintenance facility for electrically powered high-speed rail, and passenger rail station for the purpose of serving electrically powered high-speed rail.
• Updates to the state’s climate adaptation strategy.

SB 131 also provides for a limited CEQA review for housing development projects that do not qualify for a statutory or categorical exemption because of a single condition. For such “near miss” projects, SB 131 requires preparation of an initial study or EIR to examine the impacts that are caused by that single condition. EIRs for such projects do not need to discuss alternatives or growth-inducing impacts. Exceptions to this limited review are housing projects that are not “similar in kind” to those listed in the exemption; that miss by two or more conditions; that include a distribution center or oil and gas infrastructure; or that are located on specified natural and protected lands.

This bill further requires the Office of Land Use and Climate Innovation, on or before July 1, 2027, to develop a definition of and metrics for identifying an “eligible urban infill site” based on whether the land use designation is consistent with infill development and whether the onsite development promotes compact development to promote such goals as reduction of greenhouse gas emissions and reduction of agricultural land conversion, among others.  Then the Office will map the “eligible urban infill sites” within every urbanized area or urban cluster in the state. This requirement is intended to facilitate the use of the CEQA’s infill exemptions.

Importantly, SB 131 also addressed a few administrative matters. After the Natural Resources Agency certifies CEQA Guidelines to implement CEQA amendments pursuant to SB 131, on or before January 1, 2027, and at least once every two years thereafter, it will review and update those CEQA Guidelines to address rigid regulations and vague terminology. The purpose of this review and update requirement is to better incentivize affordable and smart infill housing growth. For CEQA challenges to any project approval, SB 131 also excludes staff notes and internal agency communications from the administrative record of proceedings, provided those materials were not presented to the final decision-making body.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Citizens for a Better Eureka v. City of Eureka
(Cal. Ct. App., May 14, 2025, No. A170214)

Introduction

In Citizens for a Better Eureka v. City of Eureka, the California Court of Appeal’s First District affirmed dismissal of a CEQA challenge to the City of Eureka’s designation of a downtown parking lot as surplus public property and subsequent efforts to redevelop the site for affordable housing. After wrestling with the intersection of procedural rules and project-specific realities, the court concluded that dismissal was appropriate as Citizens for a Better Eureka (CBE) improperly failed to join a necessary and indispensable party – namely, the Wiyot Tribe (Tribe) as the project developer.

Factual Background

In April 2023, the City approved a resolution (the April resolution) finding that the removal of public parking on a City-owned parking lot, for purposes of facilitating affordable housing development, was exempt from CEQA via the Class 12 exemption for the sale of surplus government property. CBE filed a writ petition challenging the April resolution in May 2023, arguing the City unlawfully segmented its CEQA review by piecemealing the disposition of the property from the development of the property.

In July 2023, following its receipt of responses to a request for proposals, the City selected the Tribe as the preferred developer for affordable housing on the former parking lot site and applied a CEQA exemption specific to affordable housing development in support of that approval (the July resolution). The City filed a notice of exemption (NOE) in support of the July resolution, and that notice identified the Tribe as the project developer.

In December 2023, the City and Tribe executed an MOU addressing implementation aspects of the affordable housing project. On the same day that the MOU was fully executed, CBE filed a motion for a preliminary injunction seeking to preclude the City from issuing any approvals required to proceed with site redevelopment. The Tribe moved to dismiss the action in response, asserting that it was a necessary and indispensable party, and that sovereign immunity and CEQA’s statute of limitations prevented its joinder. The trial court granted the motion, dismissing the case without prejudice. CBE appealed.

Issues and Court’s Analysis

On appeal, the issue before the court was whether the Tribe was a necessary party and an indispensable party, such that CBE’s failure to join the Tribe – as real party in interest – required dismissal of the case. As framed by the court, “[w]hether a party is a real party in interest and thus deemed a necessary party is a separate and preliminary inquiry from whether that party is indispensable.”

At the outset, and in an effort to stymie dismissal, CBE argued the Tribe was not implicated in the case in the first instance, because its petition only challenged the City’s April resolution on the sale of the parking lot. The court disagreed, finding that the petition – through its arguments regarding improper piecemealing and segmentation – facially targeted the full redevelopment project (removal of public parking coupled with the development of affordable housing), and therefore necessarily concerned the Tribe’s interests as developer.

The court next turned to the applicable statutory deadlines under CEQA and the procedural requirements for naming real parties in interest.  The court addressed whether the Tribe was a necessary party, with reference to Public Resources Code section 21167.6.5, subdivision (a), which plainly provides that petitioners “shall name” as a real party in interest any persons identified by the lead agency in its NOE. The court found the Tribe qualified as a real party in interest because it was awarded development rights to the affordable housing project and was identified in the NOE filed following the City’s adoption of the July resolution. The court emphasized that CEQA defines a “project” as the total activity being approved, not each individual approval; therefore, allowing a petitioner to delay naming a real party in interest would frustrate CEQA’s purpose of resolving all issues and parties in one action.

The court also found that the statute of limitations barred joinder of the Tribe. Under CEQA, a petitioner must file suit within 35 days of a NOE and must name and serve any real party in interest identified in the NOE within 20 business days of serving the petition on the lead agency. Although CBE timely filed its petition, it failed to name or serve the Wiyot Tribe at any point in the proceedings. The court reasoned CBE was aware of the Tribe’s role as of the NOE’s filing date (the day after the July resolution) and rejected CBE’s argument that the Tribe was not a real party in interest. Because over 21 months had passed, the Tribe could no longer be joined.[1]

Once the court determined the Tribe was a necessary party that could not be joined due to the expiration of the statute of limitations period, it applied the equitable balancing test under Code of Civil Procedure section 389, subdivision (b), for purposes of determining whether the Tribe was an indispensable party. Despite CBE’s attempts to downplay the impact of the requested judicial relief, the court found it clear that any judgment setting aside project approvals would directly and prejudicially impair the Tribe’s ability to move forward with redevelopment of the site, particularly given its investment of time and resources.  The court held, therefore, that CBE had not met its burden to show the trial court abused its discretion in dismissing the case.

Conclusion

Here, a petitioner’s failure to timely name a real party in interest ultimately barred its ability to proceed with a CEQA action, even though the identity of that party was not known upon the initial filing of the lawsuit. This case serves as a cautionary reminder to CEQA litigators that it is essential to: (1) consider the totality of the project being challenged when identifying the necessary parties to the litigation, and (2) monitor related developments at the agency level that post-date the initial petition filing, as such developments may trigger additional statutory obligations for which compliance is essential in order to advance the lawsuit.

[1] As CBE’s failure to timely identify the Tribe as real party in interest precluded the Tribe’s joinder, the court’s decision does not reach the issue of whether sovereign immunity grounds also prevented joinder.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Old Golden Oaks LLC v. County of Amador
(Cal. Ct. App., May 30, 2025, No. C099948)

Introduction

With its Old Golden Oaks LLC v. County of Amador decision, the California Court of Appeal (Third District) intensified the tension between CEQA and the Permit Streamlining Act (PSA), straining the PSA’s procedural safeguards for housing by allowing CEQA-based information requests to delay determinations of application completeness. While the court acknowledged that Amador County violated the PSA by relying on a vague “catch-all” provision in its encroachment permit checklist—undermining the PSA’s requirement that permit criteria be specified “in detail”—it nonetheless affirmed the County’s authority to require supplemental environmental information for a grading permit, where CEQA compliance was explicitly referenced in both the checklist and municipal code.

This distinction carries particular weight in the housing context, where the date an application is deemed complete under the PSA can trigger protections under the Housing Accountability Act (Gov. Code, §65589.5) and related laws, including agency obligations within certain time periods and/or vesting a project’s rights against subsequent regulatory changes.

Factual Background

In 2023, Old Golden Oaks LLC (Old Golden) sought to revive a residential subdivision project previously approved by the County in 1973 by applying for encroachment and grading permits. The County deemed the applications incomplete and requested several additional items, including environmental documentation and utility-related materials. Old Golden challenged the County’s determination and requests, arguing they exceeded the scope of the County’s published submittal checklists under the PSA. After the trial court sustained the County’s demurrer without leave to amend, Old Golden appealed.

Issues and Court’s Analysis

The Permit Streamlining Act requires agencies to maintain one or more detailed checklists specifying the information needed for a development application to be deemed complete. (Gov. Code, §§65940, 65941.) While agencies cannot require full CEQA compliance or the equivalent of an EIR at the completeness stage, they may request enough information to determine the appropriate level of CEQA review. (Gov. Code, § 65941.) Agencies must notify applicants within 30 days whether an application is complete and may only cite missing items listed in their published requirements. (Gov. Code, §65943.) The court’s ruling in Old Golden Oaks addressed these requirements in the context of encroachment and grading permits, examining the adequacy of the County’s use of a general “catch-all” checklist item and CEQA compliance language to justify additional submittal demands.

Encroachment Permit

The court held the County’s use of a broad “catch-all” provision in its encroachment permit checklist that allowed the director to request unspecified additional information violated the PSA. Because the checklist did not detail the specific information required, the County could not condition application completeness on items not explicitly listed.

Grading Permit

In contrast to the encroachment permit, the court upheld the County’s request for additional information related to the grading permit. The County’s submittal checklist and municipal code provisions expressly stated that projects involving significant grading are subject to CEQA and required specific items such as a notice of intent, erosion control plan, and indemnification agreement. The court reasoned notice that CEQA compliance was required was sufficient to request additional environmental information under the PSA’s requirement to “specify in detail” the information necessary to complete an application. As found by the court, because the exact nature of environmental review necessarily varies by project, the County was not obligated to specifically enumerate all CEQA-related materials required for a complete application in advance. Because Old Golden would have to provide environmental information to the County “now or later,” the court reasoned there would be “little extra burden on Old Golden… to prepare the additional environmental information” requested by the County for a completeness determination. The court also rejected the argument that all required materials must be listed in a single checklist, affirming that multiple checklists across municipal code sections are permissible.

Conclusion

While recognizing key procedural safeguards under the PSA, the court’s decision introduces the troubling potential that agencies may delay completeness determinations by insisting upon the preparation of environmental documents not expressly listed on their published checklists. This approach risks undermining the PSA’s purpose of providing clear, predictable standards for applicants and appears inconsistent with both the statutory requirement that completeness criteria be “specified in detail” and State CEQA Guidelines section 15060, subdivision (b), which instructs that CEQA lead agencies begin the formal environmental evaluation of a project “after accepting an application as complete” (emphasis added). As such, this case underscores the importance for both public agencies and applicants to confirm – as early as possible – the exact universe of documentation that will be required to support a completeness determination.

 

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Seven County Infrastructure Coalition v. Eagle County, Colorado
(U.S., May 29, 2025, No. 23-975)

Introduction

The U.S. Supreme Court has held the U.S. Court of Appeals for the District of Columbia Circuit erred in vacating the U.S. Surface Transportation Board’s (Board) approval of an 88-mile railway project in northeastern Utah. The Court found the lower court failed to afford the substantial deference required under the National Environmental Policy Act (NEPA) when reviewing the Board’s Environmental Impact Statement (EIS). The decision clarifies that courts must respect the agency’s discretion in determining the scope and detail of environmental review, so long as the agency’s decisions fall within a broad zone of reasonableness. The Court held that the Board’s EIS complied with NEPA.

Factual and Procedural Background

The Board considered a proposal submitted by a coalition of seven Utah counties to construct and operate an approximately 88-mile freight rail line in northeastern Utah. The proposed line would connect the Uinta Basin to the national freight rail network. The purpose of the project was to facilitate the transport of crude oil from the Uinta Basin to refineries, promoting economic development and job growth in the region.

The Board prepared an EIS exceeding 3,600 pages, which analyzed the potential environmental impacts of the proposed rail line. The lower court vacated the Board’s approval, finding the EIS failed to adequately analyze indirect environmental impacts, specifically the effects of increased upstream oil production in the Uinta Basin and downstream refining activities along the Gulf Coast.

Issues and Court’s Analysis

The Court’s opinion focused on the lower court’s decision regarding the EIS’ consideration of indirect effects – namely, the upstream oil drilling and downstream oil refining. The Court first held that the lower court failed to accord the Board the substantial deference that NEPA requires. Second, the Court found the lower court improperly construed NEPA as requiring the evaluation of indirect effects that are distinct in time and location.

In its analysis, the Court reaffirmed NEPA is a procedural statute that requires federal agencies to take a “hard look” at the environmental consequences of proposed actions but imposes no substantive constraints on agency decision making, unlike – by way of example – the Clean Air Act and Clean Water Act. As such, in the Court’s words, “NEPA is a procedural cross-check, not a substantive roadblock.”

The Court emphasized that “the central principle of judicial review in NEPA cases is deference.” Therefore, when a party challenges an agency action as arbitrary and capricious, courts must afford substantial deference to the agency’s judgment in evaluating the scope and content of the EIS and should not substitute their own views for those of the agency. The Court stated that as long as an EIS addresses the environmental effects of the proposed project, courts should defer to the agency’s judgment regarding the scope of that analysis. This includes deferring to the agency’s determinations about how far to go in evaluating indirect environmental effects of the project and whether to consider impacts from other projects that are separate in time or location.

In its EIS, the Board determined that the upstream and downstream activities highlighted by project opponents were separate and independent from the proposed rail line, and thus outside the scope of NEPA review. The Board stated that the rail project and any future oil or gas development were not two phases of a single action, but distinct undertakings. The Court affirmed the Board’s approach, noting that NEPA does not require agencies to evaluate environmental effects from speculative or geographically separate projects beyond the agency’s control or approval authority. Further, judicial precedent has long established “agencies possess discretion and must have broad latitude to draw a ‘manageable line’” when delineating the scope of environmental analysis.

Conclusion

This decision is an attempt by the Supreme Court to re-establish the “rule of reason” inherent to NEPA, in recognition that NEPA has been mis-used to require “more speculation and consultation and estimation and litigation” that has converted its procedural requirements into a tactical delay opportunity to frustrate the delivery of infrastructure, housing, and the like. The Supreme Court underscored that NEPA is a procedural statute and does not require agencies to assess effects from future or geographically separate projects beyond their control. Further, courts must defer to agency judgment and may not expand NEPA’s scope based on but-for causation or mere foreseeability.

 

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

WildEarth Guardians v. United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Services
(9th Cir., Apr. 21, 2025, No. 23-2944)

Introduction

The Ninth Circuit Court of Appeals has vacated an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) issued by the U.S. Department of Agriculture (USDA), concluding that the agency’s approval of a predator damage management (PDM) program in Nevada’s Wilderness Areas and Wilderness Study Areas violated the National Environmental Policy Act (NEPA). The court held that the EA failed to adequately address localized environmental impacts, public health and safety risks, effects on sensitive lands, and scientific uncertainty surrounding lethal predator control.

Background

Wilderness Areas and Wilderness Study Areas are federally-owned lands designated by Congress to preserve their natural and undeveloped character. Grazing activities lawfully established before application of the wilderness designation are permitted to continue under federal law. PDM programs are services provided to protect privately-owned livestock from predation. Both non-lethal and lethal methods are used by USDA to manage various species.

Issues and Court’s Analysis

Wilderness Act Violation

Appellants argued that conducting PDM in Wilderness Areas violated the Wilderness Act and related statutes that designate Wilderness Areas in Nevada. The court rejected this argument relying on its prior decision in Forest Guardians v. APHIS, 309 F.3d 1141 (9th Cir. 2002), which held that the Wilderness Act’s grazing exception permits predator control as a supportive activity.

NEPA Violations

Under NEPA, agencies may first prepare an EA to determine if a proposed action requires a full Environmental Impact Statement (EIS). Agencies must evaluate both the “context” (local and broader impacts) and “intensity” (severity of effects) of the proposed action when assessing whether preparation of an EIS is warranted. Courts require agencies to provide a “convincing statement of reasons” if they decide not to prepare an EIS; conclusory claims are insufficient.

NEPA Violation – Localized Impacts

Appellants argued the EA was deficient because it “provide[d] only a broad-scale, generic analysis of possible effects of the statewide activities” and did not properly analyze potential localized impacts. The court agreed, finding the EA contained inconsistent and unclear descriptions of where PDM activities would occur. The court stated  “[b]y leaving the public guessing where [USDA] proposes to conduct PDM, the agency vitiated NEPA’s purpose because it deprived the public of the ability to evaluate the impacts of the agency’s proposed actions.” Additionally, the court found USDA “failed to adequately explain its decision not to analyze local impacts in addition to its statewide assessment.”

NEPA Violation – Intensity Factors

Appellants contended an EIS was required because the EA failed to adequately assess three key “intensity” factors: (1) public health and safety risks from lead shot and cyanide use; (2) impacts on unique and sensitive areas, specifically Wilderness Areas and Wilderness Study Areas; and (3) scientific studies that raised substantial uncertainty about the effectiveness of lethal predator control. The court agreed with Appellants on  all fronts. On the topic of public health and safety, the court observed that the EA failed to address whether the 600 pounds of lead ammunition anticipated to be used for PDM would result in a concentrated introduction of lead into the environment. Similarly, the court found USDA’s response to concerns about M-44 cyanide ejector devices inadequate, as the agency failed to meaningfully address documented incidents of serious injuries and pet deaths. With respect to impacts to unique areas, the court observed that “[a]ny impacts to nearby unique areas weigh in favor of ordering an EIS, regardless of the severity of the impact.” Finally, the court found that USDA failed to meet NEPA’s requirement to address scientific uncertainty by ignoring or inadequately responding to numerous recent peer-reviewed studies questioning the efficacy and risks of PDM. The court emphasized that a core NEPA obligation is to meaningfully engage with contrary scientific viewpoints, regardless of agency opposition or study location.

Conclusion

The court concluded the EA was deficient because it failed to adequately analyze key NEPA intensity factors and, along with inconsistencies in geographic scope and an unjustified statewide approach, did not demonstrate that USDA took the required hard look or sufficiently informed the public before issuing the FONSI. This case reinforces the need for detailed, transparent, and scientifically grounded NEPA analyses that consider broad and localized impacts and engage with scientific uncertainty.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Cleveland National Forest Foundation et al. v. County of San Diego
(Cal. Ct App., March 27, 2025, No. D083555)

Introduction

The California Court of Appeal, Fourth Appellate District, has ruled that the County of San Diego’s adoption of two screening thresholds related to analysis of vehicle miles traveled (VMT) under the California Environmental Quality Act (CEQA) was not supported by substantial evidence. Specifically, the court held that the County’s Transportation Study Guide (TSG), which created exemptions from VMT analysis for certain projects, lacked substantial evidence and remanded the case with direction to determine whether other portions of the County’s TSG are severable and may continue to be applied. The decision underscores the obligation of lead agencies to support thresholds with localized, factual evidence demonstrating that exempted, or “screened out,” projects will not have significant environmental effects.

Factual Background

In 2013, the California Legislature passed Senate Bill 743 to shift CEQA’s method for evaluating transportation impacts away from traditional traffic delay metrics (e.g., level of service “LOS”) and toward VMT, measuring the amount and distance of automobile travel attributed to a project. In implementing this change, the Governor’s Office of Planning and Research (OPR) adopted revisions to the CEQA Guidelines and issued a Technical Advisory recommending specific VMT thresholds, including a 15 percent reduction benchmark and several screening criteria to identify projects unlikely to have significant impacts.

To implement these changes, the County of San Diego adopted its TSG, which included screening thresholds that exempted certain projects from detailed VMT analysis. At issue in the case were two of those screening thresholds: the infill threshold, which applied to projects proposed in designated infill village areas within the unincorporated county, and the small project threshold, which exempted projects expected to generate fewer than 110 automobile trips per day. The infill areas were designated based on housing and intersection density and job accessibility. The small project threshold mirrored OPR’s recommendation but was not based on any analysis specific to the County of San Diego.

Two environmental organizations filed a petition for writ of mandate challenging the County’s adoption of these screening thresholds, arguing that they lacked support in the administrative record and were inconsistent with CEQA. The trial court denied the petition, concluding that both thresholds were consistent with CEQA and supported by substantial evidence. Petitioners appealed.

Issues and Court’s Analysis

On appeal, the court considered whether the County’s screening thresholds complied with CEQA and whether substantial evidence supported the conclusion that projects falling within those categories would have less-than-significant VMT impacts.

The court rejected petitioners’ argument that CEQA mandates a quantitative threshold incorporating OPR’s 15 percent standard, explaining that CEQA permits agencies to adopt either qualitative or quantitative thresholds. However, the court emphasized that all thresholds, regardless of form, must be supported by substantial evidence showing that projects meeting the threshold criteria will not ordinarily result in significant impacts.

Turning to the two challenged screening thresholds, the court found that the County’s infill threshold lacked the necessary evidentiary support under CEQA. While the County assumed that infill development would generally result in lower VMT impacts, the court explained that assumptions alone are not enough. Citing its earlier Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892 decision, the court emphasized that agencies must show with evidence why a threshold makes sense for local conditions. In the words of the court, “the County was required to make some showing that development consistent with the adopted infill threshold will normally or likely result in an insignificant transportation effect.”

Here, the County did not base its infill threshold on actual VMT data, but rather “the general assumption that development in more dense areas, including infill development, does not significantly impact VMT.” The court was not persuaded by this premise and cautioned the County that it “is not enough to say that infill development is better than non-infill development.” The court also referred to the County’s own consultant-prepared maps showing that many of the designated infill and village areas had VMT levels at or above the County average. This record evidence directly contradicted the idea that development in those areas would have less-than-significant impacts.

In an effort to defend its approach, the County underscored its reliance on the California Air Pollution Control Officers Association’s Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (CAPCOA Handbook) as a source of substantial evidence. But, the court noted that the CAPCOA Handbook does not define infill the same way and, therefore, “is not helpful.”

Similarly, with respect to the small project threshold, although the County had adopted the 110 daily vehicle trip limit directly from OPR’s Technical Advisory, it did so without evaluating whether that limit was appropriate in the context of San Diego County. CEQA permits agencies to adopt another agency’s threshold only if it is supported by substantial evidence. In this case, the court found the County made no effort to determine whether projects generating fewer than 110 daily trips would in fact produce less-than-significant transportation impacts under local conditions. Because the County failed to show some analysis to justify applying statewide guidance to local projects, the court ruled that the threshold could not be upheld.

Conclusion

This decision is yet another that underscores the necessity of developing thresholds of significance that are supported by geographically tailored, local information and data. General suppositions and rules of thumb, even when conceptually endorsed by state agencies, will not suffice absent evidence affirming that their local application will, in fact, achieve the desired result – in this case, a less-than-significant VMT impact.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Western States Petroleum Association v. California Air Resources Board
(Cal. Ct. App., Feb. 13, 2025, No. B327663)

Introduction

The California Court of Appeal’s decision in Western States Petroleum Association v. California Air Resources Board upheld the California Air Resources Board’s (CARB) “Control Measure for Ocean-Going Vessels At Berth” regulation (the “at berth regulation”), which aims to reduce harmful emissions from vessels docked at California ports. The court found that CARB acted within its regulatory authority, complied with the Administrative Procedure Act (APA), and provided a sufficient environmental assessment under the California Environmental Quality Act (CEQA). The decision emphasizes judicial deference to CARB’s technology-forcing regulations, supporting California’s ambitious air quality and climate change initiatives.

Background

The Western States Petroleum Association (WSPA) filed a verified petition for writ of mandate, injunctive relief, and declaratory relief against the California Air Resources Board (CARB). The lawsuit sought to invalidate CARB’s at berth regulation adopted in August 2020,  which targets emissions from vessels’ auxiliary engines & boilers and aims to reduce emissions of nitrogen oxides, particulate matter, diesel particulate matter, reactive organic gases & greenhouse gases. The regulation was designed to address public health risks and global warming, particularly benefiting disadvantaged communities near California ports. The regulation applies to container ships, refrigerated cargo vessels, passenger vessels, auto carriers, tankers, bulk carriers, and general cargo ships.

WSPA contended that CARB’s regulation was arbitrary and capricious because the technology required to meet the emissions standards was not feasible by the compliance deadlines of 2025 and 2027. They also argued that CARB violated the APA by failing to disclose an emissions report in a timely manner and that the environmental analysis under CEQA was inadequate.

Court’s Analysis and Holdings

Feasibility of Compliance With the Regulation

CARB’s quasi-legislative action of preparing and adopting the at berth regulation was considered an authentic form of lawmaking, thus judicial review was limited to ensuring the agency adequately considered all relevant factors and demonstrated a rational connection between those factors, the decision made, and the statutory purpose. The burden was on WSPA to demonstrate that CARB’s regulation lacked evidentiary support.

The court applied the “arbitrary and capricious” standard, emphasizing that agencies are allowed to make technology-forcing regulations as long as there is a reasonable basis for believing the technology can be developed by the compliance deadline.

The court noted that CARB conducted a feasibility analysis and consulted with technology manufacturers and marine emissions control experts, and that WSPA did not meet its burden to show that CARB’s determinations were arbitrary, capricious, or lacked evidentiary support. The court ultimately found CARB had sufficient evidence to support its determination that the necessary emissions control technology could be developed in time.

Compliance With APA

In considering CARB’s compliance with the APA, the court held that CARB substantially complied with the APA’s requirements to make relevant reports publicly available. CARB published the Notice of Proposed Action for the regulation in August 2018 and commissioned engineers at the University of California, Riverside, Bourns College of Engineering Center for Environmental Research and Technology (CE-CERT) in 2019 to conduct an emissions study. The CE-CERT report, dated March 2020, was made available to WSPA in early July 2020, before the end of the second public comment period, which ran from July 10 to July 27, 2020. WSPA participated in the comment period and raised concerns about the report’s findings.

The court found that while CARB may have violated Government Code section 11347.3 if the report was indeed delayed from March to July 2020, the at berth regulation was not automatically invalidated. CARB substantially complied with its APA obligations by making the report available before the comment period ended, allowing WSPA to fully participate in the process. The court noted that despite the rulemaking file exceeding 60,000 pages and the process spanning several years, the delay regarding the CE-CERT Report was the only alleged APA violation. The court concluded that any delay did not prevent WSPA from voicing its concerns, and CARB adequately considered and addressed those concerns in the final regulatory process.

Sufficiency of CARB’s Environmental Assessment

CARB’s Environmental Assessment (EA) sufficiently analyzed environmental impacts, safety hazards, and mitigation measures. The tiered approach utilized by CARB allowed them to conduct a broad analysis at the regulatory level while deferring detailed, site-specific assessments to the appropriate agencies once specific compliance projects were proposed. The court held that this method complied with the CEQA requirements, which allow tiering in large-scale planning approvals. The court emphasized that the program-level EA only needed to analyze environmental impacts and mitigation measures to the extent reasonably foreseeable, acknowledging that precise impacts could not be determined until individual projects were defined. The court agreed with CARB that no project-level analysis was required under CEQA and that CARB was not obligated to conduct safety studies for tanker terminals prior to implementing specific compliance responses.

Sufficiency of CARB’s Cumulative Impact Analysis

Finally, WSPA argued CARB failed to properly analyze the cumulative impacts of the regulation, particularly regarding the accelerated compliance timelines. The court found CARB’s use of the State Implementation Plan (SIP) EA’s projections met CEQA’s requirements, and that substantial evidence supported CARB’s methodology, which focused on a statewide perspective rather than individual industrial projects. Additionally, WSPA did not provide evidence that the SIP EA’s data was outdated or that circumstances had changed to undermine the analysis. The court upheld CARB’s cumulative impacts analysis, finding that it provided a “good faith and reasonable disclosure” of foreseeable cumulative impacts at a program-wide level.

Conclusion

The court affirmed the lower court’s ruling, demonstrating judicial deference to CARB’s regulatory authority. The decision reinforces CARB’s ability to implement ambitious emissions reduction measures under the California Clean Air Act and CEQA, even when such measures are forward-looking and dependent on emerging technologies.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Working Families of Monterey County v. King City Planning Commission
(2024) (Case No. H051232)

California’s Sixth District Court of Appeal upheld the King City Planning Commission’s approval of a Grocery Outlet project, affirming its eligibility for an exemption under the California Environmental Quality Act (CEQA) Class 32 guidelines for infill development. The court rejected the appellants’ contentions that Class 32 exemption requires application of a population threshold and specific urbanized definitions. This case clarifies the scope of CEQA’s infill exemption and reinforces local discretion in land use determinations.

Background

In April 2021, Best Development Group (BDG) proposed a Grocery Outlet store in King City, filing for conditional use and related permits. The project site, previously used as a car sales lot, was located adjacent to Highway 101, surrounded by commercial properties, a cemetery, and public facilities.

The King City Planning Commission deemed the project exempt from CEQA under the Class 32 categorical exemption for infill development. The decision was affirmed by the King City Council after an appeal challenging the exemption’s applicability.

Working Families of Monterey County (Working Families) filed a writ of mandate alleging CEQA violations, contending that the exemption improperly applied due to King City’s rural character and the project’s insufficient environmental analysis.

Application of the Class 32 Exemption

Working Families argued that the City improperly applied the Class 32 exemption, contending the project did not meet the definition of an “urbanized area” as set forth in CEQA provisions requiring populations of 50,000 or 100,000, since King City’s population is only 13,332. They also asserted the project site failed to qualify as an “infill site” because it was not previously developed for “qualified urban uses.”

The City and BDG argued that the terms “qualified urban use,” “urbanized area,” and “infill site” are not part of the language of CEQA Guidelines section 15332, which governs the Class 32 exemption. They asserted that these terms appear in other CEQA provisions related to residential projects and cannot be read into section 15332, as their omission reflects the intended scope of the exemption.

They further contended that substantial evidence supported the City’s determination that the project site was “substantially surrounded by urban uses” under section 15332(b). Although the Guidelines do not define “urban uses,” they maintained that the City reasonably concluded, based on the environmental assessment, that the site was surrounded by urban development, including commercial buildings, a cemetery, the sheriff’s department, and a highway.

To determine whether the Class 32 categorical exemption for infill development applied to the Grocery Outlet project, the court analyzed the language of CEQA Guidelines section 15332. The court, applying traditional rules of statutory interpretation, emphasized that the plain language of regulations governs their interpretation unless ambiguity necessitates further analysis. In this case, the court found the language of section 15332 straightforward and declined to incorporate definitions from other CEQA provisions. The court noted that different terms used in various parts of CEQA suggest different meanings were intended, and the absence of specific definitions in section 15332 confirmed the regulators’ intent to apply the exemption broadly to appropriate projects.

To address the potentially ambiguous terms “in-fill development” and “substantially surrounded by urban uses” in section 15332, the court examined the intent of the Natural Resources Agency, which developed the regulation. During its drafting, the agency identified the primary purpose of the infill exemption as addressing urban sprawl. The exemption was designed to encourage development within existing urbanized areas, reduce reliance on vehicles, and preserve farmland, aligning with broader CEQA goals to mitigate environmental harm while supporting sustainable growth. The regulatory intent guided the court’s interpretation of section 15332, emphasizing its applicability to projects like the Grocery Outlet that fit within urban contexts, regardless of specific population thresholds.

Environmental Assessment Analysis

In addition to disputing the applicability of the Class 32 exemption, Working Families argued that the environmental assessment prepared for the project failed to adequately evaluate the impact of increased traffic on air quality, particularly the potential human health impacts to project users due to the project’s proximity to Interstate 101. The court declined to address this argument, underscoring that once a project qualifies for a categorical exemption under CEQA, it is not subject to further environmental review requirements, including the preparation of an environmental impact report.

Conclusion

The court’s decision in this case confirms that CEQA’s Class 32 exemption for infill development applies broadly without requiring the application of specific population thresholds or strict urbanized definitions. In doing so, this decision highlights the efficiency of the exemption process for appropriate infill projects and supports local agencies in making streamlined land use decisions.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]