United States: State Agencies Can’t Say CEQA Mitigation Is Infeasible If Earmarked Funds Are Unavailable, High Court Says

by Kenneth Kecskes : realestatecounsel – excerpt

When environmental review of a proposed development project by a state agency shows that it will have traffic impacts, a state agency is not allowed to nevertheless approve the project on the grounds that the funds needed to mitigate congestion have not been earmarked by the Legislature, the California Supreme Court has held.

The court’s recent unanimous decision in City of San Diego v. Board of Trustees of the California State University is significant for two important reasons.  First, it is now clear that state agencies cannot shift the costs of off-site environmental mitigation of their projects to local and regional governments, except in very limited circumstances.  Second, the use of a “statement of overriding considerations” by the legislative body of a lead agency will not be given deference by the courts if potential mitigation measures are not “truly infeasible.”…

… if the Legislature did not make an earmarked appropriation for specific environmental mitigation, the Board of Trustees argued that it could take the position that mitigation was infeasible and the Board of Trustees could adopt a statement of overriding considerations and approve the project.  A “statement of overriding considerations” is a legal tool under the California Environmental Quality Act (“CEQA”) that allows a reviewing public agency to approve a project because it offers non-environmental benefits that outweigh its unmitigated significant environmental effects…

CEQA is not only a procedural statute.  Many provisions of CEQA have as their focus the preparation of environmental documents to inform the public and decision makers of the significant environmental impacts of proposed projects.  However, as this case makes clear, CEQA’s “substantive” limitations on the powers of state agencies and local legislative bodies to make decisions should not be overlooked…  (more)

RELATED:

California Supreme Court Holds that State Agencies May Not Escape CEQA Mitigation Requirements Based on Failure of the Legislature to Appropriate Mitigation Funds :  In a decision that enhances the ability of local interests to obtain mitigation funds from state agencies, the California Supreme Court held that the California Environmental Quality Act (“CEQA”) requires the Board of Trustees (“Board”) of the California State University (“CSU”) to mitigate the cumulative traffic impacts of a campus expansion project where the Legislature had not appropriated funds to pay for the traffic mitigation… (more)

California Supreme Court Could Stop Bullet Train : The California Supreme Court threw a giant obstacle on the California bullet train’s track, ruling that the state agencies cannot escape the state’s environmental laws by claiming federal laws supersede them… (more)

Bullet train: Calif. enviro law does not apply

Bullet train: Calif. enviro law does not apply

By JULIET WILLIAMS, Associated Press : greenwichtime.com – excerpt

SACRAMENTO, Calif. (AP) — California’s high-speed rail project is no longer subject to the state’s rigorous environmental laws after a federal transportation board ruled that it has oversight of the project, the state attorney general’s office argues in a brief filed Friday.
The June decision by the federal Surface Transportation Board — which was sought by opponents of the bullet train — pre-empts the authority of the California Environmental Quality Act, the state argued in the filing made on behalf of the California High-Speed Rail Authority.
“The STB’s decision concluding it has jurisdiction over the entire high-speed train system fundamentally affects the regulatory environment for the project going forward,” the state said in the brief submitted to the Third District Court of Appeals, which was obtained by The Associated Press.
Opponents of the project could lose one of their most significant legal tools if a federal judge agrees with the state’s argument. Critics of the rail line have repeatedly sued the state alleging violations of Environmental Quality Act.
The state asked the court to dismiss a five-year-old lawsuit filed by the San Francisco Bay Area cities of Atherton, Menlo Park and Palo Alto seeking to block the bullet train through the Pacheco Pass south of San Francisco. They argued that the route would harm the environment.
A Sacramento County Superior Court judge dismissed their suit in February but they appealed to the federal court, which last month ordered both sides to answer the question “Does federal law pre-empt state environmental law with respect to California’s high-speed rail system?”.
The $68 billion project will have to comply with stringent environmental laws regardless of the court’s decision in the Atherton lawsuit. But if the court sides with the state, it would mean complying only with the National Environmental Policy Act, and any lawsuits would have to be filed in federal court… (more)

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