Freight Rail Fight Could Impact Calif. High-Speed Rail Project

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AN FRANCISCO (CN) – An impending decision by the California Supreme Court over whether the state or federal government has jurisdiction in railway decisions could have major implications for the Golden State’s high-speed rail project.

The justices heard oral argument by the North Coast Railway Authority, which argued the federal government’s decision to allow freight service to resume on a 316-mile line that runs through northern counties outweighs the state’s environmental rules under the California Environmental Protection Act.

“Federal courts have universally ruled that open-ended pre-clearance processes like CEQA are preempted by the authority of federal regulators,” said Andrew Sabey, attorney for Northwest Pacific. The railroad operates the freight trains that traverse through Sonoma, Humboldt and Mendocino counties…(more)

2017 CEQA 1st QUARTER REVIEW

By : aklandlaw – excerpt

By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2017 1st Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts…(more)

Read the cumulative CEQA review and pending cases at the California Supreme Court.

Supreme Court Grants Review in Medical Marijuana Case Presenting CEQA “Project” Definition Issues

by Arthur F. Coon : jdsupra – excerpt

On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.4th 103, Supreme Court Case No. S238563.

The issues presented in plaintiff and appellant’s Petition for Review are:

  1. “Is amendment of a zoning ordinance an activity directly undertaken by a public agency that categorically constitutes a “project” under CEQA?
  2. Is a [sic] “the enactment of a law allowing the operation of medical marijuana cooperatives in certain areas of a municipality under certain conditions is [sic] the type of activity that may cause a reasonably foreseeable change to the environment,” categorically?”… (more)

California Supreme Court Shifts Gears on “Reverse CEQA”

by Garret Murai : jdsupra – excerpt

The California Supreme Court has shifted gears on so-called “reverse CEQA” under the California Environmental Quality Act (“CEQA”).

The Supreme Court, in a much-anticipated decision, in California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015), held that public agencies subject to CEQA are not required to analyze whether existing environmental conditions may impact a proposed project’s future users or residents – also known as “reverse CEQA” or “CEQA in reverse” – as opposed to the more traditional analysis of a proposed project’s impact on the environment, unless:

  • The proposed project risks exacerbating existing environmental hazards – in which case, it is the proposed project’s impact on the environment not the environment’s impact on the proposed project, which compels the evaluation; or
  • A reverse CEQA analysis is already required under statute, for example, on certain airport, school and housing projects…

Conclusion

While the Supreme Court’s decision clarifies, at least partially (the “exacerbation of existing environmental hazards” exception may lead to its own interpretive disagreements), when a public agency is required to conduct a “reverse CEQA” analysis, the Court noted in a footnote that CEQA does not “prohibit an agency from considering – as part of an environmental review for a project it proposes to undertake – how existing conditions might impact a project’s future users or residents” (emphasis in original). So, is the decision just a pyrrhic victory for developers? We’ll have to see…(more)

 

 

California Supreme Court Rejects Mandatory “Reverse CEQA” Analysis

By Heather S. Riley : allenmatkins – excerpt

The California Supreme Court issued its long awaited opinion yesterday in California Building Industry Association v. Bay Area Air Quality Management District (CBIA v. BAAQMD), commonly referred to as the “Reverse CEQA” case. Read the full decision.

The Supreme Court’s opinion upholds four published CEQA decisions and rejects the so-called “reverse CEQA” argument, which would require an analysis of the “impact of existing environmental conditions on a project’s future users or residents” for every proposed development project in California. The Court held – based on the plain language of CEQA – that a lead agency must analyze the impact of existing environmental conditions on a project only for certain airport, school, and housing construction projects and when a proposed project “risks exacerbating” existing “environmental hazards or conditions.”

Opponents of development have often advanced the reverse CEQA argument as a back-up claim in case their substantive claims fail. The Supreme Court not only took on the issue, thereby limiting the circumstances under which the opposition can make such a claim, but the Court also disputed the “reverse CEQA” nomenclature as “misleading and inapt.”

The Supreme Court’s decision is good news for the development community. However, there have been recent efforts to enact legislation that would statutorily recognize the reverse CEQA argument. It would not be surprising if the CBIA v. BAAQMD decision sparks renewed efforts on that front in Sacramento…(more)

RELATED:
California Supreme Court Rejects Mandatory “Reverse CEQA” Analysis Supreme Court Reaffirms Scope of CEQA Analysis in California Building Industry Association (CBIA) v. Bay Area Air Quality Management District (BAAQMD)

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)

8 Washington Backers Appeal One Decision Today, But Won’t Argue Another

hoodline – excerpt

BIG WIN FOR THE CITIZENS OF SAN FRANCISCO!

In news for watchers of the 8 Washington saga, the proposed condo development’s backers have decided not to appeal a recent big decision against them. Read on for the nitty-gritty in the latest installment of the contentious battle over Seawall Lot 351’s future.

Susan Brandt-Hawley, the attorney representing Defend Our Waterfront, a coalition of groups opposed to the project, told the court during a hearing today that the developers of 8 Washington and the Port of San Francisco won’t appeal a decision saying the environmental impact review (EIR) for the entire project is invalid. The California Superior Court ruled the EIR wasn’t legal because a traffic study was inadequate (more)

Court: Cities can force developers to include affordable housing

By Stephen Frank : capoliticalreview – excerpt

Central Valley Business Times

Supreme Court upholds San Jose ordinance
Could impact nearly 200 California cities immediately
Housing developers can be required by cities to include a percentage of their homes for low- or moderate-income buyers, the California Supreme Court says.
The ruling upholds a Court of Appeal decision that backed the city of San Jose, which had been challenged by the California Building Industry Association.
“The conditions that the San Jose ordinance imposes upon future developments do not impose exactions upon the developers‘ property so as to bring into play the unconstitutional conditions doctrine under the takings clause of the federal or state Constitution,” says the unanimous Supreme Court ruling Monday. “Furthermore … an in lieu monetary fee that is imposed to mitigate a particular adverse effect of the development proposal under consideration — the conditions imposed by the San Jose ordinance at issue here do not require a developer to pay a monetary fee but rather place a limit on the way a developer may use its property.”
Noting that the problem of finding affordable housing in California has become worse over the years, the state’s highest court says the city had a constitutionally legitimate reason to use the ordinance to increase “the number of affordable housing units in the city in recognition of the insufficient number of existing affordable housing units in relation to the city‘s current and future needs” and assure “that new affordable housing units that are constructed are distributed throughout the city as part of mixed-income developments in order to obtain the benefits that flow from economically diverse communities and avoid the problems that have historically been associated with isolated low income housing.”
The ruling is expected to have wide-ranging impact as nearly 200 California cities have adopted some form of the San Jose ordinance… (more)

California Supreme Court to Decide Major CEQA, Climate Change Case

California Supreme Court to Decide Major CEQA, Climate Change Case

By : legal-planet – excerpt

Justices’ Latest Grant of Review Continues Supreme Court’s Focus on Environmental Law

The California Supreme Court on Wednesday granted review in an important case at the intersection of the California Environmental Quality Act (CEQA) and one of the state’s most important climate change laws.  The case, Cleveland National Forest Foundation v. San Diego Association of Governments, is the latest in an unprecedented series of CEQA cases taken up by the Supreme Court.  It’s also the justices’ first opportunity to confront the important legal and policy issues presented by the landmark 2008 climate change legislation popularly known as SB 375.

SB 375, formally titled the Sustainable Communities and Climate Protection Act of 2008, for the first time links California regional transportation planning and funding with state land use regulation and planning–the ultimate goal being to reduce greenhouse gas (GHG) emissions from California’s transportation sector, the state’s single largest source of those emissions.  The legislation does so by requiring each of the state’s regional transportation agencies to incorporate a “sustainable communities strategy” (SCS) into its periodically updated regional transportation plan.  SB 375’s objective is to incentivize more sustainable land use and transportation practices, thereby reducing California’s aggregate GHG emissions…

Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act?…  (more)

High-Speed Rail Takes Two More Swipes at CEQA

High-Speed Rail Takes Two More Swipes at CEQA

By Kathy Hamilton : pulbicceo – excerpt

This is the second in a series of articles updating the status of the California high-speed rail project in the wake of the California Supreme Court green-lighting bond funding. The first article covered two earlier attempts by the California High-Speed Rail Authority to get around the California Environmental Quality Act. This article covers two more attempts…

In his 2013 State of the State address, Gov. Jerry Brown quoted “The Little Engine That Could”: “I think I can. I think I can.”

One thing the California High-Speed Rail Authority, which runs the project, thinks it can do is get around the California Environmental Quality Act. As noted in the first article in this series, it started with two attempts:

  • Attempt 1: During the California Legislature’s closing days in August 2012, the CHSRA tried to pass more lenient measures to comply with CEQA. The Legislature didn’t cooperate.
  • Attempt 2: In June 2013, the CHSRA filed a request with the 3rd District Court of Appeal in the city of Atherton’s suit against the project. The CHSRA wanted the court to recognize the federal pre-emption of jurisdiction, getting around state laws, such as CEQA. The court refused.

Attempt 3: De-publication…
Attempt 4: the Surface Transportation Board…

Originally posted at CalWatchdog... (more)

 

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