CEQA: A Year In Review

1. CEQA: A Year In Review Presented By: Lori D. Ballance Gatzke Dillon & Ballance LLP Prepared For: Assn. of California Airports 2013 Fall Conference

2. Legislative CEQA Reform

3. September 13: Last day for legislative action on bills. • Prognosis: No meaningful, pro-lead agency improvements for the processing of CEQA documents or resulting legal challenges. • Still proceeding by way of legislative carve outs for “special” projects (e.g., proposed exemption for Sacramento Kings arena). CEQA Reform

4. What’s missing? • Specialized CEQA compliance courts. • Law protecting lead agencies from “late hits.” • Is there any good news? • Multiple efforts to overturn the Ballona decision (which held that there is no requirement to analyze impacts of the environment on a project) appear to have stalled. • Likely to be subject to further judicial scrutiny another day. CEQA Reform

5. What’s left? • SB 731 – Attempts to create streamlining benefits for transit-oriented infill development. • Also presently contemplates adoption of amendments to the CEQA Guidelines requiring the translation of certain notices. • Also presently contemplates adoption of guidance regarding economic displacement impacts. • AB 52 – Problematic bill contemplating protections for newly defined “tribal resources.” CEQA Reform

6. Office of Planning & Research

7. March 2013 - The Governor’s Office of Planning and Research, in conjunction with the Council on Environmental Quality, released a draft guidance document titled, “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” OPR’s NEPA & CEQA Guidance

8. Summer 2013 – The Governor’s Office of Planning and Research sought input from interested stakeholders on amendments to the State CEQA Guidelines relative to mandatory updates (fire hazards; GHGs), process improvements, substantive improvements, and technical/non-substantive changes. • Suggestions were due August 30, 2013. • Rulemaking process to follow. OPR’s Input Solicitation

9. Case Law Developments

10. Primary Holding: Lead agency has discretion to exclusively use a future baseline if the existing conditions baseline would result in a misleading analysis or one without informational value. • Positive implications for traffic, air quality, and greenhouse gas analyses. Case No. S202828 Smart Rail Decision

11. Primary Holding: Use of project-specific significance thresholds does not violate CEQA, and does not require formal agency adoption. • Appendix G is not the be all, end all. Case No. B233318 Save Cuyama Valley Decision

12. Primary Holding: No requirement to conduct CEQA review prior to adoption of CEQA thresholds of significance. • Interpreting CEQA Guidelines section 15064.7; • Impacts of thresholds were too speculative and not reasonably foreseeable; • Declined opportunity to address whether thresholds require Ballona-esqueconverse CEQA analysis (i.e., evaluation of impacts of the environment on the project). Case No. A135335 CBIA v. BAAQMD Decision

13. Primary Holding: Pre-approval communications between lead agency and project applicant are not privileged, and properly part of administrative records prepared in connection with CEQA litigation. Case No. F065690 Citizens for Ceres Decision

14. Primary Holding: Under the Brown Act, a local agency contemplating project approvals and CEQA certifications must disclose both items on the agenda. Case No. F064930 San Joaquin Raptor Decision

15. For more information, contact: Lori D. Ballance lballance@gdandb.com 760.431.9501