St. Helena City Council
May 1, 2023

34 | Copyright © 2015 Holland & Knight LLP All Rights Reserved including an “addendum” process for adding new information to an EIR. All EIRs are grouped together for purposes of this study.

Notwithstanding the fact that projects that undertake EIRs get the most elaborate and comprehensive levels of study and public review, they are also the “big” projects that are far more likely to attract a CEQA lawsuit: 52% of challenged CEQA projects involve EIRs. Often-passionate local disagreements about the merits of whether to proceed with the project at all (e.g., for solar and transit projects, and higher-density urban infill projects), and equally determined efforts to secure project labor agreements or delay competitors, play out in CEQA lawsuit challenges that are legally framed as EIR deficiencies, such as alleged problems with traffic or air quality technical calculations.
• A Negative Declaration may only be used for a non-exempt project for which there is no “fair argument” in the agency record that one or more significant adverse impacts “may” occur. A small project that does not qualify for a Categorical Exemption most often proceeds with the Negative Declaration compliance track.

However – particularly in urban areas with existing environmental challenges like traffic congestion and traffic-related air pollution, or infrastructure challenges relating to water or wastewater, or temporary but bothersome construction noise or traffic diversion impacts – defending a Negative Declaration can be almost futile. Less than a quarter of CEQA lawsuits challenge Negative Declaration CEQA documents.
• A project may be wholly or statutorily exempt from one or more of CEQA’s procedural or substantive projects by the Legislature (subject to the Governor’s approval).
• “Regulatory categorical exemption” applies to projects which “normally” do not have any significant adverse impacts, and which fit within the parameters of one of more than 30 exemption “classes” included in the regulations implementing CEQA. • The common sense “exemption” from CEQA arose from judicial interpretations of the CEQA statute, and is also reflected in CEQA’s regulations.

Agencies are encouraged, but not required, to complete CEQA paperwork for projects that are exempt from CEQA under a statutory, categorical, or common sense exemption. CEQA petitions that alleged that agencies completed no CEQA documents were separately tallied for this study, although from our interviews we learned that the agency had concluded that the challenged project qualified for one or more exemptions.

Sometimes agencies used multiple CEQA compliance tracks, including, for example, processing a project with both an Addendum (based on an earlier EIR for an earlier version of the project or for a land use plan) and a Negative Declaration that provided an additional increment of public review processing. In these few cases, the study tally included each compliance track, and this resulted in more tallied CEQA compliance tracks than projects.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 35 While statewide statistics are not compiled on the number of EIRs, Negative Declarations and exemption decisions made annually, there are far fewer EIRs prepared relative to the other CEQA compliance tracks. Nevertheless, EIRs are most frequently challenged and thus a higher percentage of EIRs are challenged than other forms of CEQA documents. As one of the defenders of CEQA’s litigation status quo indeed reported, for Los Angeles, “all the big projects are sued.”82 This study confirms that big projects with EIRs get sued most often under CEQA, and shows that CEQA lawsuits are used far more often to nitpick the analytical adequacy of an EIR than to challenge the environmental analyses (or lack thereof) in Negative Declarations or exemption determinations.

As one of the defenders of CEQA’s
litigation status quo reported, for
Los Angeles, “all the big projects are
sued.” This study confirms that big
projects with EIRs get sued most
often under CEQA.

Agenda Item #5.1.

36 | Copyright © 2015 Holland & Knight LLP All Rights Reserved PART 2
CEQA Lawsuit Targets – The Stories Behind the Statistics Comprehensive study statistics tell only part of the CEQA litigation story. Reviewing actual CEQA petitions filed against real projects paint a more vivid picture of the all-too-frequent (and nonenvironmental) abuse of CEQA as do media and other reports of CEQA administrative appeals seeking to derail projects before final agency approval. These examples illustrate fundamental and sometimes passionate disagreements about the appropriate land use or other policy decision at issue, but none involve avoiding the type of harm to “the environment” envisioned when CEQA was enacted in 1970.

Comprehensive study statistics
tell only part of the CEQA litigation
abuse story. Reviewing actual CEQA
petitions filed against real projects
paint a more vivid picture of the alltoo-frequent non-environmental (and anti-environmental) abuse of CEQA.

It is also important to recognize that all of the challenged CEQA projects have already run the gauntlet required to secure lead agency approvals: only approved projects can be sued under CEQA. This approval gauntlet can include bruising and protracted public debates in community meetings, at the Planning Commission, City Council or County Board of Supervisors, and even at the ballot box among the voters in a community. Many CEQA lawsuits, especially NIMBY and labor lawsuits, are filed by the losers in these political battles – and use CEQA litigation as the final leverage they have available to overturn the decision that emerged from the democratic process.

Because the act of filing a CEQA lawsuit is enough to block most forms of private and public sector funding, the stakeholders and public agency decision-makers who supported the project then lose (permanently or for the period that the lawsuit is pending) the benefits promised by the project.

Some examples of CEQA litigation in action illustrate that even lawsuits filed for “environmental” purposes involve policy disagreements, not the extent to which the “environmental” impacts of an approved project have been appropriately studied and mitigated.
• Stop Affordable Housing in Silicon Valley – Let’s Make a Free Farm Instead. A Santa Clara infill site located
next to a major transit center and regional mall, and
bordered by single-family homes, illustrates the democratic decision-making process – and the community’s loss of
an important project benefit due to a CEQA lawsuit.83 The site was formerly a small experimental farm owned by
the Regents of the University of California. The Regents determined that the site was no longer suitable for this use, and embarked on a planning and development process with extensive community stakeholder engagement. Ultimately
the majority of the community favored redevelopment with three components: single-family homes adjacent to the
existing single-family homes in the neighborhood, a new neighborhood park for use by local residents, and critically needed market-rate and affordable apartments for seniors.

A small but passionate group opposed this plan and instead lobbied for an urban farm that would produce food and
provide hands-on farm education in Santa Clara. They had no money to purchase this public property for their desired use, and instead they wanted the cash-strapped UC system to dedicate this surplus property to non-profit urban farming uses. The urban farming advocates unsuccessfully filed
administrative appeals to block the city’s project approval, and ultimately – and again unsuccessfully – attempted to reverse the project approval through a citywide referendum vote on the project. The group also filed a CEQA lawsuit, which the courts ultimately concluded had no merit.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 37 During the several years that the lawsuit remained pending, the senior housing project first lost critically needed public grant funding, and ultimately lost crucial redevelopment agency funding. About a decade later, the components of the project that remained financially viable – single-family homes and a new neighborhood park – were completed, but the senior project remains derailed by funding shortfalls. The site was never destined to be an urban farm: even had the CEQA lawsuit been successful, the Regents and city would have simply corrected the CEQA study and re-approved
the project. In the heart of Silicon Valley – one of the most jobs-housing imbalanced areas of California, where lengthy commutes and costly housing are both norms – seniors who may have voluntarily sold their homes if they could stay in town (thereby making existing homes available for purchase by families) lost. So did seniors in need of scarce affordable housing, and hundreds of families with seniors in need of quality local housing with senior support services. And the people who would have built and staffed the senior housing center lost, too.84
This case and others described below help illustrate how a CEQA lawsuit can be used to attempt to thwart the democratic process. In this case, the project was obstructed by passionate opponents who could not persuade The Regents to donate state-owned lands for non-economic uses, could not persuade the city to restrict authorized site uses to urban agriculture instead of housing for seniors and families and a new neighborhood park, and could not persuade the voters to overturn the city’s decision to approve the project.

To the extent that CEQA was intended to prevent agencies from approving projects that are harmful to the environment, this and other cases demonstrate that this is simply not the objective of most CEQA litigants today. This part of our report illustrates a sample of the projects behind the statistics, along with projects that did not even make it into the study statistics because the project was killed or withdrawn or never started because of CEQA’s inherently unpredictable, lengthy and costly pattern of litigation abuse for any purpose, by any party.

A. Public Agency Projects
As depicted in Figures 1 and 9, about half of CEQA lawsuits target public agency projects, plans or regulations and involve no private sector applicant, resulting in CEQA’s compliance and litigation costs and risks being borne solely by taxpayers.85 It is critical to understand that the cost of CEQA lawsuits is not simply paying attorneys and experts to defend the lawsuit. Once a CEQA lawsuit has been filed (often for well under $10,000 in court filing fees), even if the agency is ultimately determined (after 2-5 years or more of trial and appellate court proceedings) to have complied with CEQA, taxpayers can suffer hundreds of millions of dollars of increased costs. As recently reported by the San Diego Union Tribune:
“[Petitioner Attorney] is big on suing local governments. He has sued San Diego many times. Sometimes he wins, as
when he challenged the financing scheme for the expansion of the downtown convention center. Sometimes he accepts financial settlements. Often, he loses. But even when he loses it can cost taxpayers big time. [Petitioner Attorney] sued San Diego last year, twice, seeking to block a $120 million bond issue the city planned for street repair and other infrastructure. He lost the first suit and the second suit never got to trial. The city finally sold the bonds last week, attracting significant investor interest and raising all the cash the city wanted. But because [Petitioner Attorney] appealed the ruling in his first suit, and even though he will likely lose that too, the city had to pay a higher interest rate to the investors,

4.04% compared to the 3.8% that had been estimated. The difference in interest rates will mean an estimated $200,000 a year in additional debt service. For 30 years total, some $6 million. Thanks, [Petitioner Attorney].”86
It is critical to understand that the cost of CEQA lawsuits is not simply paying attorneys and experts to defend the lawsuit. Once a CEQA lawsuit has been filed (often for well under $10,000 in court filing fees), even if the agency is ultimately determined to have complied with CEQA, taxpayers can suffer hundreds of millions of dollars of increased costs.

Agenda Item #5.1.

38 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Taxpayers can suffer major financial losses even from threatened CEQA lawsuits. For example, a critical part of the $1.4 billion improvement project to construct a carpool lane and related improvements along a 10-mile stretch of Interstate 405 over the Sepulveda Pass required the replacement of an overpass at Mulholland Drive. A multi-year EIR had been completed to address scores of community concerns – but a small group of wealthy neighbors near the overpass raised aesthetic objections to the overpass design, and wanted a “world class architect” hired to build a prettier overpass. Fighting the neighbors’ threatened CEQA lawsuit would have resulted in the loss of critical federal funding and hundreds of construction jobs during the depths of the Great Recession – even if the adequacy of the EIR was ultimately upheld after several years of litigation. Therefore, the agency chose to cave in, and built a modified bridge design that not only caused taxpayers millions of additional dollars, but also required two weekend closures of Interstate 405, which is one of the busiest highways in California.87 Taxpayers can suffer major financial
losses even from threatened
CEQA lawsuits.

Figure 9: CEQA Petitions Targeting Taxpayer/Ratepayer Projects Public Services/
Infrastructure
35%
Agency Plans/
Regulations
31%
Water
14%
Parks
9%
Schools/Colleges/
Workforce Training
10%
Agency Property
Management
1%
Taxpayer costs tell only a small part of the CEQA litigation abuse story: CEQA lawsuits hurt real people, with real needs, for nonenvironmental reasons.

Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 39

1. Schools, Colleges, and Workforce Training
Projects
The 2010-2012 study period saw public school funding plunge during the Great Recession.88 Only limited federal and state funds were available for school capital projects (and public funding is most often unavailable for projects caught up in litigation), and operating budgets were reduced to near-crisis levels. Thirty-one CEQA lawsuits were filed against schools during the study period: 55% targeted K-12 projects, and the remainder targeted college and adult education training projects. Just over 90% of the petitions challenged schools in infill locations, with the vast majority of those lawsuits targeting renovations or expansions of existing campuses.89 Almost all school challenges were filed by neighbors objecting to increasing the utilization of existing school facilities. As discussed in detail below, converting an elementary school to a middle school, adding nighttime lighting or artificial turf to school playfields, or objecting to the construction or expansion of a school, led the litany of claims against K-12 schools. A sample of filed and threatened lawsuits against K-12 school projects follows:
• Everybody Hates Middle School. El Cerrito, a small city in the East Bay, is served by the West Contra Costa School District, which covers several cities and has a substantial student population meeting the poverty criteria required to qualify for free or subsidized lunches, a large population of students for whom English is not their first language, and other challenges common to urban school districts.

The middle school serving El Cerrito was determined to be directly above an earthquake fault, and was required to be relocated. The district examined its options, and concluded that a former elementary school (mostly idled) located a short distance away from the middle school was the most suitable alternate location for the relocated middle school.

The district completed the CEQA document required for
the relocation of the students and reuse of the elementary school site, and – facing a statutory deadline for vacating the seismically unsafe middle school, and an expiration date for funding demolition – demolished the existing
middle school and placed students in temporary trailers on the playground for the few months required to complete
the relocation. Several years later, the students remain in trailers – victims of a CEQA lawsuit filed by neighbors of the elementary school who adamantly opposed converting their idled elementary school campus to a middle school. The
alleged environmental harms were the usual NIMBY litany of traffic congestion and traffic-related air quality and noise, but there were also stark (and unstated, in public debate) demographic contrasts between the mostly older, white NIMBY neighbors and the young, diverse affected students.90
• Keep Schools Vacant on Nights and Weekends. Renovations to an elementary school that included a “multi-purpose
room” – a staple of modern school construction on smaller campuses that often combines a cafeteria and an assembly space – were opposed by a passionate group of Mill Valley parents who were concerned that the multi-purpose room
would be used for “other” purposes – disturbing the otherwise vacant schoolrooms during bucolic evenings or weekends in the tony Marin County suburb. The settlement cost paid by the challenged school district: more than $100,000, including more than $60,000 paid to the NIMBY group’s lawyer.91
• Too Much Physical Education. The single-largest category of CEQA lawsuits against K-12 schools during the study
period challenged installation of turf and lighting to increase use of existing sports fields.92 Athletic facilities in many school districts pre-date the landmark civil rights legislation that ushered in today’s era of girls’ athletics, and increasing density – and student populations – in urban areas also exceeds the seasonal, daytime hours of availability for traditional turf fields. Add in two more layers of increased land use efficiency – “joint use” of school athletic facilities for youth and adult leagues who typically pay fees to cash-starved school districts, and national and state policy to encourage physical exercise as part of wellness and anti-obesity
initiatives – and the result is clear: we must safely increase use of school sports fields. For neighbors facing increases in evening noise levels, and neighborhood parking shortfalls and traffic congestion, these national, state and regional imperatives unfairly burden their neighborhood and families, and spawned numerous CEQA lawsuits.

With neighbors lined up against kids in team uniforms, the politics of these disputes are tough. But should California’s signature environmental statute be the costly, multi-year final battlefield for neighborhood opponents with the resources to immediately derail time-limited funding? Should these neighbors be able to persuade the judiciary to upend the school’s decision because one expert asserts that the school’s experts did the traffic count or noise study incorrectly? Since most of these playfield upgrades were processed with a CEQA Negative Declaration or Categorical Exemption, one expert that disagrees with the school’s expert can be enough to derail these projects93 since CEQA generally requires only a “fair argument” that the playfield upgrades “could” cause even one significant adverse impact (aesthetic, noise, traffic, parking, Agenda Item #5.1.

40 | Copyright © 2015 Holland & Knight LLP All Rights Reserved disruption of the “character of the community”). A lawsuit loss for the school typically remains in a vacated project approval pending a full EIR costing hundreds of thousands of dollars.

And the playfield upgrade battle is fought in the name of “the environment.”94
Challenges to adult education were also most often attributed to neighbor concerns about increased utilization or changes to existing campus facilities. A sample of workforce training projects targeted in filed and threatened CEQA lawsuits follows:
• Preserve My Closed Landfill, Not Workforce Training for Critical Local Jobs. In Los Angeles, goods movement – the logistics of moving products to and from the huge regional ports in Los Angeles and Long Beach – comprises over
20% of the Southern California economy. The Los Angeles/ Long Beach (LA/LB) port complex primarily handles shipping packed in metal containers that automate the cargo loading and unloading processes. The complex is the largest port in the Western Hemisphere, and the ninth-largest port in the world.95 Approximately 40% of all U.S. container trade, with a cumulative value of approximately $400 billion, passes through the LA/LB ports.96 The LA/LB port complex is one of the most important economic engines in Southern California and in the state. Based on estimates published by the ports, trade through the LA/LB complex accounts for approximately

1.2 million jobs, or 15% of total employment in Los Angeles, Orange, San Bernardino, Riverside and Ventura counties.

Port trade also generates nearly 1.6 million jobs, or 9% of total California employment, as shown in Table A below.

The LA/LB ports stimulate regional and state transactions and wages that contribute to the state’s gross domestic product (economic output) and generate significant state and local tax revenues. Port data indicates that trade through the LA/ LB complex produces approximately $116 billion in economic value to the state, including spending for port industry services, port-related transportation, and spending by import and export businesses. This level of economic activity is approximately

5.6% of the total state economic output (approximately
$2 trillion). The ports also generate approximately $11 billion in state and local tax revenues per year, or about 11% of the state’s total general fund expenditures ($100.7 billion) in 2013.98
Truck driving jobs in the goods movement sector are a major employment opportunity in the region, especially for adults lacking high school diplomas or strong English skills. A paved, closed landfill in the City of Los Angeles provided a perfect location for a truck driving training facility: it was proximate to transit service and candidate students from economically disadvantaged nearby areas, and could supply trained drivers to the region’s ports.99 Incensed neighbors, who had worked for years to finally shut down the landfill, objected to this training facility and insisted that there be no new uses on the paved landfill (primarily using the same “environmental” reasoning of traffic and air quality impacts, as well as noise from traffic).

Neighbors lost their case with the LA City Council, but defeated the project (and its Latino sponsor) in a CEQA lawsuit. Once the CEQA lawsuit was filed, the all-important federal funding source was compromised, and this workforce housing project died.100 Table A: Regional and State Employment Generated
by Trade Through the Los Angeles and Long Beach Ports97 Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved Five-County Region California
Port of Los Angeles 896,000 1,200,000
Port of Long Beach 316,000 371,000
Total LA/LB Ports 1,212,000 1,571,000
Total Employment 8,091,000 17,200,000
Percent LA/LB
Trade-Related Employment 15% 9%
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 41 • Stop Jobs in Imperial County. According to the U.S. Bureau of Labor Statistics, Imperial County’s unemployment rate in March 2015 was 19.9 %, compared to California’s 6.5%
statewide unemployment rate in the same month.101 Imperial County has land – almost 5,000 square miles – and approved using less than 500 acres for a law enforcement training facility that would create 200 jobs serving students from California and other states. The training facility’s sponsor also volunteered to permanently preserve more than 550 acres – about 60% of the school site – as permanent open space.

The project came to the attention of the same Marin County attorney who was filing CEQA lawsuits against Imperial’s solar projects (discussed below), along with a local tribe. Even though a full EIR had been prepared, the sponsors lacked the financial resources to pay to defend the lawsuit (and risk being held liable for the Marin County attorney’s legal fees).

The project was dropped in 2011, when annual statewide
unemployment averaged over 11% and Imperial County was
suffering a whopping 29.1% annual unemployment rate.102 The final category of school projects – colleges – tell a more diverse but now-familiar story.
• Old Fight, New Tactics: Town-Gown Conflicts and
CEQA. Community colleges, California State University,
and the University of California systems are not subject to local government land use permitting or mitigation fee requirements, and disputes between “town” and “gown”
over campus projects (and campus contributions to local services provided by the town) have periodically flared up before and after CEQA’s 1970 enactment. CEQA lawsuits
provide a judicial opportunity to leverage more favorable local government outcomes for these “town-gown” disputes.

Two of these (involving Cal State East Bay103 and San Diego State104) are now pending at the California Supreme Court, and involve the determination of the extent to which CEQA requires mitigation for increased demands on police and transit services, as well as the extent to which CEQA can require a public university to raise or divert private funds for CEQA mitigation (instead of scholarships or other educational support purposes) after the California Legislature has declined to approve budgets authorizing universities to pay for these local agency services.

The appellate court came down squarely against Cal State San Diego, concluding that CEQA’s mitigation mandates
trumped the University’s authority to elect how to spend private donations and public grant funds, and also trumped the decisions of the Legislature and Governor in allocating taxpayer funds to colleges and local governments.105
The appellate courts also extended CEQA’s exceptionally elastic definition of “the environment” to recognize as “impacts” requiring mitigation, student use of regional trails (Hayward campus)106 and transit services (San Diego campus). These cases have remained pending for several years, and there is no deadline by which the Supreme Court must reach a decision.

Available funding for campus projects is gone or remains at risk of being redirected to less litigious campus communities.

Community colleges were also targeted by CEQA lawsuits during the study period, including expansions proposed on several campuses with time-limited and competitive state or federal funding, but involved NIMBY rather than host city challenges.107 All challenged public college projects involved construction activities limited to “infill” locations on existing campus properties that are expected to increase student populations and efficient use of campus facilities.

Private colleges had their share of CEQA lawsuits, although the study period included the recession, when smaller donations meant fewer campus projects. Two examples from Los Angeles tell startling tales of CEQA litigation abuse:
• Keep that Parking Lot Quiet. Emerson College proposed to build a small satellite campus on a tiny (0.85 acre) slice of Hollywood used for surface parking; the vertical project would include classrooms, dorm space, and apartments
for four faculty members. An adjacent music studio
asserted that the construction noise would drive them out of business, but refused to provide access for noise study experts who could evaluate the problem and find a solution.

The college ultimately prevailed (a year later) after a costly lawsuit, and the project was completed.108
• Conquest Housing – the Self-Described “Al-Qaeda of
CEQA” – Tries to Conquer All. The University of Southern California is perched on the edge of downtown Los
Angeles, and has substantially grown in prestige, donations, students – and demand for student housing. Adjacent
communities have objected to the “gentrification” of scarce affordable housing by university students who can pay
higher rents, and USC responded with a commitment to
prioritize construction of new student housing on university property, including a site located across the street from a new regional transit station. USC sought bids from qualified urban housing developers, and chose Urban Partners to
complete the EIR and construct the new 421-unit dorm.

Agenda Item #5.1.

42 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Two USC alumni who were buying up community housing
for student use (the gentrification practice that had drawn community ire), and doing business for the USC Trojans as “Conquest Student Housing LLC,” then attempted to derail this large new project and block their student housing
competitor. Conquest filed a CEQA lawsuit against the
USC Urban Partners project, but also filed CEQA lawsuits against all other pending Urban Partners projects in
California and against two projects by relatives of Urban Partners principals in Washington state (where Conquest had no business operations). The lawsuits nearly destroyed Urban Partners, which had established a track record of building community support for public-private partnerships.

USC and Urban Partners ultimately filed a federal
racketeering lawsuit against Conquest,109 citing to media stories reporting Conquest principals commenting on how to use CEQA to “bomb” projects and paying community
members to file negative comments against their
competitors. Conquest demanded that the racketeering
and related claims be dismissed on the grounds that
Conquest was only exercising its First Amendment
“free speech” rights against the Urban Partners project.

However, in a unique outcome among CEQA’s competitor
lawsuits, the federal district court declined to dismiss the racketeering charges against Conquest – whereupon
a settlement was reached and Conquest (or at least its
website) appeared to fold up shop. Stopping a transitoriented dormitory to preserve local housing for nonstudent use in the name of the environment qualifies as CEQA litigation abuse.110
Transit projects attracted the
highest number of CEQA lawsuits during
the study period. Transit systems in the
Los Angeles region were particularly
targeted, notwithstanding legal
mandates to establish and improve
transit services to reduce traffic
congestion, improve ambient air quality,
and reduce greenhouse gas emissions.

2. Other Public Service and Infrastructure
Projects
Another often underreported category of CEQA lawsuits
involves projects designed to provide necessary public services and infrastructure to existing communities, to adjust the use of existing facilities to respond to changing demographic or program needs, and to upgrade existing infrastructure to meet new legal mandates or service needs.111 This category of public agency projects attracted the largest number of CEQA lawsuits during the study period.112
The most frequent type of local infrastructure targeted by CEQA “environmental” lawsuits were public transit projects,113 followed by projects involving highways (all of which involved either High Occupancy Vehicle lanes or modifications to existing interchanges or crossings to address public safety concerns),114 municipal waste management (all but one of which involved infill transfer and recycling facilities, not new or expanded landfills),115 stormwater management (all of which were designed to improve water quality and reduce flooding),116 telecommunications equipment (antennas and cable boxes
required for improved Internet and wireless communications),117 local street and landscaping upgrades,118 and sewage system upgrades (such as pipe replacements).119 No form of public infrastructure and service project was apparently too small to escape irritating at least one person enough to draw a lawsuit – a new fire station,120 and renovations to an existing library121 and an existing museum122 – also drew lawsuits in the name of “the environment.”
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 43 Some samples of these taxpayer-funded public project CEQA lawsuit challenges:

CEQA’s Most Frequent Infrastructure Target: Transit
Transit projects attracted the highest number of CEQA lawsuits during the study period. Transit systems in the Los Angeles region were particularly targeted, notwithstanding legal mandates to establish and improve transit services to reduce traffic congestion, improve ambient air quality, and reduce greenhouse gas
emissions. Transit system investments were also a key priority of the Obama administration’s job creation program during the recession, and a huge amount of federal transit became available – but only for “shovel ready” projects (i.e., funding those not mired in litigation). During the study period, several transit lawsuits were filed by cities unhappy with the location of transit stops, or of mitigation measures. Others were filed by NIMBYs, and one was filed by a property owner who reaped a stunning financial reward of public funds in what was really an eminent domain property value dispute.123
• More Study Needed of Squeaky Wheels and Grease.

One of the more notable transit project lawsuits resulted in the invalidation of an EIR based on the alleged incomplete analysis of the potential for increased grease drippage and wheel squeals resulting from putting more passenger commuter trains on existing railroad tracks that were
already being actively used for cargo and other trains.124 • Metro “Gold” Line is “Gold” – for the Holdout Property Owner. The Gold Line starts near Pasadena, passes
through downtown Los Angeles, and then extends into
East Los Angeles. It reduces downtown traffic on several stressed freeways, and serves an exceptionally diverse
ridership. The Gold Line maintenance yard is in the City of Monrovia, northeast of downtown. A property owner facing an eminent domain proceeding after having declined
to voluntarily sell his property for the maintenance yard responded with six lawsuits filed over a three-year period, one of which alleged that the transit agency responsible for the Gold Line had failed to comply with CEQA.125
Litigation would have resulted in more than $100 million in delay-related costs, which would have threatened project financing. The agency ultimately settled all six lawsuits for $24 million, more than four times the assessed value of the 4.5-acre property.126
• CEQA Requires Transit to be Invisible – Right? Neighbors opposed to the Expo Line connecting Culver City to
downtown Los Angeles (and linking to other transit lines) argued that the new light rail system should be underground to reduce environmental impacts. A surprisingly brisk fouryear trip through the trial court (where the NIMBYs lost) and appellate court (where the NIMBYs lost again) culminated in a landmark California Supreme Court decision,127 which determined that the EIR was indeed fundamentally flawed in its study of air quality and traffic impacts because it failed to analyze the project in relation to the existing environment.

Continuing the surprising trajectory of this CEQA case, the court nevertheless concluded that these flawed technical studies and resulting flawed EIR evaluation was nevertheless not sufficiently prejudicial to cause ordinary people to be confused about the short-term traffic, parking, and air quality construction, as well as start-up operational disruption caused by the transit project. To summarize this surprising litigation outcome: extraordinary Supreme Court decision:
the EIR was flawed on the two topics that draw the most critical court scrutiny based on the Judicial Outcomes study (traffic and air quality),128 but the Supreme Court declined to impose CEQA’s most common judicial remedy (vacating
project approvals pending an EIR re-do).129
Other wealthy communities, such as Atherton130 and Beverly Hills,131 also sued to halt (or drive to the invisible and financially infeasible underground) transit projects during the study period.

No discussion of CEQA challenges to transit would be complete without the tangled story of the state’s High Speed Rail (HSR) project. Although initially approved by the voters, the project has undergone a variety of adjustments based on funding, routing, lawsuits and other factors. An initial “programmatic” EIR was done for the HSR project, which was targeted by several lawsuits.132 Agenda Item #5.1.

44 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Supplemental EIRs were also required under the structure of the programmatic EIR. Risking court (and funding) losses, the Brown administration successfully persuaded a federal agency that federal preemption precluded a CEQA judicial remedy that would delay or vacate HSR.133 A state appellate court subsequently decided that federal preemption did not preclude normal CEQA processing and the full range of judicial remedies, but concluded that the first EIR was legally adequate.134
Several HSR CEQA lawsuits remain pending, and, as is true for many complex infrastructure projects (e.g., operation and upgrades of state water project system components, discussed in more detail below), CEQA lawsuits remain pending while subsequent related EIRs and project components or phases are approved, leaving the legal status of the overall project as well as its constituent parts vulnerable to a single adverse judicial decision in any one of several pending proceedings (often heard by different judges and appellate panels). Such uncertainty adversely affects the cost and availability of funding for these public infrastructure projects.

Most Improbable Infrastructure and Public Service
Targets of CEQA Lawsuits
No critical public service facility is too critical, or too small, to be targeted by CEQA lawsuits. Again, CEQA also provides a comfortably safe haven for bigots.
• Mosques and Churches. Religious buildings earned the
distinction of being the most frequently challenged noninfrastructure, public service projects. For example, CEQA lawsuits were filed against two mosques,135 and neighbor opposition to mosques has been successful in blocking
mosques without lawsuits.136 Although the CEQA lawsuits alleged environmental impacts such as traffic and air
quality, the reported public debate was more openly hostile – and more openly discriminatory – of Islam.
• Libraries, Fire Station, Museums and Medical Care. Two CEQA lawsuits challenged libraries.137 One involved a new fire station long sought by the community but opposed
by the nearest neighbors,138 two fought museums,139 one (filed outside the study period and thus omitted from the statistical compilation) opposed allowing air ambulance services at an existing airport,140 and renovations prompted by seismic renovation mandates resulted in four challenges to hospitals.141 Two of the hospital lawsuits reportedly involved unions seeking bargaining leverage;142 the
remainder of the litigants for this suite of challenges appear to be NIMBY organizations and individuals.
• Existing Airports. Continued use of airports and runway modifications of existing airports accounted for three CEQA lawsuits during the study period.143
• Prisons. A prison expansion,144 a prison closure,145 and gender conversion of a prison,146 all drew CEQA lawsuits during the study period. The expansion and gender
conversion faced community opposition; union involvement was alleged in the prison closure project. Opponents of converting a women’s prison to a men’s prison presented evidence that male prisons generated more traffic and
traffic-related air emissions because (sadly) male prisoners get more visitors than female prisoners.
• Non-Vehicular Streetscape Improvements. Several CEQA
lawsuits targeted sidewalk maintenance and landscaping.

These are overwhelmingly NIMBY lawsuits. Neighbors from one street in Beverly Hills sued to block only replacement of the street trees on their side of the street,147 a landlord sued to block demolition of a closed and crumbling
elevated sidewalk based on the potential that he may
have to reduce rents,148 and there have been numerous
examples of bike plan and bike path CEQA lawsuits.149
A generational divide is evident in the bike plan lawsuits, which tend to be filed by older merchants opposed to traffic congestion and reductions in street parking.
• Telecommunication Projects. NIMBY opposition to visible telecommunication equipment remains vehement in
several communities, prompting numerous lawsuits and
agency administrative appeals. Local residents object to adverse “aesthetic” impacts, and allege public health risks (e.g., encouraging graffiti or public urination) for surfacemounted equipment.150 Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 45 • CEQA and California’s Response to 9/11.

Telecommunication equipment controversies prompted a
“one-off” statutory exemption from CEQA for the federally funded communication towers that are designed to
allow all emergency response personnel (from multiple
agencies) in the Los Angeles area to communicate on
the same frequency. The federal funding program to
link local first responders was prompted by the World
Trade Center attack on September 11, 2001; the
substantial federal funds allocated to install the required telecommunication equipment were scheduled to expire
(and could not be accessed if litigation was pending and the telecommunication project was not “shovel ready” by the deadline). To avoid losing the federal funds, in 2012 the Legislature exempted this system from CEQA – more than
10 years after 9/11.151
• High Occupancy Vehicle Lanes and Safety
Improvements for State Highways. State highway
projects were targeted by several CEQA lawsuits; all
involved improvements to existing highways such as the
installation of High Occupancy Vehicle (HOV) lanes to
reduce congestion, promote carpooling and renewable fuel use, and reduce localized air pollution and greenhouse
gases.152 Environmental advocacy groups were more
likely to be involved in these lawsuits, which reflect an ongoing policy disagreement about whether to make any
improvements to highways at all – or make commuting
so painful that people will just stop living in suburbs, or at least start taking transit. Transit utilization is definitely increasing (notwithstanding CEQA lawsuits against transit projects, as discussed above). The Bay Area Rapid Transit system, for example, carried 100,000 more riders in
2014 than it did five years ago, and now lacks adequate capacity to accommodate peak hour demand, recently
earning a spot on the San Francisco Chronicle’s “What’s Not Working” list.153 The extraordinarily high cost of housing in coastal counties also forces many people into less
costly inland locations and long commutes; deliberate
policies to maintain choking congestion on major freeways disproportionately affects inland areas that tend to have lower educational attainment levels, much lower annual
incomes and much greater ethnic diversity than California’s coastal enclaves.154
• Local Streets. The same policy debate about whether or when to invest in projects that accommodate automobiles occurs for local street improvement projects, which are more likely to be targeted by NIMBYs that are not affiliated with environmental advocacy organizations. Projects
facing objections range from modifying local roads and
traffic signals in order to more efficiently manage traffic and reduce congestion (and air pollution and noise from congestion), to repurposing lanes or parking spaces in order to provide more efficient and safe routes for buses and bikes.155
• Stormwater Management. Stormwater and flood
management infrastructure – generally related to repair work, upgrades to meet more stringent water quality
standards, or climate change adaptation – attracted a
handful of CEQA lawsuits.156 As with highways and streets, the extent to which infrastructure system improvements are needed to appropriately manage stormwater “upstream”
(e.g., with measures to capture and reuse stormwater on individual properties) or “downstream” (e.g., with seawall or flood channel stabilization or maintenance) remains
an issue of ongoing interest to environmental advocates, who tend to use CEQA in this context to leverage more or different management measures than those mandated by
the Legislature or water management agencies.
• Solid Waste Management. Recycling, composting and
transfer facilities in urban locations (many of which manage more than one of these functions), and landfills, were the third-most-likely targets of Public Service and Infrastructure projects (after Transit and Highways). The absence of CEQA lawsuits against hazardous waste treatment, storage and disposal facilities is notable. Many facilities have shut down (causing more waste to be transported for disposal outside California), and permit renewals of existing facilities remain largely mired in bureaucratic and political disputes; until a permit is actually renewed, no CEQA lawsuit can Agenda Item #5.1.

46 | Copyright © 2015 Holland & Knight LLP All Rights Reserved be filed.157 One state official reported to the authors that fear of having to complete an EIR on a hazardous waste
facility, and the resultant risk of court losses and exposure to liability for payment of attorneys’ fees to project
opponents, were among the reasons that the Department
of Toxic Substances Control (DTSC) had fallen years behind schedule in completing the legally mandated review
and permit renewal process for the state’s remaining
hazardous waste treatment, storage, recycling and disposal facilities.158

3. Park Projects
It is tempting to summarize this category of CEQA lawsuits by saying that people who sue park projects don’t want to let anyone else use “their” park. Since almost all park funding comes from taxpayer or philanthropic sources, derailing these projects with CEQA lawsuits always puts the continued availability of these fragile funding sources at risk – and can result in near-permanent shackles on the status quo.

Two stories on park projects help provide context for this category of challenged projects. Although one of the two stories occurred prior to the study period, it established the most important judicial guidance for CEQA implementation for existing parks, thus making it worthy of discussion.
• Should CEQA Keep Trails Out of Urban Parks? Santa
Cruz received funding to construct a trail through an urban park and make it handicap-accessible in compliance with the Americans with Disabilities Act. The California Native Plant Society sued, alleging that because the improved
trail would be near a protected plant, the environmentally superior – and thus CEQA-mandated – trail alignment
needed to skirt around the edge of the park, rather than through the park. Both parties spent years litigating the dispute. Ultimately, the appellate court determined that since the purpose of the project was to construct a park trail, that purpose would not be served – and CEQA did
not in fact mandate – construction of a trail around, as opposed to through, the park. Project funding, and the
original cost of trail construction, were left in limbo for years.159
• How Did Climate Change CEQA Litigation Cost a Coastal Park $50 Million in Philanthropic Funding? The Playa
Vista redevelopment project, sandwiched between the
Los Angeles community of Venice and the clifftop home
of Loyola University, holds the dubious distinction of being sued more often than any other California project known to the authors. Almost all the lawsuits involved CEQA claims, two of which occurred during the study period. (As noted above, Playa Vista was sued more than 20 times, over
more than 20 years, by a determined handful of financially able neighbors.) Decades ago, a negotiated outcome
of one of these lawsuits (the only lawsuit filed by major environmental groups) was an agreement to permanently
preserve and restore the coastal portion of this site to a coastal wetlands preserve. The Annenberg Foundation
committed $50 million in philanthropic funds to restore the coastal marsh, build a network of trails, and construct a visitor center on this major new coastal addition to the Los Angeles park system. Faced with unceasing threats of CEQA lawsuits, and mired in a regulatory permit lawsuit now pending at the California Supreme Court alleging
that it improperly considered climate change impacts,160 the state’s CEQA lead agency was unable to commit to
when it would be able to finally complete an EIR for the park restructuring project, which would allow for the
Annenberg Foundation to fund the completion of planned
park improvements. (The agency was also on notice that it would be immediately sued as part of the ongoing pattern of NIMBY challenges to all discretionary agency approvals for the project.) The Annenberg Foundation finally withdrew its $50 million funding commitment late in 2014, and there is no identified funding source that would allow for the public access and coastal marsh restoration project long envisioned for this urban infill site.161
The pantheon of 27 CEQA lawsuits filed against park projects sued during the study period were almost evenly divided between open space restoration, habitat projection and related passive park use projects like trails, and active park use projects such as playgrounds and sports fields, equestrian arenas, golf courses and a shooting range.162 In this category of challenged projects,163 there were only two golf courses164 (and one proposal to end golf course use),165 and the shooting range involved an existing facility that needed to be cleaned up due to lead poisoning risks – the CEQA lawsuit was filed in an attempt to block or amend the cleanup order.166
The active recreation park projects, in particular, highlight the dispute between passive park users (hikers, bird-walkers) and active sport team users (derided as “recreationists” in some communities). The urban park project lawsuits also highlight notable differences in the age, class, and ethnicity of park project users versus park project opponents.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 47 • Keep Those Sports Fields Idle Most of the Time.

As with challenges to school playfield projects, high
demand for sports field remains an acute, year-round
need in many urban areas. Natural turf consumes water,
requires fertilizers and other enhancements, cannot
be used during and for some time after rainfalls, and
must be periodically idled and replanted. Artificial turf, partly produced from waste tires, allows for much higher utilization rates, requires almost no water, and is easier to maintain. Night lighting also increases utilization. These sports field modifications (artificial turf and night lighting) draw concerns about traffic and parking impacts from
increased utilization, and also about the relative hazards of artificial and natural turf field surfaces (although both the Environmental Protection Agency and Consumer Product
Safety Commission have issued assurances about the
absence of adverse health impacts of artificial turf).167 Installing artificial turf on the Beach Chalet soccer fields in Golden Gate Fields, estimated to triple the available playing time in a location that has no adjacent residential neighbors, was the first project to utilize artificial turf that was subject to a full EIR (an unusual case since most park projects qualify for some level of streamlined CEQA study).

The project was first repeatedly challenged politically, then legally in an unsuccessful CEQA lawsuit, then politically again at the Coastal Commission, and finally with a ballot box battle seen as pitting long-term, trusted environmental activist opponents (including the local Sierra Club chapter) against the families and younger residents of California’s most expensive large city. The voters rejected opponents’ pleas to block the project, which is now under construction after many years (following a brief post-election “sit-in” by project opponents).168
• CEQA Protects Children – Not Dogs. Mission Dolores Park is shared among several densely populated San Francisco neighborhoods and offers tennis courts, a basketball
court, a multi-use (soccer/softball) sports field, a children’s playground and an operational building that includes public restrooms. All facilities – but most acutely the restrooms, which had been shuttered for many months, leaving
restroom service available only from sub-optimal portapotties – were in acute need of rehabilitation and repair.

City taxpayers responded generously and approved bonds
to improve this and other parks, kicking off a multi-year planning process. Mindful of passionate feelings about the park from multiple stakeholders, the city used a portion of the bond funding to pay for a full EIR. The resulting park renovation plan had something for everyone, while largely preserving all core elements of the park. Predictably, a CEQA administrative appeal was filed. Less predictably, even in San Francisco, was the fact that the appeal argued that the park should contain two children’s playgrounds rather than one playground and one dog play area because children’s playgrounds are a public health issue and help combat childhood obesity.169
• CEQA Protects Eelgrass – Not Children or Dogs.

Dolores Park was not CEQA’s first encounter with dogs
and children. Trail use and dogs in another Bay Area park project – a state park located on a former landfill in San Francisco Bay that spans portions of Berkeley and Albany – prompted a lawsuit by a local environmental activist who asserted that any trail (presumably used by children and dogs) could harm eelgrass visible only during low tides in the Bay’s chilly waters.170 This is only the latest chapter in the multi-lawsuit saga that helped create the East Shore State Park project. Prior to the study period, dedication of a portion of the waterfront area, which also hosts a large horse racetrack facility and related barns, to a new soccer field complex prompted a multi-year conflict between the (primarily youth league) soccer playing “recreationists” and the (primarily youth league circa-1960) passive trail/birdwatching “enviro” advocates.171 Agenda Item #5.1.

48 | Copyright © 2015 Holland & Knight LLP All Rights Reserved

4. Agency Plans and Regulations
This category of CEQA lawsuits challenged decisions by agencies to approve plans, programs and regulations but did not involve physical modifications to public service facilities or infrastructure, or approvals of private sector projects such as housing or commercial development. Fifteen percent of CEQA petitions challenged these taxpayer-funded agency plans and regulations, and this category comprised the second-largest group of CEQA lawsuits filed against public agencies.

Land Use Plans. More than 50% of the challenged
regulatory projects involved city or county approvals of land use plans: General Plans, Specific Plans, Community Plans, Area Plans and Airport Land Use Plans, to guide future land use and development activities172 and, in one case, to guide a regional transportation agency’s redirection of funding to transit and higher-density housing to meet the state’s ambitious greenhouse gas reduction mandates.173
For city and airport land use plans, NIMBYs are the dominant opponents of these plans, although some challenges are brought by environmental advocacy groups and historic preservation advocacy groups. Some communities are nearly frozen by political or legal land use planning disputes, and the cost – in money and political capital (inclusive of CEQA litigation risks) – have proven daunting obstacles to routine preparation of updated land use plans. For example, although state law requires General Plans for most cities to be updated every five years, some cities such as Los Angeles have not comprehensively updated their General Plan in decades and instead update different Plan elements or components over time, with overlapping lawsuits filed against component parts such as “community plan” land use components.174
County land use plans are more likely to be challenged in CEQA lawsuits filed by (or joined by) established national and state environmental advocacy groups that want to limit or preclude development outside established communities.

The major regional land use plan challenged during the study period – a lawsuit against the San Diego Association of Governments (SANDAG), which serves as a regional transportation planning agency for the allocation of federal and other funding for transportation infrastructure – is one of two pending CEQA lawsuits at the California Supreme Court regarding the application of CEQA in relation to California’s climate change laws such as the Assembly Bill 32 (Pavley)175 and Senate Bill 375 (Steinberg).176 SANDAG’s regional land use and transportation plan was found by the California Air Resources Board to be in compliance with applicable climate change laws, but the California Attorney General and Sierra Club (among others) sued alleging that CEQA requires more than compliance with statutory greenhouse gas reduction mandates.177
Climate change mandates currently play a major role in land use planning. These mandates range from reducing greenhouse gas emissions with renewable energy electric generation, and cleaner cars and fuels, to (of greatest relevance to the land use planning process) redirecting future California growth to higher-density, transit-oriented development patterns (e.g., requirements that communities plan to authorize development of assigned numbers of affordable and marketrate housing units).178 Senate Bill 375 and other climate-related laws and policies collectively provide a framework mandating that cities and counties fully accommodate predicted population growth levels that are often far higher than has ever been permitted, and requiring higher-density development patterns such as “granny units” (second units in single family homes), more affordable and/or smaller housing types with higher-density (e.g., multi-story apartment and condominium projects), and more transit and fewer accommodations for personal cars (i.e., fewer or separately priced parking spaces, intentionally congested roadways and highways to discourage peak hour automobile use, etc.).

Local stakeholders in many communities oppose the foundational changes that land use plans implementing these climate change mandates will cause, along with the environmental impacts from plan implementation. These impacts – and trade-offs – are required to be disclosed in the EIRs prepared for these land use plans. Several agencies have documented the environmental trade-offs between plans that allow for primarily continuation of California’s traditional suburban-scale lower densities, plans that allow for a mix of densities but with a far greater focus on transit corridors and higher-density urban centers, and plans that allow only high density urbanized development and transit.

To date, California’s regional planning agencies – and the greenhouse gas reduction targets established by the Legislature – allow for the middle course (the mix, with increased transit and higher densities in urban cores like downtown areas of even smaller towns), acknowledging the panoply of adverse CEQA impacts caused by either of the other two planning extremes. In the California Supreme Court case against SANDAG referenced above, and in a separate case involving a Los Angeles development project that was included in the Southern California Association of Government regional plan that met greenhouse gas reduction goals,179 environmental advocacy groups have argued that CEQA requires the more extreme plan – transit and high density development – based on climate change imperatives.

This fundamental land use policy dispute is being played out in the context of CEQA litigation, while, on a parallel track, the Governor Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 49 and legislators are debating whether to adopt new greenhouse gas reduction goals, which would be rendered far less relevant if the Supreme Court decides that CEQA itself requires implementation of “all feasible mitigation measures” to achieve an 80% greenhouse gas reduction goal for the state.180
Land use plans have definite consequences to the physical environment as well as to the softer “environment” that people identify as the existing character of their community. In most communities, land use plans are funded entirely from general taxpayer funds. Many commenters have noted that the frequency of plan updates, and the quality of plans and accompanying CEQA documents, is necessarily limited given the many competing uses of these general funds. Opponents of land use plans currently have endless “second bites” at the CEQA litigation approved apple since both the plan, and every project undertaken to implement the approved plan, can be separately litigated by the same party under CEQA. Though outside the study period, three lawsuits filed against the Bay Area’s regional greenhouse gas reduction plan provide an excellent snapshot of the deep policy divides regarding the ability of existing communities to retain their “character” and the role of CEQA in mandating greenhouse gas reductions to address global climate change. The first lawsuit was filed by a Marin County group alleging that the EIR and plan were defective in that there are other effective ways of reducing greenhouse gas emissions (e.g., greater reliance on electric cars and renewable energy) that had far fewer environmental impacts to existing communities; the second was filed by an association of developers that alleged that the EIR and plan did not provide an enforceable mechanism to require notoriously anti-growth communities (like Marin) to accept the high housing densities required by the plan; and the third was filed by environmental advocates who alleged that the EIR and plan failed to go far enough in removing or otherwise reducing emissions from vehicles – especially heavy trucks – from highways near poor communities.181 From the authors’ perspective, each of these lawsuits present clear policy arguments – none of which are best resolved by a judiciary parsing through thousands of pages of technical studies in the context of a CEQA lawsuit.
• Local Regulations: Plastics, Pot and Potpourri. Another frequently challenged regulatory agency action during the study period were local ordinances to ban or limit the use of single-use plastic bags, and local ordinances to regulate medical marijuana dispensaries.182
» Plastic bag lawsuits were generally attributed to plastic bag manufacturers and trade associations, who also
continue to oppose recently adopted legislation imposing statewide plastic bag restrictions. The Supreme Court
has affirmed the right, under existing CEQA legislation, of a non-California plastics manufacturer trade association to file CEQA lawsuits.183 Dozens of other cities have also prepared CEQA studies and have defended CEQA lawsuits
(at substantial taxpayer expense) in support of plastic bag ordinances.184 Plastic bag use advocates have raised various arguments about the relative impacts and benefits of single-use plastic bags, including for example food
safety, and the relative impacts and costs of alternatives such as paper bags.
» Medical marijuana ordinances have been adopted by some agencies, since local business and occupancy license rules for this previously illegal use did not exist prior to voter approval in 1996 of California’s medical marijuana initiative (Proposition 215).185 Several local agencies that have
attempted to adopt ordinances limiting or requiring permits for medical marijuana (similar to those required for adult bookstores or liquor stores) have been targeted by CEQA lawsuits alleging that such an ordinance cannot be adopted without exhaustive environmental studies and a full EIR.186 Opponents of plans currently have
endless “second bites” at the CEQA
litigation apple, since both the land use
plan, and every project undertaken to
implement the approved plan, can be
separately litigated by the same
party under CEQA.

Agenda Item #5.1.

50 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Most other regulatory agency challenges to local agency actions involve other types of ordinances (e.g., regulation of views, billboards, trash and stormwater management, water conservation, etc.).187 Some are brought by parties objecting to being regulated, others are brought by advocates seeking more stringent regulations, and some are simply “one-off” challenges filed for leverage against the target agency.
• Regional Agency Regulatory Challenges. Several
regional agencies were the target of CEQA lawsuits during the study period,188 and two of these remain pending after many years of litigation at the California Supreme Court. » The San Diego Association of Governments (SANDAG),
discussed at length above, is enmeshed in a pending
Supreme Court CEQA case regarding the extent to which
CEQA imposes a different or more stringent greenhouse
gas reduction mandate on regional land use and
transportation plans than the greenhouse gas reduction
targets established for such plans under SB 375.189
» The Bay Area Air Quality Management District (BAAQMD) established recommended CEQA “thresholds” for
determining whether air or greenhouse gas impacts
should be considered “significant,” and the California
Supreme Court is evaluating whether CEQA requires
an evaluation of the environment’s impact on a project
(at issue is a threshold requiring that a project examine and mitigate for pre-existing ambient levels of toxic air contaminants, typically from diesel vehicular exhaust), or whether CEQA applies only to a project’s impacts on the environment.190 (This is a fundamental CEQA issue, since numerous appellate court decisions have concluded
that CEQA requires assessing the environment’s impact
on a project, but several appellate courts have reached opposite conclusions including one of the infamous
Playa Vista project lawsuits).191
Other CEQA lawsuits targeted regional agency regulatory requirements regarding water quality, such as agricultural runoff.192 • State Agency Regulatory Challenges. State agency
regulatory challenges involve challenges either by the
target of the regulation, or by environmental advocates seeking a judicial interpretation of CEQA that requires the agency to expand or modify regulations that are otherwise consistent with the statutory mandate.

For example, similar to the pending SANDAG lawsuit, environmental advocates argued that CEQA prohibited, or at least more severely constrained, the California Air Resources Board’s (“CARB”) proposed cap and trade program for reducing greenhouse gas emissions from the industrial and fuels sectors; CARB lost the first lawsuit, and won the second after completing a more thorough CEQA study of its cap and trade regulations.193
Other challenged state regulations involve pesticides, protected species, oil and gas production, mining and maritime resources.

It is noteworthy that regulated parties tend to file CEQA lawsuits challenging regulations in Sacramento or Fresno County, and environmental advocates tend to file CEQA lawsuits challenging regulations in Alameda County or San Francisco.194

5. Water Projects
Forty-four CEQA lawsuits (7%) challenged water projects during the study period.195 One involved removing a dam;196 the remainder all involved disputes about the management, extraction, allocation or transfer of groundwater and surface waters, including surface waters conveyed by the state and federal water systems that link to the Sacramento delta. The intersection between California’s byzantine water rights laws and CEQA is, at best, oblique. The California Legislature adopted the most significant new groundwater legislation in California’s history in 2014, the Sustainable Groundwater The current drought emergency has brought renewed attention to water resource management. California’s often-bitter water combatants continue to block CEQA reform for any significant waterrelated infrastructure, including reclaimed water plants, desalination facilities, and new groundwater and surface storage facilities.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 51 Management Act of 2014 (SGMA), which requires, among other features, preparation of groundwater management plans for various groundwater basins.197 So uncertain is CEQA’s application to water rights and management issues, and so cumbersome, costly and unpredictable are CEQA’s compliance costs and litigation outcomes, that the Legislature elected to simply exempt the new groundwater management plans from CEQA altogether.198
Water lawsuits involve the most frequent use of CEQA litigation by one agency against another agency, and reflect the dire reality – even before the current drought – of California’s zero-sum water resource allocation decisions. For every party finding “new” water there is a party who believes it lost a real or perceived right to that water, or were over- or under-compensated – in money or CEQA mitigation – for challenged projects that range from one-time water transfers, to system storage or conveyance modifications, to rights to store and use flood waters from winter storms (often not fully “claimed” under water rights laws), to the use of water for particular purposes. Several of the lawsuits filed during the study period involved the state and federal water projects, both of which draw water from the Delta for transport to the Central Valley and Southern California.199 More creative, and larger, water projects drew multiple lawsuits. For example, the Cadiz water project, which proposes to transfer groundwater fed by desert mountain stormwater runoff from a remote inland valley to coastal Orange County, drew seven lawsuits, (only four of which were provided to the authors in response to the California Public Records Act request): a labor union group sued, a mining company stripping salts and minerals from shallow valley surface water sued, and two suits were filed by multiple national environmental advocacy groups (the Center for Biological Diversity, Audubon Society, Sierra Club, etc.).200 The current drought emergency has brought renewed attention to water resource management. SGMA requires preparation of Sustainable Groundwater Management Plans that include mandatory elements including achievement of sustainable groundwater management practices to avoid potentially catastrophic overdrafting of California’s groundwater resources.201
It is noteworthy that the Legislature and the broad coalition of key stakeholders – including environmental advocacy organizations – that supported SGMA also quietly concurred that Groundwater Management Plans would be statutorily exempt from CEQA.202 Similarly, Governor Brown’s emergency declarations on the drought have included limited CEQA exemptions imposed under emergency authority.203 Nevertheless, California’s often-bitter water combatants continue to block CEQA streamlining for any significant water-related infrastructure, including reclaimed water plants (which allow for the treatment and reuse of sewage), desalination facilities, and new groundwater and surface storage facilities.

Agenda Item #5.1.

52 | Copyright © 2015 Holland & Knight LLP All Rights Reserved An interesting example of a CEQA water project lawsuit, although not filed during the study period, was removal of sediment buildup in an existing reservoir located in Los Angeles County. Sediment removal would restore the dam’s water storage capacity and protect lands downstream from the reservoir from flood risks. To reduce localized impacts, the sediment removal plan was to be implemented over five years – and to avoid impacts to sensitive species and floodrelated risks, the sediment removal could only occur between April and October. The local Audubon Society chapters and a neighbor group sued alleging that less sediment removal was really needed, and that the EIR failed to adequately consider traffic, air quality and greenhouse gas impacts.204

6. Energy Projects
Four percent of the CEQA petitions filed during the study period involved energy projects.205 The highest number of petitions (46%) challenged solar projects, with wind projects coming in second place.206 Retrofits of existing natural gas and biomass electric generation plants wanting to install cleaner energy or lower-water consuming technology were targeted in 16% of the petitions.207 Relicensing one hydropower dam, and allowing more geyser-field steam to power an existing electric generation plant, comprised the two challenged hydro projects.208 One existing biomass project seeking a clean energy retrofit approval was challenged,209 along CEQA, which in its heyday was used
to challenge nuclear plants, coal-fired
plants and plants burning hazardous
waste or garbage, is now used most
frequently to challenge solar and wind
renewable energy projects – precisely
the “green” projects that are most
critical to meeting California’s climate
change reduction mandates.
with two new biomass facilities, one facility that proposed to repurpose agricultural wood waste for energy consumption was sued,210 and another facility proposed to gasify sewage sludge for electric consumption.211
Natural gas, once considered the environmental gold standard for power plant production, comprises the only non-renewable fuel in an energy production facility targeted by CEQA lawsuits. CEQA, which in its heyday was used to challenge nuclear plants, coal-fired plants and plants burning hazardous waste or garbage, is now used most frequently to challenge solar and wind renewable energy projects – precisely the “green” projects that are most critical to meeting California’s climate change reduction mandates.

The challenged solar projects were primarily located in the California desert; the highest number of lawsuits were filed in Imperial County, followed by Kern County.212 Multiple lawsuits were filed against several projects, including lawsuits filed by two union groups competing for job allocation and wage/benefit agreements (Project Labor Agreements).213 Many of these projects relied on federal or state funding that required workers to receive “prevailing wages” and related benefits, so the competing union lawsuits were just that – use of CEQA lawsuits to leverage PLAs for each union group.214 Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 53 Labor-aligned economists have made a compelling case for the need for jobs during the recession, especially in hard-hit Imperial County, which had the highest unemployment rate of any county in the United States.215 One major obstacle to creating new jobs in the county is the fact that a pending CEQA lawsuit generally disqualifies renewable energy facilities from receiving federal grants (and then financially equivalent tax credits) of up to 30% of a facility’s capital costs from the federal government under financial incentives programs begun in 2009. While harshly critical of the consequences of losing Imperial County employment opportunities to a proposed solar facility in Mexico, the union groups using CEQA lawsuits against solar projects in Imperial County were comfortable in playing a game of “chicken” with solar developers who could not afford to lose federal subsidies.

The story of union use of CEQA lawsuits and litigation threats against solar projects was reported in detail in The New York Times:
“When a company called Ausra filed plans for a big solar power plant in California, it was deluged with demands from a union group that it study the effect on creatures like the short-nosed kangaroo rat and the ferruginous hawk. By contrast, when a competitor, BrightSource Energy, filed plans for an even bigger solar plant that would affect the imperiled desert tortoise, the same union group, California Unions for Reliable Energy, raised no complaint. Instead, it urged regulators to approve the project as quickly as possible.

One big difference between the projects? Asura had rejected demands that it use only union workers to build its solar farm, while BrightSource pledged to hire labor-friendly contractors.”216
The Times went on to quote several stakeholders in this thenunfolding 2009 story about CEQA lawsuits against subsidized renewable energy projects:
• A representative for the state’s contractors asserts that “[t] he environmental challenges are the unions’ major tactic to maintain their share of industrial construction – we call it greenmail,” and estimates that it raises project costs by approximately 20%.
• A Sierra Club representative who is politically aligned with labor (a “blue-green alliance”): “It’s not a warm fuzzy thing they are doing; it’s a very self-interested thing they are doing.

But it has a large ancillary public benefit.”
• A solar developer reports, “Let’s just say that it is clear to us from experience that if we do not enter into a project labor agreement, the costs and schedule of the project is interminable.”
• An attorney representing the union noted, “We’ve been tarred and feathered more than once on this issue. We don’t walk away from environmental issues.”217 In fact, there are numerous instances of unions “walking away” once a Project Labor Agreement is executed, particularly prior to final administrative agency project approval as was the case with the Los Angeles subway car manufacturing facility dispute.

Union use of CEQA litigation threats and CEQA lawsuits continues to focus on projects that are mandated – or at least fully aligned – with California’s climate change mandates, including green manufacturing and infill residential development, as described in the next section of this report.

B. Private Sector and Commercial
Projects
As shown in Figure 10, approximately 41% of challenged private sector and commercial projects involve housing. In fact, housing projects drew the highest number of CEQA lawsuits during the study period.

A New York Times article on union use of CEQA lawsuits against solar projects compared two proposals, both with potential environmental issues. California Unions for Reliable Energy objected to one project where using union-only labor was rejected - but it supported another where the hiring of labor-friendly contractors was promised.

Agenda Item #5.1.

54 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Figure 10: CEQA Petitions Targeting Private Sector Projects Residential
41%
Entertainment
5%
Agricultural/Forestry
2%
Industrial
7%
Mining
9%
Energy
8%
Commercial
9%
Retail
19%
Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved Retail projects were the second most likely privately-funded projects to be challenged (19%); just over 50% of these challenged retail projects involve Walmart or a similar “big box” store, and the challenges were generally attributed to unions representing retail clerks working for Walmart’s competitors, with reported involvement in some instances by Walmart competitors and/or NIMBYs.218 Commercial projects, such as offices and hotels but excluding warehouses, were the next-mostly-likely project to be challenged, at just under 10%. These were generally attributed to NIMBY opposition, although unions were reportedly involved in a convention center and some hotel challenges.219
The study period also included 28 lawsuits against mining and oil and gas extraction projects. Mining projects, most of which involved aggregate mines for gravel extraction and processing, comprise about three quarters of these petitions, with the remainder challenging oil and gas extraction projects. Challenged projects typically involved activities on existing sites, and included both increased extraction activity and environmental reclamation and restoration.220
Industrial projects, more than half of which were warehouses linked to the Southern California logistics and goods movement sector that includes the Ports of Los Angeles and Long Beach, comprise 7% of CEQA lawsuits filed against privately funded projects during the study period. All remaining industrial projects were in economic sectors with pricing structures that place a premium on proximity to customers (e.g., asphalt mixing,221 bakery222), and essentially serve proximate populations within California.223 None of these “industrial” targets of CEQA lawsuits could easily be located outside of California. Industrial projects that have locational flexibility, including both new and existing manufacturing facilities, were not targeted by CEQA lawsuits because it appears that virtually no major Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 55 new manufacturing facilities were proposed during this period. This cannot be attributed to the recession or outsourcing manufacturing jobs overseas: the United States has actually experienced a resurgence of manufacturing jobs. As noted in the authors’ Social Equity report:

California job growth particularly lags far below the national average in manufacturing, and the state’s regulatory system is consistently rated as the worst in the country for business development. In 2010-2014, the state added only 4,400
manufacturing jobs, compared with 672,000 new jobs in the rest of the country. Manufacturing jobs provide some of the highest income opportunities for less educated workers than other working and middle class employment options. In January 2015, for example, the Los Angeles Times reported that the state’s relatively poor manufacturing employment growth since 2010 (1% versus 6.7% for the U.S., and 15% in many states, such as Indiana and South Carolina) hurts California’s middleclass workforce because manufacturing is “the classic path to higher paying jobs for less-educated workers.” The state’s diminishing ability to sustain quality middle class employment options is consistent with the increases in poverty, inequality and relatively slow growth of high school and community college educated residents California has experienced since 1970.224
An assortment of entertainment projects – an amusement park, a tribal casino, an annual fireworks display and other routine community events at public parks, and two dance/music facilities – comprised 5% of private sector project CEQA petitions.225 These lawsuits were reportedly all linked to either NIMBYs or “greenmail” lawyers.

Two percent of the private sector CEQA petitions involved agricultural projects: primarily wineries (including those with tasting rooms or other visitor-serving facilities); and these lawsuits were filed by NIMBYs.226 There was also one timber management project (a freight train linkage to more efficiently transport authorized harvested timber, replacing some trucks and resulting in a net decrease in air pollutants and greenhouse gas), filed by an environmental advocacy group opposed to timber harvesting.227
Industrial projects that have locational flexibility, including both new and existing manufacturing facilities, were not targeted by CEQA lawsuits because virtually no major new manufacturing facilities were proposed during this period. This cannot be attributed to the recession or outsourcing manufacturing jobs overseas: the United States has actually experienced a resurgence of manufacturing jobs.

Agenda Item #5.1.

56 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Some commercial and entertainment projects are owned and managed by public agencies as part of economic development or related efforts, such as convention centers, fairgrounds and major sports facilities. Because these types of projects are also sponsored by the private sector, they are included in the compilation of private sector projects. As a result, the study slightly understates (by less than 5%) the number of agency projects targeted by CEQA lawsuits.

Finally, energy projects are also categorized as private sector projects, although given the combination of substantial federal and state subsidies, and regulated ratepayer payment structures, these projects were also referenced in the narrative discussion of public sector projects in the preceding section of this report.

1. CEQA and Middle Class Jobs in Signature
California Industries: Green Technology
and Entertainment
A persistently under-reported result of CEQA’s chronic litigation abuse is job loss, particularly in the middle class job sector. Job loss from NIMBY use of CEQA lawsuits (and CEQA lawsuits more generally) – which affects prevailing wage jobs, and both construction and non-construction unions – has been documented by various studies.

One such analysis was prepared by the noted Southern California economist John Husing. It evaluated seven projects targeted by CEQA lawsuits and concluded that from just these projects, 3,245 prevailing wage jobs, paying workers an average annual wage of $100,502, were delayed or eliminated on an annual basis. The total affected annual lost wages and benefits of $326.1 million.

Unaffordable housing and wealthy stockholders are a green technology hallmark of California’s economic recovery, but two of California’s most successful companies passed on the opportunity to create jobs for middle-class workers by choosing to open their new manufacturing plants in Nevada228 (Tesla) and New York (SolarCity).229 These companies did not “race to the bottom” at the expense of American workers; they “raced to the market” by siting facilities that they knew could be opened – on time – in America.

Jobs Are A Public Health Priority Ignored by CEQA
Risa Lavizzo-Mourey, MD, MBA, and president and CEO of the Robert Wood Johnson Foundation, joined Mark Pinsky, president and CEO of Opportunity Finance Network, to urge recognition of the relationship between public health and employment:
“Economic growth and job creation provide more
than income and the ability to afford health insurance
and medical care. They also enable us to live in safer
homes and neighborhoods, buy healthier foods, have
more leisure time for physical activity, and experience less health-harming stress.”
“We need to recognize that income security and
economic opportunities lead to a healthier, more
productive workforce and reduced healthcare costs,
which in turn, leads to a stronger economy.”
“The end goal? Create and sustain job growth across
the country. Improve communities. Improve health.

Give people the opportunities to make smart, healthy
decisions so that they can act in the best interests
of their communities, themselves, and future
generations.”
As noted by the editorial board of the San Diego Union Tribune, there is a “manufacturing renaissance in the United States – a phenomenon that stops at the California border.”
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 57 As noted by the editorial board of the San Diego Union Tribune, there is a “manufacturing renaissance in the United States – a phenomenon that stops at the California border.”
“Manufacturing jobs are a classic stepping stone into the middle class, paying much better than service or retail work.

Such jobs in the aerospace and automobile industries were a central pillar of the state’s economy from World War II to the end of the cold war. Then California and the rest of the United States began to hemorrhage millions of manufacturing jobs to lower-cost nations, especially China. In the last half-dozen years, however, as wages soared in China and as exploding U.S. natural gas and energy production drove energy costs down, we’ve seen a ‘reshoring’ phenomenon in which dozens of manufacturers have returned to America – sometimes to the states in which they were originally based. Except the Golden State. Returning manufacturers take “a fresh look at the whole country. Unless you’re forced to be in California for some reason, increasingly it’s hard to find reasons that you have to be here.” Manufacturing jobs in California have edged up 1% over the past five years versus about 7% nationally.

Unfortunately for the millions of state residents without white-collar job skills, these sorts of statistics don’t seem to bother California’s dominant Democrats. Environmentalists are more likely to see factory jobs as grubby and unsavory than as welcome. There’s also the view offered by Governor Jerry Brown and others that amounts to a shrug – there’s nothing anyone can do about the fact that lots of people want to live here, so of course California will be an expensive place to live. That’s only partly true. The streamlining and fine-tuning of the California Environmental Quality Act recommended by the past three governors would make building factories much cheaper.”230
CEQA litigation risks make it impossible for companies with locational flexibility – such as manufacturers – to predict when they can open state-of-the-art manufacturing facilities for green technology, even if they comply with all of California’s stringent environmental and labor laws, and earn community support and aging appeals.

California is a Global “Market-Maker” for Electric
Vehicles – But Loses the Tesla Battery Manufacturing
Plant to Nevada and SolarCity Solar Panel Manufacturing Plant to New York. California was unsuccessful in its effort to persuade Tesla to locate its next major manufacturing facility – building batteries for cars and buildings – in California. SolarCity and Tesla were both offered significant financial incentives by their host states, but California officials were unwilling to commit even the state’s newest lucrative revenue sources – cap and trade revenues from the sale of GHG emission allowances – to these major middle-class job creation projects.231
California job growth lags far below the national average in manufacturing. The Los Angeles Times reported that
this hurts California’s middle-class workforce, because manufacturing is “the classic path to higher paying
jobs for less-educated workers.

Agenda Item #5.1.

58 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The cost to Californians seeking jobs: thousands of long-term middle-class jobs and related economic benefits that would have been created for Californians by the new Tesla and Solar City manufacturing plants.

Manufacturing jobs lost to higher-emitting GHG states is indeed an effective approach to reducing GHG produced in California – but the loss of middle-class manufacturing jobs based on CEQA litigation uncertainty also increases global GHG emissions and deprives Californians (and California taxpayers) of the jobs and revenues sparked by the state’s climate policy leadership.232
As another example of California’s signature “new economy” companies, Google, recently explained that its major fiber facilities would not be built in California “in part because of the regulatory complexity here brought on by CEQA and other rules. Other states have equivalent processes in place to protect the environment without causing such harm to business processes and therefore create incentives for new services to be deployed there instead.”233 Tesla and SolarCity, along with Google, are building companies and divisions based on the renewable energy and electric car mandates adopted in California. None of these companies have complained about California’s stringent air and water pollution regulations, or species protection, water conservation, open space preservation, and workplace safety laws and regulations. CEQA – and specifically the schedule delays and uncertain outcome of often nonenvironmental use of CEQA litigation – is a unique challenge that can, with no cost to taxpayers, be fixed with the moderate legislative reforms discussed below.

California Has Shrinking Share of Private Sector, NonConstruction Jobs Relative to Other Democratic Party Strongholds
Union use of CEQA litigation as a labor bargaining tool for non-construction private sector employers is subject to different federal labor laws than those that apply to building trades; generally, organized labor cannot use CEQA litigation to secure workplace jobs or negotiate wages or working conditions with manufacturing, office, hospital or other private sector employers. Union use of CEQA outside the building trade sector is nevertheless widely reported in CEQA disputes, especially involving challenges to retail projects (e.g., Walmart), hotels, hospitals and major public venues (e.g., sports stadiums and convention centers). Project Labor Agreements (PLAs) secured by construction trades can also include non-construction job provisions.

Notwithstanding union use of CEQA lawsuits against employers, California’s private sector union participation rates remain much lower than other traditionally union-supportive, Democratic Party strongholds such as New York, Hawaii and Michigan, and have even fallen well behind red states such as Alaska, Nevada and Kentucky. For example, California’s percentage of union jobs in the manufacturing sector, 7.2%, ranks 20th – behind Alaska, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, West Virginia and Wisconsin.

Since none of the states with greater manufacturing sector union participation than California allow anonymous or union use of environmental lawsuits for non-environmental purposes, traditional political organizing, rather than CEQA litigation, appears to account for the greater success of unions in other blue (and even red) states.
— Sources: Barry T. Hirsch and David Macphearson, Current Popuation Survey (CPS Outcoming Rotation Group (ORG)
Earnings File (2015)), available at http://unionstats.gsu. edu/State%20U_1983.xls and http://unionstats.gsu.edu/
State_U_2012.xlsx (accessed April 30, 2014); John Husing, CEQA Working Group, “Misuse of CEQA and Prevailing
Wage Workers” (September 12, 2013), available at
http://ceqaworkinggroup.com/wp-content/uploads/2013/09/ Final-Husing-Report.pdf (accessed May 28, 2015).

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 59 Longstanding California companies have also relocated their headquarters and other facilities outside the state, again resulting in significant middle-class job losses (especially in Los Angeles) that are unlikely to be recaptured given the locational flexibility and shareholder duties of corporations. Some of the companies that shuttered headquarters and major facilities in California under the current Administration include Nestle,234 Toyota (3000 jobs in Torrance),235 and Occidental Petroleum.236 Media reports regarding employers departing to other states indicate that Texas, Arizona, Nevada, Utah and Florida are top destinations; all of these states have significantly higher per capita GHG emissions than California.237 Even the environmental “mitigation” programs of the “clean and green” technology sector have been targeted with CEQA lawsuits.

Silicon Valley’s employment growth has been nothing short of extraordinary, but the Bay Area’s housing supply continues to lag far behind demand. Large employers have responded (sometimes voluntarily, and sometimes as a “mitigation measure” imposed under CEQA as part of the project approval process), with programs to reduce employee automobile commutes.

The most visible and costly of these programs are bus fleets that fan out across the Bay Area to transport employees to and from work. (Burbank’s movie studios have collaborated on similar bus fleets, as have other large employers, such as some campuses of the University of California.) A coalition of groups alarmed by the influx of technology workers to San Francisco neighborhoods, filed a CEQA lawsuit against the city’s regulation of bus stops for this fleet of transit mitigation buses.238 (A union group seeking to force the employers to use bus contractors with union drivers also joined in the CEQA lawsuit.) The lawsuit alleges “gentrification” as a new environmental impact requiring analysis and mitigation under CEQA (including the argument that lower-paid workers forced out by high housing costs have to commute longer), along with allegations that the bus fleet itself causes unacceptable traffic congestion, noise and air pollution on city streets.239 A fully occupied bus replaces 120 cars, reduces the need for tech employees to own cars (thereby reducing the need for parking), and has lower collision risks than the fleet of displaced cars. The bus fleet for multiple employers now exceeds 500, resulting in 50,000 fewer round-trip automobile commute trips daily. One major employer agreed to require union drivers, but the CEQA lawsuit remains pending.240
Clean and green technology companies are not the only major employment centers targeted by CEQA. Another signature California industry, entertainment, is likewise targeted by a range of CEQA lawsuits.241
Another of California’s signature
“new economy” companies, Google,
recently explained that its major
fiber facilities would not be built in
California “in part because of the
regulatory complexity here brought
on by CEQA and other rules.”
Agenda Item #5.1.

60 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The wildly successful Harry Potter books and movies hit the market more than 10 years ago, with the last movie in the series released in 2009. Universal Studios acquired the right to develop a Harry Potter theme park ride and related attractions at both its Orlando and Los Angeles amusement parks. The Orlando Harry Potter theme park opened in 2010, and instantly became a top-ranked tourist attraction that helped sustain visitation during the recession. The Los Angeles Harry Potter theme park had a very different adventure: as an integral component of the Universal Studio “Evolution Plan” for the 397-acre studio and amusement park campus, the project first went through nearly a decade of administrative processing, including CEQA studies, and an extensive community outreach process that eventually enlisted 7,500 active supporters.242 The project was designed to include the Harry Potter ride and other amusement park upgrades, renovated movie and television production facilities and offices for NBCUniversal studios, and 3,000 higher-density, Clean and green technology companies
are not the only major employment
centers targeted by CEQA. Another
signature California industry,
entertainment, is likewise targeted
by a range of CEQA lawsuits.
transit-oriented residential units in an urbanized area of Los Angeles County.243 Bowing to intense neighborhood opposition to higherdensity housing, the project’s residential component was ultimately dropped (notwithstanding acute housing needs and an affordability crisis in Los Angeles and other parts of Coastal California),244 and the project was finally approved in 2013.245 The CEQA lawsuit challenge was filed in 2014, when neighbors who had successfully demanded that park-related traffic be routed away from their neighborhood onto a new freeway interchange sued to stop the closure of the substandard former interchange as part of the freeway improvements.246 California still does not have a Harry Potter ride – while Florida has reaped five years of Harry Potter jobs and tourism dollars. The Los Angeles Universal Studio project was projected to create 30,000 permanent jobs.247
Farther north, in the land of Star Wars, after nearly 10 years George Lucas had finally won approval in 1996 for a long-range Master Plan for the Grady campus in Marin County that hosts LucasFilms, Industrial Light and Magic, and other game design and related Lucas enterprises. After many more years of post-approval processing, in 2012, Lucas was on the verge of receiving final approvals to actually construct just a fraction of the development previously approved in 1996 (by which time he had also agreed to scale back the approved project and instead preserve more open space and restore a creek).

Neighbors in notoriously anti-growth Marin County were having none of it, even neighbors who had moved in after the 1996 “vested” approval for the campus Master Plan. Lucas was likewise fed up, and on the eve of project approval – facing the certainty of neighbor CEQA lawsuits, and the uncertainty of the timing and outcome that comes with CEQA lawsuits – he withdrew his application after having spent millions of dollars and many years attempting to complete the two full cycles of CEQA processing required by Marin County.248 Lucas is one of the county’s very few large employers (and corporate taxpayers), but a handful of neighbors could invest a few thousand dollars in a CEQA lawsuit guaranteed to buy years of litigation uncertainty. The final score: neighbors win, Marin (and California) loses 800 construction and permanent jobs, hundreds of millions in tax revenues and other indirect economic benefits, and more than $50 million of environmental restoration work planned for the 78% of the campus proposed for permanent open space preservation.249 A new skirmish in this neighbor dispute was initiated in early 2015, when Lucas announced he would seek approval to build quality affordable housing in Marin (an extremely high-cost, low-supply housing market) – without seeking scarce federal and state affordable housing funding.250 His wealthy neighbors immediately voiced their vehement opposition to this new project as well, and the affordable housing proposal has also been abandoned.

2. CEQA and Small Business
The U.S. Small Business Administration reports that small businesses have created about 75% of the net new jobs created in the economy.251 CEQA litigation abusers, particularly NIMBYs and competitors, have found small business to be an easy target.

One well-reported story involves Moe’s Gas Station, a small independent station operating next to a freeway interchange in the heart of Silicon Valley. Moe’s decided to add a new pump island (three new gas dispensers), and Moe’s neighbor – a competing small gas station – used aggressive CEQA tactics to try to derail Moe’s.252 The competitor first unsuccessfully tried to block the project as part of the city’s administrative review and approval process, which included a CEQA study and approval of a “Negative Declaration” confirming that the project would cause no significant adverse impacts. The majority of Negative Declarations fail in reported appellate court cases examined over a 15-year study period,253 and sure enough, Moe’s competitor won its CEQA lawsuit challenge to Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 61 the Negative Declaration – and Moe’s approval was rescinded. Moe was next required to prepare an Environmental Impact Report, at a reported cost well in excess of $100,000, and repeat the CEQA administrative process for longer than a year. Moe’s competitor filed various objections to increase the cost of the studies and delay completion of the process, but ultimately Moe got his approval – and his competitor promptly responded with another CEQA lawsuit. Moe won the second lawsuit, and got to build the small new pump island.

Total costs for this gas station expansion: more than $500,000 for Moe and the city.254
In the San Diego County community of Poway, an automotive repair shop decided the neighborhood could not support a new competitor – and filed a CEQA lawsuit challenging the business license (for use One well-reported story involves
Moe’s Gas Station, a small
independent station operating next
to a freeway interchange in the
heart of Silicon Valley.
of an existing facility) of a new automobile repair shop. Like other Negative Declaration challenges, Poway lost – but the judge (who in that case was fully aware of the competitor’s identity and interests) elected to simply order more environmental study rather than shutting down the targeted business. Nearly $200,000 later, the new, minority-owned auto repair shop survived the CEQA gauntlet – notwithstanding an 18-month ordeal, and a disabling increase in its debt burden and other unanticipated business costs.255
Similarly competitor-based lawsuits range from freeway interchange “travel plazas” to large regional malls.256
In Berkeley, where CEQA was the tool of choice used against a proposed Starbucks occupancy by a Peet’s-loving group of neighbors, CEQA remains a favorite for neighbors opposed to new occupants of existing storefronts. The proposed occupancy of vacant storefront proposed by the owners of a very successful downtown Mexican restaurant ran headlong into the wealthy, white reality of the city’s tony “Elmwood” district – who also used CEQA to oppose restaurant occupancy of the same space in 2007.257 This study shows that 17% of lawsuits filed against retail projects involve challenges to the occupancy of existing structures.258
Agenda Item #5.1.

62 | Copyright © 2015 Holland & Knight LLP All Rights Reserved A range of other small commercial businesses – restaurants, neighborhood retailers, the Planned Parenthood clinic in South San Francisco, clinics – were targeted by CEQA lawsuits, even if the project involved only occupancy of existing buildings.259 The environmental consequences of actually occupying a vacant structure – familiar infill “impacts” like traffic (and traffic-related impacts like air quality, noise, parking and greenhouse gas) – are the focal points of these NIMBY-inspired lawsuits.

Figure 11: CEQA Petitions Challenging Residential (and Mixed Uses Including Residential) Projects Multifamily/ Mixed Use
31%
Mobile Home
Conversion
1%
Master Planned
Community
24%
New Lots/ Homes
(More than 10)
18%
New Lots/ Homes
(Less than 10)
10%
Resort
2%
Single Family Homes/
Granny Units
14%
Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved

3. CEQA and Housing
Housing is the single largest target of CEQA lawsuits. As shown in Figure 1, 21% of lawsuits challenged residential projects. Figure 11 takes a closer look at the various types of housing projects being challenged, and confirms that CEQA lawsuits most often target higher-density housing in urban locations – precisely the type of housing that must be built to comply with current California environmental climate change priorities such as AB 32 and SB 375.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 63 Figure 12: More Than Two-Thirds of CEQA Residential Project Lawsuits Targeted Infill Development Inll
68%
Greeneld
32%
Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved The infill housing projects targeted
by CEQA lawsuits also collectively
comprise the vast majority of
challenged affordable housing,
support service housing, and senior
housing projects.

As shown in Figure 12, more than two-thirds of lawsuits challenging residential projects targeted projects in “infill” locations. The infill housing projects targeted by CEQA lawsuits also collectively comprise the vast majority of challenged affordable housing, support service housing, and senior housing projects. The largest challenged infill housing projects are master planned communities on former military bases; the housing types challenged most often are higherdensity apartment and condominium apartments.260 Agenda Item #5.1.

64 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The most frequently challenged housing type is “multifamily” projects, typically multi-story apartments and condominiums.261 Some of these projects are also “mixed use” and have, for example, retail stores or office space on lower floors, and residential units on upper floors.262 Every multifamily project within the survey sample was also an infill project.263 Climate change policy experts and land use planners love these multifamily, mixed use and attached housing product types because they create the higher population densities needed to support transit service, and create the promise of a “walkable” community where people do not need to get into their car to buy groceries, visit a restaurant or go to work. To further discourage automobile ownership and use, these projects also tend to have fewer and more costly parking places.

Some people who live near areas where higher densities are proposed, however, hate these projects. CEQA lawsuits target these projects in both established high density urbanized areas such as San Francisco and Los Angeles, as well as elsewhere in California where higher-than-existing but still very modest densities are proposed (e.g., a three-story senior housing project in a single-family home area in Sacramento was challenged as “massive” by a NIMBY lawsuit).264
Typically these types of higher-density, urban housing projects go through four or five separate, and largely duplicative, rounds of full EIRs in administrative proceedings that can take more than 10 years.

The ongoing efforts by the City of Los Angeles to create a higherdensity, transit-oriented corridor in Hollywood provides a case study in how CEQA processing delays, duplicative rounds of CEQA studies, and multiple CEQA lawsuits, have empowered a passionate group of neighbors fundamentally opposed to this new urbanized vision for the community – and all at taxpayer expense.

The ongoing efforts by the
City of Los Angeles to create a higherdensity, transit-oriented corridor in Hollywood provides a case study in how
CEQA processing delays, duplicative
rounds of CEQA studies and multiple
CEQA lawsuits, have empowered
a passionate group of neighbors
fundamentally opposed to this new
urbanized vision for the community –
at taxpayer expense.

4. Transit-Oriented Development: Hollywood
and Beyond
• Welcome to Hollywood. Los Angeles is the secondlargest city in the nation (after New York). Within the city, the Hollywood and East Hollywood neighborhoods are ranked
as “high” density, with over 20,000 and 30,000 people
(respectively) per square mile.265 The adjacent, 1.8-acre independent city of West Hollywood has a slightly lower density, with more than 34,000 additional residents – but nevertheless made it to the 16th-densest city in the United States based on 2010 census data.266 In short, this area of Los Angeles is already among the most densely populated areas of the United States – more dense than 20th-ranked San Francisco.
• EIR Rounds One and Two. Los Angeles is well on its way to completing a regional transit system that includes the “Red Line” subway service through Hollywood.267 Planning and construction of the Red Line, which was informed by EIRs and several lawsuits, took over two decades. Approved EIRs included projections about population increases and higherdensity development along the new transit corridor.268 The primary EIR for the Red Line was completed in 1983, and then subject to a voluminous new supplemental EIR process completed in 1989.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 65 • EIR Rounds Three and Four – with Five on its Way. With the Red Line approval process nearing a hoped-for end, the city completed a Community Plan to guide future development – and increased density around the new subway – in 1988.269 Nevertheless, the city then spent another 21 years, ending in 2012, updating its land use plan for the Hollywood community to substantially increase density in this existing urban area.270 The plan was approved by a unanimous vote of the City
Council. Neighborhood opponents called it “Skyscraper Hell” and vowed to sue.271 They did – three CEQA lawsuits were filed against the plan. (As noted above, land use plans are the most frequent regulatory action targeted by CEQA lawsuits.) After almost two years in litigation, the trial court – the first of three layers of state judicial review allowed in CEQA lawsuits – ruled that the City’s EIR was deficient. Resolving two of the lawsuits, the judge first observed that the:
“Hollywood Community Plan Update (and its corollary
environmental impact report [EIR]), which is a principal subject of this litigation, is a comprehensive, visionary and voluminous planning document which thoughtfully analyzes the potential for the geographic area commonly referred to as Hollywood.”
But he also concluded that the EIR was “fundamentally flawed” because it used an expert agency population estimate that was higher than the 2010 census data, which first became available only after the Draft EIR was published (rendering all population-based EIR studies deficient); he also decided that additional alternative land use plans should have been considered.272 Resolving the second lawsuit, which was brought by an organization called “Fix the City,” the trial court also concluded that the city had failed to provide for adequate infrastructure analysis, mitigation and implementation.273 The trial court judge eventually vacated the city’s approval of the Hollywood Community Plan, thereby calling into question all projects approved under the now-vacated plan, and putting all pending projects in limbo.274 The judge’s decision will result in EIR Round Five: pending completion of a revised EIR, the city will continue to implement the 1988 Community Plan and EIR.275
• EIR Round Six. Senate Bill 375 requires California’s
metropolitan regions to develop land use and transportation plans to meet ambitious California greenhouse gas reduction targets in 2020 and 2035.276 The Southern California
Association of Governments (SCAG) approved the regional plan and accompanying EIR for the state’s largest (by geography and population) region in 2012.277 Substantially increasing density in Hollywood along the transit line is included in the SCAG plan, which was developed with years of coordination with cities and other stakeholders.
• Project EIRs – Rounds Seven and Eight, Nine, Ten and
Beyond. Meanwhile, several projects – higher-density, transitoriented projects – had been approved, and even constructed, in the area covered by the newly vacated Community Plan and EIR, by the valid Red Line EIR, and by the never-challenged SCAG EIR. These projects were also targeted by CEQA lawsuits filed by the same neighborhood opposition group. The city has suffered a steady string of CEQA losses for challenged projects; two multifamily housing projects ensnared by CEQA include:
» Historic Spaghetti. A completed apartment project that replaced a former “Old Spaghetti Factory” restaurant
with surface parking survived its first round of CEQA
litigation. Although the vacant restaurant building had been substantially renovated over the years, and was not on either a federal or state register of historic structures, CEQA’s ambiguous requirements allowed the restaurant
to warrant special treatment as a historic structure – and required the apartment developer to preserve the façade of the restaurant as the facing of the new apartment building.

The “façade preservation” mitigation was later determined to be structurally infeasible, so the city instead required the developer to reconstruct a visually identical replacement façade rather than preserve the original wall.

In the second round of CEQA lawsuits against this
project (by which time the original developer had lost
its investment), the neighbors won their argument that
approval of the replacement façade should have had a
new round of CEQA review and the judge ordered the city’s approval of this now-completed residential project vacated, a judicial outcome that – left unchallenged – would force existing residential tenants to vacate, and prohibit other completed units from being rented, pending completion of a new historic structure study and CEQA process.278 For development of this site, this was EIR Round Seven – soon to be followed based on the CEQA lawsuit outcome by EIR Round Eight – for increasing development densities based on policies first adopted in 1983.

Agenda Item #5.1.

66 | Copyright © 2015 Holland & Knight LLP All Rights Reserved » Wrong Millennium. A mixed use residential apartment
project that included hotel, commercial and retail uses was successfully challenged by the same neighborhood
group and a hotel competitor279 – and harshly criticized by the state’s transportation agency for having unacceptable impacts on a notoriously congested freeway. The
developer waited for the lawsuit outcome before starting construction, and after two years of litigation – preceded by several years of community outreach, planning and
environmental studies – a trial court concluded that the EIR’s traffic analysis was technically flawed, and project approvals should be vacated.280 This was EIR Round Nine – again to be followed by EIR Round Ten – for increasing development density in the same Hollywood area.

The first Red Line EIR was approved in 1983; 30 years later, the higher-density vision for this transit corridor remains mired in several overlapping CEQA lawsuits. This Hollywood parade of costly EIRs and overlapping CEQA lawsuits illustrates a four-decade debate, which remains ongoing, about the relative policy merits of high-density development, increased congestion, transit utilization policy and increased demands on already-strained urban infrastructure. • “Smart Growth - Beyond Hollywood” – Increasing
Densities and Transit Use in Urban Areas. Hollywood’s
urban densification debate, dubbed “Smart Growth” by
density advocates, is being repeated in dozens of other California communities. State climate mandates and urban infill advocates believe California’s coastal communities must dramatically increase densities, but many residents – with enough resources – strongly disagree. Under CEQA, this very fundamental policy disagreement moves into a multi-year litigation venue where burdened trial court judges are forced to wade through technical and legal arguments about the sufficiency of thousands of pages of studies. Additionally, the most common CEQA judicial remedy – an order to vacate
years-old project approvals and restart the environmental study process – does not actually resolve the policy debate but merely restarts the agency/applicant/consultant/attorney churn for still more CEQA studies, to be bickered over in still more judicial sequels of the same densification policy dispute.

As many commentators have observed, there is no end in sight to policy disagreements about the density and character of existing California communities, and the use of CEQA lawsuits by those who lose these policy disputes. As summarized by the website Curbed Los Angeles, and the non-partisan California Legislative Analyst’s Office, earlier this year:281
California is a beautiful and desirable place to live, but it’s also one of the hardest places to afford to live. Los Angeles is particularly brutal: it’s got the biggest disconnect between incomes and rents of anywhere in the nation, and it’s the place to be if you’re looking to have your dreams of homeownership crushed. Is there any hope? A new report out from the
Legislative Analyst’s Office shows that the groundwork for LA’s housing shortage was laid a long time ago, and it’s going to be hard work undoing it. Just how short on housing is LA? In order to keep housing prices in check, California overall would have had to build more (70,000 to 110,000 additional units each year), build denser, and build especially in the coastal areas (including Los Angeles) and central cities (as opposed to building mostly inland and in areas way outside of cities as has been done in the past). California also should have been doing this for decades already. Because it didn’t, “the state probably would have to build as many as 100,000 additional units annually—almost exclusively in its coastal communities—to seriously mitigate its problems with housing affordability.” And that’s in addition to the 100,000 to 140,000 units that the Golden State is already planning to build. If the state had done all that, California’s housing prices still would have continued to grow and would still be higher than the rest of the country’s now, but the disparity between them would have been less gaping.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 67 Excerpted Figures from California Legislative Analyst’s Report, “California’s High Housing Costs: Causes and Consequences (2015)”
Agenda Item #5.1.

68 | Copyright © 2015 Holland & Knight LLP All Rights Reserved It is also worth noting that the higher-density development favored by California’s climate policies require far more costly housing units than traditional single-family homes. While urban density advocates argue that home prices outside the urban core are unfairly priced based on their need for public infrastructure such as roads and sewer systems, costly urban infrastructure upgrades are also often required for major urban projects.282 And as recently confirmed in a regional conference on the Bay Area Housing Crisis,283 the data in Table B, below, shows the dramatically different construction pricing structures for lower density and higher-density housing project types in the Bay Area, as well as the smaller living spaces provided by higher-density housing.

Table B: Bay Area Housing Construction Cost Comparison
(May 8, 2015 presentation to MTC Planning Committee/ABAG Administrative Committee by J. Fearn, D. Pinkston, N. Arenson) Housing Type Dwelling Units/Acre
(Density and Height) Unit Size Cost of Material/Labor Compared to Single Family Home Single Family Home Mid-Sized
Lot (SFH)
5 2 Stories 2,750 NORM used for comparison purposes
SFH Small Lot 15
3 Stories 2,400 1.3X higher than mid-size lot SFH)
Townhome (units share common
walls)
20 3 Stories 2,000 1.5X higher than SFH (lower consumer price than either SFH) Townhome/Condo 26
4 Stories 1,900 2.0X higher than SFH (lower consumer price than SFH or townhome) Midrise Condos 50
5 Stories + (including some Parking) 1,050 3.0-4.0X higher than SFH (feasible only in expensive urban markets) Highrise
100+
8-50 Stories + (including some
Parking)
1,050 5.5x-7.5X higher than SFH (feasible only
in extremely expensive urban markets)
The higher-density housing (primarily midrise and highrise buildings) typically challenged in these CEQA infill lawsuits already requires home buyers to pay dramatically higher prices for comparatively smaller units. With the exception of the City of San Francisco, however, the Legislative Analyst’s Office (LAO) Report concluded that housing density increased in California’s coastal metro areas during 2000-2010 by only 4% relative to density increases of 11% in a comparison group that included Boston, Seattle, Washington, D.C., Miami and even traditionally “sprawling” Las Vegas.284
When the costs of CEQA-related study preparation and processing are factored in, housing costs in California’s NIMBY-rich litigious coastal communities increase even more. The LAO estimates that even absent litigation, CEQA and land use entitlement processing for housing projects in California’s ten largest cities between 2004- 2013 took, on average, two and one half years to complete – and sometimes resulted in smaller projects with fewer units.285 Produced by: Hernandez, Friedman, DeHerrera
Copyright © 2015 Holland & Knight LLP All Rights Reserved Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 69 If higher-density housing is an environmental policy priority, then CEQA litigation undermines this priority. A broad spectrum of stakeholders agree that CEQA reform is needed if higher-density, transit-oriented housing goals needed to achieve California’s GHG reduction mandates are to be achieved.
• Two of California’s leading environmental advocacy
organizations, the Natural Resources Defense Council and the California League of Conservation Voters, co-authored a report on SB 375 which noted that “because CEQA is focused on ‘projects,’ it faces limitations, especially for achieving effective mitigation of the global warming impacts associated with VMT [vehicles miles traveled].… In fact, in the hands of opponents to a high-density project, CEQA could threaten the implementation of an effective greenhouse gas reduction strategy.”286
• Planning and real estate development experts from the public and private sectors come together in an Urban Lands Institute report that reached a similar conclusion about the need to reform CEQA to achieve the greenhouse gas reduction goals of SB 375: “Requirements of the California Environmental Quality Act (CEQA) should be reexamined and refined to
promote specific land use and transportation projects that help achieve SB 375’s desired outcomes. Such refinements can be designed to reduce the burden of excessive documentation while providing desired environmental protection, and fostering development of urban growth patterns and transportation systems that reduce carbon emissions.”287
As discussed in greater detail in Part 3, notwithstanding widespread recognition of the need for CEQA reform to promote higher-density development, meaningful CEQA reform continues to fall victim to Sacramento special interests. Two more examples of CEQA challenges to higher-density apartment projects, both located adjacent to existing or planned Bay Area Rapid Transit (BART) stations in the Bay Area, help illustrate why:
• Transit-Oriented Development Challenged by Unions in
Dublin. For decades, BART has encouraged communities
to adopt plans and policies to encourage higher-density development around BART stations. Communities hosting
newer BART stations, such as Dublin, receive additional funding to help plan (and complete EIRs for) station area plans, which are then “built out” as market conditions warrant. One of the few CEQA streamlining provisions that does exist is for residential projects that are consistent with, and implement, a previously-approved form of land use plan called a “Specific Plan.” Multifamily housing developer Avalon Bay proposed to build a new apartment complex at the Dublin BART station using this CEQA compliance streamlining statute for an
approved Specific Plan, which had its own EIR. A labor union seeking a Project Labor Agreement (PLA) sued under CEQA, asserting that the Specific Plan EIR’s failure to expressly address GHG emissions made this transit-oriented, highdensity apartment project ineligible for CEQA streamlining.

Eventually, the courts ruled against the union (which sued under the banner of the “Concerned Citizens of Dublin” in their CEQA lawsuit).288
If higher-density housing is an environmental policy
priority, then CEQA litigation undermines this priority.

A broad spectrum of stakeholders agree that CEQA
reform is needed if higher-density, transit-oriented
housing goals needed to achieve California’s GHG
reduction mandates are to be achieved.

Agenda Item #5.1.

70 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Notwithstanding widespread recognition
of the need for CEQA
reform to promote higher-density
development, meaningful CEQA
reform continues to fall victim to
Sacramento special interests.
• Transit-Oriented Development Challenged by Union in
Milpitas. The city of Milpitas, which straddles the East Bay and Silicon Valley, suffered a similar ordeal when it approved an apartment project near the new Milpitas BART station. The same union that challenged the Dublin apartment project filed another unsuccessful CEQA lawsuit in an attempt to leverage a PLA for this workforce housing project; the lawsuit resulted in substantial delays and increased costs.289
The “Blue-Green” political alliance between powerful unions and environmental organizations, along with union use of CEQA litigation threats and lawsuits to leverage PLAs from higher-density, transitoriented housing, has virtually neutralized meaningful CEQA reform in Sacramento, as discussed further in Part 3 of this report.

A less reported political schism within the ranks of CEQA’s litigation status quo defenders is a disagreement among California environmental advocacy groups about higher-density urban housing projects. Environmental advocacy groups that lobby for land use, transit and housing policies and funding programs to support precisely this type of higher-density, infill residential development have many local environmental activist and attorney members who cherish the right to oppose such high-density projects whenever they are proposed in their localized neighborhood’s “environment.” • No Residential Project Is Too Small To Challenge. Another less-reported pattern of CEQA lawsuits is the extent to which CEQA litigation targets single-family home construction and renovation projects in established neighborhoods: during the study period, 15 CEQA lawsuits challenged single-family home projects, and three more targeted duplexes or second units in single-family neighborhoods.290 One such single-family home CEQA lawsuit, from Berkeley, was filed against a project that received unanimous neighbor and Planning Commission/City Council support but was opposed by a distant city resident.291 This CEQA challenge remains languishing “on remand” from the California Supreme Court more than six years after project approval.292 Some of these single-family home projects involve only repair work or minor modifications, but CEQA litigation abuse is a readily available tool for fence-line neighbor skirmishes.
• Adaptive Housing Reuse of Existing Structures. CEQA
challenges were also lodged against projects that convert approved or existing structures such as office buildings or hotels into housing. In one well-publicized case, in the depths of the recession an approved office building in San Jose was proposed for conversion into critically needed, transit-oriented housing.

Local unions filed a CEQA appeal, insisting that they would pursue environmental challenges against the project unless the developer used union labor. The developer was already using union labor, but from a different union local than the union local that filed the CEQA lawsuit.293 (Hijacking California’s premier environmental statute as a proxy to fight a territorial battle among unions was a frequent tactic used during the study period, and most notably targeted solar and other renewable energy projects, as discussed above.294)
• Master Planned Community Challenges. “Master Planned
Communities” are defined for study purposes as larger projects that include thousands of housing units, community-serving retail, office or other employment uses to provide for a balance between housing units and employment opportunities, and at least one new elementary school. Such projects typically are implemented over a period of 10-30 years, and some are sued by multiple stakeholders on multiple occasions over a period of a decade or more. “Infill” examples of master planned communities range from the redevelopment of former military bases and industrial facilities, to the development of infill areas within existing cities or unincorporated county communities.295 A slight majority of challenged Master Planned Community projects are located in unincorporated county “greenfield” areas rather than “infill” locations, but it is noteworthy that almost all are located immediately adjacent to existing communities and major infrastructure – and were generally included in regional land use plans that met California’s aggressive 2020 and 2035 GHG reduction targets under SB 375. Master Planned Communities represent investment commitments in excess
of $1 billion each, and provide thousands of construction and other jobs for decades. These projects are more likely to be challenged by established environmental advocacy groups opposed to virtually all new “greenfield” development.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 71 • Subdivision Development Projects typically consist of proposals to construct smaller numbers of single-family homes and townhomes, often with neighborhood-scale amenities
like retail services and parks. Over 75% of the challenged subdivision projects were in infill locations.296
• How Much Is CEQA Used to Combat Housing “Sprawl”
in California? As shown in Figure 12, more than two-thirds of CEQA lawsuits challenging housing targeted infill housing projects. And as the regional greenhouse gas reduction
plans completed under SB 375 have demonstrated – and as numerous CEQA lawsuit losses challenging these infill projects show – infill projects also have adverse environmental impacts under CEQA. These impacts include not only traffic congestion and parking but the environmental attributes of traffic and parking (traffic-related air emissions including greenhouse gases, noise and public safety), as well as impacts to aging urban infrastructure and public service facilities that were never designed to accommodate the type of huge density increases that the most radical of the GHG reduction targets – 80% less GHG than 1990 levels notwithstanding population and economic growth – demand.

Just as CEQA is not a “business v. enviro” debate, it is not a “sprawl” debate. California has already conquered sprawl. As reported by California Planning and Development Report publisher Bill Fulton, recent reports from both the U.S. Census Bureau and the EPA confirm that California has long accommodated more of its population growth in urbanized areas than in rural areas.297 A recent report by the EPA confirms that California has had a long-term pattern of favoring “infill” over exurban growth, and over a 60-year study period has consistently accommodated a higher percentage of population growth in urbanized areas.298
In the housing project context, CEQA lawsuits are used by anyone for any purpose: by climate activists to challenge EIRs for not doing enough to study and/or reduce GHGs (e.g., the SANDAG lawsuit), by neighborhood activists for not doing enough to study and/or reduce the many consequences of urban congestion, by labor on any topic to leverage PLAs, and by NIMBY or even anonymous parties to stop any change (even repairing the drainage on their neighbor’s existing house299). CEQA stops, stalls and shrinks housing projects – and is one of the key reasons that California’s houses cost 2.5 times more than in the rest of the country and that California rents are double those than elsewhere in the United States. Extraordinarily high housing costs, losses and threatened losses for middle-class jobs accessible to the hundreds of thousands of adult Californians lacking even a high school degree, gas and electricity prices that are also persistently higher than the rest of the country, and California’s environmental policies – led by CEQA – have created a perfect pricing storm that lands on the back of the young, the poor, minorities and the under-educated.

Extraordinarily high housing costs,
losses and threatened losses for
middle-class jobs accessible to
the hundreds of thousands of adult
Californians lacking even a high
school degree, gas and electricity
prices that are also persistently
higher than the rest of the country,
and California’s environmental
policies – led by CEQA – have
created a perfect pricing storm that
lands on the back of the young, the
poor, minorities and the
under-educated.

Agenda Item #5.1.

72 | Copyright © 2015 Holland & Knight LLP All Rights Reserved

5. Other Private Sector Projects
Only 10% of CEQA lawsuits target industrial, forestry, mining, or agricultural projects – in popular understanding, the kinds of projects for which “pollution” or “destruction of sensitive natural environments” warrants the greatest level of concern.

As with much of CEQA lore, a closer look at the actual projects at issue tells a far more environmentally benign story:
• The largest CEQA challenge target in the agricultural and forestry category was wineries, a signature land use supporting a thriving tourist trade and a broad range of employment opportunities for some of California’s most productive
agricultural lands and picturesque landscapes.300 The majority of these lawsuits targeted wineries with tasting rooms or other public spaces that would attract more visitors and add traffic to local roads. No non-agricultural operations were targeted. Wineries need to comply with stringent water quality, endangered species, worker protection, and other environmental standards. NIMBY lawsuits against winery-related visitors do not make a compelling case for preserving the CEQA litigation status quo.
• Only one timber-related CEQA lawsuit was filed during the study period, and this project involved using lower-emission rail rather than trucks for the transport of timber.301 In the 10-year period from 2005-2011, California’s timber production volume was only 37% of what it was from 1985-1994, a
decrease of more than 60%.302 Federal and state endangered species and water quality protection permit requirements and lawsuits (including lawsuits filed under CEQA’s federal parent law, NEPA, California’s Forest Practices Act and related permit requirements, and the politics and policies of public lands management including implementation of sustainable forestry practices) dwarf the role of CEQA litigation in actual timber management mandates. This lawsuit challenges a rail project, and is mired in the same CEQA v. federal law preemption arguments as the California High Speed Rail project.
• There were only 23 CEQA petitions that challenged industrial (manufacturing, assembly, processing) projects statewide – slightly more than the 18 CEQA lawsuits filed against singlefamily homes and secondary units.303 The majority – 61% – of these CEQA “industrial” lawsuits challenged warehouse projects. The policy and legal debate over environmental practices in the goods movements sector typically reaches crescendo levels for projects involving the Ports of Los Angeles and Long Beach, where 10 years of CEQA and other lawsuits resulted in various settlements mandating cleaner trucks and other cargo movement practices – and has already resulted in one trip to the U.S. Supreme Court in a case that concluded that CEQA’s mitigation mandates do not trump uniform federal laws on interstate trucking and truck emission standards.304 A more recent CEQA port case, filed just after the study period, involves the expansion of the BNSF rail yard, which would shift more cargo onto railcars and off trucks and roadways. The BNSF lawsuit joins CEQA to federal environmental mandates of the Clean Air Act (pursuant to which a regional plan effectively prohibits all new sources of toxic air emissions, including localized emissions that would occur near the rail yard even though regional shipping emissions would decrease with a shift from rail to trucks).305 The warehouse CEQA lawsuits filed during the study period did not involve these major Port operations, and each involved a single warehouse project – all but one located in the Inland Empire and desert areas of Southern California. CEQA does not provide local land use lead agencies with the authority to regulate trucking (or truck emissions), so these lawsuits tend to fall into either the “greenmail” category or a classic land use dispute by those wanting a different use for the warehouse property.
• There were 28 lawsuits filed challenging mineral resource extraction projects. The majority – 21 – involved “aggregate,” which includes materials like sand, gravel and crushed stone, that are used to make concrete and asphalt concrete.306 Aggregates are the most mined materials in the world, and are a key ingredient in asphalt and cement.307 EIRs were prepared for all but five of these lawsuits. Seven of these lawsuits involved oil and gas drilling projects: one challenged new state environmental protection regulations relating to hydraulic fracturing and other well stimulation techniques, five challenged continued production (including drilling of new wells) in an existing oil recovery area in Whittier, and one challenged oil exploration testing in Kern County.308 Neighboring landowners and environmental advocacy groups appear to be the litigants in most of these mining-related CEQA lawsuits.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 73 • All remaining challenged industrial projects were in sectors with economic pricing structures that place a premium on reduced transportation costs and proximity to customers: three asphalt plants and one concrete plant that use, but do not have an onsite mine producing, aggregate materials; two beverage plants; one food processing plant; one gravel plant; and one temporary gypsum stockpile for agricultural use.309 Several of these projects were sponsored by small business operators; all are also required to obtain land use, air quality, water quality, species protection and other applicable environmental permits – and comply with environmental standards – that did not exist when CEQA was enacted in 1970.

There can be no question that CEQA plays a critical disclosure and analysis role for all of these projects, but do these projects warrant preservation of the CEQA litigation status quo?
Agenda Item #5.1.

74 | Copyright © 2015 Holland & Knight LLP All Rights Reserved PART 3
Curtailing CEQA Litigation Abuse – Restoring CEQA’s
Role of Assuring Public Transparency and Accountability for Avoiding and Mitigating Adverse Impacts to the
Environment and Public Health
CEQA was not etched onto stone tablets or penned with a feather quill centuries ago. Enacted in 1970, CEQA litigation practice has remained essentially unchanged since the California Supreme Court decided that CEQA applies to private as well as public sector projects, and should be “broadly” interpreted to protect the environment.310 As CEQA critic Governor Jerry Brown has explained, however, over the past four decades the courts have issued hundreds of judicial interpretations of CEQA that have morphed this great environmental law into a “blob” of contradictions and uncertainty – often misshapen, misused, mismanaged and, as shown by this study, used to thwart important environmental policies like climate change.311
A. Media Reports of Widespread CEQA
Litigation Abuse - and Calls for
Meaningful CEQA Reform
The need for CEQA reform has been repeatedly confirmed by all major state editorial boards, by the current and former governors, by local elected officials and – for discrete moments, which quickly pass – by California’s legislative leadership. Some excerpts calling for CEQA reform include:
• The Los Angeles Times concluded that CEQA had received a “black eye” when abused by a union group to leverage jobs for its members (who were already going to be paid prevailing wages), which resulted in abandonment of a major new
manufacturing facility in an approved industrial park, and in an area with very high unemployment, for the production of taxpayer-funded Metro cars. As the editorial board noted, “now that [union] IBEW had reached a deal with Kinkisharyo, the company’s opponents no longer needed to use the California Environmental Quality Act to beat it into submission.”312 This is not the first time the Los Angeles Times editorial board has commented on CEQA abuse:
“Many a bad project has been slowed, stopped or greatly improved because of [CEQA] – but many a perfectly
acceptable project has withered and died because of the time and cost involved in sometimes frivolous litigation. Those lawsuits can derail a proposal even when the real object isn’t environmental protection. Businesses use CEQA to hinder competitors; interests groups litigate for years, even decades, not so much to prevail on a matter of principle as to wear out a proponent.”313
• The San Francisco Chronicle has likewise published several editorials on CEQA abuse, especially challenges brought by NIMBYs. The Chronicle recently opined that “of all the welldocumented abuses of the California Environmental Quality Act, “the most absurd” may well be the lawsuit (languishing after more than 18 months in trial court) filed by abortion protesters against a Planned Parenthood clinic proposed to be located in CEQA was not etched onto stone tablets or penned with a feather quill centuries ago. Over the past four decades the courts have issued hundreds of judicial interpretations of CEQA that have morphed this great environmental law into a “blob” of contradictions and uncertainty – often misshapen, misused, mismanaged and, as shown by this study, used to thwart important environmental policies like climate change.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 75 an existing building, asserting that the city failed to adequately take into account the noise and public safety disruptions that the protesters themselves promised to create if the clinic was allowed to open. The Chronicle concluded:
“This nonsense must stop. The 40-year-old CEQA has been a critical tool for preserving our natural resources, but it has also been exploited by interests whose motives have nothing to do with the environment, such as businesses that stifle would-be competitors or unions looking for leverage.

We can now add women’s health services to the toll of public goods that have been stymied by the California Legislature’s refusal to stand up to the interests of special groups who seem to think CEQA should remain carved in stone.”314
• The San Jose Mercury News has likewise long recognized the damage caused by CEQA abuse, and called for reform:
“Economic growth must be a top priority. And one of the best ways to accomplish it is to reform the California
Environmental Quality Act..... [CEQA] challenges often prevent development that could create jobs or help businesses
survive without harming the environment, and they contribute to California’s reputation as unfriendly to business. Four decades after Ronald Reagan signed CEQA into law, it’s time for an update.”315
A broad chorus of editorial boards harshly criticized former Senate President Pro-Tem Darrell Steinberg’s sweetheart CEQA relief bill for his hometown basketball team’s new arena. The San Jose Mercury News called out Senator Steinberg for limiting CEQA reform to his pet project:
“Senate President Pro-Tem Darrell Steinberg knows the
California Environmental Quality Act needs to be reformed.

Why else would he make a last-minute push to exempt a
proposed NBA arena in Sacramento, a top priority of his, from provisions of the law?
Yet Steinberg won’t agree to broader CEQA reforms that
would do for the rest of the state what he wants to do for the Sacramento Kings. CEQA reform for me, but not for thee?....

This time, the hypocrisy is hard to take.
[CEQA] is a key reason the state has been able to preserve much of its natural beauty as its economy boomed. But CEQA is regularly abused. Labor unions use it to extract concessions from developers. NIMBYs use it to stop development in
their backyards. And businesses use it to stop competitors from expanding. The law needs to be updated to stop these abuses.”316
Agenda Item #5.1.

76 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The chorus criticizing Senator Steinberg also included the Sacramento Bee, which wrote:
“No doubt, the proposed Sacramento arena could be a crucial catalyst for a more vibrant region and central city. But cities up and down California also have important developments on the drawing boards. Like the proposed arena, many are infill projects that create jobs, reduce sprawl and have few negative environmental impacts. Too often CEQA is exploited to stop good projects. Opponents who care nothing about the environment use the threat of CEQA lawsuits to leverage better labor deals or thwart a competitor.”317
• The San Francisco Chronicle agreed, saying that Steinberg was “just plain wrong” and noting that “there are plenty of worthy projects around the state that are threatened by litigation under a law that is being exploited by individuals and special interests with motives that have nothing to do with the environment.”318
• The San Diego Union Tribune has a long track record of calling for meaningful CEQA reform, writing in 2007: “CEQA has become... a tool of extortion for a long list of special interest groups that have little – if any – interest in the environment.”319 More recently, the San Diego Union Tribute reported on a shortlived CEQA reform proposal that would have integrated this 1970-statute with modern environmental and human health protection standards, curtailed duplicative CEQA challenges for projects that complied with plans that had already gone through CEQA, and ended anonymous CEQA litigation abuse by requiring disclosure for those filing lawsuits:
“The fact that Governor Jerry Brown, State Senator Darrell Steinberg, and a bi-partisan group of state lawmakers say it’s time for substantial reform of the California Environmental Quality Act is good news.... The CEQA proposal that surfaced this week was real reform. It would have streamlined the way projects get approved by eliminating duplicative reviews and limiting “greenmail” – litigation that uses environmental rules to force concessions or de facto payoffs to project opponents.”320
• The Sacramento Bee has agreed: “CEQA is ripe for
manipulation and needs updating. It is too often abused to slow down projects for reasons that have nothing to do with environmental protection.”321
• Earlier this year, the Sacramento News & Review issued “NIMBY Awards” for the worst CEQA abuses (and abusers).322 In an accompanying editorial, the publisher wrote:
“I am an environmentalist. I attended the first Earth Day in 1970. I supported cap and trade. I want a carbon tax.…
As an environmentalist, I am ashamed that environmental regulation is preventing low-income housing from being built, is significantly increasing the cost of building in California, is allowing groups to blackmail developers into a variety of concessions and is wasting government resources to
negotiate an out-of-control process.”323
As an environmentalist, I am ashamed that environmental regulation is preventing low-income housing from being
built, is significantly increasing the cost of building in California, is allowing groups to blackmail developers into a variety of concessions and is wasting government resources to negotiate an out-of-control process.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 77 Governor Brown – who has called CEQA reform “the Lord’s work” – has also expressed exasperation about it. “I’ve always said about CEQA, it’s like a vampire. Unless you strike to put a silver stake through it, there’s always a law somewhere that’s brought into the process, and the exemptions are more illusory.”
• The Orange County Register noted that CEQA “[r]eform is long overdue. The environment must be protected, but CEQA has been used as a hammer to unfairly punish even environmentfriendly development.”324 • The Fresno Bee weighed in with several calls for reforming CEQA, noting that it is “outdated” and specifically criticizing the Legislature for the “bad habit” of “handing out a pass on the troublesome CEQA, which most legislators agree needs reforming, to only a few politically connected people.” The editorial board wrote: “Let’s reform the act [CEQA] in its entirety, giving the same consideration to everyone falling under CEQA, and not just those who have special access to important legislative leaders, or their pet projects.”325
• The Bakersfield Californian observed: “CEQA is a critical and necessary piece of legislation that protects California’s varied and fragile environment and ecosystem from abuse, overdevelopment and environmental harm. But when NIMBYs (not in my backyard) use it to stall projects that do not negatively impact the land, CEQA has been abused.”326
• The Santa Cruz Sentinel observed: “CEQA… has too often been used by a variety of interests acting out of self-interest more than first wanting to further environmental protections.

CEQA lawsuits have contributed to California’s reputation as a state unfriendly to business and overly regulated.... The new Democratic supermajority in the Legislature should take up the governor’s call to reform the California Environmental Quality Act.” 327
• The Petaluma Argus Courier noted: “[B]ecause CEQA has not been updated or revised since it went into effect more than four decades ago, the law enables determined development opponents to misuse it to delay or stop projects that would not cause any serious environmental harm.”328
In an op-ed on January 28, 2013, the North Bay Business Journal wrote:
“Most people would agree that if a school, hospital or road project has been subjected to extensive environmental review and met all federal, state and local environmental laws, including the Clean Water Act, the Endangered Species Act and the Clean Air Act, the project should go forward without being sued for purported environmental reasons. Unfortunately, today, these projects are being delayed and face increased costs – many times to taxpayers – or killed altogether because of abusive litigation that has nothing to do with the environment. “[L]ike most other tools that are 40 years old, today’s CEQA needs to be modernized to ensure that this policy is working in tandem with the myriad of other environmental laws and regulations that have been added since its inception.”329 B. Elected Leadership Support for
CEQA Reform
Existing and former elected leaders have agreed on the need for CEQA reform.
• Early in his first term, Governor Jerry Brown used his State of the State Address to call for CEQA reform:
“We … need to rethink and streamline our regulatory
procedures, particularly the California Environmental Quality Act. Our approach needs to be based on more consistent
standards that provide greater certainty and cut needless delays.”330
The Governor has also called CEQA reform “the Lord’s work”331 and made clear that the Legislature’s periodic claims that it has “reformed” CEQA are “illusory”: “I’ve always said about CEQA, it’s like a vampire.

Unless you strike to put a silver stake through it, there’s always a law somewhere that’s brought into the process, and the exemptions are more illusory.”332
Agenda Item #5.1.

78 | Copyright © 2015 Holland & Knight LLP All Rights Reserved • In two op-eds, former California Governors Gray Davis, Pete Wilson and George Deukmejian joined in making a bipartisan plea for CEQA reform:
“While CEQA’s original intent must remain intact, now is the time to end reckless abuse of this important law; abuses that are threatening California’s economic vitality, costing jobs, and are wasting valuable taxpayer dollars.”333
“CEQA has also become the favorite tool of those who seek to stop economic growth and progress for reasons that
have little to do with the environment. Today, CEQA is too often abused by those seeking to gain a competitive edge, to leverage concessions from a project or by neighbors who simply don’t want any new growth in their community – no matter how worthy or environmentally beneficial a project may be.”334
• Local elected leaders have also decried CEQA abuse. To cite to just one of many examples, former Ventura City Manager Rick Cole notes that “while there is absolutely no question that the adoption and enforcement of CEQA has produced dramatic improvements in environmental quality,” there is also “absolutely no question that it has been shamelessly misused and distorted to stop, delay or make hellishly expensive the infill development that is California’s only alternative to suburban sprawl” – and that CEQA is “frequently hijacked to protect the narrow economic interests or personal preferences of well-heeled interest groups.”335
C. Reforms to Preserve CEQA - Not
CEQA Litigation Abuse
Three moderate reforms would restore CEQA to its critical role of assuring transparency and environmental accountability in public agency actions:

1. Require Transparency in CEQA Litigation
to Prevent Non-Environmental Litigation
Abuse
Under current court rules, parties bringing CEQA lawsuits (and on occasion lawyers representing no known party at all) are entitled to conceal their identity and interests, make up a non-existent environmental-sounding group name, and baldly assert that they are suing “to protect the environment.” Court rules already require disclosure for parties seeking to file “friend of court” advisory briefs in CEQA lawsuits,336 and require disclosure for any party seeking to recover attorneys’ fees if they win a CEQA lawsuit.337 Transparency should extend to all phases of CEQA litigation. However, some CEQA petitioner attorneys have long been criticized in the media for “greenmail” – leveraged financial settlements with little or no environmental benefit included in the settlement agreements – when the petitioner attorney declines to identify a client, when the “client” is located miles away from the challenged project, or when the “client” has no knowledge of any other members of the newlyformed “Committee [Against Change].”338 Neither California nor the “environment” benefit from anonymous CEQA litigation abuse, nor are CEQA’s non-environmental plaintiffs allowed to sue to enforce federal environmental laws or the CEQAlike laws in effect in many other states. Transparency to reveal the non-environmental interests of CEQA litigants is a powerful weapon against abuse, and it’s a fair and long-overdue CEQA litigation reform.

The CEQA Research Council, an informal group of CEQA practitioners from the public and private sectors with an average of more than 30 years of experience with CEQA, requested that the Judicial Council modify court rules to require the same kind of transparency and disclosure at the beginning of CEQA lawsuits (the filing of petitions and answers) that is already required of those seeking to recover attorneys’ fees at the end of CEQA lawsuits.339 After deliberating, Transparency to reveal the nonenvironmental interests of CEQA litigants is a powerful weapon against
abuse, and it’s a fair and long-overdue
CEQA litigation reform.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 79 the Judicial Council suggested that this was a rule change more appropriately decided by the Legislature.340 However, in another vivid illustration of the power of the entrenched special interests who use (and abuse) CEQA lawsuits, legislative proposals modeled on federal environmental statutes requiring petitioners to disclose their identity and confirm that they are seeking to enforce CEQA for environmental rather than non-environmental purposes have not seen the light of day, and have been withdrawn or sidelined by policy committee leaders. As the influential “Think Long Committee for California” of the Berggruen Institute has noted:
“Petitioners should be able to bring a CEQA lawsuit only if they have, and can demonstrate in court, a legitimate and concrete environmental concern about a project, as well as the absence of a competitive commercial or economic interest on their part in the project.”341
It is also important to recognize that this reform would not in any manner curtail lawsuits filed by environmental advocacy groups or by individuals who are actually at risk from a project’s adverse environmental impacts. Controversial projects with alleged significant adverse “environmental” impacts – with the potential to cause adverse public health impacts or harm to the natural ecology (e.g., the types of concerns raised by mines and landfills, and large-scale power, water and infrastructure projects) are far more likely to be sued by regional and national environmental advocacy groups and named individuals. The rights of those parties to seek judicial review of agency CEQA compliance practices would remain unchanged.

In contrast, anonymous parties who seek to block improvements to underutilized neighborhood parks, schools, apartment projects and libraries – and business competitors and NIMBYs seeking to protect their economic interests, and lawyers with sham or non-existent clients seeking “greenmail” financial settlements – would lose the right to continue to abuse CEQA litigation for non-environmental purposes.

Reform would not in any manner
curtail lawsuits filed by environmental
advocacy groups, or by individuals who
are actually at risk from a project’s
adverse environmental impacts.

2. Eliminate Duplicative CEQA Lawsuits:

Enforce CEQA Once, Not 20+ Times
CEQA applies to every “discretionary” decision made by a public agency, but many of our laws, regulations and ordinances now require multiple agencies to make separate decisions on the same project, and also require the same agency to make multiple decisions about implementation of the same project over time.
• Playa Vista – a single urban redevelopment project in Los Angeles that is in the final phases of converting a polluted aircraft manufacturing facility into a coastal park, mediumdensity housing, and a “Silicon Beach” mix of employment uses – has been sued under CEQA over 20 times over more than 20 years – including lawsuits filed during the 2010-2012 study period for this report.342
• Newhall Ranch, long included in Los Angeles County and adjacent city plans as the continuation of adjacent master planned development projects in northern Los Angeles County, and also included in the region’s approved (and not litigated) plan to achieve the regional greenhouse gas reduction goals established by SB 375, has been sued almost 20 times in less than 20 years, including two lawsuits during the study period (one of which is now pending at the California Supreme Court).343
Duplicative CEQA lawsuits create a
strong deterrent against comprehensive
community planning such as General
and Community Plans, and can result
in a “project-by-project” review
and approval pattern that is driven
solely by opportunistic private sector
development applications.

Agenda Item #5.1.

80 | Copyright © 2015 Holland & Knight LLP All Rights Reserved • Duplicative CEQA lawsuits also create a strong deterrent against comprehensive community planning such as General and
Community Plans that assure orderly change with adequate investment and public services, and instead are more likely to result in a “project-by-project” review and approval pattern that is driven solely by development applications. The ongoing, 40-year saga of Hollywood’s efforts to adopt and implement a higher-density, transit-oriented development pattern is one of several reasons that the City of Los Angeles has not attempted a comprehensive General Plan update for many decades.

Communities that do decide to bite the bullet (and comply with state law mandates) by updating local land use plans find themselves targets of CEQA lawsuits – with the plan and the lawsuit both funded by taxpayers. Forty-nine CEQA lawsuits were filed against city and county land use plans during the study period.344
Duplicative CEQA lawsuits delay projects, but they also delay the jobs projects create, increase overall project costs, and contribute to California’s extraordinarily high housing costs. Duplicative CEQA lawsuits also impede achievement of important environmental priorities that require long-term commitments and a stable implementation framework, such as reducing greenhouse gas emissions and qualifying for federal transit funding by increasing ridership with higher-density housing and employment uses along designated transit corridors. Passionate people can oppose higherdensity and transit, but projects that comply with approved land use plans for which a lawful CEQA process was already completed should not be subject to repeated CEQA litigation by staunch plan opponents.

Supervisor Scott Wiener from San Francisco successfully navigated the city’s infamously complex politics to establish a clear deadline for filing CEQA lawsuit challenges once, not multiple times, for the same project.345 That even San Francisco is ahead of the Legislature in reducing CEQA litigation abuse by curtailing duplicative lawsuits is further evidence of the power of special interests in Sacramento.

3. Insufficiently Detailed Technical Studies
Should Be Remedied with Corrected
Studies — and More Mitigation and
Public Review, If Warranted - Not
Rescinded Project Approvals
Lawyers are trained in critical thinking, and there are few lawyers – and fewer judges – who can avoid concluding that a CEQA study could not have been improved in some manner for some topic from an armchair quarterback seat 2-6 years after the study was completed. CEQA currently requires the study of nearly 100 separate topics, each of which also has six separate subparts. In any academic setting, answering 541 questions correctly on a 600-question test would result in an “A” – and answering more than half right would still earn a passing grade. While the courts and Legislature have recognized that CEQA does not demand perfection, in CEQA litigation practice almost 50% of lawsuits result in a finding that an agency missed the mark on only one or two technical study topics – and then usually for just one or two sub-parts of that topic. The most common judicial remedy in CEQA lawsuits, however, is not to fix the part of the study that fell short – e.g., by augmenting a traffic study with more recent traffic counts and, if warranted, more traffic mitigation – but to vacate the agency’s approval of the entire project pending unspecified further CEQA compliance steps.

Notwithstanding the precedent recently set by the California Supreme Court in the Smart Rail decision discussed above, trial and appellate court judges persist in vacating entire project approvals even for apparently trivial errors such as the need to update a traffic count for a single intersection for a San Francisco infill project.346 CEQA lawsuits should not derail projects getting 90% of 600 questions correct.

The Legislature should extend to all projects – not just donor- and voter-rich projects like the Sacramento Kings arena – CEQA litigation remedy reform that precludes vacating a project approval unless proceeding with the project would cause the type of “irreparable harm” that is normally required for injunctive judicial relief (e.g., project-related pollution could cause a substantial public health risk, or planned construction could damage an irreplaceable tribal resource or cause significant harm to the natural ecology). The appropriate remedy for the vast majority of CEQA lawsuits is to fix the technical study gap, require more public disclosure and comment, require more mitigation if appropriate under the corrected study, and hold decision-makers accountable for their final actions.

The appropriate remedy for the vast
majority of CEQA lawsuits is to fix the
technical study gap, require more
public disclosure and comment,
require more mitigation if appropriate
under the corrected study, and hold
decision-makers accountable for
their final actions.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 81 Since most CEQA lawsuits either seek to permanently derail a project (the NIMBY objective), or gain maximum leverage against the project sponsor for non-environmental purposes (the objective of greenmail lawyers, labor unions and business competitors using CEQA lawsuit tactics), the current judicial remedy of vacating project approvals after six or more years of public and judicial review is a nuclear threat that stops environmentally beneficial and widely-supported projects (and stops some proposed projects from completing or even beginning the CEQA agency approval process).

Aligning CEQA litigation injunctive remedies with ordinary standards for injunctive relief – as was done for the Kings Arena project by special legislation – preserves CEQA’s disclosure framework, still demands careful environmental evaluation and mitigation, and guarantees a second round of public and political review of required fixes to any flawed studies. However, this reform will weed out abusive CEQA litigants by reducing their leverage from stopping or delaying an environmentally benign or beneficial project to requiring corrected studies and additional mitigation.

This reform will also substantially curtail CEQA litigation aimed at stopping infill projects (targeted by the vast majority of CEQA lawsuits), rather than simply assuring that the challenged agency complies with CEQA. A traffic study that misses the mark on measuring impacts to a single intersection may justifiably require correction (and additional mitigation, if required by the corrected study). However, vacating an agency approval for a partially or even fully-built (and occupied!) infill project because of an alleged technical deficiency in a traffic, parking, aesthetics, public service, historic resource, and the myriad other studies now required by CEQA, can delay for years or even derail plans and projects designed to achieve important environmental, equity, economic and other public policy objectives. Agencies that missed the mark on a study should be required to fix the study (and do more mitigation if the study shows increased significant impacts), but the approved project should proceed unless doing so causes a true risk to public health, irreplaceable tribal resources or the natural ecology.

This modified judicial remedy reform would also recognize the important role that other agencies (and environmental laws) play in requiring projects to meet the hundreds of other environmental and public safety standards that are now required by laws that did not exist when CEQA was adopted in 1970. California’s regulatory standards are among the most stringent standards in the world (e.g., seismic safety, air quality, hazardous materials, stormwater management, energy and water conservation).

Finally, this modified judicial remedy reform would also curtail CEQA litigation abuse for design and lifestyle disagreements between elected majorities of the Legislature and local agencies, and individuals seeking to prevent change in their communities.

While these disagreements may be passionate, they are also fundamentally political – not “environmental.” As Governor Brown eloquently urged in his Pocket Protector amicus mentioned above, allowing CEQA litigation against urban design choices:
“[I]llustrates the profoundly negative impacts that the escalating misuse of CEQA is having on smart growth
and infill housing” and “strikes at the heart of majoritarian democracy and long standing precedents requiring
deference to city officials when they are interpreting their own land use rules.”
“The [appellate court] found aesthetically degrading the “excessive massing of housing with insufficient front, rear and side yard setbacks [citation omitted]. Just as cogently, other people may well conclude that the close arrangement . . . fostered a cozy, neighborly intimacy. The fact that narrow streets are unfriendly to speeding cars and that neighbors are thrust into close contact may well be viewed as a
superior quality of living rather than a negative impact.” “CEQA discourse has become increasingly abstract, almost medieval in its scholasticism. Nevertheless, if you apply common sense and the practical experience of processing land use applications, you will conclude that what is at stake in this case is not justiciable, environmental impacts but competing visions of how to shape urban living.”
Vacating project approvals after
six or more years of public and
judicial review is a
nuclear threat that stops
environmentally beneficial and
widely-supported projects.

Agenda Item #5.1.

82 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The California Supreme Court declined to review or reverse the Pocket Protectors appellate court decision, which resulted in a twoyear delay of partially constructed townhomes pending completion of an EIR that made no changes to the approved project, but did result in the visual blight of tacked-on blue roof tarps to wood-framed, twostory attached townhomes the neighbors had sought to stop entirely.

This judicial outcome served no environmental purpose, just as no environmental purpose is served by NIMBY design spats (or lawyers hunting greenmail payouts) over setbacks, parking ratios and private views.

This proposed reform would return CEQA to its original purpose, which is assuring adequate study, disclosure and feasible avoidance or mitigation of significant adverse project impacts after many years of judicial uncertainty.

D. How Previous Legislative CEQA
“Reforms” Fell Short: A Short
History of Unicorns, Whack-A-Mole,
Buddy Bills, Sleight-of-Hand, and
Political Panic
As numerous media reports and editorials demonstrate, CEQA litigation abuse for non-environmental (and even anti-environmental) purposes is not “new news.” However, this comprehensive study of CEQA lawsuit petitions is the first proof that the majority of CEQA lawsuits are the result of NIMBY-based opposition to localized infill projects that change the status quo to help advance California’s climate change policies and address urgent need for housing, jobs, infrastructure and services in California communities. CEQA’s litigation abuse status quo defenders have been politically agile, however, in periodically enacting illusory CEQA “reforms” that have no effect – and even expand – opportunities for litigation abuse of CEQA for non-environmental reasons.

CEQA’s litigation abuse status quo defenders have been
politically agile in periodically enacting illusory CEQA “reforms” that have no effect – and even expand –
abuse of CEQA for non-environmental reasons.
• CEQA’s Herd of Unicorns. Unicorns are well known to children and adults as an attractive creature that is much discussed, but never seen. CEQA “reforms” cynically intended to mute criticism of CEQA litigation abuse similarly target an attractive but mythical “project” that simply does not exist. By far the most noteworthy examples of CEQA reform “unicorns” are statutory provisions branded as “exempting” or “streamlining” infill development projects.347 The problem is that these statutory “reforms” include qualifying criteria that have been extremely effective in assuring that no project is ever eligible for CEQA streamlining, and even if such projects do miraculously appear, the “reforms” do nothing to curb CEQA litigation abuse by NIMBYs or other stakeholders. Some examples:
» Senate Bill 375,348 the landmark statute mandating that California revise its regional transportation and land use plans to meet GHG reduction benchmarks for 2020 and
2035, included what its sponsors trumpeted as a “CEQA
exemption” for particular types of infill housing that
meet dozens of standards and are located in designated
neighborhoods of designated communities. In the seven
years since SB 375 has been in effect, and as confidently predicted by land use experts when SB 375 was being
debated, no project has qualified for this unicorn exemption.

SB 375 also included a lesser level of “CEQA streamlining” – a partial pass on the need to consider impacts like “growth inducement” in EIRs – on a CEQA topic that has not been seriously contested in lawsuits in several decades, while failing to provide any “streamlining” provisions on the litany of CEQA deficiencies alleged in most CEQA lawsuits aimed at infill projects, like noise, congestion, air quality, public services, aesthetics, traffic and parking.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 83 » An earlier “infill” exemption included in CEQA, Senate Bill 1925,349 fared even worse: in the 13 years since this law was enacted, we were unable to locate a single project
statewide that qualified for this infill exemption.
» Senate Bill 226 was yet another attempt to “streamline” CEQA for designated types of infill projects.350 Again, the criteria for eligible projects are drawn narrowly (e.g., projects that have a significant amount of surface level parking are ineligible), and the level of CEQA “streamlining” again does not target the infill lawsuit litany. Although the statute is silent on this point, the state Office of Planning & Research (OPR) issued regulatory guidance (“CEQA
Guidelines”) that asserted that the “streamlined” form of CEQA studies that could be used under SB 226 for eligible projects would be subject to a more favorable standard of judicial review: courts should uphold an agency’s approval if it is supported by “substantial evidence” like an EIR, rather than vacate the agency’s approval if opponents have made a “fair argument” that even one impact “may” be significant under the current CEQA streamlining allowed for any type of project qualifying for a “Negative Declaration.”351 Even if this untested, partial SB 226 streamlining worked perfectly, the litigation failure rate risk for infill projects remains over 40% – far too high to qualify for standard construction loans or other forms of financing critical to infill projects.

Apart from infill-related unicorn exemptions, the Legislature sometimes adopts non-reforms that can be described as – but do not actually work as – efforts to curb CEQA litigation abuse. » For example, in 2010 the Legislature enacted a statute to prohibit “frivolous” CEQA lawsuits. The impossible statutory criteria for what actually constituted a “frivolous” lawsuit (to be “frivolous,” a lawsuit must be “totally and completely without merit”) made this another “unicorn” reform –
discussed but never seen in practice, notwithstanding the prevalence of well-known “bounty hunter” CEQA352 lawsuits (lawyers who decline to identify, and may not even have, a client) and projects targeted by over 20 lawsuits filed by the same or related parties.

Agenda Item #5.1.

84 | Copyright © 2015 Holland & Knight LLP All Rights Reserved » A more recent example involves Assembly Bill 900,353
which created a “fast track” litigation pathway for qualifying types of “leadership projects” which required a capital investment of more than $100 million, and commitments
to implement a list of various special interest priorities.

Modeled after a “Buddy Bill” to expedite construction of a football stadium in Los Angeles (see below), AB 900’s litigation fast track was two-fold. The first level of the judiciary (the trial courts) were skipped entirely, and the second level of the judiciary (the appellate courts) were required by the statute to resolve the lawsuit in 270 days (nine months). Notwithstanding significant legal arguments that the California Constitution forbade “skipping” the trial court, and that the “separation of powers” in the California Constitution precluded the Legislature from imposing a
hard deadline on appellate courts, the Legislature enacted AB 900 with the promise of fast-tracking “big” projects during the Great Recession. Not surprisingly, constitutional challenges to AB 900 were successful – and the portion
of AB 900 that allowed “skipping” the trial court were
held unlawful. The court did not address the nine-month “deadline” that remains in AB 900 – but as bills to expand the list of qualifying projects are considered, the Legislature has been repeatedly reminded by various stakeholders
(including representatives of the judiciary) of the complete impracticability and unenforceability of this nine-month deadline for getting through a trial process that generally takes about two years, an appellate court process that
generally takes another two years, and a California
Supreme Court process that can take 1-3 years. Pretending that a nine-month unenforceable CEQA litigation fast track will bypass the 2-6-plus-year judicial process is another “unicorn” reform – much discussed, but never seen.

Sometimes unicorns never even make it into enacted
legislation. Trusted lobbyists can simply tell the California Legislature about what CEQA does – and does not – do,
and these assertions then gain a remarkable level of
traction, even when there is no basis in law or fact for these statements. In 2015, the award for the most widespread
CEQA political falsehood is the entirely mythical assertion that CEQA exempts affordable housing projects. The entirely unicorn affrodable housing “exemptions” have no real world effect, of course, as confirmed by the many examples of affordable housing CEQA lawsuit challenges noted in this study – as well as the LAO’s courageous report confirming the problem caused by CEQA to housing affordability.354 • Whack-A-Mole. Whack-A-Mole is a classic arcade game
where “moles” pop up randomly on a nine-hole grid, and
players get points for whacking as many moles as possible with an oversized foam hammer. As stories of particularly egregious examples of CEQA litigation abuse reach critical mass outside – and even within – Sacramento, another successful political strategy deployed by CEQA’s litigation abuse status quo defenders is to treat each new outrageous example of CEQA abuse as a “mole” to be whacked by an ineffective toy statutory exemption hammer.

After losing its first Bike Plan CEQA lawsuit,
San Francisco could not even paint a bike
lane safety stripe for the years it took city
staff to prepare a full EIR.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 85 » CEQA lawsuits blocking city plans to make increasinglycongested urban streets safer for bikes, pedestrians and cars reached an outrageous low point when the bike plans approved by San Francisco and other cities were sued by merchants and NIMBYs opposed to the loss of parking
spaces to bike lanes. After losing its first Bike Plan CEQA lawsuit, San Francisco could not even paint a bike lane safety stripe for the several years it took city staff to prepare a full EIR for its bike plan.355 The Legislature responded to this embarrassment with an incomplete (and thus largely ineffective) CEQA exemption for bike plans.356
» As public outcry (including criticisms from environmental allies) grew over the use of multiple CEQA lawsuits by
unions competing for territory against time-constrained, federally subsidized solar energy projects at the height of the recession, the Legislature enacted a CEQA “reform”
bill to encourage solar panel installations on top of existing rooftops.357 Rooftop solar installations are either statutorily or categorically exempt from CEQA under existing law
(depending on the type of permit required by a local
agency), and there were no CEQA lawsuits targeting rooftop solar during the study period (which overlapped precisely with the period when warring territorial claims resulted in CEQA lawsuits and CEQA lawsuit threats against utilityscale solar projects). Nevertheless, CEQA’s status quo defenders triumphantly pronounced this inconsequential
new statute as “CEQA reform.”
• Buddy Bills: CEQA For The Political Elite. Another timehonored legislative CEQA tradition is to give a CEQA pass to the Legislature’s political favorites. While more current examples include three professional sport team facilities (two football stadiums in Los Angeles, both of which remain unbuilt,358 and one Basketball Arena in Sacramento now under construction),359 CEQA’s 45-year history is tarnished by several of these “Buddy Bills” – such as CEQA exemptions for new state prisons backed by the powerful prison guard union,360 CEQA exemptions
allowing for other professional sports team projects (e.g., early property condemnation by the San Francisco Giants as they prepared to build their new downtown ballpark),361 and a CEQA exemption covering all activities required for Los Angeles to host the Olympic Games in 1984.362
Another time-honored legislative CEQA
tradition is to give a CEQA pass to the
Legislature’s political favorites.

Agenda Item #5.1.

86 | Copyright © 2015 Holland & Knight LLP All Rights Reserved • Sleight-of-Hand and Misdirection: “Reforms” that Actually Expand CEQA Litigation Abuse. The most audacious of CEQA’s legislative “reforms” are those that actually invite more abusive CEQA lawsuits.
» So far in 2015, the most audacious bill – hands-down – was authored by Senator Hannah-Beth Jackson. Senator
Jackson is from Senate District 19, which is dominated by the wealthy no-growth coastal community of Santa Barbara.

Her SB 122363 originally expanded CEQA by adding a new
public comment process to the already-lengthy EIR process, but has since been scaled back to “just” add new litigation compliance pitfalls for ordinary CEQA projects. Existing law allows preparation of the administrative record – the contents of which are the subject of the CEQA lawsuit – to be prepared by the project opponents and certified as complete by the agency, or prepared by the agency and paid for by the project opponents.364 Since the ever-more-elaborate CEQA studies prepared to try to increase the odds of winning a CEQA lawsuit can run into the thousands – and sometimes tens of thousands – of pages, parties initiating CEQA lawsuits have balked at the cost of either preparing or paying for the preparation of the administrative record. SB 122 allows what is already a common practice – a private party applicant can choose to pay for the cost of preparing the administrative record to help expedite completion of legal briefs and
oral argument. However, this legislation also creates two brand new litigation pitfalls by requiring lead agencies to electronically post incomplete and even erroneous draft CEQA documentation, and by imposing new compliance
deadlines for electronic posting of comments, applicantprepared and agency-prepared documents in only 5-7 days, which is months in advance of (and in addition to) current requirements for completing the Final EIR and Negative
Declaration process.
» Senate Bill 743365 was a Buddy Bill to protect the Sacramento Kings Arena project from the risk of being blocked or delayed by a CEQA lawsuit. Pushed through in the closing days of the Legislative session of 2013, last-minute amendments to SB 743 included two important infill CEQA streamlining provisions. First, infill projects in qualifying locations do not need to consider “aesthetics” or “parking” as CEQA impacts.

Second, SB 743 invited OPR to propose an alternative to the “Level of Service” congestion-based metric used to
evaluate the significance of project traffic delays, given that traffic congestion, along with traffic-related air quality and public safety impacts, are the most frequently challenged CEQA infill project topic (as well as being the source of the greatest popular frustration with higher-density development proposals). SB 743 could have simply eliminated LOS from CEQA for infill projects, as it did for the parking and aesthetics CEQA impact categories, and substantially curtailed litigation targets for infill projects. It did the opposite, however, by specifically maintaining in CEQA air quality and safety impacts that are a direct function of LOS congestion levels, and by inviting OPR to develop a replacement metric that would then create an untested new CEQA litigation pitfall. In response to this legislation, OPR proposed to expand CEQA by adding yet another new “Vehicle Miles Travelled” impact – and
further proposed to require that initially only infill projects comply with this new VMT mandate. OPR’s prior decision
to add a new regulatory impact to CEQA – for greenhouse gas emissions – has sparked more than a decade of new
CEQA litigation claims, two of which remain pending in the California Supreme Court. For infill projects to run a decadelong gauntlet of lawsuits over a new CEQA “VMT” impact, while still being required to evaluate “LOS” congestion for air quality, public safety, noise, plan consistency and other purposes, is an example of a reform that expands CEQA
litigation abuse opportunities against the very type of projects that California’s climate goals have prioritized.366
The most audacious of CEQA’s legislative
“reforms” are those that actually invite more
abusive CEQA lawsuits.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 87 The Legislature’s expansion of CEQA has richly rewarded the defenders of the CEQA litigation abuse status quo. The rest of California does not fare as well.
• Politician Panic. Sometimes CEQA litigation abuse is just too hard to defend, even for CEQA’s legion of accomplished status quo defenders. What’s most remarkable about these bills – enacted in a panic to avoid closer public scrutiny of outrageous fiscal or policy CEQA abuse – is that CEQA litigation could be aimed at such environmentally benign projects.

Assembly Bill 2564 (Ma) created a CEQA exemption for the “maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline” that is less than one mile long and located within a public right-of way. This bill was enacted after a natural gas pipeline ruptured in San Bruno, killing several people and wounding more. The state’s pipeline regulatory agency responded in part by ordering utilities to immediately inspect, and repair or replace, deficient pipelines throughout the state. A CEQA process for studying and approving this new statewide mandate would have taken many years, and could have been delayed even longer by CEQA lawsuits. Politician panic set in at the prospect of multi-year delays for the repair of deficient pipelines, and a “1-mile” CEQA exemption was enacted. It is politically impolite to ask how many pipeline segments were repaired or replaced in “1-mile” bites.367
Other examples of Politician Panic exemptions include repairs “initiated within one year of damage” to highways damaged by earthquakes, landslides, and other natural disasters (“What do you mean I can’t repair the road?!?”);368 agency decisions to disapprove a project (“What do you mean we have to spend millions to study a project we know we don’t want to do!?!”);369 and the “establishment or modification of rates, tolls, fares or other changes needed to maintain or provide adequate” transit service (“We don’t have enough money to keep the buses
running, and we have to divert millions on environmental studies before raising the fares?!?”).370
The Politician Panic bills, like other categories of CEQA legislative exemptions, have helped conceal the absurdity of CEQA’s reach – and opportunities for CEQA litigation abuse – into routine management of safety, maintenance and services.

E. Help CEQA Work: Why Ending CEQA
Litigation Abuse Helps Californians
and the Environment
Defenders of the CEQA litigation status quo launched a “CEQA Works” website as part of a campaign against CEQA reform.371 The website explains that the mission of the coalition is to defend CEQA’s current structure of Transparency, Mitigation, Comprehensive Protection, Public Participation, and Community Enforcement. The three moderate CEQA litigation abuse reforms discussed above are consistent with, and advance, each of these goals:
• Transparency is expanded. Not only does transparency
continue to apply to all aspects of the CEQA compliance process, which already requires the careful evaluation and disclosure of project environmental impacts, but under the proposed reforms transparency is extended into the CEQA litigation process to assure that this great environmental law is actually being used to protect the environment and public safety, and not simply as a “greenmail” tactic by cloaked parties seeking to advance nonenvironmental goals.

The Legislature’s expansion of CEQA has
richly rewarded the defenders of the CEQA
litigation abuse status quo. The rest of
California has not fared as well.

Agenda Item #5.1.

88 | Copyright © 2015 Holland & Knight LLP All Rights Reserved • Mitigation obligations under CEQA remain unchanged by the proposed reforms.
• Comprehensive protections of all impacts, including
cumulative impacts, remain unchanged by the proposed
reforms.
• Public participation CEQA compliance procedures are
likewise unchanged by the proposed reforms. Extending the transparency mandate to the litigation process increases public disclosure, and provides the public with meaningful information about who is using CEQA – and why – for approved projects. • Community enforcement in the courts is preserved for
parties willing to be identified and seeking to protect the environment. According to CEQA Works, “CEQA must
continue to provide the public with the right to sue to enforce its protections, a key tool to protect communities, particularly those in disadvantaged areas.” The three recommended reforms will make it much harder to sue projects for non-environmental reasons, and will make it impossible to hide the identity of those seeking to enforce this great California law. Since CEQA lawsuits disproportionately attack infill projects – the kind of projects that will help the disadvantaged by providing employment and public benefits such as transit and water infrastructure, affordable housing and parks, and public services such as schools and urban libraries – ending CEQA litigation abuse for non-environmental purposes will expedite completion of these projects and return California to an era of progress rather than process.

One need look no further than the dismal, multi-decade delays caused by CEQA litigation abuse against transit and multifamily housing projects in Los Angeles to recognize that CEQA currently best serves the defenders of the status quo – often those who are wealthier, whiter, older, and more aligned with the special interests wedded to CEQA litigation abuse for non-environmental purposes – and often to the detriment of the very “disadvantaged” that the CEQA Works coalition agrees should be protected.

The problem of CEQA litigation abuse is clear. The Governor has attempted to navigate his own course through CEQA, arguing that the state’s largest transit infrastructure project – High Speed Rail – is exempt from CEQA based on federal preemption of rail operations.

Ultimately, ending CEQA litigation abuse is a political question before the Legislature. Despite the strident efforts of special interest defenders of the litigation status quo – and despite the Legislature’s non-reform “unicorns” and related tactics to avoid meaningful CEQA reform – the stories of CEQA litigation abuse are now too widespread, and too numerous, to continue to ignore.

CEQA litigation practice is no longer aligned with
California’s environmental equity or economic objectives, and CEQA reform is long past overdue. Approval of new
bond measures, the extension of higher income taxes,
and the expenditure of cap and trade funds, should all be deferred until CEQA is modernized to prevent litigation abuse – which will ensure that taxpayer funds are used on progress and projects, and not on process and posturing.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 89 CEQA litigation abuse is real, it is harming people (especially the poor, the working class, and the young), and it is obstructing rather than advancing critical environmental, equity, and economic priorities. We have a choice. We can continue to enrich the armies of consultants and lawyers who make their living from CEQA, and continue to allow projects that comply with California’s stringent environmental standards, and have undergone intense public scrutiny and comprehensive environmental studies, to be derailed, delayed, or made far more costly by disgruntled NIMBYs and those using CEQA for non-environmental reasons.

Or, alternatively, we can end the CEQA “arms race” and limit CEQA litigation to its original environmental purpose, where its sister statutes such as NEPA and state versions of CEQA continue to thrive.

Under this alternative, environmental advocacy groups can still sue to enforce CEQA and still seek the extraordinary judicial remedy of rescinding a project approval for a deficient CEQA analysis that could allow the project to harm public health, irreplaceable tribal resources or ecological resources. Under this alternative reality, CEQA’s analytical and mitigation requirements, and CEQA’s public transparency and accountability mandates, would be preserved.

CEQA litigation abuse by anonymous or secret petitioners seeking non-environmental outcomes such as competitive advantage, control of project jobs, and extortionate cash settlements - and to deal with localized neighborhood spats - will end.

CONCLUSION
Using CEQA nomenclature, under this preferred alternative, California will remain an environmental leader, and our Legislature and Governor (and the majority of California voters) can continue to lead on important environmental issues such as climate change and drought.

Today, CEQA litigation practice is no longer aligned with California’s environmental objectives, and CEQA reform is long past overdue.

Approval of new bond measures, the extension of higher income taxes, and the expenditure of cap and trade funds, should all be deferred until CEQA is modernized to prevent litigation abuse, to make sure taxpayer funds are used on progress and projects, not on process and posturing.

CEQA litigation abuse is real,
it is harming people (especially
the poor, the working class, and
the young), and it is obstructing
rather than advancing critical
environmental priorities.

Agenda Item #5.1.

90 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The authors of this report are attorneys in the California environmental and land use practice group of the international law firm Holland & Knight.

Jennifer Hernandez, co-chair of Holland & Knight’s National Environmental Team, leads Holland & Knight’s West Coast Land Use and Environment Practice Group. She is also a member of the firm’s Directors Committee. Ms. Hernandez has written two books and more than 50 articles on environmental and land use topics, and has taught in law school and college classes at Stanford, Hastings, Boalt Hall and UC Davis. She is a graduate of Harvard University and Stanford Law School, received a California Lawyer of the Year award from the California Bar Association’s California Lawyer, and was named a top minority lawyer by The National Law Journal.

Ms. Hernandez has spent decades on the boards of non-profit environmental advocacy groups, was appointed by President Clinton as a trustee for the San Francisco Presidio, and has won numerous awards on environmental and land use pro bono advocacy work for minority and underserved communities – including the “Big Brain” award from the Greenlining Institute, and a Proclamation from thenMayor Willie Brown naming October 9, 2002, as “Jennifer Hernandez Day in San Francisco” for her work as a “warrior on the brownfields.” David Friedman is of counsel in Holland & Knight’s Government Section and practices in the firm’s Los Angeles office. He focuses on land use and development, state and federal resource policy, and regulatory counseling. His experience includes the analysis and legal support of project water supply assessments, endangered species impacts, and wetlands and water permitting. Dr. Friedman received his J.D. from UCLA Law School (Order of the Coif), and his Ph.D. from the Massachusetts Institute of Technology. Dr. Friedman served as a Fulbright Fellow in Japan, a National Science Foundation Fellow, a Senior Fellow at the New America Foundation and a fellow at the Progressive Policy Institute (the think tank for the Democratic Leadership Council under President Bill Clinton).

Stephanie DeHerrera is a law clerk in Holland & Knight’s West Coast Land Use and Environment Practice Group. She received her J.D. at Hastings College of the Law, where she was a member of the board of the Hastings Constitutional Law Quarterly. Ms. DeHerrera previously interned in the San Francisco City Attorney’s land use division and was program director at the Organizing and Leadership Academy.

AUTHORS
Publications
Holland & Knight’s West Coast Land Use and Environmental Group periodically publishes analyses of California legal and policy data, including information documenting the use, and abuse, of CEQA.

Other recent reports on CEQA include the following:
• CEQA Judicial Outcomes: Fifteen Years of Reported California Appellate and Supreme Court Decisions, Holland & Knight alert, May 2015, available at http://www.hklaw.com/files/Uploads/ Documents/Articles/0504FINALCEQA.pdf
• California Environmental Quality Act, Greenhouse Gas
Regulation and Climate Change, Chapman University Center for Demographics and Policy, 2015, available at
http://www.chapman.edu/wilkinson/_files/GHGfn.pdf
• California’s Social Priorities, Chapman University Center for Demographics and Policy, 2015, available at
http://www.chapman.edu/wilkinson/_files/CASocPrioFnSm2.pdf • The National Environmental Policy Act in the Ninth Circuit:

Once the Leader, Now the Follower? Environmental Practice, December 2014, available at http://journals.cambridge.org/action/ displayAbstract?fromPage=online&aid=9548069
• Analysis of Recent Challenges to Environmental Impact Reports, Holland & Knight alert, December 2012, available at http://www.hklaw.com/publications/Analysis-of-RecentChallenges-to-Environmental-Impact-Reports-12-01-2012/ • Is CEQA “Fixed” – Do Infill CEQA Reforms Help or
Handicap Your Project? Holland & Knight alert, September 13, 2012, available at http://www.hklaw.com/files/
Publication/04664546-629b-4477-a59e-c6ee4537a7c7/
Presentation/PublicationAttachment/e1e11da8-a7ae-41dc-a105- db1b0210a5f1/IsCEQAFixed.pdf
• Judicial Review of CEQA Categorical Exemptions from
1997-Present, Holland & Knight alert, August 2012, available at http://www.hklaw.com/files/Publication/6c8c1fd0-
7a6b-4c2f-822f-19c3ff4b95ec/Presentation/
PublicationAttachment/4f319f3a-f238-4e9a-87c3-
1a355deb0eaa/JudicialReviewofCEQACategoricalExemptions.pdf Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 91 Contact Us
Please contact us for more information on this report, our other publications or CEQA more generally:

Jennifer L. Hernandez
Holland & Knight LLP
Partner | Leader, West Coast Land Use and
Environmental Group
Co-Chair, National Environmental Team
415.743.6927 | San Francisco
213.896.2400 | Los Angeles
[email protected]
David Friedman
Holland & Knight LLP
Of Counsel
213.896.2431 | Los Angeles
[email protected]
Stephanie DeHerrera
Holland & Knight LLP
Law Clerk
415.743.6971 | San Francisco
[email protected]
Holland & Knight
Holland & Knight’s West Coast Land Use and Environment Practice Group periodically analyzes California policy data and court rulings regarding the ways in which CEQA, the California Environmental Quality Act of 1970, is both used and abused. Part of one of the largest law firms in the United States, the group’s lawyers have extensive experience and knowledge in all aspects of land use and environmental law, from acquisitions and project development to environmental audits and compliance assessments.

Holland & Knight is a global law firm with more than 1,100 lawyers and other professionals in 22 U.S. offices, as well as Bogotá and Mexico City. Our lawyers provide representation in litigation, business, real estate and governmental law. Interdisciplinary practice groups and industry-based teams provide clients with access to attorneys throughout the firm, regardless of location.

Agenda Item #5.1.

92 | Copyright © 2015 Holland & Knight LLP All Rights Reserved

CASE NAME REGION DATE

LOCATION OF

PROJECT

PROJECT

TYPE PROJECT SUBTYPE

AGENCY OR

PRIVATE

PROJECT

INFILL OR

GREENFIELD

PROJECT

CHALLENGED CEQA

COMPLIANCE

TRACK(S)
Golden Gate Land Holdings,
LLC v. East Bay Regional
Park District
San
Francisco 5/11 Multijurisdictional Park Passive Recreation Agency Infill - Park Categorical
Exemption
Glenn Bell; Bob Fifield; John
Freeman; Cynthia Positano
v. City of Fremont, et al.

San
Francisco 5/11 Fremont Park
Other Active
Recreation Agency Infill - Park Negative Declaration
John Freeman v. City of
Fremont, et al.

San
Francisco 10/10 Fremont Park
Other Active
Recreation Agency Infill - Park Negative Declaration
Save Strawberry Canyon v.

Regents of the University of
California
San
Francisco 2/11 Berkeley Schools College Agency Infill
Environmental
Impact Report
Sustainability, Parks
Recycling and Wildlife
Defense Fund v. East Bay
Regional Parks District
San
Francisco 12/12 Albany Park Passive Recreation Agency Infill - Park Environmental
Impact Report
Friends of Moraga Canyon
v. City of Piedmont, et al.

San
Francisco 1/12 Piedmont Park
Other Active
Recreation Private Infill - Park
Environmental
Impact ReportAddendum
Alameda Creek Alliance v.

California Department of
Transportation
San
Francisco 6/11 Alameda County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure Negative Declaration
The Council of
Neighborhood Associations,
et al. v. City of Berkeley
San
Francisco 5/12 Berkeley Regulatory City - Land Use Agency N/A Environmental
Impact Report
Washoe Meadows
Community v. California
State Parks and Recreation
Commission, et al.

San
Francisco 2/12 South Lake Tahoe Park Golf Agency
Greenfield -
Park
Environmental
Impact Report
Living Rivers Council v.

State Water Resources
Control Board
San
Francisco 2/11 Napa County Regulatory Regional - Regulation Agency N/A Certified Regulatory
Program
Albany Strollers & Rollers, et
al. v. City of Albany, et al.

San
Francisco 8/12 Albany Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Parker Shattuck Neighbors,
et al. v. Berkeley City
Council, et al.

San
Francisco 2/12 Berkeley Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Sustainable West Berkeley
Alliance, et al. v. City of
Berkeley, et al.

San
Francisco 5/11 Berkeley Regulatory City - Land Use Agency N/A Environmental
Impact Report
Friends of Knowland Park,
et al. v. City of Oakland,
et al.

San
Francisco 7/11 Oakland Park
Other Active
Recreation Private Infill - Park
Negative
DeclarationAddendum
Center for Biological
Diversity, et al. v. California
Fish and Game Commission
San
Francisco 1/12 State Regulatory State - Regulation Agency N/A Statutory Exemption Pesticide Action Network
North America, et al. v.

California Department of
Pesticide Regulation, et al.

San
Francisco 12/10 State Regulatory State - Regulation Private N/A Certified Regulatory
Program
East Bay Regional Park
District, et al. v. City of
Alameda, et al.

San
Francisco 11/12 Alameda Regulatory City - Land Use Agency N/A Environmental
Impact ReportAddendum
Karuk Tribe, et al. v.

California Department of
Fish and Game, et al.

San
Francisco 4/12 State Regulatory State - Regulation Agency N/A Environmental
Impact Report
The New 49'ers, Inc., et al.
v. State of California, et al. Norcal 4/12 State Regulatory State - Regulation Agency N/A Environmental
Impact Report

APPENDIX A
This Appendix lists all CEQA lawsuits provided to the authors by the California Attorney General’s Office in response to a Public Record Acts Request. For some projects, multiple lawsuits were filed, and this Appendix shows the second and subsequent lawsuits in grey shading. The authors also became aware that not all CEQA lawsuits filed during the study period (2010-2013) were provided by the Attorney General’s Office. Since there was no ready means of finding all “missing” lawsuits, the Appendix – and the study’s statistical compilations – are limited to those cases provided by the Attorney General’s Office.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 93 Public Lands for the People,
Inc., et al. v. California
Department of Fish and
Game SCAG 4/12 State Regulatory State - Regulation Agency N/A Environmental
Impact Report
Hills Conservation Network,
Inc v. East Bay Regional
Parks District, et al.

San
Francisco 5/10 Alameda County Park Passive Recreation Agency Infill - Park Environmental
Impact Report
Citizens Committee to
Complete the Refuge v. City
of Newark, et al.

San
Francisco 9/10 Newark Residential
Master Planned
Community Private Infill
Environmental
Impact Report
Save Strawberry Canyon v.

Regents of the University of
California
San
Francisco 8/10 Berkeley Schools College Agency Infill
Environmental
Impact Report
Living Rivers Council v.

State Water Resources
Control Board
San
Francisco 10/10 Multijurisdictional Regulatory Regional - Regulation Agency N/A Certified Regulatory
Program
Preserve San Leandro
Mobility, et al. v. City of San
Leandro, et al.

San
Francisco 5/10 San Leandro
Public Services
& Infrastructure Hospital Private Infill
Environmental
Impact Report
Concerned Library Users v.

City of Berkeley, et al.

San
Francisco 9/10 Berkeley
Public Services
& Infrastructure Library Agency Infill Negative Declaration Berkeley Hillside
Preservation, et al. v. City of
Berkeley, et al.

San
Francisco 5/10 Berkeley Residential
Single-Family Home/
Second Unit Private Infill
Categorical
Exemption
Stand Up for Berkeley, et al.
v. Regents of the University
of California
San
Francisco 2/10 Berkeley Schools College Agency Infill
Environmental
Impact ReportAddendum
California Building Industry
Association v. Bay Area Air
Quality Management District
San
Francisco 11/10 Multijurisdictional Regulatory Regional - Regulation Agency N/A No CEQA
Determination
Center for Biological
Diversity, et al. v. California
Department of Conservation,
Division of Oil, Gas &
Geothermal Resources
San
Francisco 10/12 State Mining O&G Agency N/A
Negative
Declaration/
Categorical
Exemption
Carlos Urrutia Felix, et al. v.

City of Walnut Creek,
et al.

San
Francisco 2/12 Walnut Creek Residential
Multifamily/ Mixed
Use Private Infill
Categorical
Exemption
George Bravos, et al. v. City
of Walnut Creek, et al.

San
Francisco 11/11 Walnut Creek Residential
Multifamily/ Mixed
Use Private Infill
Statutory Exemption/
Categorical
Exemption
Lomas Cantadas
Groundwater Protection
Committee v. City of Orinda,
et al.

San
Francisco 5/10 Orinda Residential
Single-Family Home/
Second Unit Private Infill
Negative
DeclarationMitigated
Contra Costa Water District
v. County of Contra Costa,
et al.

San
Francisco 7/11 Contra Costa County Residential
Large Subdivision/
Mixed Use Private Greenfield
Negative
DeclarationMitigated
Californians for Alternatives
to Toxics v. North Coast
Railroad Authority, et al.

San
Francisco 7/11 Multijurisdictional
Public Services
& Infrastructure Railroad/ Non-Transit Private
Infill -
Infrastructure
Environmental
Impact Report
Friends of the Eel River v.

North Coast Railroad
Authority, et al.

San
Francisco 7/11 Multijurisdictional
Public Services
& Infrastructure Railroad/ Non-Transit Private
Infill -
Infrastructure
Environmental
Impact Report
Designers, Engineers,
Constructors for Better,
Safer Schools, et al. v. Mill
Valley School District, et al.

San
Francisco 7/11 Mill Valley Schools K-12 Agency Infill
Negative
DeclarationMitigated
Agenda Item #5.1.

94 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Citizens for Educated
Government v. Mill Valley
School District, et al.

San
Francisco 7/11 Mill Valley Schools K-12 Agency Infill
Negative
DeclarationMitigated
Albert Park Neighborhood
Alliance v. City of San
Rafael, et al.

San
Francisco 11/11 San Rafael Entertainment Professional Sports Private Infill Categorical
Exemption
Keep It Local San Rafael v.

City of San Rafael
San
Francisco 6/11 San Rafael Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact ReportAddendum
Save the Plastic Bag
Coalition v. County of Marin,
et al.

San
Francisco 2/11 Marin County Regulatory
Local Plastic Bag
Regulation Agency N/A
No CEQA
Determination
West Marin/Sonoma Coastal
Advocates, et al. v. County
of Marin, et al.

San
Francisco 1/11 Marin County Energy Renewable - Wind Private Greenfield -
Energy
Categorical
Exemption
Salmon Protection and
Watershed Network v.

County of Marin, et al.

San
Francisco 9/10 Marin County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Carol Vendrillo, et al. v.

County of Napa, et al.

San
Francisco 2/10 Napa County Residential Small Subdivision Private Greenfield Statutory Exemption/
Categorical
Exemption
The Sierra Club v. Board of
Supervisors of the County of
Napa, et al.

San
Francisco 1/10 Napa County Residential Small Subdivision Private Greenfield Statutory Exemption/
Categorical
Exemption
Latinos Unidos Del Valle de
Napa y Solano v. City of
Napa
San
Francisco 5/10 Napa Residential Resort Private Greenfield Environmental
Impact Report
Neighbors Against
Alexander Crossings, et al.
v. City of Napa, et al.

San
Francisco 9/11 Napa Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Save San Juan Valley,
et al. v. California
Department of
Transportation
San
Francisco 9/11 Multijurisdictional
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
Save Panoche Valley, et al.
v. San Benito County
San
Francisco 5/11 San Benito County Energy Renewable - Solar Private Greenfield -
Energy
Environmental
Impact Report
Stephen Munich, et al. v.

San Mateo County, et al.

San
Francisco 4/11 San Mateo County Residential
Single-Family Home/
Second Unit Private Infill
Categorical
Exemption
Committee for Green
Foothills v. County of San
Mateo, et al.

San
Francisco 4/11 San Mateo County Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Montara Water and Sanitary
District v. County of San
Mateo, et al.

San
Francisco 4/11 San Mateo County Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Granada Sanitary District v.

County of San Mateo, et al.

San
Francisco 4/11 San Mateo County Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Protect Atherton's
Residential Character v.

Sequoia Union High School
District, et al.

San
Francisco 8/10 Atherton Schools K-12 Agency Infill
Categorical
Exemption
Friends of the College of
San Mateo Gardens v. San
Mateo County Community
College District, et al.

San
Francisco 9/11 San Mateo Schools College Agency Infill
Negative
DeclarationAddendum
Friends of the College of
San Mateo Gardens v. San
Mateo County Community
College District, et al.

San
Francisco 6/11 San Mateo Schools College Agency Infill
Negative
DeclarationAddendum
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 95 Citizens for a Green San
Mateo v. San Mateo County
Community College District,
et al.

San
Francisco 7/11 San Mateo Schools College Agency Infill
Negative
DeclarationMitigated
Friends of Cordilleras Creek,
et al. v. City of Redwood
City, et al.

San
Francisco 10/12 Redwood City Residential Small Subdivision Private Infill Environmental
Impact Report
City of San Jose v. Santa
Clara County Airport Land
Use Commission
San
Francisco 12/10 Santa Clara County Regulatory County - Land Use Agency N/A Negative Declaration Citizens Against Airport
Pollution v. City of San Jose,
et al.

San
Francisco 7/10 San Jose
Public Services
& Infrastructure Airport Agency Infill
Environmental
Impact ReportAddendum
County of Santa Clara v. City
of Milpitas, et al.

San
Francisco 6/10 Milpitas Regulatory City - Land Use Agency N/A Environmental
Impact Report
Prudential Insurance
Company of America v. City
of Santa Clara
San
Francisco 6/12 Santa Clara Entertainment Amusement Park Private Infill Categorical
Exemption
Walton CWCA Wrigley Creek
31, LLC v. Santa Clara
Valley Transportation
Authority, et al.

San
Francisco 4/11 Santa Clara County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Eastridge Shopping Center,
LLC v. Santa Clara Valley
Transportation Authority
San
Francisco 2/12 San Jose
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Hacienda Realty, LLC,
et al. v. City of Monte
Sereno, et al.

San
Francisco 6/12 Monte Sereno Regulatory City - Land Use Agency N/A Negative Declaration Philip Koen, et al. v. City of
San Jose, et al.

San
Francisco 9/12 San Jose Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Joy Ogawa, et al. v. City of
Palo Alto, et al.

San
Francisco 4/11 Palo Alto
Public Services
& Infrastructure Sidewalk/ Streetscape Agency
Infill -
Infrastructure Negative Declaration
Ross Creek Neighbors v.

Town of Los Gatos, et al.

San
Francisco 12/10 Los Gatos Residential Small Subdivision Private Infill Environmental
Impact Report
Lynnbrook-Monta Vista
United v. Fremont Union
High School District, et al.

San
Francisco 5/12 San Jose Schools K-12 Agency Infill
Environmental
Impact Report
Lynnbrook-Monta Vista
United v. Fremont Union
High School District, et al.

San
Francisco 1/11 San Jose Schools K-12 Agency Infill
Environmental
Impact Report
Lynnbrook-Monta Vista
United v. Fremont Union
High School District, et al.

San
Francisco 5/12 San Jose Schools K-12 Agency Infill
Environmental
Impact Report
Stand for San Jose, et al. v.

City of San Jose, et al.

San
Francisco 12/11 San Jose Entertainment Professional Sports Private Infill Environmental
Impact Report
Cuesta Annex and Salco
Acres Preservation Group v.

Santa Clara Valley Water
District, et al.

San
Francisco 12/12 Mountain View
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Environmental
Impact Report
People's Coalition for
Government Accountability
v. County of Santa Clara,
et al.

San
Francisco 11/12 Santa Clara County
Public Services
& Infrastructure Church Private Infill
Negative
DeclarationMitigated
Keep Our Mountains Quiet
v. County of Santa Clara,
et al.

San
Francisco 3/12 Santa Clara County
Agricultural &
Forestry Winery Private
Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
Milpitas Coalition for a
Better Community v. City of
Milpitas
San
Francisco 7/11 Milpitas Retail
Walmart/Big Box
Store Private Infill
No CEQA
Determination
Agenda Item #5.1.

96 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Los Gatos Citizens for
Responsible Development,
et al. v. Town of Los Gatos,
et al.

San
Francisco 9/11 Los Gatos Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Midpenninsula Regional
Open Space District v.

County of Santa Clara,
et al.

San
Francisco 11/12 Santa Clara County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
California Clean Energy
Committee v. City of San
Jose
San
Francisco 11/11 San Jose Regulatory City - Land Use Private N/A Environmental
Impact Report
Town of Hillsborough v.

California Public Utilities
Commission, et al.

San
Francisco 12/12 Multijurisdictional
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Categorical
Exemption
Marc Bruno, Representative
of Save North Beach v. City
and County of San
Francisco, et al.

San
Francisco 7/12 San Francisco
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Maida B. Taylor, MD, et al.
v. City and County of San
Francisco, et al.

San
Francisco 8/11 San Francisco Residential Small Subdivision Private Infill Categorical
Exemption
Nob Hill Association v. City
and County of San
Francisco, et al.

San
Francisco 5/12 San Francisco Entertainment Dance Hall/Music Private Infill Statutory Exemption San Francisco Beautiful v.

City and County of San
Francisco, et al.

San
Francisco 5/12 San Francisco Regulatory City - Regulation Private N/A Categorical
Exemption
San Francisco Baykeeper,
Inc v. California State Lands
Commission
San
Francisco 11/12 Multijurisdictional Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
San Francisco Beautiful,
et al. v. City and County of
San Francisco, et al.

San
Francisco 8/11 San Francisco
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Categorical
Exemption
Waterfront Watch v. San
Francisco Port Commission,
et al.

San
Francisco 2/12 San Francisco Entertainment Yacht Race Event Private N/A Environmental
Impact Report
Save the Plastic Bag
Coalition v. City and County
of San Francisco, et al.

San
Francisco 2/12 San Francisco Regulatory
Local Plastic Bag
Regulation Agency N/A
Categorical
Exemption
Defend Our Waterfront v.

California State Lands
Commission, et al.

San
Francisco 9/12 San Francisco Residential Multifamily/Mixed Use Private Infill Statutory Exemption Neighbors to Preserve the
Waterfront, et al. v. City and
County of San Francisco,
et al.

San
Francisco 7/12 San Francisco Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Neighbors to Preserve the
Waterfront, et al. v. City and
County of San Francisco,
et al.

San
Francisco 10/10 San Francisco Residential Multifamily/Mixed Use Private Infill No CEQA
Determination
Neighbors to Preserve the
Waterfront, et al. v. City and
County of San Francisco,
et al.

San
Francisco 8/10 San Francisco Residential Multifamily/Mixed Use Private Infill No CEQA
Determination
Cow Hollow Neighbors for
Livable Communities, et al.
v. City and County of San
Francisco
San
Francisco 11/11 San Francisco Retail
Store/Center
Occupancy Private Infill
Categorical
Exemption
SF Coalition for Children's
Outdoor Play, Education and
the Environment et al. v.

City and County of San
Francisco, et al.

San
Francisco 10/12 San Francisco Park
Other Active
Recreation Agency Infill - Park
Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 97 Divisadero Hayes, LLC v.

City and County of San
Francisco, et al.

San
Francisco 7/10 San Francisco Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Olivier Charlon v. City and
County of San Francisco
San
Francisco 2/10 San Francisco
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Categorical
Exemption
David Pilpel v. City and
County of San Francisco
San
Francisco 1/10 San Francisco
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Statutory Exemption/
Categorical
Exemption
Wendy Robinson, et al. v.

City and County of San
Francisco
San
Francisco 2/10 San Francisco
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Categorical
Exemption
San Francisco Tomorrow, et
al. v. City and County of San
Francisco, et al.

San
Francisco 7/11 San Francisco Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
People Organized to Win
Employment Rights, et al. v.

San Francisco Planning
Department, et al.

San
Francisco 9/10 San Francisco Residential
Master Planned
Community Private Infill
Environmental
Impact Report
Sierra Club, et al. v. City and
County of San Francisco,
et al.

San
Francisco 9/10 San Francisco Residential
Master Planned
Community Private Infill
Environmental
Impact Report
San Franciscans for Livable
Neighborhoods v. City and
County of San Francisco
San
Francisco 8/11 San Francisco Regulatory City - Land Use Agency N/A Environmental
Impact Report
San Franciscans for Livable
Neighborhoods v. City and
County of San Francisco
San
Francisco 8/11 San Francisco Regulatory City - Land Use Agency N/A Environmental
Impact Report
Neighbors for Fair Planning
v. City and County of San
Francisco, et al.

San
Francisco 8/11 San Francisco Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Citizens for a Sustainable
Treasure Island v. City and
County of San Francisco by
and through its Supervisors,
et al.

San
Francisco 7/11 San Francisco Residential
Master Planned
Community Private Infill
Environmental
Impact Report
Yuba Group Against
Garbage v. City and County
of San Francisco by and
through the Board of
Supervisors
San
Francisco 8/11 Multijurisdictional
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
No CEQA
Determination
Sustainability, Parks,
Recycling, And Wildlife
Legal Defense Fund v. City
and County of San Francisco
San
Francisco 8/11 Multijurisdictional
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
No CEQA
Determination
Friends of Appleton-Wolfard
Libraries, et al. v. City and
County of San Francisco,
et al.

San
Francisco 7/11 San Francisco
Public Services
& Infrastructure Library Agency Infill
Environmental
Impact Report
Friends of the Landmark
Filbert Street Cottages, et al.
v. City and County of San
Francisco, et al.

San
Francisco 4/11 San Francisco Residential Small Subdivision Private Infill Categorical
Exemption
Pacific Polk Properties, LLC,
et al. v. City and County of
San Francisco, et al.

San
Francisco 7/10 San Francisco Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Mary Wika v. City of Benicia
San
Francisco 6/10 Benicia Retail Shopping Center Private Infill Categorical
Exemption
Upper Green Valley
Homeowners v. County of
Solano, et al.

San
Francisco 8/10 Solano County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Agenda Item #5.1.

98 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Rockville Homeowners'
Association v. County of
Solano, et al.

San
Francisco 8/10 Solano County Residential
Large Subdivision/
Mixed Use Private Greenfield
Negative
DeclarationMitigated
Save Historic Stonedene v.

City of Fairfield, et al.

San
Francisco 11/10 Fairfield Residential Small Subdivision Private Infill Negative
DeclarationMitigated
California Healthy
Communities Network, et al.
v. City of Vallejo
San
Francisco 2/12 Vallejo Retail
Store/Center
Occupancy Private Infill
Environmental
Impact Report
Yocha Dehe Wintun Nation
v. Solano Transportation
Authority, et al.

San
Francisco 6/10 Solano County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
City of Petaluma, et al. v.

County of Sonoma, et al.

San
Francisco 2/11 Sonoma County Industrial Asphalt Plant Private Greenfield Environmental
Impact Report
BCC Holdings, LLC v. City of
Petaluma
San
Francisco 1/10 Petaluma Residential
Large Subdivision/
Mixed Use Private Infill
Negative
DeclarationMitigated
North Sonoma County
Healthcare District, et al. v.

County of Sonoma, et al.

San
Francisco 11/10 Santa Rosa
Public Services
& Infrastructure Hospital Private Infill
Environmental
Impact Report
Roy Gordon v. Sonoma
County Board of
Supervisors, Its Officials,
Agents, Employees, or
Entities Working on Its
Behalf
San
Francisco 3/12 Sonoma County Residential
Single-Family Home/
Second Unit Private Greenfield
Categorical
Exemption
James L. Duncan v. City of
Santa Rosa, et al.

San
Francisco 10/12 Santa Rosa Regulatory City - Regulation Agency N/A Environmental
Impact Report
John Kramer, et al. v. City of
Sebastopol, et al.

San
Francisco 8/11 Sebastopol Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
Starcross Monastic
Community v. California
Department of Forestry and
Fire Protection
San
Francisco 6/12 Sonoma County
Agricultural &
Forestry Winery Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Russian River Watershed
Protection Committee v.

Sonoma County Water
Agency, et al.

San
Francisco 9/11 Sonoma County Park Passive Recreation Agency Greenfield -
Park
Environmental
Impact Report
Russian Riverkeeper, et al.
v. County of Sonoma, et al.

San
Francisco 1/11 Sonoma County Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Citizens for Safe
Neighborhoods v. City of
Santa Rosa, et al.

San
Francisco 7/12 Santa Rosa Industrial Asphalt Plant Private Infill Categorical
Exemption
Stop the Casino 101
Coalition v. City of Rohnert
Park
San
Francisco 10/12 Rohnert Park
Public Services
& Infrastructure Streets Private
Infill -
Infrastructure Statutory Exemption
Friends of Americano Creek
v. County of Sonoma, et al.

San
Francisco 4/11 Petaluma Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Joseph W. Tresch and
Kathleen M. Tresch,
Trustees of the Joseph W.
and Kathleen M. Tresch
Revocable Trust, et al. v.

County of Sonoma
Agricultural Preservation
and Open Space District
Board of Supervisors, et al.

San
Francisco 1/11 Petaluma Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 99 Citizens Advocating for
Roblar Rural Quality v.

County of Sonoma, et al.

San
Francisco 1/11 Petaluma Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
New-Old Ways Wholistically
Emerging v. Sonoma County
Board of Supervisors
San
Francisco 12/12 Sonoma County
Agricultural &
Forestry Winery Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
California Healthy
Communities Network
v. City of Antioch
San
Francisco 10/10 Antioch Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated/
Addendum
Bodega Bay Concerned
Citizens v. County of
Sonoma
San
Francisco 10/11 County of Sonoma Water
Storage/ Conveyance/
Extraction Private N/A
Negative
DeclarationMitigated
Rincon Valley Environmental
& Safety Committee v. City
of Santa Rosa
San
Francisco 11/11 Santa Rosa Retail Shopping Center Private Infill Negative
DeclarationMitigated
Ag Land Trust v. Marina
Coast Water District
Central
Coast 4/10 Monterey County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact ReportAddendum
Ag Land Trust v. Monterey
County Water Resources
Agency, et al.

Central
Coast 2/11 Monterey County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact ReportAddendum
Carmel Rio Road, LLC v.

County of Monterey
Central
Coast 6/12 Carmel Residential Multifamily/Mixed Use Private Infill No CEQA
Determination
Carmel Valley Association,
Inc. v. Board of
Supervisors of the County
of Monterey, et al.

Central
Coast 11/10 Monterey County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Landwatch Monterey County
v. County of Monterey
Central
Coast 12/10 Monterey County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Salinas Valley Water
Coalition, et al. v. County of
Monterey
Central
Coast 11/10 Monterey County Regulatory County - Land Use Agency N/A Environmental
Impact Report
The Open Monterey Project
v. Monterey County Board of
Supervisors, et al.

Central
Coast 11/10 Monterey County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Landwatch Monterey County
v. County of Monterey
Central
Coast 8/11 Monterey County Commercial Office/Business Park Agency Infill Environmental
Impact Report
Turn Down the Lights v. City
of Monterey
Central
Coast 3/12 Monterey
Public Services
& Infrastructure Sidewalk/ Streetscape Agency
Infill -
Infrastructure
Categorical
Exemption
Highway 68 Coalition v.

Monterey Peninsula Airport
District Board of Directors
Central
Coast 6/11 Monterey County
Public Services
& Infrastructure Airport Agency Infill
Environmental
Impact Report
Highway 68 Coalition v.

County of Monterey, et al.

Central
Coast 3/12 Monterey County Retail Shopping Center Private Greenfield Environmental
Impact Report
Highway 68 Coalition v.

County of Monterey
Central
Coast 6/10 Monterey County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Negative
DeclarationMitigated
The Open Monterey Project
v. Monterey County Water
Resources Agency
Central
Coast 6/10 Monterey County
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Greenfield -
Infrastructure
Negative
DeclarationMitigated
Save Our Peninsula
Committee v. County of
Monterey, et al.

Central
Coast 5/11 Monterey County Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated/
Addendum
Save Our Peninsula
Committee v. County of
Monterey, et al.

Central
Coast 2/11 Monterey County Regulatory CEQA Enforcement Agency N/A No CEQA
Determination
Keep Fort Ord Wild v.

County of Monterey, et al.

Central
Coast 11/11 Monterey County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
No CEQA
Determination
Agenda Item #5.1.

100 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The Protect Our
Communities Foundation, et
al. v. Imperial County Board
of Supervisors SCAG 12/11 Imperial County Energy Renewable - Solar Private Greenfield -
Energy
Negative
DeclarationMitigated
The Protect Our
Communities Foundation, et
al. v. Imperial County Board
of Supervisors SCAG 5/12 Imperial County Energy Renewable - Solar Private Greenfield -
Energy
Environmental
Impact Report
Prop "A" Protective
Association, LLC v. City of
Whittier, et al. SCAG 12/12 Whittier Mining O&G Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Mountains Recreation and
Conservation Authority v.

City of Whittier SCAG 10/12 Whittier Mining O&G Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Los Angeles County
Regional Park and Open
Space District, et al. v. City
of Whittier SCAG 10/12 Whittier Mining O&G Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Open Space Legal Defense
Fund, et al. v. City of
Whittier, et al. SCAG 12/11 Whittier Mining O&G Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Open Space Legal Defense
Fund, et al. v. City of
Whittier, et al. SCAG 7/11 Whittier Mining O&G Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Concerned Citizens of
Castellammare, et al. v. City
of Los Angeles, et al. SCAG 10/12 Los Angeles Residential Single-Family Home/
Second Unit Private Infill
Negative
DeclarationMitigated
Gateway Crescent, LLC v.

State of California
Department of
Transportation SCAG 7/12 Los Angeles County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
Jerry Ptashkin v. City
Council of the City of West
Hollywood SCAG 8/12 West Hollywood
Public Services
& Infrastructure Church Private Infill
Categorical
Exemption
Paul Roberts, Trustee of the
Malibu Sands Realty Trust v.

City of Malibu SCAG 9/12 Malibu Residential
Single-Family Home/
Second Unit Private Infill
Categorical
Exemption
Christine Greenberg v. City
of Rolling Hills, et al. SCAG 11/12 Rolling Hills Regulatory City - Regulation Private N/A Negative
DeclarationMitigated
Asian Pacific American
Labor Alliance, et al. v. City
of Los Angeles, et al. SCAG 8/12 Los Angeles Retail
Walmart/Big Box
Store Private Infill Statutory Exemption
Citizens for Castaic v.

William S. Hart Union High
School District SCAG 11/12 Los Angeles County Schools K-12 Private Greenfield Environmental
Impact Report
West Covina Improvement
Association v. City of West
Covina, et al. SCAG 7/12 West Covina Commercial Office/Business Park Private Infill Negative
DeclarationMitigated
West Covina Improvement
Association v. City of West
Covina, et al. SCAG 2/12 West Covina Commercial Office/Business Park Private Infill Negative
DeclarationMitigated
View Park Preservation
Society, et al. v. Los
Angeles County Department
of Regional Planning SCAG 12/12 Los Angeles County Water Storage/ Conveyance/
Extraction Private N/A
Negative
DeclarationMitigated
City of Beverly Hills v. Los
Angeles County
Metropolitan Transportation
Authority SCAG 12/12 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 101 Beverly Hills Unified School
District v. Lost Angeles
County Metropolitan
Transportation Authority SCAG 5/12 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Today's IV, Inc. dba Westin
Bonaventure Hotel and
Suites v. Los Angeles
County Metropolitan
Transportation Authority SCAG 5/12 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
515/555 Flower Associates,
LLC v. Los Angeles County
Metropolitan Transportation
Authority SCAG 5/12 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Japanese Village, LLC v. Los
Angeles County
Metropolitan Transportation
Authority SCAG 5/12 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Shanna Ingalsbee, et al. v.

City of Burbank, et al. SCAG 6/12 Burbank Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Fix the City, Inc v. City of
Los Angeles, et al. SCAG 7/12 Los Angeles Regulatory City - Land Use Agency N/A Environmental
Impact Report
La Mirada Avenue
Neighborhood Association of
Hollywood v. City of Los
Angeles, et al. SCAG 7/12 Los Angeles Regulatory City - Land Use Agency N/A Environmental
Impact Report
Angelinos for Culture and a
Healthy Environment v. City
of Los Angeles SCAG 6/12 Los Angeles Commercial Hotel Private Infill Negative
DeclarationMitigated
Don't Privatize Playa Vista
Parks v. City of
Los Angeles SCAG 7/10 Los Angeles Residential
Master Planned
Community Private Infill Statutory Exemption
Woodland Hills
Homeowners' Association,
et al. v. City of Los Angeles,
et al. SCAG 3/12 Los Angeles Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
La Mirada Avenue
Neighborhood Association of
Hollywood v. City of Los
Angeles, et al. SCAG 10/12 Los Angeles Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Fusion Air Quality v. Los
Angeles Metropolitan
Transportation Authority, et
al. SCAG 4/12 Hawthorne
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Chatsworth Area Residents
Association, et al. v. City of
Los Angeles, et al. SCAG 6/12 Los Angeles Schools K-12 Private Infill Negative
DeclarationMitigated
Westside of Los Angeles
Neighborhood and
Community Coalition, et al.
v. City of Los Angeles,
et al. SCAG 6/12 Los Angeles Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Center for Biological
Diversity, et al. v. California
Department of Fish and
Game SCAG 1/11 Los Angeles County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
California Native Plant
Society, et al. v. City of Los
Angeles, et al. SCAG 6/12 Los Angeles County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
Gale Banks Engineering v.

City of Azusa SCAG 1/12 Azusa
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
Environmental
Impact Report
Agenda Item #5.1.

102 | Copyright © 2015 Holland & Knight LLP All Rights Reserved City of Irwindale v. City of
Azusa SCAG 9/11 Azusa
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
Environmental
Impact Report
Excalibur Property Holdings,
LLC, et al. v. City of
Monrovia, et al. SCAG 9/11 Monrovia Regulatory City - Regulation Agency N/A Statutory Exemption Charmont Partners, LTD, et
al. v. City of Santa Monica SCAG 1/12 Santa Monica
Public Services
& Infrastructure Sidewalk/ Streetscape Agency Infill
Categorical
Exemption
Yvonne Cooper v. City of Los
Angeles South Valley Area
Planning Commission, et al. SCAG 11/11 Los Angeles
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Negative
DeclarationMitigated
Riner Scivally v. City Council
for the City of South
Pasadena SCAG 9/11 South Pasadena Commercial Office/ Business Park Private Infill Negative Declaration Crenshaw Subway Coalition
v. Los Angeles County
Metropolitan Transportation
Authority SCAG 10/11 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Homeowners of Angelo
Drive to Save the Great
Ficus Trees v. Ken Pfalzgraf,
et al. SCAG 11/11 Beverly Hills
Public Services
& Infrastructure Sidewalk/ Streetscape Agency Infill
Categorical
Exemption
Friends and Alumni of
Leuzinger High School v.

Centinela Valley Union High
School District, et al. SCAG 9/11 Lawndale Schools K-12 Agency Infill Categorical
Exemption
Community With A
Conscience v. City of Los
Angeles SCAG 12/11 Los Angeles Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Residents Against Chandler
Ranch v. City of Rolling Hills
Estates, et al. SCAG 8/11 Rolling Hills Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Residents For A Better
Slauson v. City of Los
Angeles SCAG 9/11 Los Angeles
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Negative
DeclarationMitigated
City of Burbank v. City of
Los Angeles, et al. SCAG 12/10 Multijurisdictional
Public Services
& Infrastructure Sewage Management Agency
Infill -
Infrastructure
Environmental
Impact Report
Los Angeles County
Regional Park and Open
Space District, et al. v. City
of Whittier SCAG 2/11 Los Angeles County
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Margarita Allen v.

Community Redevelopment
Agency of the City of Los
Angeles SCAG 1/11 Los Angeles Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
CREED-21 v. City of
Glendora SCAG 3/11 Glendora Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Santa Clarita Organization
for Planning and the
Environment, et al. v. City of
Santa Clarita, et al. SCAG 6/11 Los Angeles County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
Highland Park Heritage
Trust, et al. v. City of Los
Angeles, et al. SCAG 7/11 Los Angeles
Public Services
& Infrastructure Museum Private Infill
Categorical
Exemption
Save the Plastic Bag
Coalition v. City of Long
Beach, et al. SCAG 6/11 Long Beach Regulatory
Local Plastic Bag
Regulation Agency N/A
Environmental
Impact Report
La Mirada Avenue
Neighborhood Association of
Hollywood v. City of Los
Angeles, et al. SCAG 6/11 Hollywood Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 103 Pasadena Coalition for
Responsible Development v.

City of Pasadena, et al. SCAG 1/11 Pasadena Commercial Office/Business Park Private Infill Environmental
Impact Report
Residents First v. City of Los
Angeles SCAG 1/11 Los Angeles Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
El Monte Citizens for
Responsible Government v.

City of El Monte, et al. SCAG 3/11 El Monte Retail Shopping Center Private Infill Negative
DeclarationMitigated
Concerned Homeowners of
Crescent Heights, et al. v.

City of Los Angeles SCAG 2/11 Los Angeles Residential
Single-Family Home/
Second Unit Private Infill
Negative
DeclarationMitigated
Neighbors Organized to
Protect the Environment in
Beverly Hills, et al. v. City of
Beverly Hills, et al. SCAG 5/11 Beverly Hills Retail
Store/Center
Occupancy Private Infill
Categorical
Exemption
Coastal Defender v. City of
Manhattan Beach, et al. SCAG 5/11 Manhattan Beach Retail Store/Center
Occupancy Private Infill
Categorical
Exemption
City of South Gate v. City of
Cudahy, et al. SCAG 12/10 Cudahy Entertainment Dance Hall/Music Private Infill Negative
DeclarationMitigated
City of Culver City, et al. v.

Los Angeles Community
College District, et al. SCAG 9/10 Culver City Schools College Agency Infill Environmental
Impact Report
County of Los Angeles v.

City of Los Angeles SCAG 9/10 Los Angeles County
Public Services
& Infrastructure Sewage Management Agency
Infill -
Infrastructure
Environmental
Impact Report
EastWest Studios, LLC v.

City of Los Angeles, et al. SCAG 9/10 Los Angeles Schools College Private Infill Environmental
Impact Report
Kramer Metals v. City of Los
Angeles, et al. SCAG 8/10 Los Angeles Retail Shopping Center Private Infill Negative
DeclarationMitigated
Conejo Wellness Center,
Inc. v. City of Agora Hills, et
al. SCAG 10/10 Agora Hills Regulatory
Local Marijuana
Regulation Agency N/A
No CEQA
Determination
Robert Blue v. City of Los
Angeles, et al. SCAG 7/10 Los Angeles Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
La Mirada Avenue
Neighborhood Association of
Hollywood v. City of Los
Angeles, et al. SCAG 7/10 Los Angeles Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
Citizens Coalition Los
Angeles v. City of Los
Angeles SCAG 12/12 Hollywood Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
Norman La Caze v. City of
Rolling Hills SCAG 11/10 Rolling Hills Residential Small Subdivision Agency Infill Negative
DeclarationMitigated
Wing Y. Chung v. City of
Monterey Park SCAG 12/10 Monterey Park Regulatory City - Regulation Agency N/A No CEQA
Determination
Ramirez Canyon
Preservation Fund v. Santa
Monica Mountains
Conservancy, et al. SCAG 9/10 Malibu Park Passive Recreation Agency Infill - Park Environmental
Impact Report
LA Neighbors United v. City
of Los Angeles SCAG 12/10 Los Angeles Regulatory City - Land Use Agency N/A Negative Declaration Building an Economically
Sound Torrance, et al. v.

City of Torrance, et al. SCAG 12/10 Torrance Retail
Walmart/Big Box
Store Private Infill Statutory Exemption
Agenda Item #5.1.

104 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Central Basin Municipal
Water District v. Water
Replenishment District of
Southern California, et al. SCAG 12/10 Multijurisdictional Water Storage/ Conveyance/
Extraction Private N/A
Categorical
Exemption
City of Maywood v. Los
Angeles Unified School
District, et al. SCAG 4/10 Maywood Schools K-12 Private Infill Environmental
Impact Report
MIPCO, LLC, et al. v.

Alameda Corridor-East
Construction Authority on
behalf of San Gabriel Valley
Council of Governments SCAG 3/10 El Monte
Public Services
& Infrastructure Railroad/Non-Transit Private
Infill -
Infrastructure
Environmental
Impact Report/
Negative
DeclarationMitigated (Negative
Declaration)
Francine Eisenrod v. City of
Los Angeles, et al. SCAG 7/10 Los Angeles Residential Multifamily/Mixed Use Private Infill Categorical
Exemption
Dr. Lewis A. Einstedt, et al.
v. City of Rancho Palos
Verdes, et al. SCAG 1/10 Rancho Palos Verdes Residential Large Subdivision/
Mixed Use Private Infill
Negative
DeclarationMitigated
Puente Hills Landfill Native
Habitat Preservation
Authority v. City of La Habra
Heights SCAG 5/10 La Habra Heights Residential
Single-Family Home/
Second Unit Private Infill
Negative
DeclarationMitigated
Neighbors for Smart Rail v.

Exposition Metro Line
Construction Authority,
et al. SCAG 3/10
Los Angeles-Santa
Monica
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
Friends of the Whittier
Narrows Natural Area v. San
Gabriel River Discovery
Center Authority SCAG 2/10 Los Angeles County Park
Other Active
Recreation Agency Infill - Park
Environmental
Impact Report
Ballona Ecosystem
Education Project v. City of
Los Angeles SCAG 1/10 Los Angeles Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Van De Kamps Coalition v.

Los Angeles Community
College District, et al. SCAG 1/10 Los Angeles Schools K-12 Private Infill Environmental
Impact Report
Comunidad En Accion v. Los
Angeles City Council, et al. SCAG 6/10 Los Angeles
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
Environmental
Impact Report
Community Alliance For
Open Space v. City of Los
Angeles, et al. SCAG 7/10 Los Angeles Schools Workforce Training Private Infill Negative
DeclarationMitigated
Malibu Colony Neighbors
Alliance, et al. v. California
Coastal Commission SCAG 12/10 Malibu Park Passive Recreation Agency Infill - Park Environmental
Impact Report
Wetlands Defense Funds,
et al. v. California Coastal
Commission SCAG 12/10 Malibu Park Passive Recreation Agency Infill - Park Environmental
Impact Report
Kenneth Mackenzie v. City
of El Monte, et al. SCAG 12/11 El Monte Commercial Office/Business Park Private Infill Negative
DeclarationMitigated
City of Duarte v. City of
Azusa SCAG 8/10 Azusa Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Responsible Use of Land at
El Toro, et al. v. Saddleback
Valley Unified School District SCAG 12/12 Lake Forest Schools K-12 Agency Infill Environmental
Impact Report
Santa Ana California Lodge,
LLC v. City of Santa Ana, et
al. SCAG 3/12 Santa Ana
Public Services
& Infrastructure Sewage Management Agency
Infill -
Infrastructure
Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 105 Banning Ranch Conservancy
v. City of Newport Beach, et
al. SCAG 5/10 Newport Beach Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Banning Ranch Conservancy
v. City of Newport Beach, et
al. SCAG 4/10 Newport Beach Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Banning Ranch Conservancy
v. City of Newport Beach, et
al. SCAG 8/12 Newport Beach Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Orange County Fairgrounds
Preservation Society v. 32nd
District Agricultural
Association SCAG 1/12 Costa Mesa Entertainment Fairground Agency Infill - Park Environmental
Impact Report
Protect Coastal Huntington
Beach, et al. v. City of
Huntington Beach, et al. SCAG 10/12 Huntington Beach Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Orange County Residents for
Open Government v. Orange
County Water District, et al. SCAG 7/12
Anaheim, Fullerton,
Placentia Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Orange County Communities
Organized for Responsible
Development, et al. v. City
of Anaheim SCAG 2/12 Anaheim Commercial Hotel Private Infill No CEQA
Determination
The Lamb School
Neighborhood Save Our
Field Committee, et al. v.

Huntington Beach City
Council SCAG 12/12 Huntington Beach Residential
Large Subdivision/
Mixed Use Private Infill
Negative
DeclarationMitigated
Stop the Dunes Hotel v. City
of Newport Beach,
et al. SCAG 8/12 Newport Beach Residential Multifamily/Mixed Use Private Infill Categorical
Exemption
Saddleback Canyons
Conservancy, et al. v.

County of Orange, et al. SCAG 10/12 Orange County Residential Large Subdivision/
Mixed Use Private Greenfield
Environmental
Impact Report
Ocean View School District
v. City of Huntington Beach,
et al. SCAG 1/12 Huntington Beach Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Friends of the Lacy Historic
Neighborhood v. City of
Santa Ana, et al. SCAG 7/10 Santa Ana Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
City of Irvine v. County of
Orange, et al. SCAG 1/11 Orange County
Public Services
& Infrastructure Prison Agency Infill
Environmental
Impact Report/
Categorical
Exemption
City of Tustin v. Tustin
Unified School District,
et al. SCAG 8/11 Tustin Schools K-12 Agency Infill
Statutory Exemption/
Categorical
Exemption
Bay City Partners, LLC v.

City of Seal Beach, et al. SCAG 4/10 Seal Beach
Public Services
& Infrastructure Sidewalk/ Streetscape Agency
Infill -
Infrastructure
Negative
DeclarationMitigated
Pacific Mobile Home
Park, LLC v. City of
Huntington Beach acting
by and through its
elected City Council SCAG 2/11 Huntington Beach
Public Services
& Infrastructure Streets Agency
Infill -
Infrastructure
Negative
DeclarationMitigated
Back Bay Court Property
Company v. City of Newport
Beach SCAG 6/10 Newport Beach
Public Services
& Infrastructure Streets Agency
Infill -
Infrastructure
Categorical
Exemption
Agenda Item #5.1.

106 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Paul R. Esslinger v. City of
Laguna Beach SCAG 10/10 Laguna Beach Residential
Mobile Home
Conversion (Rent to
Own) Private Infill Statutory Exemption
Arthur E.Stahovich v. City of
Anaheim, et al. SCAG 4/11 Anaheim Residential
Large Subdivision/
Mixed Use Private Infill Negative Declaration
Daniel L. Friess v. City of
San Juan Capistrano,
et al. SCAG 11/11 San Juan Capistrano Retail
Store/Center
Occupancy Private Infill
No CEQA
Determination
Michael Wilson v. City of
Laguna Beach SCAG 6/11 Laguna Beach Residential
Single-Family Home/
Second Unit Private Infill
Categorical
Exemption
Janet Wilson, et al. v.

County of Orange, et al. SCAG 4/10 Orange County Residential Single-Family Home/
Second Unit Private Greenfield
Categorical
Exemption
Lee Strother, et al. v. City of
San Clemente SCAG 9/10 San Clemente Residential
Single-Family Home/
Second Unit Private Infill
Categorical
Exemption
Huntington Beach Neighbors
v. The City of Huntington
Beach, et al. SCAG 2/10 Huntington Beach Regulatory City - Land Use Agency N/A Environmental
Impact Report
Foothill Communities
Coalition v. County of
Orange, et al. SCAG 4/11 Orange County Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Preserve and Protect North
Laguna v. County of Orange SCAG 4/11 Orange County
Public Services
& Infrastructure Streets Private
Infill -
Infrastructure
Negative
DeclarationMitigated
Save Our Specific Plan,
et al. v. County of Orange,
et al. SCAG 11/10 Orange County
Agricultural &
Forestry Winery Private
Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
Center for Biological
Diversity, et al. v. City of
Fullerton, et al. SCAG 8/11 Fullerton Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Albert Thomas Paulek v.

Regional Conservation
Authority SCAG 3/12 Riverside County Regulatory City - Regulation Private N/A Categorical
Exemption
Albert Thomas Paulek v.

California Department of
Water Resources SCAG 12/11 Riverside County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
De Luz 2000 dba Save Our
Southwest Hills v. County of
Riverside SCAG 10/12 Riverside County Regulatory County - Regulation Agency N/A Statutory Exemption Friends of Riverside's Hills v.

Riverside County
Transportation Commission SCAG 8/11 Riverside County
Public Services
& Infrastructure Transit Private
Infill -
Infrastructure
Environmental
Impact Report
CREED-21 v. City of
Riverside SCAG 2/12 Riverside Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
CREED-21 v. City of
Murrieta SCAG 8/12 Murrieta Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationMitigated
Cherry Valley Pass Acres
and Neighbors, et al. v. City
of Banning SCAG 4/12 Banning Residential
Master Planned
Community Private Infill
Environmental
Impact Report
De Luz 2000 dba Save Our
Southwest Hills, et al. v.

County of Riverside SCAG 8/12 Riverside County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Smart Neighbors for Smart
Growth v. Timothy White,
Chancellor of University of
California at Riverside,
et al. SCAG 4/12 Riverside
Public Services
& Infrastructure
Municipal Waste
Management Agency
Infill -
Infrastructure
Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 107 Alliance for Intelligent
Planning v. City of Wildomar SCAG 9/11 Wildomar Retail
Store/ Center
Occupancy Private Infill
Negative
DeclarationMitigated
Temecula Agriculture
Conservation Council v.

County of Riverside SCAG 11/12 Riverside County
Public Services
& Infrastructure Church Private Greenfield
Negative
DeclarationMitigated
Sierra Club, et al. v. City of
Moreno Valley SCAG 10/12 Moreno Valley Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Sierra Club, et al. v. County
of Riverside, et al. SCAG 3/12 Riverside County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
Sierra Club v. City of
Moreno Valley SCAG 10/11 Moreno Valley Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Endangered Habitats
League v. City of Murrieta SCAG 5/12 Murrieta Regulatory City - Land Use Agency N/A Statutory Exemption Center for Biological
Diversity, et al. v. County of
Riverside, et al. SCAG 9/10 Riverside County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
City of Riverside v. County of
Riverside, et al. SCAG 4/10 Riverside County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
Albert Thomas Paulek v.

California Department of
Fish and Game, et al. SCAG 3/11 Riverside County Park Passive Recreation Private Greenfield -
Park
Categorical
Exemption
Jayne Abston, et al. v. Mt.

San Jacinto Community
College District SCAG 5/11 Banning Schools College Agency Infill No CEQA
Determination
Craig Britton, et al. v. Mt.

San Jacinto Community
College District SCAG 1/11 Banning Schools College Agency Infill No CEQA
Determination
Center for Biological
Diversity, et al. v. County of
Riverside, et al. SCAG 5/10 Riverside County Industrial Warehouse/ Logistics Private Greenfield Environmental
Impact Report
Center for Biological
Diversity, et al. v. City of
Riverside, et al. SCAG 4/10 Riverside County Industrial Warehouse/ Logistics Private Greenfield Environmental
Impact Report
Friends of Riverside's Hills v.

City of Riverside SCAG 4/10 Riverside County Industrial Warehouse/ Logistics Private Greenfield Environmental
Impact Report
Friends of Riverside's Hills v.

March Joint Powers
Authority SCAG 8/10 Riverside County Commercial Office/Business Park Private Infill Environmental
Impact Report
CREED-21 v. City of Menifee SCAG 12/10 Menifee Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Friends of Riverside's Hills v.

County of Riverside,
et al. SCAG 1/11 Riverside County Residential Small Subdivision Private Greenfield Negative
DeclarationMitigated
Rural Communities United,
Inc v. County of Riverside SCAG 5/11 Riverside County Park Other Active
Recreation Private Infill - Park
Negative
DeclarationMitigated
Center for Community
Action and Environmental
Justice, et al. v. City of
Perris SCAG 8/10 Perris Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Protect Wine Country v.

County of Riverside SCAG 5/11 Riverside County Regulatory County - Land Use Agency N/A Statutory Exemption Health First v. March Joint
Powers Authority SCAG 1/10 Riverside Industrial Food Processing Plant Private Infill Environmental
Impact Report
Moreno Valley Citizens for
Lawful Government v. City
of Moreno Valley SCAG 7/10 Moreno Valley Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Residents for Responsible
Planning v. Moreno Valley
Unified School District SCAG 8/10 Moreno Valley Schools K-12 Agency Infill Environmental
Impact Report
Agenda Item #5.1.

108 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Menifee Residents for
Sensible Planning v. City of
Menifee SCAG 2/11 Menifee Residential
Master Planned
Community Private Infill
Environmental
Impact Report
Residents for a Livable
Moreno Valley v. City of
Moreno Valley SCAG 2/10 Moreno Valley Industrial Warehouse/ Logistics Private Infill Negative
DeclarationMitigated
Protect Our Wildomar v. City
of Wildomar SCAG 12/10 Wildomar Retail
New Retail/ Shopping
Center Private Infill
Negative
DeclarationMitigated
Sierra Club, et al. v.

California Department of
Fish and Game SCAG 2/10 Palm Desert Residential Small Subdivision Private Greenfield Environmental
Impact Report
Center for Community
Action and Environmental
Justice v. County of
Riverside, et al. SCAG 7/11 Jurupa Valley Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
City of Riverside v. City of
Rialto, et al. SCAG 5/11 Rialto Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Pilot Travel Centers, LLC v.

City of Hesperia by and
through its City Council SCAG 1/12 Hesperia Commercial
Travel Plaza (Hwy
Service Complex) Agency Infill Negative Declaration
Ed Rodriguez v. Town of
Apple Valley SCAG 7/11 Apple Valley Retail Shopping Center Agency Infill Environmental
Impact Report
Nick J. Constantinides v.

City of Big Bear Lake,
et al. SCAG 10/11 Big Bear
Public Services
& Infrastructure Sewage Management Private
Infill -
Infrastructure
Categorical
Exemption
Citizens and Ratepayers
Opposing Water Nonsense
v. Santa Margarita Water
District, et al. SCAG 8/12
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
Rodrigo Briones, et al. v.

Santa Margarita Water
District, et al. SCAG 8/12
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
Delaware Tetra
Technologies v. County of
San Bernardino, et al. SCAG 10/12
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
Center for Biological
Diversity, et al. v. County of
San Bernardino, et al. SCAG 11/12
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
Center for Biological
Diversity, et al. v. County of
San Bernardino, et al. SCAG 8/12
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
CREED-21, et al. v. City of
Victorville SCAG 10/12 Victorville
Public Services
& Infrastructure
Child Support Service
Building Private Infill
Categorical
Exemption
CREED-21 v. City of Upland SCAG 10/12 Upland Retail
Walmart/Big Box
Store Private Infill
Categorical
Exemption
Redlands Good Neighbor
Coalition v. City of Redlands SCAG 11/12 Redlands Retail Walmart/Big Box
Store Private Infill
Environmental
Impact Report
CREED-21 v. City of
Victorville SCAG 6/12 Victorville Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Spring Valley Lake
Association v. City of
Victorville SCAG 10/12 Victorville Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
CREED-21, et al. v. City of
Victorville SCAG 10/12 Victorville
Public Services
& Infrastructure Hospital Private Infill
Negative
DeclarationMitigated
Ontario Mountain Village
Association, et al. v. City of
Ontario SCAG 2/12 Ontario Regulatory City - Land Use Agency N/A No CEQA
Determination
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 109 Helphinkley.org v. County of
San Bernardino SCAG 10/11
San Bernardino
County
Public Services
& Infrastructure
Municipal Waste
Management Private
Greenfield -
Infrastructure
Environmental
Impact ReportAddendum
Save Our Uniquely Rural
Community Environment v.

County of San Bernardino,
et al. SCAG 3/12
San Bernardino
County
Public Services
& Infrastructure Church Private Infill
Negative
DeclarationMitigated
City of Riverside v. City of
Rialto, et al. SCAG 1/11 Rialto Regulatory City - Land Use Agency N/A Environmental
Impact Report
City of Riverside v. City of
Rialto, et al. SCAG 5/11 Rialto Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Susan Hulse v. All Persons
Interested in the Matter of
Local Agency Formation
Commission for San
Bernardino County 3067 AF; 3072; 3073; 3074;
3075; 3076 Approved on
November 18, 2009, with
Reconsideration on February
17, 2010, et al. SCAG 4/10
San Bernardino
County Regulatory County - Land Use Agency N/A Statutory Exemption Concerned Community
Members and Parents of
Redwood Elementary School
Students v. County of San
Bernardino SCAG 12/10 Fontana Entertainment Car Racing Private Infill Environmental
Impact Report
Center for Biological
Diversity, et al. v. City of
Twentynine Palms, et al. SCAG 8/10 Twentynine Palms Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Crusaders For Patients'
Rights v. Board of
Supervisors of the County of
San Bernardino SCAG 4/11
San Bernardino
County Regulatory
Local Marijuana
Regulation Agency N/A Statutory Exemption
Citizens for Responsible
Equitable Environmental
Development v. City of
Chino SCAG 8/10 Chino Regulatory City - Land Use Agency N/A Environmental
Impact Report
Mike Plater, et al. v. County
of Ventura SCAG 2/12 Ventura County
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
No CEQA
Determination
Venturans for Responsible
Growth v. City of San
Buenaventura SCAG 8/11 Ventura Retail Shopping Center Private Infill Categorical
Exemption
Residents Against Anacapa
Development v. City of
Oxnard, et al. SCAG 10/11 Oxnard Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated/
Addendum
Citizens for Balanced
Growth v. City of San
Buenaventura, et al. SCAG 12/12 San Buenaventura Residential Multifamily/Mixed Use Private Infill Negative Declaration Coalition for Responsible
Development v. City of
Santa Paula, et al. SCAG 1/10 Santa Paula Industrial Gravel Plant Private Infill No CEQA
Determination
Sierra Club, et al. v. City of
Oxnard, et al. SCAG 7/11 Oxnard Residential
Master Planned
Community Private Infill
Environmental
Impact Report
Paul Sayegh v. County of El
Dorado, et al. SACOG 2/10 El Dorado County Residential
Large Subdivision/
Mixed Use Private Greenfield
Negative
DeclarationMitigated
Alto, LLC v. County of El
Dorado, et al. SACOG 2/10 El Dorado County Residential
Large Subdivision/
Mixed Use Private Greenfield
Negative
DeclarationMitigated
Agenda Item #5.1.

110 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Charles Sutton, et al. v.

County of El Dorado, et al. SACOG 3/12 El Dorado County Retail Store/Center
Occupancy Private Infill
No CEQA
Determination
Friends of Historic
Hangtown v. City of
Placerville, et al. SACOG 3/11 Placerville
Public Services
& Infrastructure Sidewalk/ Streetscape Agency
Infill -
Infrastructure
Negative
DeclarationMitigated
Friends of the Herbert Green
Middle School
Neighborhood v. County of
El Dorado, et al. SACOG 5/12 Placerville Commercial Office/Business Park Private Infill Negative
DeclarationMitigated
Ralph Martinez, et al. v. The
City of Roseville, et al. SACOG 11/11 Roseville Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
California Clean Energy
Committee v. County of
Placer SACOG 12/11 Placer County Residential Resort Private Greenfield Environmental
Impact Report
Town of Loomis v. City of
Rocklin, et al. SACOG 12/10 Rocklin Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Alliance for the Protection of
the Auburn Community
Environment, et al. v. Placer
County SACOG 10/10 Auburn Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Timeless Investment, Inc., et
al. v. California High Speed
Rail Authority SACOG 6/12 Multijurisdictional
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
City of Chowchilla v.

California High Speed Rail
Authority SACOG 5/12 Multijurisdictional
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
County of Madera, et al. v.

California High Speed Rail
Authority SACOG 5/12 Multijurisdictional
Public Services
& Infrastructure Transit Agency
Infill -
Infrastructure
Environmental
Impact Report
City of Grass Valley, et al. v.

Nevada County Airport Land
Use Commission,
et al. SACOG 10/11 Nevada County Regulatory County - Land Use Agency N/A Negative Declaration Oakdale Irrigation District, et
al. v. State Water Resources
Control Board SACOG 9/11 State Regulatory Regional - Regulation Agency N/A No CEQA
Determination
Environmental Council of
Sacramento v. Capital
Southeast Connector Joint
Powers Authority, et al. SACOG 4/12 Multijurisdictional Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
California Clean Energy
Committee v. Capital
Southeast Connector Joint
Powers Authority SACOG 10/11 Multijurisdictional
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
Save Our Heritage
Organisation v. California
Department of
Transportation SACOG 1/12 San Diego Agency
Property Disposition/
Management Agency N/A
Environmental
Impact Report
Galt Citizens for Sensible
Planning, et al. v. City of
Galt, et al. SACOG 8/11 Galt Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Picayune Rancheria of
Chukchansi Indians v.

Edmund G. Brown, et al. SACOG 11/12 Madera County Entertainment Casino Private Greenfield No CEQA
Determination
San Joaquin County
Resource Conservation
District, et al. v. California
Regional Water Quality
Control Board, Central Valley
Region SACOG 6/12 State Regulatory Regional - Regulation Agency N/A Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 111 Fort Mojave Indian Tribe v.

Department of Toxic
Substances Control SACOG 2/11
San Bernardino
County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
PacifiCorp Energy, Inc. v.

State Water Resources
Control Board, et al. SACOG 1/11 Multijurisdictional Regulatory Regional - Regulation Agency N/A Certified Regulatory
Program
Teichert, Inc v. City of
Folsom, et al. SACOG 7/11 Folsom Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Jay Schneider v. Board of
Supervisors of the County of
Sacramento, et al. SACOG 1/11 Sacramento County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
City of Rancho Cordova v.

County of Sacramento,
et al. SACOG 12/10 Sacramento County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Joseph Hardesty, et al. v.

Sacramento County Board
of Supervisors, et al. SACOG 12/10 Sacramento County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
The Protect Our
Communities Foundation, et
al. v. State Water Resources
Control Board SACOG 2/11 Multijurisdictional
Public Services
& Infrastructure
Electric Transmission
Line Private
Greenfield -
Infrastructure
Environmental
Impact Report
Community Alliance for
Fairgrounds Accountability
v. State of California ex rel.
14th District Agricultural
Association SACOG 6/11 Watsonville Entertainment Fairground Private Infill - Park Categorical
Exemption
Friends of Madeira v. City of
Elk Grove, et al. SACOG 6/11 Elk Grove Retail
Walmart/Big Box
Store Agency Infill Statutory Exemption
Rocklin Residents for
Responsible Growth v. City
of Rocklin SACOG 7/11 Rocklin Commercial Office/Business Park Private Infill Environmental
Impact Report
Center for Biological
Diversity, et al. v. California
Department of Parks and
Recreation,
et al. SACOG 1/11 State Park
Other Active
Recreation Agency
Greenfield -
Park
Environmental
Impact Report
Friends of Swainson's Hawk
v. County of Sacramento SACOG 4/11 Sacramento County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
Friends of Swainson's Hawk
v. County of Sacramento SACOG 1/11 Sacramento County Residential Master Planned
Community Private Greenfield
Environmental
Impact Report
RRI Energy, Inc, et al. v.

State Water Resources
Control Board SACOG 10/10 State Regulatory State - Regulation Agency N/A Certified Regulatory
Program
Capay Valley Coalition,
et al. v. California
Department of
Transportation, et al. SACOG 1/10 Yolo County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
North Coast Rivers Alliance,
et al. v. A.G. Kawamura, et
al. SACOG 4/10 Multijurisdictional Regulatory State - Regulation Private N/A Environmental
Impact Report
Our Children's Earth
Foundation, et al. v. A.G.

Kawamura, et al.

San
Francisco 4/10 Multijurisdictional Regulatory State - Regulation Private N/A Environmental
Impact Report
Better Urban Green
Strategies, et al. v.

California Department of
Food & Agriculture, et al. SACOG 1/10 Multijurisdictional Regulatory State - Regulation Private N/A Categorical
Exemption
Heritage Preservation
League of Folsom, et al. v.

City of Folsom, et al. SACOG 6/10 Folsom Commercial Hotel Private Infill Environmental
Impact Report
Agenda Item #5.1.

112 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Galt Citizens for Sensible
Planning, et al. v. City of
Galt, et al. SACOG 5/10 Galt Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Siskiyou County Water Users
Association, Inc v. California
Natural Resources Agency,
et al. SACOG 8/10 Multijurisdictional Water Dam Removal Agency N/A No CEQA
Determination
Rosedale-Rio Bravo Water
Storage District, et al. v.

California Department of
Water Resources, et al. SACOG 6/10 Multijurisdictional Water

SWP/CVP
Management Private N/A
Environmental
Impact Report
Central Delta Water Agency,
et al. v. California
Department of Water
Resources SACOG 6/10 Multijurisdictional Water

SWP/CVP
Management Private N/A
Environmental
Impact Report
Levee District Number One,
Sutter County v. Central
Valley Flood Protection
Board, et al. SACOG 3/10 Sutter County Park Passive Recreation Private Greenfield -
Park
Categorical
Exemption
Brenda Cedarblade v.

County of Yolo, et al. SACOG 11/10 Yolo County Industrial Gypsum Stockpile Private Mining/
Agriculture/
Forestry Statutory Exemption
Ernie Gaddini, et al. v.

County of Yolo, by and
through its Board of
Supervisors, et al. SACOG 10/11 Yolo County Energy Renewable - Solar Private Greenfield -
Energy
Negative
DeclarationMitigated
Citizens Alliance for
Regional Environmental
Sustainability v. County of
Yolo, et al. SACOG 3/11 Yolo County Water Transfer Private N/A Categorical
Exemption
Citizens Alliance for
Regional Environmental
Sustainability v. County of
Yolo, et al. SACOG 1/11 Yolo County Water Transfer Private N/A Categorical
Exemption
Coalition for Appropriate
Port Development v. City of
West Sacramento, et al. SACOG 8/11 West Sacramento
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
Environmental
Impact Report
Citizens for Urban Renewal
v. City of Woodland, By and
Through the City Council SACOG 7/12 Woodland Commercial Office/Business Park Private Infill Negative
DeclarationMitigated
Greenbelt Neighbors, et al.
v. County of Yolo SACOG 2/12 Yolo County
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Negative
DeclarationMitigated
California Clean Energy
Committee v. City of
Woodland SACOG 9/11 Woodland Retail Shopping Center Private Infill Environmental
Impact Report
City of Fresno v. Fresno
County of Local Agency
Formation Commission
San
Joaquin
Valley 11/11 Fresno County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
City of Fresno v. County of
Fresno, et al.

San
Joaquin
Valley 3/11 Fresno County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
San Joaquin River Parkway
and Conservation Trust, Inc.
v. County of Fresno, et al.

San
Joaquin
Valley 3/11 Fresno County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Sierra Club, et al. v. County
of Fresno, et al.

San
Joaquin
Valley 3/11 Fresno County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
City of Selma v. City of
Kingsburg
San
Joaquin
Valley 10/12 Kingsburg Regulatory City - Land Use Agency N/A Negative
DeclarationMitigated
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 113 The Kashian Group, LTD v.

City of Fresno, et al.

San
Joaquin
Valley 1/11 Fresno Retail Shopping Center Private Infill Environmental
Impact Report
Suzanne Lanfranco, et al. v.

City of Fresno, et al.

San
Joaquin
Valley 1/11 Fresno Retail Shopping Center Private Infill Environmental
Impact Report
Michael S. Green v. City of
Fresno, et al.

San
Joaquin
Valley 4/12 Fresno Regulatory
Local Marijuana
Regulation Agency N/A
Categorical
Exemption
Wade Haines, et al. v.

County of Fresno, et al.

San
Joaquin
Valley 10/11 Fresno County Park
Other Active
Recreation Private
Greenfield -
Park
Negative
DeclarationMitigated
Friends of the Swainson's
Hawk v. County of Fresno,
et al.

San
Joaquin
Valley 11/12 Fresno County Energy Renewable - Solar Private Greenfield -
Energy
Negative
DeclarationMitigated
Friends of the Kings River v.

County of Fresno, et al.

San
Joaquin
Valley 11/12 Fresno County Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Citizens for the Restoration
of L Street v. City of Fresno,
et al.

San
Joaquin
Valley 12/11 Fresno Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
North Coast Rivers Alliance,
et al. v. Westlands Water
District, et al.

San
Joaquin
Valley 1/12 Multijurisdictional Water

SWP/CVP
Management Agency N/A Statutory Exemption
North Coast Rivers Alliance,
et al. v. Westlands Water
District, et al.

San
Joaquin
Valley 8/11 Multijurisdictional Water

SWP/CVP
Management Agency N/A
Statutory Exemption/
Categorical
Exemption
North Coast Rivers Alliance,
et al. v. Westlands Water
District, et al.

San
Joaquin
Valley 3/10 Fresno County Water

SWP/CVP
Management Agency N/A
Categorical
Exemption
Gongco Fresno, Inc., et al.
v. City of Clovis
San
Joaquin
Valley 7/10 Clovis Retail Shopping Center Private Infill Statutory Exemption Sunnyside Property Owners
Association v. City of
Fresno, et al.

San
Joaquin
Valley 9/10 Fresno
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Categorical
Exemption
CSA-51-Water-Group,
et al. v. County of Fresno, et
al.

San
Joaquin
Valley 6/10 Fresno County Water

SWP/CVP
Management Private N/A
Negative
DeclarationMitigated
Consolidated Irrigation
District v. City of Selma,
et al.

San
Joaquin
Valley 4/10 Selma Retail Shopping Center Private Greenfield Environmental
Impact Report
Consolidated Irrigation
District v. City of Parlier,
et al.

San
Joaquin
Valley 9/10 Parlier Regulatory City - Land Use Agency N/A Environmental
Impact Report
Consolidated Irrigation
District v. City of Selma,
et al.

San
Joaquin
Valley 11/10 Selma Regulatory City - Land Use Agency N/A Environmental
Impact Report
Consolidated Irrigation
District v. City of Parlier,
et al.

San
Joaquin
Valley 9/10 Parlier Commercial Office/Business Park Private Greenfield Negative Declaration North Kern Water Storage
District, et al. v. Kern Delta
Water District
San
Joaquin
Valley 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
City of Bakersfield v. Kern
Delta Water District
San
Joaquin
Valley 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Agenda Item #5.1.

114 | Copyright © 2015 Holland & Knight LLP All Rights Reserved North Kern Water Storage
District, et al. v. Kern Delta
Water District SCAG 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Kern Delta Water District v.

City of Bakersfield
San
Joaquin
Valley 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
North Kern Water Storage
District, et al. v. City of
Bakersfield
San
Joaquin
Valley 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Kern Water Bank Authority
v. City of Bakersfield, et al.

San
Joaquin
Valley 10/12 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
TCEF, Inc. dba Green
Collective, et al. v. County of
Kern
San
Joaquin
Valley 8/12 Kern County Regulatory
Local Marijuana
Regulation Agency N/A
No CEQA
Determination
Citizens Opposing A
Dangerous Environment v.

County of Kern, et al.

San
Joaquin
Valley 10/11 Kern County Energy Renewable - Wind Private Greenfield -
Energy
Environmental
Impact Report
Sierra Club, et al. v. County
of Kern, et al.

San
Joaquin
Valley 10/11 Kern County Energy Renewable - Wind Private Greenfield -
Energy
Environmental
Impact Report
Tehachapi Area Critical
Land Use Issues Group v.

Tehachapi Valley Healthcare
District
San
Joaquin
Valley 11/11 Tehachapi
Public Services
& Infrastructure Hospital Agency Infill
Negative
DeclarationMitigated
Sierra Club v. California
Department of Conservation,
Division of Oil, Gas and
Geothermal Resources
San
Joaquin
Valley 7/12 Kern County Mining O&G Private
Mining/
Agriculture/
Forestry Statutory Exemption
City of Bakersfield v. Buena
Vista Water Storage District,
et al.

San
Joaquin
Valley 7/11 Bakersfield Residential
Master Planned
Community Agency Infill
Categorical
Exemption
Association of Irritated
Residents v. County of Kern,
et al.

San
Joaquin
Valley 1/11 Kern County Energy Renewable - Biomass Private Infill - Energy Environmental
Impact Report
Tehachapi First v. City of
Tehachapi
San
Joaquin
Valley 6/11 Tehachapi Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Sierra Club v. City of Taft, et
al.

San
Joaquin
Valley 7/10 Taft Regulatory City - Land Use Agency N/A
Environmental
Impact Report
Sierra Club v. City of
Bakersfield, et al.

San
Joaquin
Valley 8/10 Bakersfield Residential
Large Subdivision/
Mixed Use Private Infill
Environmental
Impact Report
Sierra Club v. County of
Kern, et al.

San
Joaquin
Valley 8/11 Kern County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Sierra Club v. City of
Bakersfield, et al.

San
Joaquin
Valley 9/10 Bakersfield Commercial Office/Business Park Private Infill Environmental
Impact Report
Tricounty Watchdogs, et al.
v. County of Kern, et al.

San
Joaquin
Valley 6/10 Kern County Residential
Large Subdivision/
Mixed Use Private Greenfield
Environmental
Impact Report
Rosedale-Rio Bravo Water
Storage District, et al. v.

California Department of
Water Resources
San
Joaquin
Valley 6/10 State Water

SWP/CVP
Management Private N/A
Environmental
Impact Report
Rosedale-Rio Bravo Water
Storage District v. Kern
County Water Agency
San
Joaquin
Valley 5/10 Kern County Water
Storage/ Conveyance/
Extraction Agency N/A
No CEQA
Determination
Agenda Item #5.1.