St. Helena City Council
May 1, 2023

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 115 Island Cattle Company,
et al. v. Angiola Water
District
San
Joaquin
Valley 6/11 Kings County Water
Storage/ Conveyance/
Extraction Agency N/A
No CEQA
Determination
City of Chowchilla v.

California Department of
Corrections and
Rehabilitation, et al.

San
Joaquin
Valley 1/12 Chowchilla
Public Services
& Infrastructure Prison Agency N/A
Categorical
Exemption
Heavenscent Organic
Hortipharm Collective,
et al. v. County of Madera
San
Joaquin
Valley 6/12 Madera County Regulatory
Local Marijuana
Regulation Agency N/A
No CEQA
Determination
Bates Station Neighbors v.

County of Madera, et al.

San
Joaquin
Valley 7/10 Madera County Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Madera Oversight Coalition,
Inc., et al. v. Madera
Irrigation District
San
Joaquin
Valley 12/12 Madera County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Madera Oversight Coalition,
Inc., et al. v. Madera
Irrigation District
San
Joaquin
Valley 8/12 Madera County Residential
Master Planned
Community Private Greenfield Statutory Exemption
California Department of
Transportation v. Madera
County, et al.

San
Joaquin
Valley 12/12 Madera County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
City of Fresno v. County of
Madera, et al.

San
Joaquin
Valley 12/12 Madera County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Madera Oversight Coalition,
Inc., et al. v. County of
Madera, et al.

San
Joaquin
Valley 12/12 Madera County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Gallo Cattle Company v.

Merced Irrigation District
San
Joaquin
Valley 11/12 Merced County Water Transfer Agency N/A
No CEQA
Determination
San Joaquin Raptor Rescue
Center, et al. v. Planada
Community Services
District, et al.

San
Joaquin
Valley 3/12 Merced County
Public Services
& Infrastructure Sewage Management Agency
Infill -
Infrastructure
Environmental
Impact Report
San Joaquin Raptor Rescue
Center, et al. v. County of
Merced, et al.

San
Joaquin
Valley 2/10 Merced County Residential
Large Subdivision/
Mixed Use Private Infill
Negative
DeclarationMitigated
Valley Citizens, et al. v.

County of Merced
San
Joaquin
Valley 10/10 Merced County Industrial Concrete Plant Private Infill Negative
DeclarationMitigated
Merced Alliance for
Responsible Growth, et al. v.

City of Merced, et al.

San
Joaquin
Valley 1/11 Merced Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Prem Dhoot, et al. v. County
of San Joaquin by and
through its Board of
Supervisors
San
Joaquin
Valley 2/12 Lathrop Commercial
Travel Plaza (Hwy
Service Complex) Private Infill
Negative
DeclarationMitigated
Prem Dhoot, et al. v. City of
Lathrop by and through its
City Council
San
Joaquin
Valley 1/12 Lathrop Commercial
Travel Plaza (Hwy
Service Complex) Private Infill
Negative
DeclarationMitigated
Dalwinder Dhoot, et al. v.

City of Lathrop by and
through its City Council
San
Joaquin
Valley 12/11 Lathrop Commercial
Travel Plaza (Hwy
Service Complex) Private Infill
Negative
DeclarationMitigated
City of Lathrop v. City of
Manteca by and through its
City Council
San
Joaquin
Valley 11/10 Manteca Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Harris Properties, LLC v.

City of Lathrop, et al.

San
Joaquin
Valley 6/11 Lathrop Commercial Office/ Business Park Private Infill Environmental
Impact Report
Agenda Item #5.1.

116 | Copyright © 2015 Holland & Knight LLP All Rights Reserved The Surland Companies,
LLC v. San Joaquin County
Airport Land Use
Commission, et al.

San
Joaquin
Valley 4/11 San Joaquin County Regulatory County - Land Use Private N/A Negative Declaration Pilot Travel Centers, LLC v.

County of San Joaquin by
and through its Board of
Supervisors
San
Joaquin
Valley 8/11 San Joaquin County Commercial
Travel Plaza (Hwy
Service Complex) Private Greenfield
Negative
DeclarationMitigated
Mary C. Kaehler v. City of
Lodi, et al.

San
Joaquin
Valley 5/11 San Joaquin County Commercial Office/Business Park Private Greenfield Negative
DeclarationMitigated
Central Delta Water Agency,
et al. v. Semitropic Water
Storage District
San
Joaquin
Valley 10/11 San Joaquin County Water
Storage/ Conveyance/
Extraction Private N/A
Environmental
Impact Report
Valley Bio-Energy, LLC v.

Modesto Irrigation District,
et al.

San
Joaquin
Valley 11/10 Stanislaus County Energy Renewable - Biomass Private Infill - Energy Negative
DeclarationMitigated
Thomas Eakin, et al. v.

Oakdale Irrigation District,
By and Through the Oakdale
Irrigation District Board of
Directors
San
Joaquin
Valley 10/12 Stanislaus County Water
Storage/ Conveyance/
Extraction Agency N/A
No CEQA
Determination
Protect Agricultural Land v.

Stanislaus County Local
Agency Formation
Commission
San
Joaquin
Valley 4/12 Ceres Regulatory County - Land Use Agency N/A Environmental
Impact Report
Protect Our Agricultural
Legacy v. California
Department of
Transportation
San
Joaquin
Valley 5/10 Stanislaus County
Public Services
& Infrastructure Highway Agency
Infill -
Infrastructure
Environmental
Impact Report
Citizens for Ceres v. City
of Ceres, By and through
the City Council
San
Joaquin
Valley 10/11 Ceres Retail Shopping Center Private Infill Environmental
Impact Report
North Modesto Groundwater
Alliance v. City of Modesto,
et al.

San
Joaquin
Valley 12/12 Modesto Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Ontario Mountain Village
Association, et al. v. City of
Ontario
San
Joaquin
Valley 10/12 Ontario
Public Services
& Infrastructure Streets Private
Infill -
Infrastructure
Environmental
Impact ReportAddendum
California Clean Energy
Committee v. City of Turlock
San
Joaquin
Valley 10/12 Turlock Regulatory City - Land Use Agency N/A Environmental
Impact Report
City of Porterville v. County
of Tulare, et al.

San
Joaquin
Valley 10/12 Tulare County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Sierra Club v. County of
Tulare, et al.

San
Joaquin
Valley 9/12 Tulare County Regulatory County - Land Use Agency N/A Environmental
Impact Report
County of Tulare v. All
Persons Interested in the
Adoption of the 2010
Amendment to
Redevelopment Plan for the
Porterville Redevelopment
Project No. 1 as Adopted By
Ordinance 1765 on June
15, 2010 by the City of
Porterville, et al.

San
Joaquin
Valley 12/12 Porterville Regulatory City - Land Use Agency N/A Environmental
Impact Report
Citizens for Responsible
Planning v. City of Visalia
San
Joaquin
Valley 12/10 Visalia Regulatory City - Land Use Agency N/A Negative Declaration Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 117 Dinuba Citizens for
Responsible Planning,
et al. v. County of Tulare, et
al.

San
Joaquin
Valley 5/11 Tulare County
Public Services
& Infrastructure Railroad/ Non-Transit Private
Mining/
Agriculture/
Forestry
No CEQA
Determination
California Healthy
Communities Network v.

City of Porterville
San
Joaquin
Valley 3/12 Porterville Retail Shopping Center Private Infill Environmental
Impact Report
Lower Tule River Irrigation
District, et al. v. Angiola
Water District
San
Joaquin
Valley 6/11 Multijurisdictional Water
Storage/ Conveyance/
Extraction Private N/A
No CEQA
Determination
Friends of the Mother Lode,
et al. v. Tuolumne County
San
Joaquin
Valley 5/11 Tuolumne County Mining Aggregate Private
Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
County of Amador v.

California Department of
Corrections and
Rehabilitation, et al.

Sierra
Foothills 2/11 Ione
Public Services
& Infrastructure Prison Agency N/A
No CEQA
Determination
Center for Biological
Diversity v. County of
Amador, et al.

Sierra
Foothills 2/11 Amador County Energy
Renewable - Biomass
(Retrofit) Private Infill - Energy
Environmental
Impact Report
Thomas S. Strout v. County
of Amador, et al.

Sierra
Foothills 2/11 Amador County Energy
Renewable - Biomass
(Retrofit) Private Infill - Energy
Environmental
Impact Report
Ione Valley Land, Air, and
Water Defense Alliance, LLC
v. County of Amador
Sierra
Foothills 11/12 Amador County Mining Aggregate Private
Mining/
Agriculture/
Forestry
Environmental
Impact Report
Colusa Riverbend Estates,
LP v. City of Colusa, et al.

Sierra
Foothills 8/12 Colusa Regulatory CEQA Enforcement Agency N/A Negative
DeclarationMitigated
Elaine Rominger, et al. v.

County of Colusa, et al.

Sierra
Foothills 4/12 Colusa County Industrial Warehouse/ Logistics Private Greenfield Negative
DeclarationMitigated
City of Riverbank v. County
of Tuolumne
Sierra
Foothills 5/11 Tuolumne County Mining Aggregate Private Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
Tuolumne Jobs & Small
Business Alliance v. City of
Sonora
Sierra
Foothills 1/11 Sonora Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Residents of Quail Ridge
Ranch v. County of
Tuolumne
Sierra
Foothills 9/11 Tuolumne County Residential
Large Subdivision/
Mixed Use Private Greenfield
Negative
DeclarationMitigated
Butte Environmental Council
v. County of Butte, et al. Norcal 11/10 Butte County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Friends of Oroville, et al. v.

City of Oroville, et al. Norcal 1/11 Oroville Retail
Walmart/Big Box
Store Private Infill
Environmental
Impact Report
State Water Contractors,
Inc. v. South Feather Water
and Power Agency Norcal 5/12 Butte County Energy
Renewable - Hydro
(Retrofit) Agency Infill - Energy
Negative
DeclarationMitigated
Aqualliance, et al. v. Butte
Water District Norcal 5/12 Butte County Water Transfer Private N/A Negative Declaration Tony Barnes v. The City of
Crescent City, et al. Norcal 8/11 Crescent City
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
No CEQA
Determination
Save Our Water Resources
v. City of Orland, et al. Norcal 3/10 Orland Industrial Beverage Plant Private Infill Statutory Exemption Friends of Orland, et al.l v.

City of Orland, et al. Norcal 3/10 Orland Industrial Beverage Plant Private Infill Statutory Exemption McKinleyville Community
Services District v. County of
Humboldt, et al. Norcal 9/11 Humboldt County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Forster-Gill, Inc. v. County of
Humboldt Norcal 11/11 Humboldt County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Agenda Item #5.1.

118 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Robert Sarvey v. North
Coast Unified Air Quality
Management District
Hearing Board, et al. Norcal 4/10 Humboldt County Energy Natural Gas (Retrofit) Private Infill - Energy Negative Declaration California Farm Bureau
Federation v. Humboldt
County Resource
Conservation District Norcal 3/11 Humboldt County Park Passive Recreation Private Greenfield -
Park
Environmental
Impact Report
Old Muddy II, LLC v. County
of Lake, et al. Norcal 10/12 Lake County
Agricultural &
Forestry Winery Private
Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
Friends of Cobb Mountain v.

County of Lake, et al. Norcal 5/11 Lake County Energy Renewable - Hydro Private Greenfield -
Energy
Environmental
Impact Report
Friends of Rattlesnake
Island v. County of Lake, et
al. Norcal 11/11 Lake County Residential
Single-Family Home/
Second Unit Private Greenfield
Negative
DeclarationMitigated
Mountain Meadows
Conservancy, et al. v.

County of Lassen, et al. Norcal 1/10 Lassen County Residential Resort Private Greenfield Environmental
Impact Report
Masonite Corporation v.

County of Mendocino,
et al. Norcal 8/10 Mendocino County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Russian Riverkeeper v.

Mendocino County Board of
Supervisors, et al. Norcal 8/10 Mendocino County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Keep The Code, Inc. v.

County of Mendocino,
et al. Norcal 9/12 Mendocino County Mining Aggregate Private Mining/
Agriculture/
Forestry
Environmental
Impact Report
Signal Port Creek Property
Owners Association v. Ken
Pimlott, In His Capacity as
Director of the California
Department of Forestry and
Fire Protection, et al. Norcal 9/12 Mendocino County
Agricultural &
Forestry Timber Management Private
Mining/
Agriculture/
Forestry
Certified Regulatory
Program
Poonkinney Road Coalition
v. County of Mendocino,
et al. Norcal 1/10 Mendocino County Mining Aggregate Private Mining/
Agriculture/
Forestry
Negative
DeclarationMitigated
Coast Action Group v.

County of Mendocino,
et al. Norcal 10/11 Mendocino County Regulatory County - Regulation Agency N/A Categorical
Exemption
Trevor D. Robbins, et al. v.

Nevada Irrigation District, et
al. Norcal 2/10 Nevada County Water
Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Peter Lockyer, et al. v.

County of Nevada Norcal 1/12 Nevada County
Public Services
& Infrastructure Telecommunications Private
Infill -
Infrastructure
Negative
DeclarationMitigated
South County Citizens for
Smart Growth v. County of
Nevada Norcal 5/10 Nevada County Retail Shopping Center Private Infill Environmental
Impact Report
Truckee Donner Public
Utility District v. Local
Agency Formation
Commission of Nevada
County, et al. Norcal 9/11 Truckee Regulatory City - Regulation Agency N/A Environmental
Impact Report
California Department of
Transportation v. Shasta
County, et al. Norcal 9/11 Shasta County Retail Shopping Center Private Greenfield Environmental
Impact Report
High Sierra Rural Alliance v.

County of Sierra, et al. Norcal 7/10 Sierra County Regulatory County - Land Use Agency N/A Statutory Exemption High Sierra Rural Alliance v.

County of Sierra, et al. Norcal 1/11 Sierra County Regulatory County - Land Use Agency N/A Statutory Exemption Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 119 Dale La Forest v. County of
Siskiyou, et al. Norcal 7/10 Siskiyou County Residential Multifamily/Mixed Use Private Greenfield Negative
DeclarationMitigated
Dale La Forest v. County of
Siskiyou, et al. Norcal 12/11 Siskiyou County Industrial Asphalt Plant Private Infill Negative
DeclarationMitigated
Mt. Shasta Tomorrow v.

County of Siskiyou, et al. Norcal 6/11 Siskiyou County Regulatory County - Land Use Agency N/A Categorical
Exemption
Red Bluff Citizens For
Sensible Planning, et al. v.

City of Red Bluff, et al. Norcal 2/10 Tehama County Retail Walmart/Big Box
Store Private Infill
Environmental
Impact Report
Owens Valley Committee, et
al. v. City of Los Angeles, et
al.

Mojave
Desert 4/12 Inyo County Park Passive Recreation Agency
Greenfield -
Park Negative Declaration
Center for Biological
Diversity, et al. v. Inyo
County, et al.

Mojave
Desert 6/12 Inyo County Regulatory City - Regulation Agency N/A Negative
DeclarationMitigated
City of Los Angeles Acting
By and Through the Los
Angeles Department of
Water and Power v.

Mammoth Community
Water District, et al.

Mojave
Desert 12/11 Los Angeles Regulatory City - Regulation Agency N/A Environmental
Impact Report
The Otay Ranch, LP, et al. v.

County of San Diego San Diego 10/12 Chula Vista Entertainment Shooting Range Private Greenfield -
Park
Negative
DeclarationMitigated
Inland Industries Group, L.P.
v. San Diego Unified Port
District, et al. San Diego 3/12 Chula Vista
Public Services
& Infrastructure
Electric Transmission
Line Private
Infill -
Infrastructure
Categorical
Exemption
Unite Here Local 30 v. City
of San Diego, et al. San Diego 12/12 San Diego Commercial Hotel Private Infill Environmental
Impact Report
CREED-21 v. City of San
Diego San Diego 5/12 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Categorical
Exemption
CREED-21 v. City of San
Marcos San Diego 3/12 San Marcos Regulatory City - Land Use Agency N/A Environmental
Impact Report
Save Our Heritage
Organisation v. City of San
Diego, et al. San Diego 8/12 San Diego Park
Other Active
Recreation Private Infill - Park
Environmental
Impact Report
Save Our Heritage
Organisation v. City of San
Diego, et al. San Diego 8/11 San Diego Park
Other Active
Recreation Private Infill - Park
No CEQA
Determination
Save Our Heritage
Organisation v. County of
San Diego, et al. San Diego 7/12 San Diego County Residential Multifamily/Mixed Use Agency Infill Environmental
Impact Report
Torrey Hills Community
Coalition v. City of San
Diego, et al. San Diego 7/12 San Diego Regulatory CEQA Enforcement Private N/A Environmental
Impact Report
Friends of Aviara v. City of
Carlsbad San Diego 2/12 Carlsbad Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
Chollas Restoration,
Enhancement and
Conservancy Community
Development Corporation, et
al. v. City of San Diego San Diego 8/12 San Diego Park
Other Active
Recreation Agency Infill - Park
Negative
DeclarationMitigated
Preserve Wild Santee,
et al. v. City of San Diego, et
al. San Diego 10/12 San Diego
Public Services
& Infrastructure
Municipal Waste
Management Private
Infill -
Infrastructure
Environmental
Impact Report
Coalition for Safe and
Healthy Economic Progress
v. City of San Diego San Diego 4/12 San Diego Retail
Walmart/Big Box
Store Private Infill
Negative
DeclarationAddendum
Agenda Item #5.1.

120 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Whispering Palms
Community Council v.

County of San Diego, et al. San Diego 2/10 San Diego County Residential Multifamily/Mixed Use Private Infill Negative
DeclarationMitigated
Whispering Palms
Community Council v.

County of San Diego, et al. San Diego 6/12 San Diego County Residential Multifamily/Mixed Use Private Infill Environmental
Impact Report
La Jolla Shores Tomorrow v.

City of San Diego San Diego 3/12 San Diego Residential
Single-Family Home/
Second Unit Private Infill Negative Declaration
Alliance for a Cleaner
Tomorrow v. San Diego
Unified Port District San Diego 11/12 San Diego Commercial Convention Center Private Infill Environmental
Impact Report
Coalition for Responsible
Convention Center Planning,
et al. v. City of San Diego, et
al. San Diego 7/12 San Diego Commercial Convention Center Private Infill Environmental
Impact Report
Coalition for Responsible
Coastal Development,
et al. v. San Diego Unified
Port District, et al. San Diego 2/12 San Diego Commercial Hotel Private Infill Environmental
Impact Report
Sierra Club v. City of
San Diego San Diego 5/12 San Diego Agency
Property Disposition/
Management Agency N/A
No CEQA
Determination
Sierra Club v. County of San
Diego San Diego 7/12 San Diego County Regulatory Regional - Regulation Agency N/A No CEQA
Determination
Helping Hand Tools v.

San Diego Air Pollution
Control District, et al. San Diego 3/12 Escondido Energy Natural Gas (Retrofit) Private Infill - Energy Categorical
Exemption
Rancho Guejito Corporation
v. County of San Diego, et
al. San Diego 9/11 San Diego County Regulatory County - Land Use Agency N/A Environmental
Impact Report
John Baratta v. City of
Poway San Diego 6/11 Poway Retail
Store/ Center
Occupancy Private Infill
Categorical
Exemption
Megan K. Dorsey v. City of
San Diego, et al. San Diego 2/12 San Diego Residential Small Subdivision Agency Infill Negative Declaration Unite Here Local 30, et al. v.

San Diego Unified Port
District, et al. San Diego 7/11 San Diego County Commercial Hotel Private Infill Environmental
Impact Report
Taxpayers for Accountable
School Bond Spending v.

San Diego Unified School
District San Diego 7/11 Glendale Schools K-12 Agency Infill Negative
DeclarationMitigated
CREED-21 v. City of San
Diego San Diego 5/11 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Categorical
Exemption
Preserve Calavera v. City of
Oceanside San Diego 6/11 Oceanside
Public Services
& Infrastructure Streets Agency
Infill -
Infrastructure
Environmental
Impact Report
San Diegans for Open
Government v. City of San
Diego San Diego 11/11 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Negative
DeclarationMitigated
San Diegans for Open
Government, et al. v. City of
San Diego San Diego 11/11 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Environmental
Impact Report
CREED-21, et al. v. City of
San Diego San Diego 1/12 San Diego Industrial Warehouse/ Logistics Private Infill Environmental
Impact Report
Citizens Against Flower Hill's
Excessive Expansion v. City
of San Diego San Diego 5/11 San Diego Commercial Office/Business Park Private Infill Environmental
Impact Report
Save La Jolla, et al. v. City
of San Diego, et al. San Diego 4/11 La Jolla Residential Single-Family Home/
Second Unit Private Infill Statutory Exemption
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 121 Sierra Club v. 22nd District
Agricultural Association San Diego 5/11 Del Mar Entertainment Fairground Agency Infill - Park Environmental
Impact Report
City of Solana Beach, et al.
v. 22nd District Agricultural
Association San Diego 5/11 Del Mar Entertainment Fairground Agency Infill - Park Environmental
Impact Report
San Diego Navy Broadway
Complex v. San Diego
Unified Port District San Diego 10/11 San Diego
Public Services
& Infrastructure Museum Private Infill
Environmental
Impact Report
Cleveland National Forest
Foundation, et al. v. San
Diego Association of
Governments, et al. San Diego 1/12 San Diego County Regulatory Regional - Land Use Agency N/A Environmental
Impact Report
CREED-21, et al. v. San
Diego Association of
Governments San Diego 11/11 San Diego County Regulatory Regional - Land Use Agency N/A Environmental
Impact Report
San Luis Rey Band of
Mission Indians v. County of
San Diego San Diego 2/12 San Diego County Residential
Master Planned
Community Private Greenfield
Environmental
Impact Report
Pala Band of Mission
Indians, et al. v. County of
San Diego Department of
Environmental Health,
et al. San Diego 6/11 San Diego County
Public Services
& Infrastructure
Municipal Waste
Management Private
Greenfield -
Infrastructure
Environmental
Impact Report
City of San Diego v.

Sweetwater Authority San Diego 12/10 San Diego County Water Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
City of San Diego v.

Sweetwater Authority San Diego 3/10 San Diego County Water Storage/ Conveyance/
Extraction Agency N/A
Environmental
Impact Report
Mary McGuire, Trustee of
the McGuire Family Trust v.

County of San Diego
Department of Planning and
Land Use, et al. San Diego 4/10 San Diego County Commercial Spa/Conference
Center Private Greenfield
Environmental
Impact Report
Siempre Viva Business Park
West, LLC, et al. v. City of
San Diego San Diego 8/10 San Diego County
Public Services
& Infrastructure Streets Agency
Infill -
Infrastructure
Categorical
Exemption
David Odmark v. City of San
Diego, et al. San Diego 8/10 San Diego Residential
Single-Family Home/
Second Unit Private Infill
No CEQA
Determination
Mark Gosselin, Trustee of
the Mark Gosselin Trust v.

City of Coronado, et al. San Diego 1/11 Coronado Residential Single-Family Home/
Second Unit Private Infill
No CEQA
Determination
Peter L. De Hoff v. City of
Poway San Diego 11/10 Poway Park
Other Active
Recreation Agency Infill - Park Negative Declaration
Lidsay Townley, et al. v.

County of San Diego, et al. San Diego 11/10 San Diego County Residential Large Subdivision/
Mixed Use Private Greenfield
Environmental
Impact Report
San Diegans for Open
Government v. City of San
Diego San Diego 10/10 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Agency
Infill -
Infrastructure
Categorical
Exemption
CREED-21 v. City of San
Diego San Diego 2/11 San Diego
Public Services
& Infrastructure
Stormwater/Flood
Management Private
Infill -
Infrastructure
Categorical
Exemption
San Diego Citizenry Group v.

County of San Diego San Diego 9/10 San Diego County Regulatory County - Land Use Agency N/A Environmental
Impact Report
Save Our Heritage
Organisation v. City of San
Diego, et al. San Diego 9/10 San Diego Retail
Store/Center
Occupancy Private Infill
No CEQA
Determination
Friends of Aviara v. City of
Carlsbad San Diego 1/10 Carlsbad Regulatory City - Land Use Agency N/A Negative
DeclarationMitigated
Agenda Item #5.1.

122 | Copyright © 2015 Holland & Knight LLP All Rights Reserved Coastal Environmental
Rights Foundation, Inc. v.

City of San Diego San Diego 6/10 San Diego Entertainment Fireworks Show Private Infill No CEQA
Determination
Environmental Law
Compliance Group, et al. v.

City of San Diego, et al. San Diego 8/10 San Diego Retail Store/Center
Occupancy Private Infill
Negative
DeclarationMitigated
Calavera Neighborhood
Association, et al. v.

Carlsbad Unified School
District, et al. San Diego 2/10 Carlsbad Schools K-12 Agency Infill Environmental
Impact Report
Viejas Band of Kumeyaay
Indians v. Padre Dam
Municipal Water District San Diego 6/10 San Diego County Water Storage/ Conveyance/
Extraction Agency N/A
Negative
DeclarationMitigated
Surfrider Foundation v. City
of Carlsbad, et al. San Diego 11/10 Carlsbad
Public Services
& Infrastructure
Stormwater/Flood
Management Private
Infill -
Infrastructure
No CEQA
Determination
United Anglers of Southern
California, et al. v. California
Fish and Game Commission San Diego 2/11 State Regulatory State - Regulation Agency N/A Environmental
Impact Report
Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 123 1 CEQA requires that the California Attorney General’s office be provided with a copy of each CEQA lawsuit “petition,” which describes the challenged project and the alleged CEQA compliance deficiencies. Copies of all such petitions filed between January 1, 2010 and December 31, 2012 were obtained by Holland & Knight from the California Attorney General’s office, pursuant to a California Public Records Act request. This study includes all 613 CEQA lawsuits (just over 200 lawsuits per year) filed throughout California during the three-year study period.
2 See e.g., Thomas Law Group Litigation Study (2013).
3 Jennifer Hernandez et al., Holland & Knight, CEQA Judicial Outcomes: Fifteen Years of Reported California and Supreme Court Decisions (2015), available at http://www.hklaw.com/Publications/CEQA-Judicial-Outcomes-Fifteen-Yearsof-Reported-California-Appellate-and-Supreme-Court-Decisions-05-04-2015/ (accessed May 26, 2015).
4 Although this study includes all petitions forwarded to the authors by the office of the California Attorney General (CAG) office in response to a California Public Records Act (CRPA) request for copies of all petitions received by CAG during the study period (2010 to 2012), published media reports include (and the authors have subsequently verified) that not all petitions actually filed were provided in response to this CPRA request. For example, a lawsuit filed by union interests against a transit-oriented development project in Milpitas, and several lawsuits against the high-speed rail project such as the lawsuit filed by the City of Atherton and other Peninsula communities, were not produced pursuant to this CPRA request. These omissions may be attributed either to the fact that these petitioners failed to comply with CEQA’s statutory mandate of providing copies of all CEQA petitions to the CAG, or to the inadvertent omission of these Petitions by the CAG staff responding to our CPRA request. 5 The authors would like to extend special gratitude to the leadership and members of the CEQA Working Group, a public/private sector coalition formed to modernize CEQA to eliminate CEQA litigation abuse.

This includes co-chairs Carl Guardino of the Silicon Valley Leadership Group and Gary Toebben of the Los Angeles Chamber of Commerce, and many members who offered examples of CEQA litigation abuse, including: Lucy Dunn of the Orange County Business Council; Bill Allen and David Flaks from the Los Angeles County Economic Development Corporation; Paul Granillo of the Inland Empire Economic Partnership; Jim Wunderman and Matt Regan of the Bay Area Council (and Shiloh Ballard, now of the Silicon Valley Bicycle Coalition); the California Infill Builders Federation (a public/private sector coalition working to advance infill development led by former State Senate President Pro Tem Don Perata and aided by award-winning journalist Roland De Wolk); California Forward (a bipartisan organization working to end partisan gridlock and support governance reforms to improve public outcomes for public health, environmental protection and sustainable communities led by Executive Director Jim Mayer and Board chair Lenny Mendonca); the Southern California Leadership Council (a bipartisan collaboration of leaders from the public and private sectors, including Greg McWilliams and Rich Lambrose); Carol Schatz from the Central City Association; Tracy Rafter from the LA Business Federation; CORO fellow Sean Kiernan; and many other regional leaders and staff. Thanks also to the many experts who contributed case studies and other information used in this article, including the Sacramento public policy firm Baker, Castillo & Fairbanks; southern California economist John Husing; Sacramento policy advocate Cassie Gilson; members of the CEQA Research Council (a group of CEQA attorneys and practitioners representing public and private sector clients whose members have an average of 30 years of experience with CEQA compliance and litigation practice); and scores of experienced (and patient) representatives from local, regional and state agencies, the Legislature and the Brown administration, and from labor, environmental, affordable housing, environmental justice, education, park, minority, land trust, lending, investing and media organizations. A special thanks to Claudia Cappio, formerly with the Brown Administration (2011-14), and presently with the City of Oakland. Finally, thanks to the many members of the Holland & Knight West Coast Environmental and Land Use Practice Group who contributed to this study with research on these CEQA lawsuits, including partners Betsy Lake, Tamsen Plume, Amanda Monchamp, Nicholas Targ, David Preiss, Brad Brownlow, Tara Kaushik and Chelsea Maclean; associates Paula Kirlin, Dan Golub, Spencer Potter and Joey Meldrum; and law clerks Rob Taboada and Sofia Aguilar. While the authors are grateful to these and other parties who are focused on the need to modernize CEQA to end CEQA litigation abuse, the opinions and recommendations in this study are the authors’ and should not be attributed to any other person or organization. This report cites to media reports and other specified sources for factual information about examples of CEQA lawsuits and the litigation practices by individuals and groups; they were not independently investigated by the authors.

ENDNOTES
Copyright © 2015 Holland & Knight LLP All Rights Reserved | 123 Agenda Item #5.1.

124 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 6 See Figure 1.
7 See Appendix A for reference to all “Single-Family Home/Second Unit” projects challenged during the study period.
8 See discussion of all “Regulatory” projects in Section 3.A.4, infra; see also Appendix A for reference to all “Regulatory” projects challenged during the study period.
9 See discussion of all “Schools,” “Public Services & Infrastructure,” and “Park” projects in Sections 3.A.1, 3.A.2, and 3.A.3, respectively, infra; see also Appendix A for reference to all “Schools,” “Public Services & Infrastructure,” and “Park” projects challenged during the study period. 10 City of Chowchilla v. California Department of Corrections and Rehabilitation, et al. (2012), see Appendix A.
11 Sierra Club v. City of San Diego (2012), see Appendix A. 12 See discussion of all “Energy” projects in Section 3.A.6, infra; see also Appendix A for reference to all “Energy” projects challenged during the study period.
13 “Projects” that included no physical construction activities (e.g., approval of agency regulations) and construction projects that had no locational optionality as infill community uses (e.g., commercial agricultural and mines) occurred in multiple jurisdictions (e.g., water supply projects where source of water, location of water improvements, and/or use of water, were distributed across multiple locations and jurisdictions). In addition, public agency management of agency-owned properties were not classified as either “greenfield” or “infill” projects.
14 Jennifer Hernandez et al., Holland & Knight, CEQA Judicial Outcomes: Fifteen Years of Reported California and Supreme Court Decisions (2015), available at http://www.hklaw.com/Publications/CEQA-Judicial-Outcomes-Fifteen-Yearsof-Reported-California-Appellate-and-Supreme-Court-Decisions-05-04-2015/ (accessed May 26, 2015).
15 See League of California Cities list of all California cities, available at http:// www.cacities.org/Resources/Learn-About-Cities (accessed May 26, 2015). 16 See Appendix A for reference to all “Regulatory” projects challenged during the study period.
17 See Appendix A for reference to all “Water” projects challenged during the study period.
18 See Appendix A for reference to all “Mining” and “Agricultural & Forestry” projects challenged during the study period.
19 See Figure 2A
20 See Figure 2B.
21 See e.g., Ramirez Canyon Preservation Fund v. Santa Monica Mountains Conservancy, et al. (2010), Appendix A.
22 See e.g., Friends of Appleton-Wolfard Libraries, et al. v. City and County of San Francisco, et al. (2011), Appendix A.
23 NRDC/CLCV,”Communities Tackle Global Warming” (2009), available at http://www.nrdc.org/globalwarming/sb375/files/sb375.pdf (accessed May 26, 2015). “Because CEQA is focused on projects and on mitigating the impacts of those projects, it is not suited to the type of large-scale, comprehensive analysis required to effectively reduce VMT. In fact, in the hands of opponents to a high-density project, CEQA could threaten the implementation of an effective greenhouse gas reduction strategy.” 24 While CEQA demands that tens of millions of dollars of project traffic studies be completed annually, and traffic-related impacts are by far the most litigated CEQA impact issues (especially for infill projects), the fact is that our best effort to carefully predict traffic volumes and patterns from new development is relatively poor. In “Phantom Trips, Overestimating the Traffic Impacts of New Development,” academic Adam Millard-Ball reviews the accuracy of the leading national methodology for estimating traffic, the Institute for Traffic Engineers (ITE)’s Trip Generation. The author concludes that Trip Generation methodology “overestimates trips by 55% – likely because its data represent a biased sample of development in the United States. Moreover, the data in Trip Generation are ill-suited to many analyses of traffic impacts, development impact fees, and greenhouse gas emissions, because they do not account for substitution effects. Most trips “generated” by new developments are not new, but involve households reshuffling trips from other destinations. These twin problems – theoretical and practical – are likely to lead to the construction of excessive roadway infrastructure and the overestimation of the congestion, fiscal and environmental impacts of new development.” David Levinson, Transportationist, “Phantom Trips,” (December 17, 2014), available at http://transportationist.org/2014/12/17/8101 (accessed May 26, 2015). 25 San Francisco Chronicle, “Antiabortion group exploiting environmental law to halt clinic” (April 13, 2015), available at http://www.sfchronicle.com/opinion/ editorials/article/Antiabortion-group-exploiting-environmental-law-6192876. php (accessed May 26, 2015). This report includes factual information presented by this and other referenced media reports, but the authors did not independently investigate the accuracy of these media reports. 26 People’s Coalition for Government Accountability v. County of Santa Clara, et al. (2012), see Appendix A; Save Our Uniquely Rural Community Environment v. County of San Bernardino, et al. (2012), see Appendix A; see also Pew Research Center, “Controversies Over Mosques and Islamic Centers Across the U.S.” (September 27, 2012), available at http://www.pewforum. org/2012/09/27/controversies-over-mosques-and-islamic-centers-acrossthe-u-s-2/ (accessed May 26, 2015). 27 See e.g., http://ceqaworkinggroup.com/edward2 (accessed May 26, 2015). 28 See e.g., Neighbors for Fair Planning v. City and County of San Francisco, et al. (2011), Appendix A.; see also, http://ceqaworkinggroup.com/btwsc (accessed May 26, 2015).
29 See e.g., Albany Strollers & Rollers, et al. v. City of Albany, et al. (2012), Appendix A.
30 CEQA Working Group, “NIMBY Group Use CEQA Lawsuit to Stop Affordable Housing Project for Seniors,” available at http://ceqaworkinggroup. com/sseniorhomes (accessed May 26, 2015); CEQA Working Group, “Neighbors Use CEQA In Attempt to Block Expansion of Community Center for Underserved Youth,” available at http://ceqaworkinggroup.com/btwsc (accessed May 26, 2015); CEQA Working Group, “Marina Homeowners use CEQA to Deter Housing Project for Homeless Teens,” available at Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 125 http://ceqaworkinggroup.com/edward2 (accessed May 26, 2015); Voice of San Diego, “CEQA Can Be a Convenient Weapon” (December 17, 2014), available at: http://www.voiceofsandiego.org/topics/economy/ceqa-can-bea-convenient-weapon/ (accessed May 26, 2015); BetterSolutions4Anaheim, “Legal Objections Raised To Proposed 200-Bed Homeless Shelter” (May 10, 2015), available at http://www.bettersolutions4anaheim.com/?p=77 (accessed June 9, 2015); Marin Independent Journal, “Corte Madera Residents Displeased by ‘Monster’ Apartment Project [180-unit apartment project on 4.7 acres] described as ‘towering’ and designed to help meet town’s affordable housing obligations” http://www.marinij.com/general-news/20131012/cortemadera-residents-displeased-with-monster-apartment-complex (accessed May 26, 2015).
31 See Figure 1.
32 Citizens for Castaic v. William S. Hart Union High School District (2012), see Appendix A.
33 See Figure 2.
34 Mac Taylor, California Legislative Analyst’s Office, “California’s High Housing Costs: Causes and Consequences” (2015), available at http://www.lao.ca.gov/ reports/2015/finance/housing-costs/housing-costs.pdf (accessed May 26, 2015).
35 See Friedman, et al., Chapman University Center for Demographics and Policy, “California’s Social Priorities” (2015), available at http://www.chapman.edu/ wilkinson/_files/CASocPrioFnSm2.pdf (accessed May 26, 2015). 36 CNNMoney’s geographic cost-of-living calculator, available at http://money.cnn. com/calculator/pf/cost-of-living/ (accessed May 26, 2015). 37 See e.g., Pilot Travel Centers, LLC v. City of Hesperia by and through its City Council (2012), Appendix A.
38 See e.g., Coalition for Responsible Convention Center Planning, et al. v. City of San Diego, et al. (2012), Appendix A.
39 See Figure 1.
40 Personal Email Communication (January 9, 2015), Judicial Council Staff (copy available on request).
41 Jennifer Hernandez et al., Holland & Knight, CEQA Judicial Outcomes: Fifteen Years of Reported California and Supreme Court Decisions (2015), available at http://www.hklaw.com/Publications/CEQA-Judicial-Outcomes-Fifteen-Yearsof-Reported-California-Appellate-and-Supreme-Court-Decisions-05-04-2015/ (accessed May 26, 2015).
42 Id. at 3.
43 Zaring, David, Reasonable Agencies, 96 VA. L. REV. 135, 170-71 (2010); National Taxpayer Advocate – 2011 Annual Report to Congress Volume 1, p. 590, Table 3.0.2, available at http://www.taxpayeradvocate.irs.gov/MediaResources/FY-2011-Annual-Report-To-Congress-Full-Report (accessed May 26, 2015).
44 Barragan, Curbed Los Angeles, “Everyone Living in Hollywood’s Sunset and Gordon Tower Has to Move Out” (March 20, 2015), available at http:// la.curbed.com/archives/2015/03/sunset_gordon_eviction.php#more (accessed May 26, 2015).
45 Center for Biological Diversity v. Department of Fish and Wildlife, Supreme Court No. S217763 (Review granted July 9, 2014); Cleveland National Forest Foundation v. San Diego Association of Governments, Supreme Court No.

S223603 (Review granted March 11, 2015).
46 City of Hayward v. Board of Trustees of California State University, Supreme Court No. S203939 (Review granted October 17, 2012)
47 City of San Diego v. Board of Trustees of California State University, Supreme Court No. S199557 (Review granted April 18, 2012); Cleveland National Forest Foundation v. San Diego Association of Governments, Supreme Court No.

S223603 (Review granted March 11, 2015).
48 California Building Industry Ass’n v. Bay Area Air Quality Management District, Supreme Court No. S213478 (Review granted November 26, 2013). 49 For example, opponents filed 17 lawsuits against the project between 1993 and 2004. See Village at Playa Vista Final EIR, State Clearinghouse No. 2002111065, (April, 2004), available at http://planning.lacity.org/eir/ PlayaVista/PlayaVistaFEIR/issues/VI_C.pdf (accessed May 26, 2015); see also, http://www.laweekly.com/news/playa-vista-quicksand-2150531 (accessed May 26, 2015).
50 Don’t Privatize Playa Vista Parks v. City of Los Angeles (2010), see Appendix A; Ballona Ecosystem Education Project v. City of Los Angeles, see Appendix A. 51 California Code of Civil Procedure, Sec. 425.16.
52 CEQA Working Group, “Competition uses CEQA to try to stop competing projects and monopolize student housing,” available at http:// ceqaworkinggroup.com/uscgateway (accessed May 26, 2015). 53 Saint Consulting, “White Paper: Protecting Market Share,” available at http://tscg.biz/protectingmarketshare (accessed May 26, 2015). 54 Delaware Tetra Technologies v. County of San Bernadino (2012). 55 Save the Plastic Bag Coalition v. County of Marin, et al. (2011), see Appendix A; Save the Plastic Bag Coalition v. City and County of San Francisco, et al. (2012), see Appendix A; Save the Plastic Bag Coalition v. San Luis Obispo County Integrated Waste Management Authority (2012), see Appendix A; Save the Plastic Bag Coalition v. City of Santa Cruz, et al. (2012), see Appendix A; Save the Plastic Bag Coalition v. City of Long Beach, et al. (2011), see Appendix A.
56 RRI Energy, Inc, et al. v. State Water Resources Control Board (2010), see Appendix A.
57 Conejo Wellness Center, Inc. v. City of Agora Hills, et al. (2010), see Appendix A; Crusaders For Patients’ Rights v. Board of Supervisors of the County of San Bernardino (2011), see Appendix A; Michael S. Green v. City of Fresno, et al. (2012), see Appendix A; TCEF, Inc dba Green Collective, et al. v. County of Kern (2012), see Appendix A; Heavenscent Organic Hortipharm Collective, et al. v.

County of Madera (2012), see Appendix A.

Agenda Item #5.1.

126 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 58 The Protect Our Communities Foundation, et al. v. Imperial County Board of Supervisors (2012), and Roman Velasquez, et al. v. County of Imperial, et al. (2012), The Protect Our Communities Foundation, et al. v. Imperial Board of Supervisors (2012) and Concerned Calipatria Citizens, et al. v. County of Imperial, et al. (2012), see Appendix A.
59 Unions filing CEQA lawsuits typically seek a “Project Labor Agreement” (PLA) that specifies which and how many jobs are required to go to the union and to its affiliated entities. PLAs also typically include wage and benefit terms, and may include worker training and qualification terms such as requirements for union-based apprentices. Since public and private construction projects receiving public funding subsidies such as the solar projects are generally required to pay prevailing wages, PLA negotiations relate more to union control and/or participation in the project workforce than payment of prevailing wages. 60 For example, the manufacturer of Metro railcars leased land from the Los Angeles World Airport (LAWA), and as a lessee was required to comply with the County’s Living Wage Ordinance, Affirmative Action Program, Contractor Responsibility Program, and Child Support Obligations ordinance.

See resolution approving lease, available at http://clkrep.lacity.org/ onlinedocs/2014/14-0707_misc_5-28-14.pdf (accessed May 26, 2015). 61 Coalition for Responsible Convention Center Planning, et al. v. City of San Diego, et al. (2012), see Appendix A; Alliance for a Cleaner Tomorrow v. San Diego Unified Port District (2012), see Appendix A.
62 See Appendix A for reference to all “Walmart/Big Box Store” projects challenged during the study period.
63 One pattern that emerged in these lawsuits involved submitting to the “lead” CEQA agency a detailed project opposition letter sent by an attorney representing a union, to make clear for political and negotiation purposes a union’s CEQA lawsuit threat. The actual CEQA lawsuit, once filed, used arguments raised in the union attorney letter but named a new “group” rather than the union as the party filing the CEQA lawsuit.
64 Daily Breeze, “Mall wars: Redondo Beach sues Torrance over Galleria’s possible loss of Nordstrom” (December 3, 2012), available at http://www.dailybreeze. com/20121204/mall-wars-redondo-beach-sues-torrance-over-galleriaspossible-loss-of-nordstrom (accessed May 26, 2015). 65 See Los Angeles Times, “Going off the rails on Metro’s rail cars” (October 22, 2014), available at http://www.latimes.com/opinion/editorials/ la-ed-kinkisharyo-labor-dispute-metro-rail-20141023-story.html (accessed May 26, 2015).
66 A recent study confirmed that California gained fewer than 5,000 of the more than 600,000 manufacturing jobs created in the United States between 2010- 2014. Friedman and Hernandez, Chapman University Center for Demographics and Policy, “California’s Social Priorities” (2015), available at http://www. chapman.edu/wilkinson/_files/CASocPrioFnSm2.pdf (accessed May 26, 2015); John Husing, Chief Economist, Inland Empire Economic Development California’s war on the poor, California Poverty Conference Presentation (2014). 67 San Fernando Valley Business Journal, “A.V. Plant Off Track?” (September 22, 2014); Los Angeles Times, “Going off the rails on Metro’s rail cars” (October 22, 2014), available at http://www.latimes.com/opinion/editorials/ la-ed-kinkisharyo-labor-dispute-metro-rail-20141023-story.html (accessed May 26, 2015); Los Angeles Times, “Kinkisharyo and IBEW win; CEQA loses?” (November 25, 2014), available at http://www.latimes.com/opinion/opinion-la/ la-ol-kinkisharo-union-deal-ceqa-20141125-story.html (accessed May 26, 2015).
68 Bloomberg, “Hollywood Deals Stop as David Fights Goliath: Real Estate” (January 14, 2015), available at http://www.bloomberg.com/news/ articles/2015-01-14/hollywood-deals-stop-as-david-fights-goliath-real-estate (accessed May 26, 2015), quoting Mike Saint, a Nashville, Tennessee-based land use consultant and co-author of the 2009 book, “NIMBY Wars: the Politics of Land Use.” About NIMBY CEQA petitioners, Saint continues: “You can’t convince [these wealthy petitioners] to support a shopping center across the street from their house just because it’s going to create jobs and tax revenue.”
69 See e.g., Brasuell, Curbed Los Angeles, “Leaked Settlement Shows How NIMBYs “Greenmail” Developers” (January 3, 2013), available at http:// la.curbed.com/archives/2013/01/leaked_settlement_shows_how_nimbys_ greenmail_developers_1.php (accessed May 26, 2015); Easy Reader News, “Attorney suing Manhattan Village mall refuses to identify clients” (January 27, 2015), available at http://easyreadernews.com/90979/attorney-suingmanhattan-village-mall-refuses-identify-clients/ (accessed May 26, 2015); San Diego Union Tribune, “Lawyer’s credibility unraveling” (September 25, 2007), available at http://www.utsandiego.com/news/2007/sep/25/ lawyers-credibility-unraveling (accessed May 26, 2015); “Nonprofits Linked to San Diego Attorney Cory Briggs Flout State, Federal Laws (May 28, 2015), available at http://www.kpbs.org/news/2015/may/28/nonprofits-linked-sandiego-attorney-cory-briggs/ (accessed May 29, 2015) 70 See e.g., “Development Agreement” including community benefit agreements entered into in 2012 by the University of Southern California and the City of Los Angeles to benefit several community groups, described in a joint press release available at https://pressroom.usc.edu/joint-publicstatement-regarding-the-public-benefits-provided-by-the-usc-specificplan-and-development-agreement/ (accessed May 26, 2015) and between San Francisco and Zendesk, available at http://www.sfgsa.org/index. aspx?page=5480 (accessed May 26, 2015).
71 See e.g., “California’s Old Political Machine Losing Steam,” (May 23, 2015), available at http://www.sfchronicle.com/opinion/diaz/article/California-s-oldpolitical-machine-losing-steam-6282052.php (accessed May 26, 2015). 72 California Forward receives core funding from The William and Flora Hewitt Foundation, The James Irvine Foundation, The David and Lucille Packard Foundation, The California Endowment, and the Evelyn and Walter Haas, Jr.

Fund. The California Stewardship Network receives core funding from the Morgan Family Foundation.
73 California Economic Summit, 2013 Summit Report: Advancing the Triple Bottom Line for All California, December 2013, available at http://www. caeconomy.org/resources/entry/2013-summit-report (accessed May 26, 2015). California Forward receives core funding from The William and Flora Hewitt Foundation, The James Irvine Foundation, The David and Lucille Packard Foundation, The California Endowment, and the Evelyn and Walter Haas, Jr. Fund. The California Stewardship Network receives core funding from the Morgan Family Foundation.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 127 74 California Economic Summit, Action Plan: July 2012, available at http://www. bayareaeconomy.org/media/files/pdf/CA_Summit_Action_Plan_JULY2012.pdf (accessed May 26, 2015), page 9.
75 See e.g., California Attorney General, “Quantifying the Rate of Litigation Under the California Environmental Quality Act: A Case Study” (August 8, 2012), available at http://voiceofsandiego.org/wp-content/uploads/2014/12/ AGCEQA.pdf (accessed May 26, 2015) (examining the 17 CEQA lawsuits filed in San Francisco during an 18-month period in which 5,203 city compliance determinations were made; however, even city minor building permits for interior renovations trigger CEQA because these are considered “discretionary” rather than “ministerial” under San Francisco’s unique charter); see also, Natural Resources Defense Council & California League of Conservation Voters, “CEQA – the Litigation Myth” (January 2013), available at http:// switchboard.nrdc.org/blogs/dpettit/CEQA%20Litigation%20Analysis%20 FINAL.pdf (accessed May 26, 2015), which found that 1.5% of Los Angeles CEQA determinations were challenged in court. However, neither of these studies attempted to differentiate between “big” and “small” or environmentally beneficial project challenges (e.g., CEQA lawsuits against plastic bag ordinances and transit projects) or environmentally benign project challenges (e.g., renovations of existing structures).
76 See Appendix A for reference to all projects challenged during the study period that received a “Categorical Exemption” or “Statutory Exemption.” 77 See e.g., Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2010), Appendix A.
78 See e.g., Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2011), Appendix A.
79 See e.g., Ecologic Partners, Inc., et al. v. California Department of Parks and Recreation (2011), Appendix A.
80 Save La Jolla, et al. v. City of San Diego, et al. (2011), see Appendix A. 81 See e.g., Daniel L Friess, et al. v. City of San Juan Capistrano, et al. (2010) and Cow Hollow Neighbors for Liveable Communities, et al. v. City and County of San Francisco (2011), and the Planned Parent clinic in South San Francisco, discussed below.
82 KQED Forum radio interview (2012), available at http://www.kqed.org/a/forum/ R201208230900 (accessed May 26, 2015).
83 See http://www.sanjoseinside.com/2015/05/27/community-activist-lobbiesfor-urban-agrihood-in-santa-clara/ 84 San Jose Inside, “CEQA Needs Urgent Reform” (August 23, 2012), available at http://www.sanjoseinside.com/2012/08/23/8_23_12_ceqa_development_ environment_silicon_valley/ (accessed May 26, 2015); CEQA Working Group – CEQA Case Study (copy available from authors on request). 85 See Figure 1.
86 San Diego Union Tribune, “San Diego Lawyer costing taxpayers millions” (April 12, 2015), available at http://www.utsandiego.com/news/2015/apr/12/sandiego-lawyer-cory-briggs-taxpayers-millions/ (accessed May 26, 2015). 87 CEQA Working Group, “Threat of CEQA Lawsuit Causes ‘Carmageddon’,” available at http://ceqaworkinggroup.com/wp-content/uploads/2013/01/ CEQA-Misuse-Carmageddon1.pdf (accessed May 26, 2015).
88 Michael Leachman and Chris Mai, Center on Budget and Policy Priorities, “Most States Funding Schools Less Than Before the Recession” (May 20, 2014), available at http://www.cbpp.org/research/most-statesfunding-schools-less-than-before-the-recession (accessed May 26, 2015). 89 See Appendix A for reference to all “Schools” projects challenged during the study period.
90 CEQA Working Group, “Neighborhood Group Uses CEQA to Keep Out Middle School Students,” available at http://ceqaworkinggroup.com/wp-content/ uploads/2013/01/CEQA-Misuse-Portola-School1.pdf (accessed May 26, 2015).
91 Designers, Engineers, Constructors for Better, Safer Schools, et al. v. Mill Valley School District, et al. (2011), see Appendix A; Citizens for Educated Government v. Mill Valley School District, et al. (2011), see Appendix A; See also Mill Valley Patch, “Edna Maguire Neighbors Sue School District” (July 19, 2011), available at http://patch.com/california/millvalley/edna-maguireneighbors-sue-school-district (accessed May 26, 2015). 92 See e.g., SF Coalition for Children’s Outdoor Play, Education and the Environment et al. v. City and County of San Francisco, et al. (2012), Appendix A; see also Responsible Use of Land at El Toro, et al. v. Saddleback Valley Unified School District (2012), Appendix A.
93 CEQA’s unique (and some would say notorious) “fair argument” standard is well established by statute and case law. For projects that would generally qualify for a “Categorical Exemption” because the project meets regulatory criteria for a type of project that typically has no significant adverse impacts, there is a split in appellate court cases as to when and how the “fair argument” standard applies. A potentially decisive case on this topic – involving construction of a single-family home on an existing lot, which received unanimous approval from the Berkeley Planning Commission and City Council as well as support from the project’s immediate neighbors, is one of 10 cases pending (as of the time of issuance of this study) before the California Supreme Court, which is currently considering whether to reconsider the split decision issued earlier in 2015. The challenged home has been delayed by more than six years of CEQA litigation. Berkeley Hillside Pres. v. City of Berkeley (2015) 60 Cal. 4th 1086; California Supreme Court Case Information Webpage, available at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen. cfm?dist=0&doc_id=2009144&doc_no=S201116 (accessed May 26, 2015).

See also, Petition for Rehearing (pending), at http://www.berkeleyside.com/ wp-content/uploads/2015/03/S201116_PFR_BerkeleyHillside-3-17-15.pdf (accessed May 26, 2015).
94 See Appendix A for reference to all “K-12” projects challenged during the study period.
95 Port of Los Angeles Fact Sheet, available at http://www.portoflosangeles.org/ about/facts.asp (accessed May 26, 2015).

Agenda Item #5.1.

128 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 96 According to the Port of Los Angeles and Port of Long Beach Fact Sheet, Los Angeles has a 17.4% share of U.S. container trade, and “1 in 5” containers pass through the Long Beach port. See Port of Los Angeles Fact Sheet, available at http://www.portoflosangeles.org/about/facts.asp (accessed May 26, 2015); Port of Long Beach Fact Sheet, available at http://www.polb.com/ about/facts.asp (accessed May 26, 2015).
97 August 2014 regional and state employment totals for August 2014 (state seasonally adjusted; regional unadjusted). See State of California Employment Development Department, Labor Market Data Library, available at http://www. labormarketinfo.edd.ca.gov/data/labor-market-data-library.html (accessed May 26, 2015); Port of Los Angeles Fact Sheet, available at http://www. portoflosangeles.org/about/facts.asp (accessed May 26, 2015); Port of Long Beach Fact Sheet, available at http://www.polb.com/about/facts.asp (accessed May 26, 2015); Port of Long Beach, “Economic Impacts: Contributing to the Local, State & National Economies,” available at http://www.polb.com/civica/ filebank/blobdload.asp?BlobID=2103 (accessed May 26, 2015). 98 California 2013 gross domestic product is reported in the U.S. Department of Commerce, Bureau of Economic Analysis, Real GDP By State Spreadsheet, available at http://www.bea.gov/newsreleases/regional/gdp_state/2014/xls/ qgsp0814_real.xls (accessed May 26, 2015), and the state 2013 general fund expenditures are summarized in the 2014-15 California State Budget, Summary Charts, available at http://www.ebudget.ca.gov/2014-15/pdf/ Enacted/BudgetSummary/SummaryCharts.pdf (accessed May 26, 2015). The tax revenue estimates published by the Long Beach port include “local, state and general federal taxes from Port-related trade,” and do not specify the amount of federal tax revenue in the total. Other published estimates indicate that the port generates as much as $5.9 billion in state tax revenue. See e.g., California Chamber of Commerce, 2014 California Business Issues, “Making California Ports More Competitive Can Help Regional, State Economies,” available at http://www.calchamber.com/GovernmentRelations/IssueReports/ Documents/2014-Reports/California-Ports-2014.pdf (accessed May 26, 2015).
99 California now leads the nation in the dubious distinction of having the most residents who lack high school diplomas, and is near rock-bottom in high school graduation rates nationally. Friedman and Hernandez, Chapman University Center for Demographics and Policy, “California’s Social Priorities” (2015), available at http://www.chapman.edu/wilkinson/_files/ CASocPrioFnSm2.pdf (accessed May 26, 2015).
100 Community Alliance For Open Space v. City of Los Angeles, et al. (2010), see Appendix A.
101 All references to unemployment rates in this paragraph were found using the interactive Local Area Unemployment Statistics Map, United States Bureau of Labor Statistics, available at http://data.bls.gov/map/ MapToolServlet?survey=la&map=state&seasonal=s (accessed May 26, 2015).
102 Desert Protective Council, et al. v. Imperial County, et al. (2011), see Appendix A. Quechan Tribe of the Fort Yuma Indian Reservation v. County of Imperial, et al. (2011), see Appendix A.
103 City of Hayward v. Board of Trustees of California State University, Supreme Court No. S203939 (Review granted October 17, 2012).
104 City of San Diego v. Board of Trustees of California State University, Supreme Court No. S199557 (Review granted April 18, 2012).
105 City of Hayward v. Board of Trustees of California State University (2012) 207 Cal. App.4th 446, opinion superseded upon review granted by California Supreme Court.
106 City of San Diego v. Board of Trustees of California State University (2011) 201 Cal.App.4th 1134, opinion superseded upon review granted by California Supreme Court.
107 See e.g., Friends of the College of San Mateo Gardens v. San Mateo County Community College District, et al. (2011), Citizens for a Green San Mateo v.

San Mateo County Community College District, et al. (2011), City of Culver City, et al. v. Los Angeles Community College District, et al. (2010), Jayne Abston, et al. v. Mt. San Jacinto Community College District (2011), Appendix A.
108 Smith, Curbed LA, “The Emerson Hollywood Building Backlash Begins” (September 2009), available at http://la.curbed.com/archives/2009/09/ the_emerson_hollywood_building_backlash_begins.php (accessed May 26, 2015); CEQA Working Group, “CEQA Tour—Case Study (copy available on request from authors).
109 Complaint, University of Southern California et al. v. Conquest Student Housing (C.D.C.A. 2007), available at http://www.usc.edu/ext-relations/news_service/ pdf/Complaint.pdf (accessed May 27, 2015).
110 See CEQA Working Group, “Competitor uses CEQA to try to stop competing projects and monopolize student housing,” available at http:// ceqaworkinggroup.com/uscgateway (accessed May 27, 2015); Smith, Curbed LA, “Lawsuit A Distant Memory, University Gateway Breaking Ground” (July 9, 2008), available at http://la.curbed.com/archives/2008/07/university_gate_1. php (accessed May 27, 2015); Smith, Curbed LA, “Conquest Banned From Even Thinking About USC Housing” (January 25, 2008), available at: http:// la.curbed.com/archives/2008/01/conquest_studen.php (accessed May 27, 2015); Curbed LA, “USC Sues Conquest Housing; Terrorist Reference Ups the Ante” (September, 4, 2007), available at http://la.curbed.com/ archives/2007/09/usc_sues_conque.php (accessed May 27, 2015); Grant, USC News, “Lawsuit Filed Against Conquest Housing” (September 4, 2007), available at http://news.usc.edu/17989/Lawsuit-Filed-Against-ConquestHousing/ (accessed May 27, 2015). 111 See Appendix A for reference to all “Public Services & Infrastructure” projects challenged during the study period.
112 Projects to manage, store, and transfer water from groundwater and surface water supplies often occur in locations that are distant from the communities receiving the water, and may also supply water to multiple communities. The nature of water projects also varies widely, from dams and treatment plants, to water management plans and programs, to temporary transfers of water contract rights involving no physical construction. Challenged water projects are addressed below.
113 See Appendix A for reference to all “Transit” projects challenged during the study period.
114 See Appendix A for reference to all “Highway” projects challenged during the study period.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 129 115 See Appendix A for reference to all “Municipal Waste Management” projects challenged during the study period.
116 See Appendix A for reference to all “Stormwater/Flood Management” projects challenged during the study period.
117 See Appendix A for reference to all “Telecommunications” projects challenged during the study period.
118 See Appendix A for reference to all “Streets” and “Sidewalk/ Streetscape” projects challenged during the study period.
119 See Appendix A for reference to all “Sewage Management” projects challenged during the study period.
120 Montecito Agricultural Foundation v. Montecito Fire Protection District, et al. (2012), see Appendix A.
121 Concerned Library Users v. City of Berkeley, et al. (2010); Friends of AppletonWolfard Libraries, et al. v. City and County of San Francisco, et al. (2011), see Appendix A. See also, San Francisco North Beach library replacement challenge, available at http://ceqaworkinggroup.com/library (accessed May 26, 2015).
122 Highland Park Heritage Trust, et al. v. City of Los Angeles, et al. (2011), see Appendix A.
123 See Appendix A for reference to all “Transit” projects challenged during the study period.
124 CEQA Working Group, “NIMBY Group Uses CEQA Lawsuit in Attempt to Derail Major Public Transit Extension Project,” available at http://ceqaworkinggroup. com/perrisline (accessed May 27, 2015).
125 Los Angeles County Regional Park and Open Space District, et al. v. City of Whittier (2011), see Appendix A.
126 See Weikel, Los Angeles Times, “Gold Line backers reach accord with Monrovia landowner” (February 15, 2015), available at http://articles.latimes. com/2012/feb/15/local/la-me-0215-light-rail-20120215 (accessed May 27, 2015); see also Neal Broverman, Curb Los Angeles, “Were Taxpayers Screwed by Gold Line’s $24 Million Settlement?”(February 15, 2012), available at http://la.curbed.com/archives/2012/02/were_taxpayers_screwed_by_gold_ lines_24_million_settlement.php (accessed May 27, 2015). 127 Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (2013) 57 Cal.4th 439.
128 Jennifer Hernandez et al., Holland & Knight, CEQA Judicial Outcomes: Fifteen Years of Reported California and Supreme Court Decisions (2015), available at http://www.hklaw.com/Publications/CEQA-Judicial-Outcomes-Fifteen-Yearsof-Reported-California-Appellate-and-Supreme-Court-Decisions-05-04-2015/ (accessed May 27, 2015).
129 As discussed in greater detail in Part 3.b, Remedy Reform, other appellate courts have declined to extend the Neighbors for Smart Rail common sense remedy approach. For example, the 8 Washington Project resulted in a rare CEQA loss for San Francisco, when the trial court judge vacated project approvals concluding that updated traffic counts should have been done – precisely the type of minor technical detail that the Supreme Court was unpersuaded was required in Neighbors for Smart Rail. Neighbors to Preserve the Waterfront, et al. v. City and County of San Francisco, et al. (2012), see Appendix A; see also Case No. CPF 12 512356, available at http://webaccess. sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=Vali dateCaseNumberSHA1&ARGUMENTS=-ACPF12512356 (accessed May 27, 2015). Similarly, a judge concluded that a supplemental historic building study should have been done for a demolished building on a site now occupied by a completed residential project with existing tenants – and ordered that the project approvals be vacated (making ongoing occupancy by tenants illegal) pending completion of the new study. La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles, et al. (2012), see Appendix A; see also Case No. BS137262, available at http://www.lacourt.org/ casesummary/ui/casesummary.aspx (accessed May 27, 2015); Zahniser, Los Angeles “Judge’s ruling on Sunset/Gordon tower puts tenants in limbo” (October 17, 2014), available at http://www.latimes.com/local/cityhall/la-mehollywood-development-20141018-story.html#page=1 (accessed May 27, 2015).
130 Town of Atherton, et al. v. California High Speed Rail Authority (2010); note, this is one of the petitions that was omitted from the CEQA petitions sent by the California Attorney General (CAG) to the authors pursuant to a California Public Records Act request. For purposes of maintaining the integrity of the statistical database, only those petitions actually provided by the CAG are included in Appendix A. Further information about the Atherton lawsuit, and a useful blog on the several lawsuits still pending or anticipated against the high-speed rail project, please refer to http://www.cahsrblog.com/2013/02/ the-original-frivolous-lawsuit-is-finally-dismissed/ (accessed May 26, 2015). 131 City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (2012), see Appendix A; Beverly Hills Unified School District v. Lost Angeles County Metropolitan Transportation Authority (2012), see Appendix A. 132 Timeless Investment, Inc., et al. v. California High Speed Rail Authority (2012), see Appendix A; City of Chowchilla v. California High Speed Rail Authority (2012), see Appendix A; County of Madera, et al. v. California High Speed Rail Authority (2012), see Appendix A.
133 Sheehan, Fresno Bee, “Federal law on high-speed rail trumps state environmental lawsuits” (December 15, 2014), available at http://www. fresnobee.com/2014/12/15/4287088/us-board-says-federal-law-trumps. html (accessed May 27, 2015).
134 Town of Atherton, et al. v. California High Speed Rail Authority (2014) 228 Cal.

App.4th 314.
135 People’s Coalition for Government Accountability v. County of Santa Clara, et al. (2012), see Appendix A; Save Our Uniquely Rural Community Environment v. County of San Bernardino, et al. (2012), see Appendix A. 136 Pew Research Center, “Controversies Over Mosques and Islamic Centers Across the U.S.” (September 27, 2012), available at http://www.pewforum. org/2012/09/27/controversies-over-mosques-and-islamic-centers-acrossthe-u-s-2/ (accessed May 27, 2015). 137 Concerned Library Users v. City of Berkeley, et al. (2010), see Appendix A; Friends of Appleton-Wolfard Libraries, et al. v. City and County of San Francisco, et al. (2011), see Appendix A.

Agenda Item #5.1.

130 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 138 Montecito Agricultural Foundation v. Montecito Fire Protection District, et al. (2012), see Appendix A.
139 Highland Park Heritage Trust, et al. v. City of Los Angeles, et al. (2011), see Appendix A; San Diego Navy Broadway Complex v. San Diego Unified Port District (2011), see Appendix A.
140 Williams, Willits News, “Basis for threatened suit against air ambulance base questioned” (December 17, 2014), available at http://www.willitsnews.com/ general-news/20141217/basis-for-threatened-suit-against-air-ambulancebase-questioned (accessed May 27, 2015). 141 Preserve San Leandro Mobility, et al. v. City of San Leandro, et al. (2010), see Appendix A; North Sonoma County Healthcare District, et al. v. County of Sonoma, et al. (2010), see Appendix A; CREED-21, et al. v. City of Victorville (2012), see Appendix A; Tehachapi Area Critical Land Use Issues Group v.

Tehachapi Valley Healthcare District (2011), see Appendix A. 142 Preserve San Leandro Mobility, et al. v. City of San Leandro, et al. (2010), see Appendix A; North Sonoma County Healthcare District, et al. v. County of Sonoma, et al. (2010), see Appendix A.
143 Citizens Against Airport Pollution v. City of San Jose, et al. (2010), see Appendix A; Highway 68 Coalition v. Monterey Peninsula Airport District Board of Directors (2011), see Appendix A; Watsonville Pilots Association v. City of Watsonville (2011), see Appendix A.
144 City of Irvine v. County of Orange, et al. (2011), see Appendix A. 145 County of Amador v. California Department of Corrections and Rehabilitation, et al. (2011), see Appendix A.
146 City of Chowchilla v. California Department of Corrections and Rehabilitation, et al. (2012), see Appendix A.
147 Homeowners of Angelo Drive to Save the Great Ficus Trees v. Ken Pfalzgraf, et al. (2011), see Appendix A.
148 Tony Barnes v. City of Crescent, et al. (2011), see Appendix A. 149 During the study period, bike path renovations were challenged in Seal Beach.

Bay City Partners, LLC v. City of Seal Beach, et al. (2011), see Appendix A.

San Francisco’s Bicycle Plan had an even more tumultuous path to judicial approval. Coalition for Adequate Review, et al. v. City and County of San Francisco (2014) 229 Cal.App.4th 1043. The city initiated the plan to add 34 miles of new bike lanes in order to address the alarming increase in the number of collisions between bicycles and cars in certain locations across the City. After a four-year-long injunction imposed by the trial court costing the city invaluable grant funding, the appellate court validated the EIR and removed the injunction. San Francisco Examiner, “S.F. bike plan injunction to cost city $35K” (July 21, 2006), available at http://www.sfexaminer.com/sanfrancisco/ sf-bike-plan-injunction-to-cost-city-35k/Content?oid=2159056 (accessed May 27, 2015).
150 See Appendix A for reference to all “Telecommunications” projects challenged during the study period.
151 Assem. Bill No. 1486 (2011-2012 Reg. Sess.).
152 See Appendix A for reference to all “Highway” projects challenged during the study period.
153 Michael Cabanatuan, San Francisco Chronicle, “BART can’t keep pace with rising ‘crush loads’” (April 13, 2015), available at http://www.sfgate.com/ bayarea/article/BART-can-t-keep-pace-with-rising-crush-loads-6192950.php (accessed May 27, 2015).
154 For example, CNNMoney’s geographic cost-of-living calculator reports that the cost of housing is 56% higher in the City of Los Angeles than the City of Riverside, CNN Money Calculator, “Cost of living: How far will my salary go in another city?” available at http://money.cnn.com/calculator/pf/cost-of-living/ (accessed May 27, 2015); see also, Friedman, et al., Chapman University Center for Demographics and Policy, “California’s Social Priorities” (2015), available at http://www.chapman.edu/wilkinson/_files/CASocPrioFnSm2.pdf (accessed May 27, 2015).
155 See Appendix A for reference to all local “Streets” projects challenged during the study period.
156 See Appendix A for reference to all “Stormwater/Flood Management” projects challenged during the study period.
157 See e.g., Tony Barboza, et al., Los Angeles Times, “Regulators detail Exide battery plant closure after decades of pollution,” (March 12, 2015), available at http://www.latimes.com/local/lanow/la-me-ln-exide-plant-closure20150312-story.html#page=1 (accessed May 26, 2015); Communities for a Better Environment Press Release, “Residents Call for Shut Down of Exide” (February 9, 2015), available at http://www.cbecal.org/press-releaseresidents-call-for-shut-down-of-exide/ (accessed May 26, 2015). 158 Personal Communication (2013) from senior official with the California Department of Toxic Substances Control.
159 California Native Plant Society v. City of Santa, 177 Cal. App. 4th 957 (2009). 160 Center for Biological Diversity v. Department of Fish and Wildlife (2014) 224 Cal.App.4th 1105 review granted July 9, 2014 and opinion superseded sub nom. Center for Biological Diversity v. California Dept. of Fish and Game (Cal. 2014) 174 Cal.Rptr.3d 80/.
161 Martha Groves, Los Angeles Times, “Annenberg Foundation suspends plan for Ballona Wetlands visitors center” (December 2, 2014), available at http:// www.latimes.com/local/california/la-me-annenberg-wetlands-20141203- story.html (accessed May 27, 2015).
162 See Appendix A for reference to all local “Park” projects challenged during the study period.
163 Fairground, zoos and amusement parks were included in the CommercialEntertainment category; park projects were limited to outdoor recreational areas with few built structures or amenities.
164 Friends of Point Pinos, et al. v. City of Pacific Grove, et al. (2012), see Appendix A; Washoe Meadows Community v. California State Parks and Recreation Commission, et al. (2012), see Appendix A.
165 City of Riverside v. City of Rialto, et al. (2011), see Appendix A.

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 131 166 The Otay Ranch, LP, et al. v. County of San Diego (2012), see Appendix A. 167 Hannah Rappleye, NBC News, “Is Rubber Mulch a Safe Surface for Your Child’s Playground?” (December 2, 2014), available at http://www. nbcnews.com/news/investigations/rubber-mulch-safe-surface-your-childsplayground-n258586 (accessed May 27, 2015). 168 SF Coalition for Children’s Outdoor Play, Education and the Environment et al. v. City and County of San Francisco, et al. (2012), see Appendix A; See also C.W. Nevius, San Francisco Chronicle, “Campaign against turf soccer fields may be alive and kicking” (November 6, 2014), available at http://www.sfgate. com/bayarea/nevius/article/Campaign-against-turf-soccer-fields-may-bealive-5874056.php (accessed May 27, 2015); Sara Gaiser, Bay City News, “Construction Starts On Golden Gate Park Soccer Fields Project” (November 6, 2014), available at http://sfappeal.com/2014/11/construction-starts-ongolden-gate-park-soccer-fields-project/ (accessed May 27, 2015). 169 San Francisco Business Times, “CEQA abuse hits latest victim: Dolores Park” (April 12, 2013), available at http://www.bizjournals.com/sanfrancisco/printedition/2013/04/12/ceqa-abuse-hits-latest-victim.html (accessed May 26, 2015).
170 Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2011), see Appendix A.
171 See e.g., Berkeley Citizen website, Gilman Street Playing Fields Berkeley CEQA comments, available at http://www.berkeleycitizen.org/Parks/freeway3.htm (accessed May 26, 2015).
172 See Appendix A for reference to all “Land Use” projects challenged during the study period, which are identified by their governmental level (i.e., City, County and Regional).
173 This regional plan was sued twice: Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2012), see Appendix A; CREED-21, et al. v. San Diego Association of Governments (2011), see Appendix A; and made its way to California Supreme Court: Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al., Supreme Court No. S223603 (Review granted March 11, 2015), available at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen. cfm?dist=0&doc_id=2096944&doc_no=S223603 (accessed
May 26, 2015).
174 See Los Angeles Planning Department, General Plan of the City of Los Angeles: Prior and Current Elements of General Plan flowchart, available at http://planning.lacity.org/cwd/gnlpln/History.htm (accessed May 27, 2015); see also, Adrian Glick Kudler, Curbed LA, “More Hollywood Community Plan Lawsuits” (July 20, 2012), available at http://la.curbed.com/ archives/2012/07/more_hollywood_community_plan_lawsuits.php (accessed May 27, 2015).
175 California Global Warming Solutions Act of 2006, Cal. Health & Safety Code §38500, et seq.
176 Sen. Bill No. 375 (2007-2008 Reg. Sess.).
177 Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al., Supreme Court No. S223603 (Review granted March 11, 2015), available at http://appellatecases.courtinfo.ca.gov/search/ case/mainCaseScreen.cfm?dist=0&doc_id=2096944&doc_no=S223603 (accessed May 26, 2015); see also Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2012), and CREED-21, et al. v. San Diego Association of Governments (2011), Appendix A. 178 A summary of the state’s regional housing needs assessment and allocation system was developed by the Southern California Association of Governments, (January 2011), available at http://rtpscs.scag.ca.gov/ Documents/rhna/RHNA101primer_Dec2010.pdf (accessed May 26, 2015). 179 Center for Biological Diversity v. Department of Fish and Wildlife (2014) 224 Cal.App.4th 1105 review granted July 9, 2014 and opinion superseded sub nom. Center for Biological Diversity v. California Dept. of Fish and Game (Cal. 2014) 174 Cal.Rptr.3d 80/.
180 Friedman, et al., Chapman University Center for Demographics and Policy, “California Environmental Quality Act, Greenhouse Gas Regulation and Climate Change” (2015), available at http://www.chapman.edu/wilkinson/_ files/GHGfn.pdf (accessed May 27, 2015).
181 Halstead, Marin Independent Journal, “Two new lawsuits filed to challenge Plan Bay Area” (August 19, 2013), available at http://www.marinij.com/ general-news/20130819/two-new-lawsuits-filed-to-challenge-plan-bay-area (accessed May 26, 2015). The second lawsuit, filed by an association of developers, is currently pending in the California Supreme Court: California Building Industry Ass’n v. Bay Area Air Quality Management District, Supreme Court No. S213478 (review granted November 26, 2013).
182 See Appendix A for reference to all “Local Plastic Bag” and “Local Marijuana” Regulations.
183 Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.
184 Jennie R. Romer and Shanna Foley, Golden Gate University Environmental Law Journal, “A Wolf in Sheep’s Clothing: The Plastics Industry’s “Public Interest” Role in Legislation and Litigation of Plastic Bay Laws in California” (2012), (available at http://digitalcommons.law.ggu.edu/cgi/viewcontent. cgi?article=1082&context=gguelj (accessed May 26, 2015). 185 Compassionate Use Act of 1996, Cal. Health & Safety Code §§ 11357- 11362.9.
186 Conejo Wellness Center, Inc. v. City of Agora Hills, et al. (2010), see Appendix A; Crusaders For Patients’ Rights v. Board of Supervisors of the County of San Bernardino (2011), see Appendix A; Michael S. Green v. City of Fresno, et al. (2012), see Appendix A; TCEF, Inc dba Green Collective, et al. v. County of Kern (2012), see Appendix A; Heavenscent Organic Hortipharm Collective, et al. v. County of Madera (2012), see Appendix A.
187 See Appendix A for reference to all local “Regulation” projects challenged during the study period, which are identified by their governmental level (i.e., City and County).
188 See Appendix A for reference to all “Regional – Regulations” Projects.

Agenda Item #5.1.

132 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 189 Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al., Supreme Court No. S223603 (Review granted March 11, 2015), available at http://appellatecases.courtinfo.ca.gov/search/ case/mainCaseScreen.cfm?dist=0&doc_id=2096944&doc_no=S223603 (accessed May 26, 2015); see also Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2012), and CREED-21, et al. v. San Diego Association of Governments (2011), Appendix A. 190 California Building Industry Ass’n v. Bay Area Air Quality Management District Supreme Court No. S213478 (Review granted November 26, 2013), available at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen. cfm?dist=0&doc_id=2056930&doc_no=S213478 (accessed
May 26, 2015).
191 California Building Industry Ass’n v. Bay Area Air Quality Management District (2013) 218 Cal.App.4th 1171; Ballona Wetlands Land Trust et al. v. City of Los Angeles (2011) 201 Cal.App.4th 455; Hernandez, et al., Holland & Knight, “Recommendations for Complying with Ballona Wetlands’ Definitive Rejection of ‘Converse-CEQA’ Analysis” (May 30, 2012), available at http://www.hklaw. com/publications/Recommendations-for-Complying-with-Ballona-WetlandsDefinitive-Rejection-of-Converse-CEQA-Analysis-05-30-2012/ (accessed May 26, 2015).
192 See e.g., San Joaquin County Resource Conservation District, et al. v.

California Regional Water Quality Control Board, Central Valley Region (2011), Appendix A.
193 See Association of Irritated Residents, et al. v. California Air Resources Board, et al. (2012) 206 Cal. App. 4th 1487 (Available at http://www.leagle.com/ decision/In%20CACO%2020120619016, accessed May 27, 2015.) 194 See Appendix A for reference to all “State – Regulations.” 195 See Appendix A for reference to all “Water” cases.
196 Siskiyou County Water Users Association, Inc v. California Natural Resources Agency, et al. (2010), see Appendix A.
197 Chs. 346-48, Stats. 2014.
198 Cal. Water Code §§ 10728.6 & 10736.2.
199 See e.g., Central Delta Water Agency et al. v. California Department of Water Resources (2010), see Appendix A.
200 Rodrigo Briones et al v Santa Margarita Water District, et al (2012), Delaware Tetra Technologies v. County of San Bernadino et al (2012); and two lawsuits filed by the Center for Biological Diversity et al. v. County of San Bernadino et al (2012); see Appendix A.
201 See Association of California Water Agencies, “Sustainable Groundwater Management Act” Fact Sheet, available at http://www.acwa.com/sites/default/ files/post/groundwater/2014/04/2014-groundwater-fact-sheet.pdf (accessed May 27, 2015).
202 See August 29, 2014 Senate Floor Report on SB 1168 of 2014, listing numerous environmental organizations, including the Environmental Defense Fund, the Natural Resources Defense Council, and Sierra Club California, as supporters of a bill that provided that CEQA would not apply to the preparation and adoption of groundwater sustainability plans.
203 See e.g., Governor Jerry Brown, “A Proclamation of a State of Emergency” (January 17, 2014), § 9; Governor Jerry Brown, “A Proclamation of a Continued State of Emergency” (April 25, 2014), § 19.
204 Favot, Pasadena Star-News “Devil’s Gate Dam project challenged by area environmentalists” (December 15, 2014), available at http://www. pasadenastarnews.com/environment-and-nature/20141215/devils-gate-damproject-challenged-by-area-environmentalists (accessed May 27, 2015). 205 See Appendix A for references to all “Energy” projects. 206 See Appendix A for references to all “Renewable” projects. 207 See Appendix A for references to all “Renewable – Biomass (R)” and “Natural Gas (R). projects.
208 Friends of Cobb Mountain v. County of Lake et al. (2011) State Water Contractors, Inc. v. South Feather Water & Power Agency (2012), see Appendix A.
209 Ctr. For Biological Diversity v. County of Amador, et al. (2011), see Appendix A); Strout v. County of Amador, et al. (2011), see; Appendix A. 210 Valley Bio-Energy, LLC v. Modesto Irrigation District, et al. (2010), see Appendix A.
211 Ass’n of Irritated Residents v. County of Kern, et al. (2011), see Appendix A. 212 See Appendix A for references to all “Renewable – Solar” and “Location of Project.”
213 Roman Velasquez, et al. v. County of Imperial, et al. (2012), see Appendix A; Concerned Calipatria Citizens, et al. v. County of Imperial, et al. (2012), see Appendix A.
214 It is notable that the National Labor Relations Act includes a jurisdictional dispute resolution process (Section 8(b)(4)(D) and 10(k)) for competing unions; use of competing CEQA lawsuits appears to be a “work-around” that effectively bypassed this statutory process, which was designed to “shield neutral employers caught between rival claimants.” National Labor Relations Board, “Jurisdictional Disputes,” available at http://www.nlrb.gov/rights-weprotect/whats-law/unions/jurisdictional-disputes-section-8b4d-10k (accessed May 27, 2015).
215 Local Area Unemployment Statistics Map, United States Bureau of Labor Statistics, available at http://data.bls.gov/map/ MapToolServlet?survey=la&map=state&seasonal=s (accessed May 26, 2015); Peter Philips, Ph.D., University of Utah Department of Economics, “Should Green Jobs Be Outsourced?” (March 2013), available at http://econ. utah.edu/research/publications/2013_04.pdf (accessed May 26, 2015).

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 133 216 Todd Woody, New York Times, “A Move to Put the Union Label on Solar Power Plants” (June 18, 2009), available at http://www.nytimes.com/2009/06/19/ business/energy-environment/19unions.html (accessed May 27, 2015). 217 Id.
218 See Appendix A for reference to all retail projects challenged during the study period.
219 See Appendix A for reference to all “Commercial” projects challenged during the study period.
220 See Appendix A for reference to all “Oil and Gas” extraction projects challenged during the study period.
221 See e.g., City of Petaluma, et al. v. County of Sonoma, et al. (2011), Appendix A.
222 See e.g., Health First v. March Joint Powers Authority (2010), Appendix A. 223 See Appendix A for reference to all “Industrial” projects challenged during the study period.
224 Friedman & Hernandez, Chapman University Center for Demographics and Policy, “California’s Social Priorities” (2015), available at http://www.chapman. edu/wilkinson/_files/CASocPrioFnSm2.pdf (accessed May 26, 2015). 225 See Appendix A for reference to all “Entertainment” projects challenged during the study period.
226 See Appendix A for reference to all agricultural projects challenged during the study period.
227 Signal Port Creek Property Owners Association v. Ken Pimlott, In His Capacity as Director of the California Department of Forestry and Fire Protection, et al. (9/12), see Appendix A.
228 U.S. News and World Report, “Tesla Heads to Nevada” (September 4, 2014), available at http://www.usnews.com/news/newsgram/articles/2014/09/04/ tesla-motors-to-open-battery-factory-in-nevada (accessed May 26, 2015). 229 Green Tech Solar, “Another Giga Plant Underway: SolarCity Strikes a Deal With New York for Solar Manufacturing Plant,” (September 23, 2014), available at http://www.greentechmedia.com/articles/read/another-giga-plant-underwaysolarcity-strikes-a-deal-with-new-york-for-sola (accessed May 26, 2015). 230 San Diego Union Tribune, “Middle-class manufacturing jobs? Not in California” (January 24, 2015), available at http://www.utsandiego.com/news/2015/ jan/24/middle-class-manufacturing-jobs-not-in-california/ (accessed May 27, 2015).
231 AllGov, “California Loses Tesla Plant after Rejecting Environmental Degradation and Mega Tax Breaks” (September 8, 2014), available at http://www. ca.allgov.com/news/where-is-the-money-going/california-loses-teslaplant-after-rejecting-environmental-degradation-and-mega-tax-breaks140908?news=854190 (accessed May 27, 2015); Green Tech Solar, “Another Giga Plant Underway: SolarCity Strikes a Deal With New York for Solar Manufacturing Plant,” (September 23, 2014), available at http://www. greentechmedia.com/articles/read/another-giga-plant-underway-solarcitystrikes-a-deal-with-new-york-for-sola (accessed May 27, 2015). 232 David Friedman, et al., Chapman University Center for Demographics and Policy, “California Environmental Quality Act, Greenhouse Gas Regulation and Climate Change” (2015), available at http://www.chapman.edu/wilkinson/_ files/GHGfn.pdf (accessed May 27, 2015).
233 Loren Kaye, Fox and Hounds, “The Mysteries of CEQA” (May 30, 2014), available at http://www.foxandhoundsdaily.com/2014/05/mysteries-ceqa/ (accessed May 27, 2015).
234 Gregory J. Wilcox, Los Angeles Daily News, “Nestle closing Chatsworth Hot Pockets plant” (August 5, 2014), available at http://www.dailynews.com/ business/20140805/nestle-closing-chatsworth-hot-pockets-plant (accessed May 27, 2015).
235 Jerry Hirsch, Los Angeles Times, “3,000 Toyota jobs to move to Texas from Torrance” (April 28, 2014), available at http://www.latimes.com/business/ autos/la-fi-toyota-move-20140429-story.html#page=1 (accessed May 27, 2015).
236 Shan Li, Los Angeles Times, “Occidental Petroleum to move HQ to Houston, spin off California assets” (February 14, 2014), available at http://articles. latimes.com/2014/feb/14/business/la-fi-mo-occidental-petroleum-californiahouston-20140214 (accessed May 27, 2015). 237 See e.g., Jan Norman, Orange County Register, “Report: 254 companies left California in 2011” (August 21, 2013), available at http://www.ocregister.com/ articles/moved-342887-companies-texas.html (accessed May 27, 2015); see also Friedman & Hernandez, Chapman University Center for Demographics and Policy, “California Environmental Quality Act, Greenhouse Gas Regulation and Climate Change” (2015), available at http://www.chapman.edu/wilkinson/_ files/GHGfn.pdf (accessed May 27, 2015).
238 Karen Gullo, Bloomberg, “San Francisco’s Google Buses Attacked in Lawsuit” (May 1, 2014), available at http://www.bloomberg.com/news/ articles/2014-05-01/san-francisco-sued-over-google-bus-project-bycommunity-group (accessed May 27, 2015). 239 The Guardian, “The truth inside the Google bus lawsuit: gentrification hurts the environment” (May 9, 2014), available at http://www.theguardian.com/ commentisfree/2014/may/09/google-bus-lawsuit-gentrification-environment (accessed May 27, 2015).
240 As of May 14, 2015, this case (Case No. CPF 14 513627) was still pending in San Francisco Superior Court. See http://webaccess.sftc.org/Scripts/Magic94/ mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARG UMENTS=-ACPF14513627 (accessed May 27, 2015).
241 See Appendix A for reference to all “Entertainment” projects challenged during the study period.
242 Jason Song, Los Angeles Times, “L.A. County supervisors OK plan for Universal Studios expansion” April 23, 2013, available at http://articles.latimes. com/2013/apr/23/local/la-me-nbcuniversal-vote-20130424 (accessed May 27, 2015).
243 Seth Kubersky, Touringplans Blog, “Universal Studios Hollywood Evolution Plan Approved: Curious George Out, Harry Potter in” (April 29, 2013), available at http://blog.touringplans.com/2013/04/29/universal-studios-hollywoodevolution-plan-approved-curious-george-out-harry-potter-in/ (accessed May 27, 2015).

Agenda Item #5.1.

134 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 244 Barragan, Curbed L.A., “How much Does Los Angeles Have to Build to Get Out of Its Housing Crisis?” (March 18, 2015), available at http://la.curbed. com/archives/2015/03/housing_crisis_los_angeles_construction.php#more (accessed May 27, 2015).
245 Seth Kubersky, Touringplans Blog, “Universal Studios Hollywood Evolution Plan Approved: Curious George Out, Harry Potter in” (April 29, 2013), available at http://blog.touringplans.com/2013/04/29/universal-studios-hollywoodevolution-plan-approved-curious-george-out-harry-potter-in/ (accessed May 27, 2015).
246 Hailey Branson-Potts, Los Angeles Times, Lawsuit says NBCUniversal, Caltrans broke law in offramp closure” (January 4, 2015), available here http://www. latimes.com/local/california/la-me-barham-ramp-closure-20150105-story. html (accessed May 27, 2015).
247 Song, Los Angeles Times, “L.A. County supervisors OK plan for Universal Studios expansion” (April 23, 2013), available at http://articles.latimes. com/2013/apr/23/local/la-me-nbcuniversal-vote-20130424 (accessed May 27, 2015).
248 Peter Fimrite, San Francisco Chronicle, “George Lucas withdraws Marin plans amid protests” (October 30, 2012), available at http://www.sfgate. com/bayarea/article/George-Lucas-withdraws-Marin-plans-amidprotests-3473057.php (accessed May 27, 2015). 249 CEQA Working Group, “Bakersfield California Editorial: Progress on Correcting CEQA’s Flaws 5/3/13” (May 6, 2014), available here http://ceqaworkinggroup. com/category/case-studies/page/2 (accessed May 27, 2015). 250 Debbie Emery, San Francisco Chronicle, “‘Star Wars’ Creator George Lucas to Build Housing Project in Wealthy California Community,” available at http:// www.sfgate.com/entertainment/article/Star-Wars-Creator-George-Lucas-toBuild-6205495.php (accessed May 27, 2015). 251 U.S. Government Business and Financial Resources, “Top Ten Reasons to Love U.S. Small Business,” available at http://usgovinfo.about.com/ cs/businessfinance/a/sbatopten.htm?utm_term=The%20Functions%20 of%20the%20Small%20Business%20Administration&utm_content=p1- main-1-title&utm_medium=sem-rel&utm_source=msn&utm_
campaign=adid-ad4e80d3-23fd-4b4b-990d-1faf4fe19ba7-0-
ab_mse_ocode-12626&ad=semD&an=msn_s&am=exact&q=The%20
Functions%20of%20the%20Small%20Business%20
Administration&dqi=small+business+administration&o=12626&- l=sem&qsrc=6&askid=ad4e80d3-23fd-4b4b-990d-1faf4fe19ba7-0-ab_mse (accessed May 27, 2015).
252 CEQA Working Group, CEQA Misuse Case Study: Moe’s Stop, San Jose, available at http://ceqaworkinggroup.com/moes (accessed May 27, 2015). 253 Jennifer Hernandez et al., Holland & Knight, CEQA Judicial Outcomes: Fifteen Years of Reported California and Supreme Court Decisions (2015), available at http://www.hklaw.com/Publications/CEQA-Judicial-Outcomes-Fifteen-Yearsof-Reported-California-Appellate-and-Supreme-Court-Decisions-05-04-2015/ (accessed May 27, 2015).
254 CEQA Working Group, CEQA Misuse Case Study: Moe’s Stop, San Jose, available at http://ceqaworkinggroup.com/moes (accessed May 27, 2015). 255 Lisa Halverstadt, Voice of San Diego, “The Great Uncertainty Facing California Businesses” (December 16, 2014), available at http://www.voiceofsandiego. org/topics/economy/the-great-uncertainty-facing-california-businesses/ (accessed May 27, 2015); Nathan Scharn, San Diego Union Tribune, “Poway allows auto body shop to set up in business park” (May 3, 2011), available at http://www.utsandiego.com/news/2011/may/03/poway-allows-auto-bodyshop-set-business-park/ (accessed May 27, 2015). 256 Pilot Travel Centers LLC v. County of San Joaquin, Respondents and Real Parties in Interest’s Opposition to Petitioner’s Opening Brief in Support of Issuance of Writ of Mandate and Complaint for Declaratory and Injunctive Relief (May 4, 2012), available at http://www.cityofhesperia.us/ DocumentCenter/View/3795 (accessed May 27, 2015); Curbed LA, “Westfield Picks Fight With Caruso” (June 13, 2006), available at http://la.curbed.com/ archives/2006/06/westfield_picks.php (accessed May 27, 2015). 257 April Gilbert, Berkeleyside, “Op-ed: Berkeley restaurant has been approved:

Let it open,” (July 17, 2014), available at http://www.berkeleyside. com/2014/07/17/berkeley-restaurant-has-been-approved-lets-let-it-open/ comment-page-2/ (accessed May 27, 2015).
258 See Appendix A for reference to all retail projects challenged during the study period.
259 See Appendix A for reference to all “Store/Center Occupancy” projects challenged during the study period; CEQA Working Group, “Protestors Use CEQA in Attempt to Stop South San Francisco Planned Parenthood Women’s Clinic – And They Use Their Own Protests As the CEQA Complaint!” available at http://ceqaworkinggroup.com/ceqa-misuse-case-study-south-sanfrancisco-planned-parenthood (accessed May 27, 2015). 260 See Figure 8.
261 Id.
262 Id.
263 Id.
264 Jeff vonKaenel, Sacramento News & Review, “The Nimby Awards” (2015), available at http://issuu.com/news_review/docs/snr_nimby_043015 (accessed May 27, 2015).
265 Los Angeles Times, L.A. Population Density Mapping System, available at http://maps.latimes.com/neighborhoods/population/density/neighborhood/list/ (accessed May 27, 2015).
266 Wikipedia, “West Hollywood, California,” available at http://en.wikipedia.org/ wiki/West_Hollywood,_California (accessed May 27, 2015); Wikipedia, “List of United States cities by population density,” available at http://en.wikipedia.org/ wiki/List_of_United_States_cities_by_population_density (accessed May 27, 2015).
267 Neal Ungerleider, Fast Company, “Why a Subway-Building Binge Could Transform L.A.’s Tech Culture,” available at http://www.fastcompany. com/3037848/why-a-subway-building-binge-will-transform-how-los-angelesworks (accessed May 27, 2015).

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 135 268 Wikipedia, “Red Line (Los Angeles Metro),” available at http://en.wikipedia.org/ wiki/Red_Line_ (Los_Angeles_Metro) (accessed May 27, 2015). 269 Los Angeles Department of City Planning, Hollywood Community Plan (December 13, 1988), available at http://cityplanning.lacity.org/complan/pdf/ HwdCpTxt.pdf (accessed May 27, 2015).
270 Los Angeles Department of City Planning, Draft Hollywood Community Plan (July 2010), available at http://cityplanning.lacity.org/cpu/hollywood/text/ HwdCommunityPlan.pdf (accessed May 27, 2015).
271 James Brasuell, Curbed Los Angeles, “10 Nightmare Neighborhood Scenarios From Opponents of the Just-Passed Hollywood Community Plan,” available at http://la.curbed.com/archives/2012/06/10_nightmare_neighborhood_ scenarios_from_opponents_of_the_justpassed_hollywood_community_plan. php (accessed May 27, 2015).
272 Fix The City v. City of Los Angeles, Tentative Decision and Proposed Statement of Decision (December 10, 2013), available at http://www.hhwnc. org/files/Documents/PDFs/HCP%20LAWSUIT%20statement%20of%20 decision-12-10-13.pdf (accessed May 27, 2015).
273 Fix the City Website, “Judge Rules in Favor of Fix The City Hollywood Community Plan Lawsuit” (December, 11, 2013), available at http://fixthecity. org/?p=91 (accessed May 27, 2015).
274 Curbed Los Angeles, “Hollywood Community Plan” articles, available at http:// la.curbed.com/tags/hollywood-community-plan (accessed May 27, 2015). 275 City of Los Angeles Department of City Planning, Zoning Information File – Holly Community Plan Injunction, available at http://zimas.lacity.org/ documents/zoneinfo/zi2433.pdf (accessed May 27, 2015).
276 California Air Resources Board, Sustainable Communities page, available at http://www.arb.ca.gov/cc/sb375/sb375.htm (accessed May 27, 2015). 277 Southern California Associate of Governments, 2012-2035 Regional Transportation Plan and Sustainable Communities Strategy, Adopted April 2012, available at http://rtpscs.scag.ca.gov/Documents/2012/final/ f2012RTPSCS.pdf (accessed May 27, 2015).
278 Barragan, Curbed Los Angeles, “Anti-Density Lawyer May Have Just Forced 40 People Out of Their New Homes in Hollywood’s Sunset/Gordon” (October 20, 2014), available at http://la.curbed.com/archives/2014/10/antidensity_ lawyer_may_have_just_forced_40_people_out_of_their_new_homes_ in_hollywoods_sunsetgordon.php (accessed May 27, 2015); Barragan, Curbed Los Angeles, “Everyone Living in Hollywood’s Sunset and Gordon Tower Has to Move Out” (March 20, 2015), available at http://la.curbed.com/ archives/2015/03/sunset_gordon_eviction.php#more (accessed May 27, 2015).
279 Aaron Blevins, Beverly Press, “Millennium Hollywood developers sued again” (September 5, 2013), available at http://beverlypress.com/2013/09/ millennium-hollywood-developers-sued-again/ (accessed May 27, 2015). 280 Bianca Barragan, Curbed Los Angeles, “Judge Tanks Plans For Two Giant Towers by Capitol Records” (April 30, 2015), available at http://la.curbed.com/ archives/2015/04/judge_tanks_plans_for_two_giant_towers_by_capitol_ records.php (accessed May 27, 2015).
281 Bianca Barragan, Curbed Los Angeles, “How Much Does Los Angeles Have to Build to Get Out of Its Housing Crisis?” (March 18, 2015), available at http:// la.curbed.com/archives/2015/03/housing_crisis_los_angeles_construction. php#more (accessed May 27, 2015); California Legislative Analyst’s Office, “California’s High Housing Costs: Causes and Consequences” (March 17, 2015), available at http://www.lao.ca.gov/reports/2015/finance/housingcosts/ housing-costs.pdf (accessed May 27, 2015), pp. 9, 21.
282 The data is not available to make direct cost comparisons that “fully-load” new and upgraded public infrastructure costs on home prices, but CEQA does require developers to contribute to infrastructure improvements as part of normal “mitigation” and project approval conditions.
283 Joint MTC Planning Committee/ABAG Administrative Committee Meeting (May 8, 2015) presentation by J. Fearn, D. Pinkston, & N. Arenson, available at http://apps.mtc.ca.gov/events/agendaView.akt?p=2404 (accessed May 16, 2015).
284 California Legislative Analyst’s Office, “California’s High Housing Costs: Causes and Consequences” (March 17, 2015), available at http://www.lao.ca.gov/ reports/2015 finance/housingcosts/housing-costs.pdf (accessed May 27, 2015), p. 13.
285 Id.
286 California League of Conservation Voters and Natural Resources Defense Council, Communities Tackle Global Warming – A Guide to California’s SB 375 (June 2009), available at http://www.nrdc.org/globalwarming/sb375/files/ sb375.pdf (accessed May 27, 2015).
287 Urban Lands Institute, SB 375 – Impact Analysis Report (June 2010), available at http://uli.org/wp-content/uploads/2012/06/SB375ImpactAnalysisReport. ashx_1.pdf (accessed May 27, 2015).
288 The Recorder, Concerned Dublin Citizens v. City of Dublin case summary (March 28, 2013), available at http://www.therecorder.com/ id=1202593950504/Concerned-Dublin-Citizens-v-City-ofDublin?slreturn=20150408173720 (accessed May 27, 2015). 289 Torres, San Francisco Business Journal, “Lawsuits nail projects” (March 2, 2012), available at http://www.bizjournals.com/sanfrancisco/printedition/2012/03/02/carpenters-unions-hammer-builders.html (accessed May 27, 2015); Coon, CEQA Developments, “Sixth District Holds CEQA Action Barred By 30-Day Statute of Limitations of Government Code Section 65457 Despite City’s Filing of Notice of Exemption” (July 30, 2013), available at http:// www.ceqadevelopments.com/2013/07/30/sixth-district-holds-ceqa-actionbarred-by-30-day-statute-of-limitations-of-government-code-section-65457- despite-citys-filing-of-notice-of-exemption/ (accessed May 27, 2015). Note:

This Mipitas infill housing lawsuit was another petition filed during the study period that was not provided by the CAG as part of the CPRA dataset, and thus was omitted from the statistical compilations included in the study. 290 See Appendix A for reference to all single-family residential projects challenged during the study period.
291 Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2010), see Appendix A.

Agenda Item #5.1.

136 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 292 Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086; Berkeley Hillside Preservation v. City of Berkeley, petition for rehearing denied (May 28, 2015).
293 Nathan Donato-Weinstein, Silicon Valley Business Journal, “Union challenging downtown San Jose high-rise” (August 13, 2013), available at http://www. bizjournals.com/sanjose/news/2013/08/12/union-challenging-downtownhigh-rise.html (accessed May 27, 2015). 294 See The Truth About Project Labor Agreements, available at http://thetruthaboutplas.com/get-the-truth/ (accessed May 27, 2015), a politically conservative blog that tracks and critiques project labor agreements, the common form of settlement arising from CEQA administrative appeals and lawsuits filed by unions.
295 See Appendix A for reference to all master planned communities projects challenged during the study period.
296 See Appendix A for reference to all subdivision development projects challenged during the study period.
297 Bull Fulton, California Planning and Development Report, “The Long View:

California Sprawls Less Over 60 Years” (June 19, 2013), available at http:// www.cp-dr.com/node/3379 (accessed May 27, 2015).
298 United States Environmental Protection Agency, “Our Built and Natural Environments: A Technical Review of the Interactions Between Land Use, Transportation, and Environmental Quality (2nd Edition)” (2013), available at http://www2.epa.gov/smart-growth/our-built-and-natural-environmentstechnical-review-interactions-between-land-use (accessed May 27, 2015). 299 CREED-21 v. City of San Diego (2012), see Appendix A. 300 See Appendix A for reference to all “Agricultural & Forestry” projects challenged during the study period.
301 Signal Port Creek Property Owners Association v. Ken Pimlott, In His Capacity as Director of the California Department of Forestry and Fire Protection, et al. (2012), see Appendix A.
302 See California Department of Forestry and Fire Protection, “California Timber Yield Tax Volume and Value Trends,” available at http://frap.fire.ca.gov/ projects/BOE/BOETimberTax.html (accessed May 27, 2015). 303 See Appendix A for reference to all industrial projects challenged during the study period.
304 American Trucking Associations, Inc. v. City of Los Angeles, Cal. (2013) 133 S.Ct. 2096.
305 Samantha Mehlinger, Long Beach Business Journal, “Lawsuits Against City of L.A., BNSF Railway Consolidated” (August 13, 2013), available at http:// lbbusinessjournal.com/long-beach-business-journal-newswatch/1725- lawsuits-against-city-of-la-bnsf-railway-consolidated.html (accessed May 27, 2015).
306 See Appendix A for reference to all mineral resource extraction projects challenged during the study period.
307 Wikipedia, “Construction aggregate,” available at http://en.wikipedia.org/wiki/ Construction_aggregate (accessed May 27, 2015).
308 See Appendix A for reference to all oil and gas drilling projects challenged during the study period.
309 See Appendix A for reference to the remaining industrial projects challenged during the study period.
310 Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247. 311 Dan Walters, San Luis Obispo Tribune, “Big reform of CEQA bogs down” (August 23, 2013), available at http://www.sanluisobispo. com/2013/08/23/2646351/dan-walters-big-reform-of-ceqa.html (accessed May 28, 2015).
312 Healy, Los Angeles Times, “Kinkisharyo and IBEW Win; CEQA loses?:
(November 25, 2014), available at http://www.latimes.com/opinion/opinionla/la-ol-kinkisharo-union-deal-ceqa-20141125-story.html (accessed May 28, 2015).
313 Los Angeles Times, “Don’t rush changes to the California Environmental Quality Act” (August 21, 2012), available at http://articles.latimes.com/2012/ aug/21/opinion/la-ed-ceqa-reform-20120821 (accessed May 28, 2015). 314 San Francisco Chronicle, “Antiabortion group exploiting environmental law to halt clinic” (April 13, 2015), available at http://www.sfchronicle.com/opinion/ editorials/article/Antiabortion-group-exploiting-environmental-law-6192876. php (accessed May 28, 2015).
315 San Jose Mercury News, “CEQA reform must be top priority for Legislature in 2013” (November 16, 2012), available at http://www.mercurynews.com/ opinion/ci_22012555/mercury-news-editorial-ceqa-reform-must-be-top# (accessed May 28, 2015).
316 San Jose Mercury News, “CEQA reform must be comprehensive” (September 6, 2013), available at http://www.mercurynews.com/ opinion/ci_24034312/mercury-news-editorial-ceqa-reform-must-becomprehensive# (accessed May 28, 2015). 317 Sacramento Bee, “Fix CEQA and end carve-outs for special projects” (September 2, 2013), available at http://blogs.sacbee.com/capitol-alertinsider-edition/2013/09/editorial-fix-ceqa-and-end-carve-outs-for-specialprojects.html# (accessed May 28, 2015). 318 San Francisco Chronicle, “No special environmental rules for sports” (September 4, 2013), available at http://www.sfgate.com/opinion/editorials/ article/No-special-environmental-rules-for-sports-4787560.php (accessed May 28, 2015).
319 Lorie Zapf, San Diego Union Tribune, “Environment protection gone awry” (November 25, 2007), available at http://www.utsandiego.com/ uniontrib/20071125/news_lz1e25zapf.html (accessed May 28, 2015). 320 San Diego Union Tribune, “Regulatory reform and hollow promises” (August 24, 2012), available at http://www.utsandiego.com/news/2012/aug/24/ regulatory-reform-and-hollow-promises/ (accessed May 28, 2015).

Agenda Item #5.1.

Copyright © 2015 Holland & Knight LLP All Rights Reserved | 137 321 Sacramento Bee, “CEQA end run could come back to haunt the Delta and Sacramento” (August 26, 2012), available at http://article.wn.com/ view/2012/08/26/Editorial_CEQA_end_run_could_come_back_to_haunt_ the_Delta_an_b/ (accessed May 28, 2015).
322 Jeff vonKaenel, Sacramento News & Review, “The Nimby Awards,” (2015), available at http://issuu.com/news_review/docs/snr_nimby_043015 (accessed May 28, 2015).
323 Jeff vonKaenel, Newsreview.com, “NIMBY, no more: Environmental regulations are being misused,” (April 30, 2015), available at https://www.newsreview. com/sacramento/nimby-no-more/content?oid=16982504 (accessed May 28, 2015).
324 Orange County Register, “Reform CEQA without losing protections” (August 24, 2012), available at http://www.ocregister.com/articles/ environmental-369391-ceqa-reform.html (accessed May 28, 2015). 325 Fresno Bee, “Time to reform outdated environmental law” (June 10, 2014), available at http://calopinion.com/2014/06/fresno-bee-time-to-reformoutdated-environmental-law/ (accessed May 28, 2015). 326 Bakersfield Californian, “Progress on correcting CEQA’s flaws” (May 3, 2013), available at http://www.bakersfield.com/Opinion/2013/05/03/Progress-oncorrecting-CEQA-s-flaws.html (accessed May 28, 2015). 327 Santa Cruz Sentinel, “Brown’s call for CEQA reform overdue” (January 26, 2013), available at http://www.santacruzsentinel.com/opinion/20130126/ editorial-browns-call-for-ceqa-reform-overdue (accessed May 28, 2015). 328 Petaluma Argus Courier, “Land use by lawsuit a bad idea” (September 12, 2012), available at http://www.petaluma360.com/csp/mediapool/sites/ PressDemocrat/News/story.csp?cid=2306406&sid=555&fid=181 (accessed May 28, 2015).
329 Murray, North Bay Business Journal, “CEQA can remain strong without being misused” (January 28, 2013), available at http://www. northbaybusinessjournal.com/multimedia/3952753-181/story.html?p=67740 (accessed May 28, 2015).
330 Governor Jerry Brown, 2013 State of the State Address (January 24, 2013), available at http://gov.ca.gov/news.php?id=17906 (accessed May 28, 2015). 331 Sacramento Bee, “Jerry Brown: CEQA reform is ‘Lord’s work’; noncommittal on bill” (August 22, 2012), available at http://blogs.sacbee.com/ capitolalertlatest/2012/08/jerry-brown-calls-ceqa-reform-lords-work-butnoncommittal-on-bill.html (accessed May 28, 2015). 332 Justin Ewers, California Economic Summit, “CEQA Roundup: Rifts among Dems start to show” (April 19, 2013), available at http://www.caeconomy.org/ reporting/entry/ceqa-roundup-rifts-among-dems-start-to-show (accessed May 28, 2015).
333 Davis, Deukmejian, Wilson, San Diego Union Tribune, “Keep California green and golden with CEQA reforms” (July 12, 2012), available at http://www. utsandiego.com/news/2012/jul/12/keep-california-green-and-golden-withceqa-reforms/ (accessed May 28, 2015). 334 Davis, Deukmejian, Wilson, Sacramento Bee, “Preserve CEQA’s goals, end its abuses” (February 2, 2013) (article no longer accessible online). 335 Cole, The Planning Report, “Former Ventura City Manager Rick Cole Examines CEQA Reform” (March 2, 2013), available at http://www.planningreport. com/2013/03/02/former-ventura-city-manager-rick-cole-examines-ceqareform (accessed May 28, 2015). 336 Cal. Rules of Court, rule 8.520.
337 Cal. Civil Procedure § 1021.5.
338 See e.g., Easy Reader News, “Attorney suing Manhattan Village Mall refuses to identify clients” (January 27, 2015), available at http://easyreadernews. com/90979/attorney-suing-manhattan-village-mall-refuses-identify-client/ (accessed May 28, 2015); Phil Strickland, San Diego Union Tribune, “Lawyer’s credibility unraveling” (September 25, 2007), available at http://www. utsandiego.com/news/2007/sep/25/lawyers-credibility-unraveling (accessed May 28, 2015).
339 CEQA Research Council letter to California Judicial Council (October 8, 2014), copy available from authors on request.
340 California Judicial Council response to CEQA Research Council (January 9, 2014), copy available from authors on request.
341 Bergrruen Institute, “A Blueprint to Renew California,” http://berggruen.org/ files/thinklong/2011/blueprint_to_renew_ca.pdf (accessed May 28, 2015). 342 Don’t Privatize Playa Vista Parks v. City of Los Angeles (2010), see Appendix A.
343 Center for Biological Diversity, et al. v. California Department of Fish and Game (2011), see Appendix A; California Native Plant Society, et al. v. City of Los Angeles, et al. (2012), see Appendix A; also, personal Communication (2014), Newhall Ranch and Farming.
344 See Appendix A for reference to all land use plans challenged during the study period.
345 San Francisco Business Times, “Reining in CEQA would be major benefit for San Francisco” (November 30, 2012), available at http://www.bizjournals. com/sanfrancisco/print-edition/2012/11/30/reining-in-ceqa-would-be-majorbenefit.html?page=all (accessed May 28, 2015). 346 Neighbors to Preserve the Waterfront, et al. v. City and County of San Francisco, et al. (2012), see Appendix A; see also Case No. CPF 12 512356, available at http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll ?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMEN
TS=-ACPF12512356 (accessed May 28, 2015); Neighbors for Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439 (in Smart Rail, the court concluded that approval of a transit project in Los Angeles should not be derailed (even though both the traffic and air quality analyses were fundamentally flawed) because the challenged EIR presented enough information to inform the public about the project’s environmental consequences).

Agenda Item #5.1.

138 | Copyright © 2015 Holland & Knight LLP All Rights Reserved 347 Jennifer Hernandez, Holland & Knight, “Is CEQA “Fixed” – Do Infill CEQA Reforms Help or Handicap Your Project?” (September 13, 2012), available at http://www.hklaw.com/publications/Is-CEQA-Fixed-Do-Infill-CEQA-ReformsHelp-or-Handicap-Your-Project/ (accessed May 28, 2015). 348 California Air Resources Board, SB 375/Sustainable Communities webpage, available at http://www.arb.ca.gov/cc/sb375/sb375.htm (accessed May 28, 2015).
349 California Legislative Information Page, SB 1925 text, available at ftp:// leginfo.ca.gov/pub/01-02/bill/sen/sb_1901-1950/sb_1925_bill_20020928_ chaptered.html (accessed May 28, 2015).
350 Governor’s Office of Planning and Research, CEQA Streamlining for Infill Projects (SB 226) webpage, available at http://www.opr.ca.gov/s_sb226.php (accessed May 28, 2015).
351 Governor’s Office of Planning and Research, CEQA Streamlining for Infill Projects (SB 226) webpage, available at http://www.opr.ca.gov/s_sb226.php (accessed May 28, 2015).
352 Pub. Res. Code Sec. 21169.11 (Sen. Bill 1456 (Stats. 2010, Ch. 496), see also Kostka & Zischke, Continuing Education of the Bar, “Practice Under the California Environmental Quality Act” (2015), §23.155
353 Governor’s Office of Planning and Research, California Jobs/AB 900 website, available at http://www.opr.ca.gov/s_californiajobs.php (accessed May 28, 2015).
354 California Legislative Analyst’s Office, “California’s High Housing Costs: Causes and Consequences,” available at http://www.lao.ca.gov/reports/2015/finance/ housing-costs/housing-costs.pdf (accessed May 28, 2015). 355 San Francisco Examiner, “S.F. bike plan injunction to cost city $35K” (July 21, 2006), available at http://www.sfexaminer.com/sanfrancisco/sf-bike-planinjunction-to-cost-city-35k/Content?oid=2159056 (accessed May 28, 2015). 356 Assm. Bill 417, available at http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140AB417 (accessed May 29, 2015).
357 Sen. Bill 226, available at http://leginfo.ca.gov/cgi-bin/postquery?bill_ number=sb_226&sess=CUR&house=B&author=simitian (accessed May 29, 2015).
358 Assm. Bill X3 81, available at ftp://www.leginfo.ca.gov/pub/09-10/bill/asm/ ab_0051-0100/abx3_81_bill_20091022_chaptered.html (accessed May 28, 2015); Sen. Bill 292, available at http://www.leginfo.ca.gov/pub/11-12/ bill/sen/sb_0251-0300/sb_292_bill_20110907_amended_asm_v93.html (accessed May 28, 2015).
359 Sen. Bill 743, available at http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140SB743 (accessed May 28, 2015).
360 Assem. Bill 1935, available at ftp://www.leginfo.ca.gov/pub/95-96/bill/asm/ ab_1901-1950/ab_1935_bill_950629_amended_sen.html (accessed May 28, 2015).
361 John Diaz, San Francisco Chronicle, “Sports teams use Legislature to get their way” (May 10, 2013), available at http://www.sfgate.com/opinion/diaz/article/ Sports-teams-use-Legislature-to-get-their-way-4506737.php (accessed May 28, 2015).
362 CEQA Guidelines, section 15272.
363 California Legislative Information, SB 122 text, available at http://leginfo. legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB122 (accessed May 28, 2015).
364 Cal. Public Resources Code, section 211676.6(e).
365 Sen. Bill 743, available at http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140SB743 (accessed May 28, 2015).
366 Hernandez, et al., Holland & Knight, “OPR Proposes to Increase CEQA’s Costs, Complexity, and Litigation Risks with SB 743 Implementation” (August 22, 2014), available at http://www.hklaw.com/Publications/OPR-Proposesto-Increase-CEQAs-Costs-Complexity-and-Litigation-Risks-with-SB-743- Implementation-08-22-2014/ (accessed May 28, 2015).
367 California Legislative Information, AB 2564 text, available at http://leginfo. legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB2564 (accessed May 28, 2015).
368 Cal Pub. Res. Code §21080.33.
369 Cal Pub. Res. Code §21080(b)(5).
370 Cal Pub. Res. Code § 21080(b)(10).
371 CEQA Works website, available at http://ceqaworks.org/ Agenda Item #5.1.

Agenda Item #5.1.

CONTACTS
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Holland & Knight LLP
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Leader, West Coast Land Use and
Environmental Group
Co-Chair, National Environmental Team
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Agenda Item #5.1.

School of Law
University of California, Davis
400 Mrak Hall Drive
Davis, CA 95616
530.752.0243
http://www.law.ucdavis.edu
UC Davis Legal Studies Research Paper Series
When Super-Statutes Collide:

CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law July 25, 2022 (revised draft)
Christopher S. Elmendorf, Martin Luther King, Jr. Professor of Law, UC Davis Timothy G. Duncheon, Law Clerk, U.S. District Court, the Northern District of California Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

1 When Super-Statutes Collide
CEQA, the Housing Accountability Act, and
Tectonic Change in Land Use Law
Christopher S. Elmendorf, Martin Luther King, Jr. Professor of Law, UC Davis Timothy G. Duncheon, Law Clerk, U.S. District Court, the Northern District of California* July 25, 2022
Abstract. This paper explores the slow-motion collision between two statutes at the center of California’s housing crisis: the California Environmental Quality Act and the state’s Housing Accountability Act. Each statute has a bona-fide claim to being a “super-statute,” one which exerts a “broad effect on the law.” Yet the two statutes came of age in different eras—the California Environmental Quality Act in the 1970s and the Housing Accountability Act in the 2010s—and have fundamentally different institutional and normative premises. After tracing the evolution of the statutes, we explore two problems at their intersection: (1) cities’ use of endless environmental review to launder the denial of housing projects that the Housing Accountability Act means to protect; and (2) analytical confusion about the proper scope of environmental review for projects protected by the Housing Accountability Act. We propose solutions that harmonize the two laws, remaining faithful to the text and purpose of the California Environmental Quality Act while fulfilling the Housing Accountability Act’s instruction that it be interpreted “to afford the fullest possible weight to the interest of . . . housing.” But our solutions are not inevitable. In another possible future, the California Environmental Quality Act runs roughshod over the Housing Accountability Act, crippling California’s efforts to provide more housing and, ironically, to respond to the threat of climate change. We hope this paper’s intervention makes that future a bit less likely.
* The authors write in their personal capacity and do not represent any position of the University of California or the U.S. District Court of the Northern District of California. We thank Paul Campos, Meryl Chertoff, Sheila Foster, Dan Golub, Rick Frank, Sarah Jones, Moira O’Neill, David Schleicher, and Bryan Wenter for helpful feedback.

Portions of this paper were previously published in blog format at the State and Local Government Law Blog.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

2 Table of Contents
Introduction ..................................................................................................................................... 3 I. How CEQA and the HAA Became “Super”............................................................................. 8 A. The California Environmental Quality Act............................................................................9 B. The Housing Accountability Act........................................................................................ 14 C. A Note on the HAA’s CEQA Savings Clause ................................................................... 19 II. Does the HAA (or anything else) Provide a Remedy for CEQA-Laundered Project Denials? 21 A. Capitalizing on Administrative Law’s Achilles Heel.......................................................... 23

1. Delay............................................................................................................................... 23

2. Bad Faith ........................................................................................................................ 25 B. But the HAA Is a Game Changer, Right?......................................................................... 27 C. Solutions ........................................................................................................................... 29

1. Bad-Faith Delay Through CEQA Reversal as HAA “Disapproval”................................ 29

2. Enforcing CEQA Timelines in Light of the HAA............................................................. 35

3. Levering “Pretext” for Judicial Review of CEQA-Clearance Denials ............................ 37 III. Calibrating Environmental Review to the Scope of Municipal Discretion Under the HAA 40 A. “Effect” Relative to What? Defining a Reference Alternative for CEQA Review of HAAProtected Projects..................................................................................................................... 41 B. Does CEQA Allow It?........................................................................................................ 44 C. The Governor’s Role......................................................................................................... 49 IV. Conclusion ........................................................................................................................ 52 Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

3 Introduction
In October of 2021, San Francisco’s Board of Supervisors voted down a proposal to build nearly 500 new homes—many affordable—on an empty downtown parking lot at 469 Stevenson Street.1 A politically influential activist had been lobbying the developer to “donate” a portion of the site to the city, which the city could then bank for future development as smaller, 100% affordable project.2 The developer refused to play ball. After much hue and cry about speculative gentrification impacts, the Supervisors put the kibosh on the project, notwithstanding the planning commission’s determination that the project complied with all applicable requirements.
3 Afterwards, one supervisor said he’d “feel very good about this vote” if the site “become[s] a 100% affordable project,” but that if “15 years from now it’s still a parking lot, then I will not feel good.”4
This might seem like ordinary urban land-use politics. In California, however, much of what used to pass as ordinary land-use politics is now against the law. The Supervisors’ vote came right on the heels of a major Court of Appeal decision upholding California’s Housing Accountability Act (HAA), which the Legislature has greatly strengthened in recent years.5 The HAA now requires cities to approve housing projects that a reasonable person could deem compliant with applicable standards, even if other reasonable people might disagree.6It upends the world of discretionary development permitting that took hold in the 1970s, when local governments in high-demand housing markets converted land use regulation into a medium for wheeling and dealing over the terms on which any proposed project could proceed.7 1 Annie Gaus, Supervisors Under Fire: Vote Against Proposed SOMA Apartment Building Sparks Furor, May Violate State Law, S.F. STANDARD, Oct. 28, 2021; Editorial: S.F. Supervisors Have Lost Their Minds on Housing.

Here’s What Mayor Breed Can Do About It, S.F. CHRONICLE, Oct. 29, 2021; Gil Durand, ‘Absurdity’: San Francisco Leaders Stall SOMA Housing Project to Preserve Parking Lot, S.F. EXAMINER, Oct. 29, 2021; Heather K.

Knight, S.F.’s Real Housing Crisis: Supervisors Who Took a Wrecking Ball to Plans for 800 Units, S.F.

CHRONICLE, Oct. 30, 2021; Alexis Kosoff, Why State Lawmakers Are Fired Up over a Derailed S.F. Housing Project, S.F. CHRONICLE, Nov. 2, 2021; Diana Ionescu, San Francisco Supes Reject Proposal To Turn Parking Lot Into Housing, PLANETIZEN, Nov. 23, 2021, https://www.planetizen.com/news/2021/11/115376-san-francisco-supesreject-proposal-turn-parking-lot-housing. 2 The activist, John Elberling, memorialized his demands in a blog post published shortly after the supervisors’ vote.

See John Elberling, The Facts Behind the Developer Propaganda on Soma Housing Project, 48HILLS, Dec. 6, 2021, https://48hills.org/2021/12/the-facts-behind-the-developer-propaganda-on-soma-housing-project/. On Elberling’s influence, see J.K. Dineen, ‘You Don’t Mess with Him’: How an S.F. Housing Advocate Wields Power by Funding Ballot Measures, S.F. CHRONICLE, Nov. 18, 2021.
3 See sources cited in note 1, supra.
4 Heather Knight, S.F.’s Real Housing Crisis: Supervisors Who Took a Wrecking Ball to Plans for 800 Units, S.F.

CHRONICLE, Oct. 30, 2021, https://www.sfchronicle.com/sf/bayarea/heatherknight/article/S-F-supervisors-complainabout-our-housing-16576412.php. 5 Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo, 68 Cal. App. 5th 820 (2021). 6 CAL. GOV’T CODE § 65589.5(f)(4) & (j). Subdivision (j) does provide an exception for projects that would violate an objective health or safety standard.
7 On that transformation, see Daniel P. Selmi, The Contract Transformation in Land Use Regulation, 63 STAN. L.

REV. 591 (2010).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

4 The twist in the Stevenson St. case is that, technically, the Supervisors did not actually vote to deny the project. They voted instead to require further study of putative project impacts pursuant to the California Environmental Quality Act (CEQA)—while making clear that they aimed to kill it.
8 Other cities have used similar maneuvers, albeit to much less fanfare.9 This presages the epic legal clash that we explore in this paper.

The HAA and CEQA both have fair claims to being what professors Bill Eskridge and John Ferejohn call “super-statutes.”10 As Eskridge and Ferejohn define it, a super-statute is a law that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law— including an effect beyond the four corners of the statute.11 As we explain in Part I, CEQA became super in the 1970s, thanks to a run of California Supreme Court decisions that construed it broadly so as to give, as the Court saw it, “the fullest possible protection” to the environment.12 The HAA began earning its stripes much more recently. The turning point came in 2017, when the Legislature dramatically strengthened the law and codified that it “be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”13 The ostensible super-ness of the two statutes creates a predicament for courts and other actors because CEQA and the HAA could not be more different in their basic institutional and normative principles. Consider this:
● CEQA’s working premise is that “new construction” is bad for the environment.14 “Current environmental conditions” in the vicinity of a proposed project should be 8 See infra TAN __.
9 See Letter from Daniel R. Golub on behalf of the Housing Action Coalition to the Hon. Barbara J. Parker, Oakland City Attorney, re: 1396 Fifth Street, Oct. 21, 2021 (on file with authors) (challenging city council’s decision to sustain an appeal of the planning commission’s unanimous determination that the housing project was exempt from CEQA); Sonoma - 149 Fourth St., CARLA BLOG, https://carlaef.org/legal-case/149-fourth-st-sonoma/ (stating that housing organization had settled their HAA claim after “r[unning] into an unfriendly judge who decided that nothing could overrule a city’s CEQA decision”).
10 William N. Eskridge Jr & John Ferejohn, Super-statutes, 50 DUKE L.J. 1215 (2000). 11 Id. [10] at 1216.
12 Friends of Mammoth v. Bd. of Supervisors, 8 Cal. 3d 247, 259 (1972); No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 75, (1974); Wildlife Alive v. Chickering, 18 Cal. 3d 190, 198 (1976). 13 S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017).
14 See, e.g., Friends of Westwood, Inc. v. City of Los Angeles, 191 Cal. App. 3d 259, 269 (1987) (“the purpose of CEQA is to minimize the adverse effects of new construction on the environment”). This premise is laid bare by the fact that CEQA requires no analysis before a government agency denies a project, see Cal. Pub. Res. Code § 21080(b)(5) (exempting “[p]rojects which a public agency rejects or disapproves”), whereas a full EIR is required if there’s a “fair argument” that the approval of a project “may” have a significant environmental effect on any aspect of the physical environment, no matter how large the project’s countervailing environmental benefits. See No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68 (1974). Although CEQA codifies a legislative intent that agencies in regulating private activities give “major consideration … to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian,” Cal. Pub. Res. Code § 21000(g), the proviso Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

5 preserved if at all possible.15 By contrast, the HAA regards the construction of housing in urbanized areas as presumptively good for the environment. It opens with a legislative finding that local barriers to housing development cause “urban sprawl, excessive commuting, and air quality deterioration,” “undermining the state’s environmental and climate objectives.”16
● CEQA privileges slow, careful, deliberative evaluation of every possible environmental impact. If there is a “fair argument” that a project “may” have any significant local environmental impact, CEQA compels the preparation of an exhaustive environmental impact report (EIR).17 Litigation over the sufficiency of a CEQA clearance usually blocks construction while the case crawls along.
18 The HAA calls for speed. It requires cities to
notify developers of any general plan or zoning standards a project violates within thirty to sixty days after receiving the complete project application,19 and it stipulates that violations of the state’s Permit Streamlining Act of 1977 (PSA) shall be deemed violations of the HAA.20
● Courts in CEQA cases presume that cities act in good faith (unless the city shortcuts environmental review).21 When pertinent facts and empirical inferences are disputed, about “a decent home … for every Californian” has to date had no apparent effect on the courts’ CEQA jurisprudence.
15 See CAL. PUB. RES. CODE § 21002 (declaring “the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects”); 14 CAL. CODE REGS § 15125 (stating that an EIR shall describe existing environmental conditions in the vicinity of the project, and that this description of existing conditions shall normally serve as the baseline for evaluating potential environmental effects of the project). 16 CAL. GOV’T CODE § 65589.5(a). See also CAL. GOV’T CODE § 65589.5(b) (“It is the policy of the state that a local government not reject or make infeasible housing development projects ... without a thorough analysis of the economic, social, and environmental effects of the action”). 17 No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 75 (1974). 18 STEPHEN L. KOSTKA & MICHAEL H. ZISCHKE, PRACTICE UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT § 23.92 (CEB 2021) (“PRACTICE TIP: Injunctions are often not necessary to prevent work on the project from proceeding. Although the project applicant may start construction while litigation is pending, the applicant proceeds at its own risk. Because an adverse ruling on the merits by the trial court may result in an order enjoining construction, the project applicant may not be willing to start construction before the trial court decides the case.”) (citations omitted).
19 CAL. GOV’T CODE § 65589.5(j)(2).
20 CAL. GOV’T CODE §§ 65589.5(j) & (h)(6).
21 This presumption manifests doctrinally as a distinction between de novo or “independent judgment” and deferential “substantial evidence” review. On questions where cities are considered trustworthy, the courts review the city’s decision deferentially (“substantial evidence”); on questions where cities’ competence or good faith is doubted, courts review the city’s decision de novo. The principal CEQA issues that get de novo / independent judgment review are about shortcutting of environmental review, specifically (1) determinations that a project does not require an EIR because there’s no “fair argument” that the project may have a significant environmental effect, see STEPHEN L. KOSTKA & MICHAEL H. ZISCHKE, PRACTICE UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT § 6.76 (CEB 2021) (citing and discussing cases); (2) whether an EIR sufficiently discussed a potential environmental impact, see Sierra Club v. County of Fresno, 6 Cal. 5th 502, 511 - 16 (2018); and (3) whether the agency complied with the procedural requirements of CEQA, id. at 512. Conversely, cities’ factual determinations and empirical inferences are reviewed deferentially. Sierra Club, 6 Cal. 5th at 511-16.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

6 courts give deference to the city’s judgment.22 The HAA distrusts cities. It eliminates the traditional deference courts gave to cities regarding a housing project’s compliance with local standards;
23 it prevents cities from using discretionary standards to deny or reduce the density of a project;
24 it disables cities from applying most standards that post-date the developer’s filing of a preliminary project application;25 and it authorizes courts to order the approval of projects that were denied in bad faith.26 So how will the HAA and CEQA fit together? On one view, CEQA must reign supreme, because a longstanding provision of the HAA states, “Nothing in this section shall be construed to relieve the local agency from complying with … the California Environmental Quality Act.”27 California courts have sometimes (less than carefully) concluded that such a clause entirely subordinates one statute to another.28
But, as noted, the California legislature more recently proclaimed that the HAA “shall be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”29 To achieve its stated purpose—to “meaningfully and effectively curb[] the capability of local governments to deny, reduce the density for, or render infeasible housing development projects”30—the HAA must exert gravitational pull on CEQA. The alternative is a world in which cities would have virtually unfettered discretion to use CEQA to delay projects indefinitely, to force project proponents to pay for round after round 22 Sierra Club, 6 Cal. 5th at 511-16.
23 CAL. GOV’T CODE § 65589.5(f)(4); Cal. Renters Legal Advoc. & Educ. Fund v. City of San Mateo, 68 Cal. App. 5th 820, 283 Cal. Rptr. 3d 877, 892-95 (2021) (rejecting city’s argument for deference on meaning of its design guidelines. and applying HAA’s “reasonable person” standard to determine project’s compliance). 24 CAL. GOV’T CODE § 65589.5(h)(8) & (j); Cal. Renters Legal Advoc. & Educ. Fund v. City of San Mateo, 68 Cal.

App. 5th 820, 283 Cal. Rptr. 3d 877, 890-94 (2021) (reversing city’s denial of project because city relied on design guidelines that were not objective).
25 CAL. GOV’T CODE § 65589.5(o).
26 CAL. GOV’T CODE § 65589.5(k)(1) (A)(ii).
27 CAL. GOV’T CODE § 65589.5(e).
28 For an illustration of how “reigning supreme” works in practice, consider the Court of Appeal’s treatment of the relationship between a different environmental statute (the Coastal Act) and a different housing statute (the Density Bonus Law) in Kalnel Gardens, LLC v. City of Los Angeles, 3 Cal. App. 5th 927, 208 Cal. Rptr. 3d 114 (2016). Like the HAA, the Density Bonus Law states that it shall not be construed in derogation of the Coastal Act. Compare Cal.

Gov’t Code 65589.5(e), with Cal. Gov’t Code 65915(m). However, the Coastal Act provides that the agency in charge of coastal development permits “may not require measures that reduce residential densities below the density sought by the applicant if the density sought is within the permitted density [under local zoning plus state density bonus law], unless the issuing agency ... makes a finding, based on substantial evidence in the record, that the density sought by the applicant cannot feasibly be accommodated on the site in a manner that is in conformity with [the Coastal Act].” Cal. Pub. Res. Code § 30604(f). In Kalnel Gardens, the agency denied the housing project on aesthetic grounds without making this infeasibility finding. The court excused the agency from the finding requirement on the theory that an outright denial of a housing project is not a “density reduction.” 3 Cal.App.5th at 947. This wordplay move was textually unnecessary (surely reducing density to zero can be described as a “reduction in density”) and had the effect of categorically elevating the Coastal Act over the Density Bonus Law, notwithstanding pretty clear textual indications that the Legislature wanted the two laws to be integrated with one another. See Cal. Pub. Res. Code § 30604(f); Cal. Gov’t Code § 65915(f)(5) & (j). 29 S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017); CAL. GOV’T CODE § 65589.5(a)(2)(L). 30 CAL. GOV’T CODE § 65589.5(a)(2)(K).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

7 of expensive environmental studies,31 and to encumber projects with costly mitigation requirements even if the project would be a big environmental win.32 California’s housing and climate goals hang in the balance. Because CEQA focuses government decisionmakers on environmental impacts in the vicinity of a project, and because CEQA does not apply at all when cities say “no” to housing, CEQA gives asymmetric leverage to neighborhood opponents of the infill development that California needs to deal with climate change.
33 These projects are an environmental win: building dense housing in urban areas dramatically reduces vehicle emissions,
34 as the HAA recognizes, and alleviates pressure to build in the state’s wildfire-prone “wildland-urban interface.”35 Harmonizing CEQA and the HAA is no mere academic exercise.
* * *
This paper runs as follows. Part I recounts the evolution of CEQA and the HAA, illustrating their respective claims to super-statute status. We will see that CEQA’s super-ness was revealed in part by its crushing of a pro-development precursor to the HAA, the PSA. 36 We will also
explore the history of the HAA’s CEQA savings clause.

Part II delves into the problem one of us has dubbed “CEQA-laundered project denials,” now exemplified by the Stevenson St. project in San Francisco.37 The municipal strategy of using CEQA to evade the HAA exploits soft spots in CEQA and background principles of administrative law. But we shall argue that an HAA construed as “super” can provide a remedy nonetheless, either directly or through its gravitational pull on CEQA and administrative law. 31 Gordon & Rees, Appellate Court Addresses Consultants’ Liability re: Failure to Timely Prepare an EIR under CEQA (Jan. 2010), https://www.grsm.com/publications/2010/appellate-court-addresses-consultants-liability-refailure-to-timely-prepare-an-eir-under-ceqa (“Although CEQA places responsibility on the "lead agency" to prepare the EIR, in most circumstances the agency requires the project proponent to pay for the cost of the EIR”). 32 See infra Parts II & III.
33 See J.B. Ruhl & James Salzman, What Happens When the Green New Deal Meets the Old Green Laws?, 44 VT.

L. REV. 693, 718 (2020) (“Laws like the NEPA [the federal analogue to CEQA] … empower environmental protection interests to demand renewable energy projects meet stringent short-term goals--the ‘kill zero bats’ standard--when doing so may jeopardize the long-term goal of saving all the bats, so to speak.”) CEQA also excuses decisionmakers from any obligation to analyze the environmental consequences of maintaining the status quo, see CAL. PUB. RES. CODE § 21080(b)(5) (excluding “[p]rojects which a public agency rejects or disapproves”). This leaves cities free to lock in a low-density status quo (or even valet parking lots!) near transit stations, notwithstanding the central importance of infill development for reducing vehicular greenhouse gas emissions. 34 See Christopher M. Jones et al., Carbon Footprint Planning Quantifying Local and State Mitigation Opportunities for 700 California Cities, 3 Urb. Plan. 35 (2018); Nathaniel Decker et al., Terner Ctr. for Housing Innovation, Right Time, Right Place: Assessing the Environmental and Economic Impacts of Infill Residential Development Through 2030, at 27-29 (2018).
35 By 2050, at the current rate of growth and under current growth patterns, an additional 645,000 housing units will be developed in very high fire-hazard severity zones. Karen Chapple et al., Next 10 & UC Berkeley Ctr. for Comm.

Innovation, Rebuilding for a Resilient Recovery: Planning in California’s Wildland Urban Interface 7 (2021); see Greg Rosalsky, How A Blistering Housing Market Could Be Making Wildfires Even More Dangerous, NPR, Sept. 14, 2021, https://www.npr.org/sections/money/2021/09/14/1036085807/how-a-blistering-housingmarket-could-be-making-wildfires-even-more-dangerous. 36 CAL. GOV’T CODE § 65920 et seq.
37 https://twitter.com/CSElmendorf/status/1454460433671229443.

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8 Part III contends that the HAA ought to shape environmental impact analysis itself. Because CEQA only applies to discretionary governmental acts,38 environmental review for HAAprotected housing projects should consider only impacts caused by discretionary conditions of approval imposed by the city, not all of the impacts that result from adding new dwelling units to the site. This only makes sense: the latter are caused by a statute (the HAA), not municipal discretion, and CEQA does not apply to state legislation.39 Our HAA-informed gloss on the scope of CEQA review would eliminate substantial environmental reviews for the mine run of zoning-compliant housing projects.40
But that is only one possible future. Another is that CEQA swallows the HAA, worsening California’s affordability crisis, increasing greenhouse gas emissions, and exacerbating socioeconomic and racial inequality.41 This would only create more fodder for thosewho argue that California is symbolically liberal but operationally conservative.42 Stay tuned.

I. How CEQA and the HAA Became “Super”
Recall Eskridge and Ferejohn’s definition. A super-statute is a law that:
(1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law— including an effect beyond the four corners of the statute.43 Below, in Section I.A, we explain how CEQA became a super-statute in the 1970s and then muscled a precursor of the HAA out of the way. Section I.B takes up the HAA and shows how it is becoming super today. In Section I.C, we explore the legislative history and current import of the provision stating that the HAA does not “relieve” a city from CEQA. 38 CAL. PUB. RES. CODE § 21080.
39 See CAL PUB. RES. CODE § 15378(b) (“Project [for CEQA purposes] does not include … [p]roposals for legislation to be enacted by the State Legislature”).
40 It’s important to recognize that CEQA does not itself confer discretion on municipal decision makers. See CAL.

PUB. RES. CODE § 21004 (“In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division”). 41 Cf. Issi Romem & Elizabeth Kneebone, Disparity in Departure: Who Leaves the Bay Area and Where Do They Go? (UC Berkeley Terner Center, Oct. 30, 2018); Justin Ray, Renting Is a Struggle for Black and Latinx Californians, Report Finds, L.A. TIMES, Oct. 28, 2021, https://www.latimes.com/california/newsletter/2021-10- 28/black-california-renting-essential-california; Marisol Cuellar Mejia et al., PUB. POL’Y INST. OF CAL., California’s Housing Divide, May 13, 2022, https://www.ppic.org/blog/californias-housing-divide/; Peter Hepburn et al., Racial and Gender Disparities Among Evicted Americans, 7 SOCIO. SCI. 649 (2020). Note that California has codified a requirement that local governments “affirmatively further fair housing”—which means, among other things, providing opportunities to develop affordable housing in high-opportunity neighborhoods—even as laws like CEQA arm local opponents of neighborhood change. See https://www.hcd.ca.gov/affirmatively-furthering-fair-housing (last visited July 10, 2022) (providing resources on history and implementation of the “affirmatively further fair housing” requirement).
42 Ezra Klein, California Is Making Liberals Squirm, N.Y. TIMES, Feb. 11, 2021. 43 Eskridge & Ferejohn, supra note 10.

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9 A. The California Environmental Quality Act
Enacted in 1970, CEQA heralded a transition from Governor Pat Brown’s California—a land of burgeoning suburbs and massive water and highway construction projects—to the slow-growth California that his son, Jerry, would preside over.44 CEQA requires state and local agencies to study and disclose the environmental effects of discretionary agency actions that may have a significant effect on the environment, and to mitigate adverse effects if feasible.45 Whether the Legislature intended CEQA to be a super-statute is open to debate, but, looking back, it is clear that CEQA did “establish[] a new normative [and] institutional framework for state policy” and that the framework “stuck in the public culture” and had “a broad effect on the law.”46 Two early judicial decisions launched CEQA on its path to super-ness. In Friends of Mammoth v. Board of Supervisors, the California Supreme Court gave a “broad interpretation to the act's operative language” and extended CEQA to cover private activities (such as homebuilding) that require public permits.47 Next came No Oil, Inc. v. City of Los Angeles, which held that CEQA requires preparation of a full EIR “whenever it can be fairly argued ... that the project may have a significant environmental impact,” not just where the project is likely to have “important” or “momentous” impacts.48
Beyond their immediate holdings, Friends of Mammoth and No Oil stood for a larger principle:
that CEQA should be construed broadly and purposefully to give “the fullest possible protection” to the environment.49 Although the legislature has repeatedly tinkered with CEQA,50 it hasn’t challenged this foundational maxim, which courts continue to invoke to this day.51 CEQA has also had “an effect beyond the four corners of the statute.”52 The best example is the courts’ reliance on CEQA to disembowel the Permit Streamlining Act (PSA), 53 which was
something of a precursor to the Housing Accountability Act.

The PSA originally required cities to approve or deny applications for a “development project” within one year of receiving a complete application, on pain of the project being “deemed 44 For an in-depth look at how this transition played out in the California Supreme Court, see Joseph F. DiMento et al., Land Development and Environmental Control in the California Supreme Court: The Deferential, the Preservationist, and the Preservationist-Erratic Eras, 27 UCLA L. REV. 859 (1980). 45 See generally KOSTKA & ZISCHKE, supra note 21.
46 Eskridge & Ferejohn, supra note 10, at 1216.
47 8 Cal. 3d 247, 259 (1972).
48 13 Cal. 3d 68, 75, (1974).
49 See, e.g., Wildlife Alive v. Chickering, 18 Cal. 3d 190, 198 (1976) (relying on Friends of Mammoth and No Oil for the proposition, “[W]e have recognized the necessity of interpreting CEQA broadly so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language”) (internal quotations omitted).
50 KOSTKA & ZISCHKE, supra note 21, §§ 1.24 - 1.26.
51 See, e.g., Sierra Club v. Cty. of Fresno, 6 Cal. 5th 502, 511 (2018) (“The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”) (citations and quotations omitted); Mountain Lion Foundation v. Fish & Game Com., 16 Cal. 4th 105, 125 (1997) (holding that CEQA exemptions are to be construed narrowly).
52 Eskridge & Ferejohn, supra note 10, at 1216.
53 Cal. Stats. 1977 ch. 1200.

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10 approved” as a matter of law.54 The Act did not expressly state that an agency’s failure to complete environmental review within the one-year period would result in the project’s constructive approval, but everything about the statute suggests that this was the Legislature’s intention.

Consider, first, that the same bill that established the one-year PSA deadline also established deadlines for completing and certifying a CEQA review, the longest of which is also one year. 55 The bill as enacted also stated that the PSA’s one-year limit for project approval may be waived if the lead agency prepares an environmental impact statement under the National Environmental Policy Act (NEPA), the federal analogue to CEQA.56 This implies that if a project only requires review under CEQA, it is subject to the PSA’s usual one-year limit and constructive approval penalty. Finally, the opening article of the PSA declared, “To the extent that the provisions of this chapter conflict with any other provision of law, the provisions of this chapter shall prevail.”57 No carveout for CEQA was provided.

Yet when courts confronted the question of whether a development project could be deemed approved under the PSA notwithstanding the agency’s failure to complete and certify an EIR, they answered with a perfunctory no.58 In two paragraphs of cursory analysis, the Court of Appeal concluded that automatic approval under the PSA would be unthinkably “drastic,” apparently because the legislature did not specifically “mention EIR certification in the [PSA’s] automatic approval provisions.”59 The gravitational pull of CEQA overwhelmed what should have been a fairly easy inference from the text and structure of the PSA, with the result being that the PSA’s one-year clock starts to run only after CEQA review is completed.

In theory, the PSA decision left open the possibility of enforcing CEQA’s time limits through mandamus (rather than automatic approval), but later decisions undermined this remedy too.

Although a panel of the Court of Appeal did say that mandamus is available if a city sits on a completed EIR without taking action to certify or disapprove it, 60 a subsequent Court of Appeal
decision, Schellinger Brothers v. City of Sebastopol,
61 held that courts may not order a city to
certify an EIR (as opposed to ordering the city to make up its mind about whether to certify it).62 Even more damningly, Schellinger held that the project applicant had, by cooperating with the city well past the one-year deadline, forfeited its right to enforce CEQA’s deadlines.63 Nowhere did Schellinger acknowledge that developers have an obvious economic incentive to cooperate with cities that exercise discretionary authority over their projects. That the court’s 54 Cal. Stats. 1977 ch. 1200, § 1, p. 3995-96.
55 Cal. Stats. 1977 c. 1200, § 10, p. 4001.
56 In this circumstance, the PSA’s time limit for project approval is 60 days following certification of a “combined environmental impact report [CEQA]-environmental impact statement [NEPA].” Cal. Stats.1977 ch. 1200, § 1, p. 3996.
57 Cal. Stats.1977 ch. 1200, § 1, art. 1, p. 3993 (emphasis added). 58 Land Waste Mgmt. v. Contra Costa Cnty. Bd. of Supervisors, 222 Cal. App. 3d 950 (1990). 59 Id. [58] at 961-62.
60 Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215 (1999). 61 179 Cal. App. 4th 1245 (2009).
62 Id. [61] at 1262-66.
63 Id. [61] at 1267-70.

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11 decision had the practical effect of nullifying the PSA for any project that requires an EIR also went unmentioned. The legislature probably intended that the CEQA and PSA deadlines run concurrently, but courts instead decided that they run back-to-back and that the first one (CEQA) is essentially unenforceable. The pull of the super-statute had enervated the PSA.

One measure of a statute’s super-ness is what a society will sacrifice to give it effect. If there are high costs to compliance with a statute’s mandate, then giving effect to the statute will more likely exert a strong effect on the law.64 But if the costs are trivial, the statute probably doesn’t exert a significant effect. For example, if CEQA required merely that an agency approving a discretionary project check a box on a form labeled “environmental review,” agencies would have to comply “broadly” (i.e., in many contexts), but the very low cost of compliance would render insignificant the effect on the law.

It is notoriously difficult to measure CEQA’s costs, because a big portion of those costs come in the form of projects that were never proposed on account of CEQA, and there is no credible way of estimating the universe of forgone projects in the absence of quasi-random variation in which sites are subject to CEQA.65 However, the courts, the executive branch, and the legislature have certainly elaborated CEQA in ways that evince a willingness to incur substantial costs. The gutting of the PSA is just one example.

But CEQA is certainly more onerous than its federal analogue. The federal statute on which CEQA was patterned, NEPA, requires only an analysis of environmental impacts,66 whereas CEQA also requires mitigation to insignificance of every identified impact—unless “economic, social, or other conditions make it infeasible.”67
Further, CEQA permits only narrow exemptions. The legislature has authorized the Office of Planning and Research and the Natural Resources Agency to create exemptions through the CEQA Guidelines, but it has not told them to weigh the costs of environmental review when deciding what to exempt. Rather, it instructed them to exempt “classes of projects that have been determined not to have a significant effect on the environment.”68 The Guidelines further provide that an exemption may not be issued to an otherwise-qualified project if there is a “reasonable 64 See Eskridge & Ferejohn, supra note 10, at 1244-45 (arguing that the Supreme Court’s decision in TVA v. Hill enjoining the completion of a $120 million dam because it would destroy the habitat of the endangered snail darter was strong evidence that the Endangered Species Act was a super-statute). 65 If geographic subsets of the state were selected at random and excluded from CEQA, then future development outcomes in those portions of the state could serve as a “control group” for evaluating the effect of CEQA on development outcomes. One could attempt a rough comparison in development outcomes with nearby states that lack a CEQA-like law (say, Oregon), but the confounding variables are of course legion. 66 See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“[NEPA’s] mandate to the agencies is essentially procedural”); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227–28 (1980) (“once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken”) (internal citations and punctuation omitted).
67 Pub. Res. Code §§ 21002.1, 21002; KOSTKA & ZISCHKE, supra note 21, § 17.13. 68 Pub. Res. Code § 21084(a) (emphasis added).

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12 possibility that the activity will have a significant effect on the environment due to unusual circumstances.”69
Prevailing notions about what counts as an environmental impact have also become more expansive over time. The Office of Planning and Research publishes an “environmental checklist form” to help lead agencies decide whether a project requires an EIR. 70 The current form has 90
checkboxes for types of “potentially significant” impacts;71 a generation ago, it had about 1/3 fewer.72
The gradual sprawl of CEQA to encompass more and more varieties of impact no doubt owes much to early California Supreme Court decisions declaring that CEQA should be construed broadly and rejecting the notion that CEQA covers only “important” or “momentous” impacts.73 But rules about CEQA litigation and remedies probably deserve some of the credit (or blame) too. Courtroom doors swing open for any opponent of a project who wants to challenge an agency’s allegedly unlawful short-cutting of environmental review—such as granting an exemption or approving a negative declaration for a project that should have been processed with an EIR;74 or certifying an EIR that should have addressed certain potential impacts in more detail;
75 or approving a project with conditions that fail to mitigate identified environmental impacts to the maximum feasible extent.76 So long as the plaintiff’s objection was raised in the administrative process, it can be litigated in court,77 and the party behind the lawsuit does not even have to reveal their identity.78 The simple act of filing a CEQA claim is usually enough to put a project on ice, at least for a while, since lenders generally won’t finance a project until any legal claims against it have been resolved.79 And if the plaintiff prevails, they can often recover 69 14 Cal. Code Regs § 15300.2(c).
70 KOSTKA & ZISCHKE, supra note 21, § 17.13; ASS’N OF ENVT’L PROFESSIONALS, 2022 CEQA STATUTE & GUIDELINES 335-49.
71 ASS’N OF ENVT’L PROFESSIONALS, 2022 CEQA STATUTE & GUIDELINES 335-49. 72 OFFICE OF PLANNING & RESEARCH, CEQA: THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, LAW AND GUIDELINES 309-15 (Jan. 1984).
73 See supra text accompanying notes 47-51.
74 KOSTKA & ZISCHKE, supra note 21, § 6.76 (reviewing cases about the “fair argument” standard, which renders the question of whether a project requires an EIR rather than negative declaration a question of law). 75 Sierra Club v County of Fresno, 6 Cal. 5th 502, 514-16 (2018) (holding that whether an EIR “reasonably sets forth sufficient information to foster informed public participation and to enable the decision-makers to consider the environmental factors necessary to make a reasoned decision” is a question of law subject to de novo judicial review).
76 KOSTKA & ZISCHKE, supra note 21, §§ 14.8 – 14.20 (discussing cases on legal adequacy of mitigation measures). 77 See KOSTKA & ZISCHKE, supra note 21, § 23.97 (discussing exhaustion of administrative remedies), §§ 23.3 –

23.14 (discussing liberal standing rules).
78 Jennifer Hernandez, California Environmental Quality Act Lawsuits and California’s Housing Crisis, 24 HASTINGS ENVT'L L.J. 21, 59-60 (2018) (discussing failed effort to get Judicial Council or Legislature to require disclosure of the identity of party who filed CEQA lawsuit). 79 Holland and Knight, Getting Its Own Way: Behind California’s CEQA Curtain, https://www.hklaw.com/en/casestudies/getting-in-its-own-way-behind-californias-ceqa-curtain (quoting leading CEQA practitioner Jennifer Hernandez, “the act of merely filing a lawsuit is enough to halt construction loans for the 95 percent of housing not subsidized by taxpayers, as well as halt grants for government-subsidized affordable housing”).

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13 attorneys’ fees from the defendant.80 These mutually reinforcing factors encourage speculative legal attacks on the environmental reviews of controversial projects.81 By contrast, if a permitting agency “long-cuts” environmental review—for example, if it requires an EIR for a project that could have been processed with an exemption, or if it refuses to certify an EIR unless studies are conducted of alleged impacts that are not actually impacts within the meaning of CEQA—the project proponent has no practical remedy. We explain why this is so in Part II.A, infra. For now, the important point is what follows from the asymmetry. It encourages agencies to err on the side of CEQA excess, particularly for controversial projects with wellfunded opponents. It also means that when courts encounter CEQA, they will almost always do so in the context of a claim that the agency did too little review, not too much. And when a trial court holds that the agency should have studied a new kind of putative environmental effect and a Court of Appeal affirms, that new environmental effect can become part of the CEQA canon.

That’s so even if the court erred, because the California Supreme Court grants only about 3 percent of petitions for review in civil appeals.82
Writing about a seemingly unrelated field of law—patents—Jonathan Masur has argued that such asymmetries tend to ratchet the law in the direction favored by the parties who have the opportunity and incentive to sue.
83 In his example, denials but not grants of patents by the Patent and Trademark Office are appealable to the Federal Circuit.84 As a result, the appellant in a case before the Federal Circuit is almost always arguing that the Patent and Trademark Office afforded too little protection to an alleged invention, not too much. Although most such claims fail, the occasional wins tend to extend the law in a more-stuff-is-patentable direction.85 The Patent and Trademark Office then becomes even more liberal in granting patents, and future cases challenging potential patent denials will occur on facts that (if the claim is vindicated) would move the law toward an even more pro-patent position.86 So too with CEQA. Asymmetric litigation pressure encourages fulsome environmental reviews, not boundary-pushing thin reviews that might generate precedents that limit CEQA’s reach. In a world where agencies err on the side of too much environmental review, not too little, it’s hard for courts to make new law limiting CEQA’s reach without speaking in dicta, i.e., articulating 80 KOSTKA & ZISCHKE, supra note 21, §§ 23.126 - 23.137. 81 The actual share of proposed housing projects that undergo CEQA litigation is probably quite small. A recent study of all approved (not proposed) projects in twenty jurisdictions found that only about 2.8 percent were the subject of litigation. Moira O’Neill et al., Examining Entitlement in California to Inform Policy and Process:

Advancing Social Equity in Housing Development Patterns, at 80 (Final Report to the California Air Resources Board, Mar. 18, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3956250. While most of the cases featured CEQA claims, other claims were brought as well. Id. at 82. However, the small share of approved projects that face CEQA litigation is only the tip of an iceberg: it doesn’t tell us anything about payoffs that were made to avoid litigation, or expenses that were incurred to bulletproof environmental review documents, or projects that faced litigation and were withdrawn because of it, or projects that were never proposed in the first place because developers judged the CEQA compliance costs and litigation risks to be too high. 82 See Cal. Supreme Court, 2019 Court Statistics Report, Statewide Caseload Trends 2008-09 Through 2017-18, at 30, https://www.courts.ca.gov/documents/2019-Court-Statistics-Report.pdf. 83 Jonathan Masur, Patent Inflation, 121 YALE L.J. 740 (2011). 84 Id. [83] at 475.
85 Id. [83] at 491-92.
86 Id. [83] at 492.

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14 permissible shortcuts that an agency could have taken but did not. Speaking in dicta is of course disfavored.87 This is not to say that courts never have opportunities to chip away at CEQA,88 but the opportunities are rarer than they would be if agencies also faced claims from plaintiffs arguing that an environmental review exceeded what CEQA requires. CEQA’s super-ness today is due not just to deliberate decisions by the California Supreme Court and executive branch agencies, but also to fifty years of asymmetric litigation pressure.

B. The Housing Accountability Act
In its current form, the HAA prevents cities from denying or reducing the density of housing projects that comply with applicable, objective planning and zoning criteria—unless the city shows that the project would violate a health or safety standard.89 It establishes rules of construction,90 procedure,91 evidence,92 and remedies93 that are very favorable to housing.

But the HAA was far from super as enacted in 1982, though even then it had become clear that cities were putting the breaks on housing production.94 The law originally consisted of just two short paragraphs telling local governments to approve zoning-compliant housing projects unless the project would injure public health or safety.95 A 1990 amendment added special additional protections for affordable projects (today, a qualifying affordable project must be at least 20 percent low-income or 100 percentmoderate income).96
87 Cf. id. [83] at 493-94 & n. 101 (making similar point about patent law). 88 Cf. Berkeley Hillside Preservation v. City of Berkeley, 60 Cal. 4th 1086, 1097-1109 (2015) (holding that the “unusual circumstances” exception to the CEQA exemptions is not satisfied by a mere “reasonable possibility” that an activity will have a significant effect on the environment, and disapproving Communities for a Better Environment v. California Resources Agency, 103 Cal.App.4th 98, 129 (2002). See also notes TAN __. 89 Cal. Gov’t Code 65589.5(j).
90 Cal. Gov’t Code 65589.5(a)(2)(L) (“It is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.). 91 Cal. Gov’t Code 65589.5(j)(2) (stating that project shall be deemed to comply with any standard of which the local government fails to give prompt written notice of noncompliance). 92 Cal. Gov’t Code 65589.5(f)(4) (“a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity”). 93 Cal. Gov’t Code 65589.5(k) (authorizing courts to order projects approved, fine cities, and award attorneys’ fees to prevailing plaintiffs).
94 CAL. LEGISLATIVE ANALYST’S OFFICE, CALIFORNIA’S HIGH HOUSING COSTS: CAUSES AND CONSEQUENCES 7 (2015), https://lao.ca.gov/reports/2015/finance/housing-costs/housing-costs.pdf (noting that California home prices were 80 percent higher than the national average by 1980, compared to just 30 percent higher than the national average in 1970). Since then, there has been extensive literature exploring the political economy and public choice explanations for why so few American cities are pro-development. See, e.g., William A. Fischel, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 1 (2001) (describing the organizing power of local incumbent homeowners); David Schleicher, City Unplanning, 122 YALE L.J. 1670, 1676-78 (2013) (emphasizing the power individual local legislators have over their districts in the absence of differentiated party competition); Roderick M. Hills, Jr. & David Schleicher, Balancing the “Zoning Budget”, 63 CASE WEST. L. REV. 81 (2011) (emphasizing the difficulty of mobilization by developers against seriatim downzonings).
95 Cal. Stats. 1982 ch. 1438.
96 Cal. Stats. 1990 ch. 1439 (S.B. 2011). These protections are described in Part I.C, infra.

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15 Subsequent tweaks to the HAA (1) disallowed local governments from denying zoningcompliant projects except on the basis of written health or safety standards;97 (2) defined projects as zoning-compliant if they satisfy the objective standards found in the city’s zoning code and general plan as of the date of the developer’s project application;98 (3) cracked down on certain obvious ruses, such as cities redefining zoning-code violations as health-and-safety violations; 99 (4) required cities that wrongfully deny an affordable project to pay the prevailing party’s legal fees;100 (5) authorized courts to compel cities to take action on a wrongfully denied project within 60 days;101 and (6) authorized courts to fine cities that deny projects in bad faith and continue dilly-dallying after the court’s order.102
All of this sounds pretty super, but if the test for a super-statute is that it “sticks” in “the public culture” and “has a broad effect on the law,”103 then the HAA did not become a serious candidate until 2016-2017. There had been very few reported cases under the statute, most likely because developers who hope to do business with a city in the future are naturally reluctant to sue it. In 2015, however, a ragtag bunch of self-described “YIMBYs” (“Yes In My Back Yard” advocates for housing) coalesced in San Francisco, discovered the HAA, and started suing suburbs for denying regionally needed housing.104 It was not entirely clear whether they even had standing, but the legislature answered their call and authorized HAA enforcement by “housing organizations.”105
A year later, in 2017, the legislature enacted a trio of bills that dramatically strengthened the HAA and declared it to be super.106 Assembly Bill 1515 took up the question of what it means for a housing project to comply with general plan, zoning, and design standards.107 The courts had long given deference to cities on such matters, refusing to set aside municipal determinations that a project is noncompliant if any reasonable person could agree with the city’s conclusion.108 Assembly Bill 1515 turned that doctrine on its head, defining projects as compliant as a matter of law if any reasonable person could deem the project to comply on the record before the city, notwithstanding reasonable or even strong arguments going the other way.109 97 S.B. 1711, 1991-1992 Reg., Leg Sess. (Cal. 1992), now codified as CAL. GOV’T CODE § 65589.5(d)(2) & (j)(1). 98 S.B. 748, 1999-2000 Reg., Leg Sess. (Cal. 1999); now codified as CAL. GOV’T CODE § 65589.5(j)(1). 99 S.B. 575, 2005-2006 Reg., Leg Sess. (Cal. 2005), now codified as CAL. GOV‘T CODE § 65589.5(d)(2)(A) (declaring that an affordable housing project’s inconsistency with the city’s general plan or zoning ordinance is not, per se, a “specific adverse impact” on health or safety violation of a written health or safety standard). 100 A.B. 369, 2001-2022 Reg., Leg Sess. (Cal. 2001), now codified as CAL. GOV’T CODE § 65589.5(k)(1)(A)(ii). 101 S.B. 748, 1999-2000 Reg., Leg Sess. (Cal. 1999), now codified as CAL. GOV’T CODE § 65589.5(k)(1)(A)(ii). 102 S.B. 575 (2005). S.B. 575, 2005-2006 Reg., Leg Sess. (Cal. 2005), now codified as CAL. GOV’T CODE § 65589.5(k)(1)(B).
103 Eskridge & Ferejohn, supra note 10, at 1216.
104 CONNOR DOUGHERTY, GOLDEN GATES 93-116 (2020).
105 A.B. 2584, 2015-2016 Reg., Leg Sess. (Cal. 2016), now codified as CAL. GOV’T CODE 65589.5 § (k)(1)(A)(i). 106 A.B. 678, 2017-2018 Reg., Leg. Sess. (Cal. 2017); A.B. 1515, 2017–2018 Reg., Leg. Sess. (Cal. 2017); S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017).
107 A.B. 1515, 2017–2018 Reg., Leg. Sess. (Cal. 2017).
108 See No Oil, Inc. v. City of Los Angeles, 196 Cal. App. 3d 223, 243 (1987); CECILY TALBERT BARCLAY & MATTHEW S. GRAY, CALIFORNIA LAND USE & PLANNING LAW 538-40 (36th ed. 2018). 109 The new standard is codified as CAL. GOV’T CODE § 65589.5(f)(4).

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16 A companion bill, Senate Bill 167, required cities to give prompt written notice to developers of any zoning, general plan, or design standard that the proposed project violates, on pain of the project being deemed to comply as a matter of law.110 Senate Bill 167 also narrowed the HAA’s carveout for health and safety standards by requiring cities to show by a preponderance of the evidence that the project would in fact violate a specific health or safety standard.111 (The previous evidentiary standard gave cities a lot of slack.) Finally, Senate Bill 167 codified numerous legislative findings, including:

The Legislature’s intent in enacting [the HAA] in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing … by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.... That intent has not been fulfilled.112 And:

It is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.113
A year later, the legislature added:

It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety [within the meaning of the HAA] arise infrequently.114
In 2019, the legislature codified a preliminary application process, allowing developers to quickly establish a vesting date subsequent to which newly adopted standards may not be used to deny or downsize the project.
115 The legislature also spelled out what it means for a standard to qualify as objective, such that it may be used to deny or reduce the density of a housing project.116 All of this certainly evinces a legislative intent to forge a super-statute, but whether the HAA “‘stick[s]’ in the public culture such that ... its institutional or normative principles have a broad effect on the law”117 ultimately depends on how other actors respond to it. Will the courts and the executive branch also treat the HAA as super?
110 S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017), now codified as CAL. GOV’T CODE § 65589.5(j)(2). 111 CAL. GOV’T CODE § 65589.5(j)(1).
112 CAL. GOV’T CODE § 65589.5(a)(2)(K).
113 CAL. GOV’T CODE § 65589.5(a)(2)(L).
114 A.B. 3194, 2017–2018 Reg., Leg. Sess. (Cal. 2018), now codified as CAL. GOV’T CODE § 65589.5(a)(3). 115 S.B. 330, 2019-2020 Reg., Leg. Sess. (Cal. 2019); CAL. GOV’T CODE §§ 65943 & 65589.5(h)(5). Originally slated to expire after 5 years, S.B. 330 was extended for another half decade by S.B. 8, 2021-2022 Reg., Leg. Sess. (Cal. 2021).
116 CAL. GOV’T CODE § 65589.5(h)(8) (“‘[O]bjective’ means involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.”). 117 Eskridge & Ferejohn, supra note 10, at 1216.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

17 In California Renters Legal Advocacy and Education Fund v. City of San Mateo (“California Renters”), the pumped-up HAA passed its first judicial test with flying colors.118 The city had denied a small condo project on the basis of the city’s Multi-Family Design Guidelines, which prescribe “a transition or step in height” between new multifamily buildings and adjoining single-family homes.119 When a nonprofit housing organization challenged the project denial in court, San Mateo argued that the HAA violated both its right to “home rule” under California’s constitution and the prohibition against delegation of municipal authority. In the alternative, the city asserted that the HAA’s definition of project compliance left intact the tradition of judicial deference to cities on questions about the meaning of local ordinances, and that the city in denying the project had plausibly “interpreted” its design guidelines to require setbacks the project lacked. A trial court accepted the city’s constitutional and statutory arguments,120 but the Court of Appeal would have none of it.

Before the appellate court, San Mateo and local government amici mustered new constitutional attacks on the HAA—not just home rule and private delegation, but due process too.121 It would have been easy for the Court of Appeal to dodge the new issues, but the court reached out and decided all of the constitutional questions—against the city—thereby securing the HAA’s footing going forward.122 The appellate court also carefully traced the evolution of the HAA, juxtaposing it against the seeming intractability of California’s housing shortage. It concluded, “The HAA is today strong medicine precisely because the Legislature has diagnosed a sick patient.”123
The legislature’s instruction that the HAA “be interpreted and implemented in a manner to afford the fullest possible weight to … housing” was reiterated three times in the court’s opinion.124 As for San Mateo’s design guidelines, the Court of Appeal held that they were not objective, and, in the alternative, that a reasonable person could deem the project at issue to comply with them.125 Hard-eyed independent judicial review, not deference, was the order of the day.

Deferring to the city’s interpretation of the Guidelines would be “inappropriate,” the court explained, lest the City “‘circumvent[] what was intended to be a strict limitation on its authority.’”126
118 68 Cal. App. 5th 820, 283 Cal. Rptr. 3d 877 (2021). 119 283 Cal. Rptr. 3d at 883-85.
120 Order Denying Petition for Writ of Administrative Mandate at 3-4, Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (San Mateo Superior Court, Nov. 7, 2019). 121 Respondents’ Brief in Opposition to Petitioners’ Opening Brief, California Renters Legal Advocacy & Educ.

Fund v. City of San Mateo, 68 Cal. App. 5th 820 (2021); Amicus Curiae Brief of the Cal. State Ass’n of Counties in Support of Respondent City of San Mateo et al., California Renters Legal Advocacy & Educ. Fund v. City of San Mateo, 68 Cal. App. 5th 820 (2021).
122 283 Cal. Rptr. 3d at 895-902.
123 283 Cal. Rptr. 3d at 902.
124 283 Cal. Rptr. 3d at 887, 894, 902.
125 283 Cal. Rptr. 3d at 889-95.
126 283 Cal. Rptr. 3d at 893-94 (quoting Ruegg & Ellsworth v. City of Berkeley, 63 Cal. App. 5th 277, 299 (2021)).

Ruegg is an important case that takes a similar no-deference stance in the context of SB 35, a recently enacted bill that requires cities that are not making adequate progress toward their share of the regional housing target to permit certain projects ministerially. See S.B. 35, 2017–2018 Reg., Leg. Sess. (Cal. 2017); CAL. GOV’T CODE § 65913.4.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

18 California Renters is only one case,127 but already other courts have taken note.128 Even more notably, other actors in California’s legal-political establishment are also embracing the HAA and signaling that they want it to have “a broad effect on the law.”129 After the trial court in California Renters struck down the HAA, Attorney General Becerra announced that his office would intervene on appeal.130 When the Court of Appeal’s decision came down, new Attorney General Bonta put out a press release trumpeting the big win.131 While California Renters was pending, the Governor requested and the legislature authorized funding for a new Housing Accountability Unit within the Department of Housing and Community Development (HCD).
132 Fully staffed, the Housing Accountability Unit will be a 25- person team that investigates alleged violations of state housing law, sends warning letters to cities, and makes referrals to the Attorney General’s new “housing strike force.”133 The HAA is not the only housing law the Housing Accountability Unit and the strike force will enforce, but it is the capstone, and the fact that these new enforcement capacities came together in the shadow of California Renters suggests that the HAA is in fact bringing about “a new normative [and] institutional framework for state policy,” one which will “stick[] in the public culture” and have “a broad effect on the law.”134
The acid test is now at hand. Two days after San Francisco’s Board of Supervisors stalled the Stevenson St. project—voting to require further environmental study while treating the vote as a project denial135—the director of the state housing department announced that the Housing Accountability Unit had launched an investigation.136 Is the HAA super enough to stand up to CEQA? Or will it tumble like its precursor, the PSA?
127 Though Ruegg & Ellsworth v. City of Berkeley, supra note 126, is similar in spirit. 128 See Bankers Hill 150 v. City of San Diego, 74 Cal. App. 5th 755, 776–78, 289 Cal. Rptr. 3d 268, 283-84 (2022), review denied (May 11, 2022) (extensively quoting California Renters for its analysis of the standard of review under the HAA).
129 Eskridge & Ferejohn, supra note 10, at 1216.
130 Emily Durey, State Intervenes in San Mateo Housing Case that Could Have Major Implications, MERCURY NEWS, Jan. 15, 2020.
131 Press Release, Attorney General Bonta Hails Appellate Court Ruling Upholding Key California Affordable Housing Law, Sept. 13, 2021, https://oag.ca.gov/news/press-releases/attorney-general-bonta-hails-appellate-courtruling-upholding-key-california. 132 Conor Dougherty, California Housing Is a Crisis Newsom Can Take Into His Own Hands, N.Y. TIMES, Sept. 16, 2021; Press Release, Governor Newsom Signs Legislation to Increase Affordable Housing Supply and Strengthen Accountability, Highlights Comprehensive Strategy to Tackle Housing Crisis, Sept. 28, 2021, https://www.gov.ca.gov/2021/09/28/governor-newsom-signs-legislation-to-increase-affordable-housing-supply-andstrengthen-accountability-highlights-comprehensive-strategy-to-tackle-housing-crisis/. 133 What Local Governments Need to Know About the New Housing Accountability Unit, CALIFORNIACITYNEWS.ORG, Nov. 4, 2021, https://www.californiacitynews.org/2021/11/what-local-governmentsneed-know-about-new-housing-accountability-unit.html; Press Release, Attorney General Bonta Launches Housing Strike Force, Announces Convening of Tenant Roundtables Across the State, Nov. 3, 2021, https://oag.ca.gov/news/press-releases/attorney-general-bonta-launches-housing-strike-force-announces-conveningtenant. 134 Eskridge & Ferejohn, supra note 10, at 1216.
135 See infra notes 154-169 and accompanying text.
136 J.K. Dineen, State Investigating S.F.’s Decision to Reject Turning Parking Lot into 500 Housing Units, S.F.

CHRONICLE, Oct. 28, 2021.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

19 C. A Note on the HAA’s CEQA Savings Clause
The opening for San Francisco’s maneuver in the Stevenson St. case was a proviso in the HAA that states, “Nothing in this [statute] shall be construed to relieve [a city] from complying with . . . the California Environmental Quality Act.”
137 This clause originated as a perfunctory addition
to a pro-housing 1990 bill, SB 2011, which sought to augment the HAA with a powerful “builder’s remedy” that would exempt affordable housing projects from local regulations. 138
The sponsors of SB 2011 argued that cities without a compliant “housing element”—a stateapproved plan to accommodate the city’s share of regionally needed housing—should not be allowed to deny affordable housing project except on narrow, enumerated grounds.139 The bill as introduced would have barred noncompliant cities from applying their zoning code, general plan, or development standards to an affordable project.140
Early in the legislative process, some advocates expressed concern about exempting affordable housing from CEQA and other environmental laws.141 SB 2011 was promptly amended to include the above savings clause and ensure that the HAA did not “relieve” a city from complying with CEQA.142 However, in reading the entire bill file, we found no memo, letter, bill summary, newspaper clipping, or anything else explaining how anyone thought CEQA would or should be applied to this new class of zoning-exempt projects. Nor did anyone address CEQA’s application to the traditional class of HAA-protected projects in cities with compliant housing elements, i.e., projects that comply with the city’s objective general plan and zoning standards.

Most of the debate over SB 2011 centered on arguments that the bill would let developers run roughshod over local planning. Eventually some softening amendments were added,143 but, backed by a coalition of business groups and affordable housing advocates,144 the bill passed both houses of the legislature in a form that was expected to be transformative.145 Governor 137 CAL. GOV’T CODE § 65589.5(e).
138 S.B. 2011, Cal. Stats. 1982 ch. 1438 § 2.
139 Memorandum from Dave Kilby, CA Chamber of Commerce, to Sen. Committee on Hous. & Urban Affairs, Apr. 5, 1990 (on file with authors); Letter from Bay Area Council to Sen. Committee on Hous. & Urban Affairs, Apr. 6, 1990 (on file with authors).
140 Bill Analysis, S.B. 2011, Sen. Committee on Hous. & Urban Affairs (Apr. 5, 1990) (on file with authors). 141 See Fax Transmittal to Paula Carrell from John [last name not legible], Mar. 28, 1990 (providing draft of amendments) (on file with authors).
142 See supra note 141; S.B. 2011, 1989-1990 Reg., Leg. Sess. (Cal. 1990), as amended in Senate, Apr. 5, 1990 (on file with authors).
143 The most important of these allows local governments to apply “development standards” that are consistent with meeting their housing targets. See CAL. GOV’T CODE 65589.5(f)(1); Question & Answer Paper, SB 2011, Sen. Leroy Greene, Ch. # 1439, 1990, at 3-4 (stating that the development standards exception “appears to supersede” the bill’s core requirement that cities not impose conditions that render the project infeasible, so long as the development standards are consistent with “objectives stated in the housing element”). 144 Vlae Kershner, Bill to Force Cities to Build Low-Income Housing Gets Ok, S.F. CHRONICLE, Aug. 22, 1990 (describing SB 2011 as “one of the biggest legislative surprises of the current session” and “supported by an odd coalition of liberal housing advocates and conservative business groups”). 145 See infra notes 146-147 and accompanying text (describing bill’s characterization by state agencies); Kershner, supra note 144 (calling SB 2011 “a powerful bill designed to bludgeon exclusive suburban communities into accepting low-income housing”). In folder 10 of the bill file, there is an newspaper clipping of unmarked origin that quotes Burlingame city council candidate Dorothy Cusick, “Unless we get the housing element of our general plan Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

20 Deukmejian’s Office of Local Government Affairs urged a veto, contending that the enrolled bill would “prohibit a city . . . from denying a high density apartment project [in] a low density single-family residence area.”146 But his HCD recommended approval, quoting advocates who called it the most important housing bill in a decade.147 The Governor followed HCD’s advice and signed the bill into law. Yet the new builder’s remedy, so feared and vaunted, never amounted to much. We canvassed developers, housing advocates, and HCD staffers for examples of its use, and found just one attempt—which failed.148 But the CEQA savings clause that was added as an uncontroversial check on the builder’s remedy lives on, constraining not only the imagined zoning-noncompliant project in a city without a compliant housing element, but also—at least potentially—every plain vanilla, fully plan- and zoning-compliant project anywhere in the state. How seriously it constrains these ordinary projects will depend on how the arguments of Parts II and III of this paper are received.

Needless to say, it would be odd to read a minor addition to a pro-housing bill as inadvertently gutting the very statutory scheme it meant to strengthen. The Office of Local Government Affairs and others vociferously opposed SB 2011 because they believed it would prevent cities from denying high-density affordable apartment projects in low-density neighborhoods.

Presumably they wouldn’t have fought the bill if they had thought its CEQA proviso allowed cities to put any and all HAA-protected projects on ice. It also bears emphasis that the CEQA savings clause was added to SB 2011 several months before a Court of Appeal read CEQA to gut the PSA—and almost two decades before another Court of Appeal rendered the CEQA timelines essentially unenforceable.149 Circa 1990, it was reasonable to believe that the risk of CEQA abuse was minimal because prolonged CEQA delays were simply illegal.

So the CEQA savings clause should not be read to swallow the HAA. But neither should it be read out of the statute. The legislature confirmed as much in 2019, when it added a new provision and a correlative CEQA carveout to the HAA.
150 The new provision bars cities from
applying almost any development standard or fee to a project if the measure was adopted after the developer’s filing of a preliminary project application—except that the city may apply the measure if “necessary to avoid or substantially lessen an impact of the project under the California Environmental Quality Act.” 151
updated, there’s not much the City Council can do to prevent a developer from building multiple dwelling units without regard to zoning, lot setbacks and densities if 20% of the units are designated low cost.” 146 Office of Local Gov’t Affairs, Enrolled Bill Report, at 5, S.B. 2011, Sept. 6, 1990 (on file with authors). 147 Dep’t of Hous. and Cmty. Dev., Enrolled Bill Report, at 3, S.B. 2011, Sept. 15, 1990 (on file with authors). 148 This attempt is memorialized in the SB 2011 bill file. A homeowner in Albany tried to legalize an existing second unit and was told to provide two off-street parking spaces. The homeowner tried to use SB 2011 to get around the parking requirement, and the city said no, arguing that the parking minimum was a “health and safety standard” and therefore a permissible ground for denial under the HAA. The homeowner opted not to sue. See BAY AREA COUNCIL, HOUSING & DEVELOPMENT REPORT, vol. 4 no. 5, May 1991 (on file with authors). 149 Land Waste Mgmt. v. Contra Costa Cnty. Bd. of Supervisors, 222 Cal. App. 3d 950 (1990); Schellinger Brothers v. City of Sebastopol, 179 Cal. App. 4th 1245 (2009).
150 CAL. GOV’T CODE § 65589.5(o).
151 CAL. GOV’T CODE § 65589.5(o)(2).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

21 The difficult task of courts and administrators today is to harmonize the two super-statutes: to ensure that cities complete appropriate environmental reviews without using CEQA to slip the HAA’s grip. We explore how to do so in the next Parts.

II. Does the HAA (or anything else) Provide a Remedy for CEQALaundered Project Denials? The HAA prevents cities from denying or reducing the density of housing projects, but, as noted, it does not exempt projects from environmental review.152 And although CEQA spells out time limits for the completion of environmental reviews, those limits have proven illusory in court.153 So if a city wants to deny a project that the HAA protects, what’s to keep the city from laundering the denial, as it were, through CEQA? Can the city keep asking the developer for additional environmental studies until, after squandering years and fortunes, the developer cries uncle and walks away?
That’s the million-dollar question raised by our running example, the San Francisco Board of Supervisors’ vote sustaining a local gadfly’s appeal of the Stevenson St. project. Rather than deny the project outright or reduce its density (likely HAA violations), the Board reversed the planning commission’s certification of the project’s EIR and directed the clerk to prepare findings that it was inadequate.154
Yet in view of what the appellant wanted and what Supervisors said at the hearing and afterwards, it’s pretty clear that the Board’s real objective was not to air out and mitigate specific environmental impacts but to nix the project. The appellant, a local political power broker,155 made no bones about his goal. In an op-ed and blog post, he demanded that the project sponsor donate at least a third of the site to the city for development of a (smaller) affordable housing project.156
152 CAL. GOV’T CODE § 65589.5(e).
153 See supra notes 52-63 and accompanying text.
154 San Francisco Bd. of Supervisors, Meeting Minutes—Draft, Tues, Oct. 26, 2021, https://sfbos.org/sites/default/files/bag102621_minutes.pdf. 155 See J.K. Dineen, ‘You Don’t Mess with Him’: How an S.F. Housing Advocate Wields Power by Funding Ballot Measures, S.F. CHRONICLE, Nov. 18, 2021 (profiling the appellant, John Elberling, and quoting a developer as saying “I realized pretty quickly if I wanted to build in SoMa I was going to have to go through John”). 156John Elberling, The Facts Behind the Developer Propaganda on Soma Housing Project, 48HILLS, Dec. 6, 2021, https://48hills.org/2021/12/the-facts-behind-the-developer-propaganda-on-soma-housing-project/; Angelica Cabande, John Elberling, Rudy Corpuz, Carla Laurel & Raquel Redondiez, The Solution to SF’s Affordable Housing Crisis Is Simple — Build Affordable Housing, S.F. EXAMINER, Nov. 29, 2021, https://www.sfexaminer.com/opinion/the-solution-to-sfs-affordable-housing-crisis-is-simple-build-affordablehousing/.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

22 Most of the Supervisors who voted “No” argued that the project was not affordable enough and would cause gentrification157—which is not an environmental impact,158 and which is exceedingly unlikely to be caused by the project in any event.159 Supervisor Mandelman told a reporter that he’d “feel very good about this vote” if the site “become[s] a 100% affordable project,” but that if “15 years from now it’s still a parking lot, then I will not feel good.”160 That’s an explanation for a vote to deny, not a vote for further environmental study. Supervisor Melgar said the problem was that the developer hadn’t “negotiated a deal” with TODCO, the politically powerful nonprofit that led the charge against the project. 161 That of course has no
bearing on the adequacy of the EIR.

The supervisors who voted “No” also knotted themselves up with self-contradictory objections.

For example, Ronen and Mandelman stressed that the developer didn’t have financing and that the project probably wasn’t economically viable (the implication being: “don’t blame us for blocking housing”),162 yet they also demanded that the developer reserve more units for lowincome households163—which would make the project even more difficult to finance. 157 Supervisor Walton argued that the new housing would “have a very significant displacement and social economic impact on the Sixth Street corridor.” Joe Kukura, Supes Shoot Down 27-Story SoMa Residential Tower Over Seismic, Displacement Concerns, SFIST, Oct. 27, 2021, https://sfist.com/2021/10/27/supes-shoot-down-27-storysoma-residential-tower-over-earthquake-displacement-concerns/. Supervisor Preston stated he was “baffled” that the city did not get independent guidance in analyzing impacts of gentrification and displacement. Tim Redmond, In Dramatic Move, Supes Block Huge Luxury Housing Project in Soma, 48HILLS, Oct. 27, 2021, https://48hills.org/2021/10/in-dramatic-move-supes-block-huge-luxury-housing-project-in-soma/. Supervisor Chan commented that it was “interesting” that the Planning Commission did not “broaden its analysis” to include gentrification impacts. Id.
158 See Porterville Citizens for Responsible Hillside Dev. v. City of Porterville, 157 Cal. App. 4th 885, 905–06 (2007) (“Unsubstantiated fears about potential economic effects resulting from a proposed project are not environmental impacts that may be considered under CEQA.”). CEQA focuses on impacts on the “physical environment,” see Cal. Pub. Res. Code § 21065, 4 Cal Code Regs §§ 15060(c)(2), (3), 15378(a), not social impacts.

However, one envelope-pushing trial court recently required CEQA analysis of potential “displacement effects” from a university’s decision to increase enrollment without providing a commensurate increase in student housing.

See Save Berkeley’s Neighborhoods v. Regents of Univ. of Cal., No. RG19022887, Alameda Sup. Ct., Aug. 23, 2021; Eric Biber, CEQA and Socioeconomic Impacts, LEGAL PLANET, Sept. 24, 2021, https://legalplanet.org/2021/09/26/ceqa-and-socioeconomic-impacts/. 159 The vast majority of studies with a plausible strategy for identifying the causal effect of new housing development on nearby rents have found that the effect is negative. For a review, see SHANE PHILLIPS ET AL., RESEARCH ROUNDUP: THE EFFECT OF MARKET-RATE DEVELOPMENT ON NEIGHBORHOOD RENTS (UCLA Lewis Center, Feb. 17, 2021), https://www.lewis.ucla.edu/research/market-rate-development-impacts/. Adverse gentrification effects near the Stevenson St. project are particularly unlikely because the low-income residents nearby live in protected single-room occupancy hotels, subsidized housing projects, and rent-controlled apartments.

See Randy Shaw, What Drives SF’s Gentrification? It’s Not What Many Think, BEYONDCHRON, Nov. 2, 2021, https://beyondchron.org/what-drives-gentrification-its-not-what-many-think/. 160 Heather Knight, S.F.’s Real Housing Crisis: Supervisors Who Took a Wrecking Ball to Plans for 800 Units, S.F.

CHRONICLE, Oct. 30, 2021, https://www.sfchronicle.com/sf/bayarea/heatherknight/article/S-F-supervisors-complainabout-our-housing-16576412.php. 161 Id. [160]
162
https://twitter.com/HillaryRonen/status/1455214820454637570; https://twitter.com/RafaelMandelman/status/1455285482468691968. 163 See Twitter threads cited in note 162, supra.

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23 The representative who came closest to voicing an environmental objection was Supervisor Ronen, who expressed concern that the project’s foundation might be inadequate.164 She pointed to another downtown project, the Millennium Tower, that had required an expensive retrofit, and she argued that the EIR for Stevenson St. should have fleshed out the seismic issues in detail.165 (The Initial Study treated these issues as “insignificant” because they’re addressed by the building code and an engineering peer review required of all large buildings.166 Accordingly, the EIR did not further address them.
167) However, no one put any evidence in the record suggesting that a code-compliant, peer-reviewed project on the site would be an earthquake hazard to people or buildings nearby. Nor, as best we can tell, had Ronen or any other supervisor objected to previous EIRs that treated seismic impacts as adequately addressed through the building code and engineering peer review. In any case, contrary to Ronen’s claims to the press, the impact of an earthquake on a proposed building is not an “environmental impact” under CEQA.168 All of this suggests that that the seismic safety issue—the only plausibly legitimate justification for the Board’s decision to reverse the CEQA certification169—was pretextual. It was a fig leaf to cover up what the Board intended but was not allowed by law to do: to disapprove the project because it’s too big, or not affordable enough, or because the project sponsor hadn’t acceded to the appellant’s land-donation demand.

A. Capitalizing on Administrative Law’s Achilles Heel
The strategy of laundering project denials through CEQA is nothing if not clever, for it takes advantage of two soft spots in administrative law: agency delay and agency bad faith.

1. Delay
The Board of Supervisors’ vote to reverse certification of the Stevenson St. EIR was tantamount to saying, “We haven’t made up our mind about this project, and we need more information before we can make up our mind.” When agencies say they need more time to gather 164 J.K. Dineen, State Investigating S.F.’s Decision to Reject Turning Parking Lot into 500 Housing Units, S.F.

CHRONICLE, Oct. 28, 2021.
165 Id. [164]
166 S.F. Planning Dep’t. Notice of Preparation of Environmental Impact Report 185-88, Case No. 2017-014833ENV, Oct. 2, 2019, https://sfplanning.org/environmental-reviewdocuments?field_environmental_review_categ_target_id=212&page=2&order=title&sort=asc. 167 S.F. Planning Dep’t, Draft Environmental Impact Report, 469 Stevenson St. Project, Case No. 2017- 014833ENV, available at https://sfplanning.org/environmental-reviewdocuments?field_environmental_review_categ_target_id=212&page=2&order=title&sort=asc. 168 See Dineen, supra note 164 (quoting Supervisor Ronen). CEQA requires analysis of the impact of the building on the environment, not the environment on the building. See Cal. Bldg. Industry Ass’n v. Bay Area Air Quality Mgmt.

Dist., 362 P.2d 792, 803 (Cal. 2015) (holding that CEQA Guideline which provided that “an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision,” was “clearly erroneous and unauthorized under CEQA”). 169 To be clear, this justification would be legitimate only if there were a “fair argument” that the building itself may cause significant damage to the physical environment in the vicinity of the site, in the event of an earthquake. Cf. id. [168] at 802 (holding that CEQA analysis should consider “exacerbating effect” of new construction on existing environmental hazards, but not the effect of the hazard on the new construction or its occupants).

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24 information, courts normally let them have it. If an antsy plaintiff sues, the court will say that the suit is premature because there’s not yet a “final” agency decision, or because the plaintiff hasn’t “exhausted her administrative remedies,” or because the case isn’t yet “ripe.”170 After all, it would be a waste of judicial resources and a big practical problem for governance if anyone waiting in line for an agency decision could ask a judge to let her jump the queue.171 The legal doctrines that prevent plaintiffs from attacking agency delay have exceptions, but the exceptions are very narrow. For example, California courts excuse plaintiffs from exhaustion when further agency proceedings would be “futile”—but only if the plaintiff can “positively state” what the agency has decided (thus rendering further proceedings pointless).172 The courts have also waived exhaustion when the agency has no legal authority to conduct the proceeding at issue,173 and when pursuit of further proceedings would result in “irreparable harm.”174 None of these exceptions fits the Stevenson St. scenario. The Board of Supervisors carefully avoided “positively stating” its decision; there’s no question that the Board is authorized by law to be the city’s ultimate CEQA decider; and the irreparable-harm exception is “applied rarely and only in the clearest of cases.”175
It is also true that if the legislature prescribes clear-cut timelines for an agency decision, a plaintiff can, in theory, use traditional mandamus to get a court order requiring the agency to act.176 But as we illustrated in Part I’s discussion of Schellinger and the CEQA timelines, these cases make courts uncomfortable.177 At most, a court will order the agency to make a decision, 170 See, e.g., AIDS Healthcare Found. v. State Dep’t of Health Care Servs., 241 Cal. App. 4th 1327, 194 Cal. Rptr. 3d 425 (2015) (holding that decision of administrative agency reversing order of the administrative law judge and remanding for additional proceedings before the administrative law judge is unreviewable). 171 The exhaustion doctrine is “principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” Farmers Ins. Exch. v. Superior Ct., 826 P.2d 730, 739 (Cal. 1992). California courts often treat these three doctrines—exhaustion, finality, and ripeness—as more or less interchangeable. See, e.g., California Water Impact Network v. Newhall Cty. Water Dist., 161 Cal. App. 4th 1464, 1489 (2008) (describing exhaustion as “closely related” to finality); O.W.L. Found. v. City of Rohnert Park, 168 Cal. App. 4th 568, 584 (2008) (stating that finality is an “outgrowth” of ripeness). See also Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731 (D.C. Cir. 1987), in which the three judges each issued their own opinion explaining why the case was untimely, relying on the same facts and normative considerations but using different doctrinal labels: exhaustion per Judge Edwards, finality per Judge Williams, and ripeness per Judge Green.
172 Jonathan Neil & Assoc., Inc. v. Jones, 94 P.3d 1055, 1067 (Cal. 2004) (quoting Sea & Sage Audubon Soc’y, Inc. v. Plan. Com., 668 P.2d 664, 667 (Cal. 1983)).
173 Coachella Valley Mosquito & Vector Control Dist. v. California Pub. Emp. Rels. Bd., 112 P.3d 623, 629 (Cal. 2005) (noting that the exception turns on a three-factor test involving “[1] the injury or burden that exhaustion will impose, [2] the strength of the legal argument that the agency lacks jurisdiction, and [3] the extent to which administrative expertise may aid in resolving the jurisdictional issue”). 174 Kaiser Found. Hosps. v. Superior Ct., 128 Cal. App. 4th 85, 105 (2005). 175 City & Cty. of San Francisco v. Int’l Union of Operating Engineers, Loc. 39, 151 Cal. App. 4th 938, 948 (2007). 176 CAL. CIV. PROC. CODE § 1085(a) (authorizing a writ of mandate “to compel the performance of an act which the law specially enjoins”); e.g., Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 221 (1999) (holding that, under section 1085, a court may compel a city to make its decision in the time period required under CEQA); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 65 (2004) (explaining that, under the federal APA, “when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be”). 177 See supra text accompanying notes 62-63.

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25 as opposed to telling the agency what to decide.
178 And if the developer cooperates with the city
past the deadline, the doctrine of laches may bar their claim altogether.179

2. Bad Faith
The other formidable barrier to a judicial fix for CEQA-laundered project denials is the principle that courts should review agency decisions solely on the basis of the reasons stated by the agency at the time of the decision, rather than probing to figure out the agency’s real reason and setting the decision aside if the real reason was not authorized by law.

To the extent that the Board’s decision to require further CEQA study of the Stevenson St. project is reviewable at all, a court would normally uphold the decision so long as the findings prepared by the clerk include some legitimate reason for additional CEQA study.180 The stated rationale must also draw some support from the record of materials before the Board, but the evidentiary demand is lax.181 If a reasonable person could agree with the Board’s decision in light of the evidence in the record, courts generally will accept it.182 In federal administrative law, there is a narrow exception to these general precepts. Upon a “strong showing of bad faith,” a court may peer behind the agency’s public rationale and the record of contemporaneous materials the agency assembled to justify it.183 If the court concludes from this investigation that the agency’s stated reasons were pretextual, the court may set aside the agency’s decision—even if the stated reasons (if real) would have sufficed to justify it. This obscure doctrine enjoyed a moment of renaissance when Chief Justice Roberts invoked it to invalidate the Trump Administration’s addition of a citizenship question to the U.S. Census. But even as the Chief Justice insisted that courts “are ‘not required to exhibit a naivete from which 178 Schellinger Bros., 179 Cal. App. 4th at 1265 (noting that a section 1085 (traditional mandamus) remedy “issues to compel the performance of a ministerial duty, and even then it will not compel the exercise of such a duty in a particular fashion”).
179 Id. [178] at 267-70.
180 Judicial review in CEQA cases is usually limited to the record of the agency proceeding. See KOSTKA & ZISCHKE, supra note 21, §§ 23.48 - 23.56; cf. MITCHELL E. ABBOTT ET AL., CALIFORNIA ADMINISTRATIVE MANDAMUS § 6.119 (CEB 2021) (“Whether the scope of review is the substantial evidence test or the independent judgment test, the trial court cannot substitute its own findings to cure the agency's inadequate findings as an alternative to remanding the case to the agency....”) (citations omitted). The deferential “substantial evidence” standard governs judicial review of “the agency’s conclusions, findings and determinations, the scope of the EIR’s analysis, the amount or type of information contained in the EIR, the methodology used to assess impacts, and the reliability or accuracy of the data supporting the EIR’s conclusions.” KOSTKA & ZISCHKE, supra note 21, § 23.34. 181 Nominally, the city’s decision must be supported by “substantial evidence” in the record, but this standard is not demanding. It requires only “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” 14 CAL CODE REGS § 15384(a). See also Laurel Heights Improvement Ass’n v Regents of Univ. of Cal., 47 Cal. 3d 376, 393 (1988); KOSTKA & ZISCHKE, supra note 21, § 23.34.
182 See supra note 181.
183 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (noting that “inquiry into the mental processes of administrative decisionmakers is usually to be avoided,” but it may be permitted upon “a strong showing of bad faith or improper behavior”); SEC v. Chenery Corp., 318 U.S. 80 (1943) (stating the general rule that agency action may only be upheld on the contemporaneous record).

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26 ordinary citizens are free,’”184 he was at pains to limit the bad-faith exception. The Census dispute was not “a typical case in which an agency may have both stated and unstated reasons for a decision,” but rather the “rare” one in which the agency’s “sole stated reason” “seems to have been contrived.”185
It is for very good reasons that the bad-faith exception is very narrow. Much like aggressive judicial review of agency delay, courtroom trials focused on the real reasons for agency action would gum up the work of government.186 Discovery requests and depositions would divert public officials from their charge.187 Courts would struggle to disentangle the mix of political and policy-minded considerations that shape agency decision making—especially when the leaders of the agency in question (a city council) are elected officials who inevitably pay attention to politics even when acting in a quasi-judicial capacity (hearing a CEQA appeal).

Finally, it’s black-letter law that when an agency messes up, the judicial remedy is to vacate the agency’s decision and remand for a do-over.188 Even in the Census case, the Court did not strike the citizenship question from the Census: it just told the Commerce Department to try again.189 But what does this achieve if the agency is in bad faith? A court order telling San Francisco’s Board of Supervisors to rehear the Stevenson St. CEQA appeal would be an invitation to relaunder the denial, minus the revealing tweets. The pointlessness of the remedy strongly reinforces the argument for not engaging the pretext question in the first place.190 * * *
Given the formidable barriers to challenging agency inaction and getting courts to do anything about agency bad faith, and given the lack of any specific remedy under CEQA if a city demands more environmental review than the statute requires, it should come as no surprise that the caselaw about CEQA abuse is very scant. Looking for cases in which someone argued that an 184 Department of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977).
185 Id. [184]
186 See Gavoor & Platt, Administrative Records After Department of Commerce v. New York, 72 ADMIN. L. REV. 87, 98 (2020) (predicting that extra-record review in the federal context will “divert resources from agencies’ core missions, compulsorily draw the attention of officers of the United States who should otherwise be engaging in the executive function of running the government, and cause long delays with more bet-the-agency litigation”); see also Jennifer Nou, Census Symposium: A Place for Pretext in Administrative Law?, SCOTUSBLOG, June 28, 2019, https://www.scotusblog.com/2019/06/census-symposium-a-place-for-pretext-in-administrative-law/ (voicing similar concerns).
187 Dep’t of Commerce, 139 S. Ct. at 2583 (Thomas, J., concurring in part and dissenting in part) (predicting that the majority’s application of the exception will “enable[] partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction”). 188 CEQA codifies this principle. CAL. PUB. RES. CODE § 21168.9(c) (“Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way.”). See also KOSTKA & ZISCHKE, supra note 21, § 23.125 (“The requirement in Pub Res C § 21168.9(b) that a peremptory writ of mandate specify what action by the agency is necessary to comply with CEQA is limited by the provision in § 21168.9(c) that the statute does not authorize a court `to direct any public agency to exercise its discretion in any particular way.’”). 189 Dep’t of Commerce, 139 S. Ct. at 2576.
190 While the Department of Commerce remand resulted in the Census going forward without a citizenship question, this was a happenstance of timing: by the time the Supreme Court’s decision came down in June 2019, it was too late for the Census Bureau to redo its decision before the 2020 Census. But where there is no impending deadline, a remand is very unlikely to result in a different outcome.

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27 agency broke the law by doing “too much” CEQA review is like trying to find the proverbial needle in a haystack of cases about whether an agency did too little.

We did, eventually, find two cases.
191 In one, the trial court held that courts lack “the authority to review the appropriateness of” a city’s decision to require additional environmental study and another round of public comment following circulation of a draft EIR.192 The Court of Appeal sustained the trial court’s decision on other grounds (laches), without addressing the trial court’s holding on reviewability.193 In the other, a county board of supervisors voted to require an EIR for a mining company’s exploration permit, rejecting the planning staff’s recommendation of a mitigated negative declaration.194 The court sustained the county’s decision without addressing finality or exhaustion.195
The bottom line is that fifty years into the life of CEQA, there is not a single Court of Appeal opinion addressing whether a local agency’s decision to require additional, unwarranted environmental review is subject to judicial review or, if reviewable, whether there’s a remedy beyond remanding to the agency for reconsideration.196 The lack of caselaw no doubt reflects the remote odds that such a claim would result in a meaningful win.

B. But the HAA Is a Game Changer, Right?197
The foregoing ought to douse any hope one might have about using CEQA or background principles of administrative law to curtail CEQA-laundered project denials. But when the project getting laundered is a housing project, a court must consider the Housing Accountability Act as well. And the HAA gives the general principles of administrative law a real shakeup, reworking some and tossing others in the garbage:198
● The HAA expressly authorizes judicial inquiry into bad faith.199 “Bad faith” as defined by the Act “includes ... an action that is frivolous or otherwise entirely without merit.”200 This means that a court can find bad faith without subpoenas, depositions, or other 191 In addition to the cases discussed in this paragraph, there is also a pending case in which plaintiffs are trying to use a federal statute, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 et seq., to curtail sham CEQA litigation by competitors of a project. See Arthur F. Coon, CEQA Meets RICO: Round Two, MILLER STAR REGALIA, July 31, 2020, https://www.ceqadevelopments.com/2020/07/31/ceqa-meets-rico-round-two/ (discussing Relevant Group, LLC et al v. Nourmand et al., No. 2:19-cv-05019 (C.D. Cal.)). 192 Schellinger Bros. v. City of Sebastopol, 179 Cal. App. 4th 1245, 1256, 102 Cal. Rptr. 3d 394 (2009). 193 Id. [192] at 1267-70.
194 Oro Fino Gold Mining Corp. v. Cty. of El Dorado, 225 Cal. App. 3d 872, 274 Cal. Rptr. 720 (Ct. App. 1990). 195 Id. [194] at 880-85.
196 Cf. Schellinger Bros. v. City of Sebastopol, 179 Cal. App. 4th 1245, 1262-66 (2009) (holding that courts may order a local agency to make up its mind about whether to certify an environmental document after the review is complete, but may not decide the merits of the environmental review until the city acts in the first place). 197 Cf. Sen. Comm. on Transportation and Housing, analysis of AB 3194, as amended June 20, 2018, p. 3 (describing the HAA’s standard for determining whether a project is consistent with local land-use rules as a “game changer”).
198 See Nestor M. Davidson, Localist Administrative Law, 126 Yale L.J. 564, 614 (2017) (arguing that “courts should resist false parallels to higher levels of government, where structural realities may be very different”). 199 CAL. GOV’T CODE § 65589.5(l).
200 CAL. GOV’T CODE § 65589.5(l).

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28 searching inquiry into the mental processes of city council members. Objective frivolousness is enough.
● In cases where a court finds bad faith, the HAA supplants the traditional do-over remedy.

It authorizes courts to order the project approved and to retain jurisdiction to ensure that this order is carried out.201 (Even if there’s no finding of bad faith, the HAA provides that courts shall issue an order compelling compliance within sixty days and fine the city if it misses the deadline.202)
● The HAA provides at least a partial remedy for delay, by defining “[d]isapprove the housing development project” to include “[f]ail[ing] to comply with the time periods [for project review] specified in [the PSA].”203
● The HAA eliminates judicial deference to local governments on all questions about whether a housing development project complies with applicable standards.204 The HAA’s stance is one of extreme distrust toward local governments. In 1982, the legislature stated that “the excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing.”205 But as the legislature noted in 2017, when it strengthened various HAA provisions, “[t]he Legislature’s intent in enacting this section in 1982 . . . has not been fulfilled.”206 Hence the new policy going forward:
“that [the HAA] be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”207 But there’s a catch. While the HAA provides a powerful remedy for bad-faith project denials, its only explicit remedy for delay is tied to the PSA. Yet as noted in Part I, the PSA clock doesn’t 201 CAL. GOV’T CODE § 65589.5(k)(1)(A)(ii).
202 CAL. GOV’T CODE § 65589.5(k)(1)(A)(ii).
203 CAL. GOV’T CODE § 65589.5(h)(6).
204 CAL. GOV’T CODE § 65589.5(f)(4) (“[A] housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.”); CAL. GOV’T CODE § 65589.5(j)(1) (requiring local government that would disapprove or reduce density of a project that is consistent within meaning of (f)(4) to make “written findings supported by a preponderance of the evidence on the record” that the project “would have a ... significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and that “[t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact ... other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density”).
205 Cal. Stats. 1982 ch. 1438; CAL. GOV’T CODE § 65589.5(a)(1)(B). 206 S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017); CAL. GOV’T CODE § 65589.5(a)(2)(K). For an argument that increased interregional competition in contemporary America further justifies state-level legislative efforts to promote regionalism in land use, see Nestor M. Davidson & Sheila R. Foster, The Mobility Case for Regionalism, 47 U.C. Davis L. Rev. 63, 69 (2013).
207 CAL. GOV’T CODE § 65589.5(a)(2)(L).

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29 start to run until CEQA review has been completed,208 and the HAA does not “relieve [a city] from … complying with” CEQA.209
How can a court make sense of these conflicting directives? In the rest of this Part, we sketch three possible solutions.

C. Solutions

1. Bad-Faith Delay Through CEQA Reversal as HAA “Disapproval” Our first solution is for courts to hold that a city’s delaying of a project in bad faith amounts to “disapproval” under the HAA, at least if the delay occurs through a negative vote on a formal approval the developer needs. Importantly, if courts conclude that a bad-faith denial of a CEQA clearance210 is a “disapproval,” they can order the project approved. That is because the HAA empowers courts to use this supercharged remedy when a city denies a project in bad faith.211 The HAA’s definition of “disapproval” is broad. It includes “any instance in which a local agency . . . votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.”212 The certification of an EIR or other CEQA clearance is one of many “approval[s]” or “entitlement[s]” which a developer must obtain before eventually landing a building permit. And it is an approval that a city council reversing a CEQA clearance “votes” to deny.213
On the other hand, the fact that the HAA doesn’t expressly list “legally inadequate CEQA analysis” as a permissible ground for disapproval of a housing development project suggests that the legislature may not have thought that a city council’s reversal of a CEQA certification would qualify as a housing-project disapproval.214 Were the HAA an ordinary statute, this missing 208 See supra text accompanying notes 58-59.
209 CAL. GOV’T CODE § 65589.5(e).
210 By “denial of a CEQA clearance,” we mean an official determination that a project is not entitled, at the time of the determination, to the CEQA approval sought by the developer. This would include a vote to deny a CEQA exemption, a vote to require an EIR instead of approving the negative declaration sought by the developer, a vote against certifying an EIR, or, as in the case of the Stevenson St. project in San Francisco, a vote to reverse a certification of an EIR.
211 CAL. GOV’T CODE § 65589.5(k)(1)(A)(i).
212 CAL. GOV’T CODE § 65589.5(h)(6) (emphasis added).
213 The same reasoning would apply with equal force to any other bad-faith denial of a CEQA clearance, such as a decision by a planning commission or city council to deny an exemption or to refuse to certify a negative declaration or EIR.
214 See CAL. GOV’T CODE 65589.5(j)(1) (stating that a local agency which “proposes to disapprove [an HAAprotected] project or to impose a condition that the project be developed at a lower density” “shall base its decision ... upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist”: (A) that the project “would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density”; and (B) that “[t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact ... other than the disapproval Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

30 affirmative defense would cut pretty strongly against reading “disapproval” to include even badfaith reversals of CEQA clearances. But the HAA in its current incarnation is meant to be a super-statute, “interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”215 This interpretive instruction, together with the parallel legislative finding that local governments have for too long managed to evade the legislature’s intent to “meaningfully and effectively curb[] [their] capability ... to deny, reduce the density for, or render infeasible housing development projects,”216 suggests that the legislature wants courts to read the statute flexibly as may be necessary to countermand evasive local tactics the legislature did not anticipate.

A line-drawing problem remains: it can’t be true that every municipal denial of a CEQA clearance is a “disapproval” within the meaning of the HAA.217 Some denials are meritorious. In other cases, a city council may reasonably believe that a project opponent’s CEQA appeal has merit, even if some judges would disagree. At what point does a city council’s reversal of a CEQA clearance become an HAA “disapproval”? The remedial provisions of the HAA point toward an answer: when the CEQA reversal is in bad faith.218 Like the party to a contract who commits anticipatory breach, the city that denies a CEQA clearance in bad faith signals that it has no intention of performing its legal obligation under state law, namely, to approve the HAAprotected project unless it violates an objective health or safety standard.219 That the HAA singles out bad-faith conduct by cities provides a justification for, and a limitation upon, expansive readings of “disapproval.”220
What constitutes bad faith in this context? Again, the HAA provides guidance: “For purposes of this section, ‘bad faith’ includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.”221An objectively frivolous denial of a CEQA clearance should therefore land the city in the bad-faith doghouse. But not only this, for the phrase “is not limited to” implies that there are other ways to end up in the doghouse. A natural inference from the text and purpose of the HAA is that it is also bad faith for a city to do indirectly (e.g., via CEQA) what the HAA prohibits the city from doing directly.222
of the housing development project or the approval of the project upon the condition that it be developed at a lower density”).
215 S.B. 167, 2017–2018 Reg., Leg. Sess. (Cal. 2017)
216 CAL. GOV’T CODE § 65589.5(a)(2)(K).
217 For example, if the CEQA review was legally inadequate, surely a city council’s reversal of the planning commission’s certification of the CEQA review would not constitute a “disapproval” of the project. And even if some judges might consider the CEQA review legally sufficient, a city council that had a good-faith and wellsubstantiated belief that the review was legally inadequate probably should not be regarded as “disapproving” the project just because the council voted to reverse the CEQA clearance. 218 CAL. GOV’T CODE § 65589.5(l).
219 The analogy to anticipatory breach is not exact, because traditionally anticipatory breach is found only if the breach is express or the repudiating party “puts it out of his power to perform so as to make substantial performance of his promise impossible.” Taylor v. Johnston, 15 Cal. 3d 130, 137, 539 P.2d 425, 430 (1975). 220 Note that the HAA’s findings also evince special concern about municipal bad faith. See, e.g., CAL. GOV’T CODE § 65589.5(a)(2)(K) (“The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to ... meaningfully and effectively curb[] the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled.”). 221 CAL. GOV’T CODE § 65589.5(l).
222 A subtly different question is whether a pretextual denial of a CEQA clearance should be deemed to violate the HAA when the apparent reason for the denial is to induce the developer to agree to a condition that would make the Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

31 In our running example, the appellant, John Elberling, was clearly gunning for an outcome that the HAA proscribes. After the Board of Supervisors voted to reverse the EIR certification for Stevenson St., Elberling published an op-ed and blog post faulting the project sponsor for not agreeing to a “compromise” under which the developer would donate a third of the parcel to the city, and the city and the developer would then build side-by-side projects with fewer total units than the project as proposed.223 This land transfer would unquestionably violate the HAA if demanded by the city as a condition of approval, as the HAA bars “impos[ing] a condition that the project be developed at a lower density.”224
The further question is whether a court should attribute the appellant’s purpose to the city. Here the caselaw on racial discrimination is instructive. “The Supreme Court has long held, in a variety of circumstances, that a governmental body may not escape liability under the Equal Protection Clause merely because its discriminatory action was undertaken in response to the desires of a majority of its citizens.”225 Thus, it’s unlawful for a state to designate candidates’ racial identity on the ballot and thereby enable discrimination by voters;226 for a court to deny a parent custody of their child on the ground that the parent’s interracial relationship would expose the child to societal discrimination;227 for employers to refuse to hire men because their customers prefer to be served by women;228 or for a city council to “knowingly acquiesce[] to race-based citizen opposition” in denying a housing project or rezoning.229 project more difficult to develop, and which the city does not have authority to impose, but which the HAA does not proscribe. For example, building trade unions are notorious for using CEQA to hold up projects unless or until the developer signs a labor agreement with the union. See infra note 353 and accompanying text. Federal labor law makes it unlawful for cities to insist on project-labor agreements as a condition of approval, see Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614 (1986) (holding that cities may not use taxicab licensing to regulate balance of power between management and labor), but the HAA allows any condition of approval unless it has the effect of rendering an affordable housing development “infeasible,” CAL. GOV’T CODE § 65589.5(d), or is functionally equivalent to a reduction in density, CAL. GOV’T CODE § 65589.5(j)(1) & (g)(7). The pretextual denial of a CEQA clearance for labor reasons may result in the city running afoul of the CEQA timelines (see infra Part II.C.2 ), or may violate background principles of state administrative law (see infra Part II.C.3), or may even expose the city to liability under federal labor law or due process via section 1983 (see Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989); Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 225 (1990)), but it probably should not be held to violate the HAA unless the labor condition the city desires is ruled out by the HAA. 223 John Elberling, The Facts Behind the Developer Propaganda on Soma Housing Project, 48HILLS, Dec. 6, 2021, https://48hills.org/2021/12/the-facts-behind-the-developer-propaganda-on-soma-housing-project/; Angelica Cabande, John Elberling, Rudy Corpuz, Carla Laurel & Raquel Redondiez, The Solution to SF’s Affordable Housing Crisis Is Simple — Build Affordable Housing, S.F. EXAMINER, Nov. 29, 2021, https://www.sfexaminer.com/opinion/the-solution-to-sfs-affordable-housing-crisis-is-simple-build-affordablehousing/. Cabande, John Elberling, Rudy Corpuz, Carla Laurel & Raquel Redondiez, The Solution to SF’s Affordable Housing Crisis Is Simple — Build Affordable Housing, S.F. EXAMINER, Nov. 29, 2021, https://www.sfexaminer.com/opinion/the-solution-to-sfs-affordable-housing-crisis-is-simple-build-affordablehousing/. 224 Except in the rare case where doing so is necessary to mitigate a specific, quantified adverse impact on public health or safety in violation of an objective, written standard as it “existed on the date the [developer‘s] application was deemed complete.” CAL. GOV’T CODE 65589.5(j)(1).
225 U.S. v. Yonkers Bd. of Educ., 837 F.2d 1181, 1224 (2d Cir.1987). 226 Anderson v. Martin, 375 U.S. 399 (1964).
227 Palmore v. Sidoti, 466 U.S. 429 (1984).
228 Diaz v. Pan Am. World Airways, Inc. 442 F.2d 385 (5th Cir. 1971), cert. denied, 404 U.S. 950 (1971). 229 Mhany Management, Inc. v. County of Nassau, 819 F.3d 581, 612 (2d Cir. 2016).

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32 If a court concluded that San Francisco violated the HAA by “knowingly acquiesc[ing]” to Elberling’s goal of using CEQA to achieve what the HAA proscribes, similar blog posts and opeds by CEQA appellants will likely become a thing of the past. But even after anti-housing activists wise up and refrain bald admissions of unlawful motive, the courts can still provide a check on municipal acquiescence to unlawful private sentiment. When opponents of an affordable housing project turned out in droves at a public hearing to complain about property values, community character, “undesirable” residents, and crime, the courts have sometimes inferred that racial animus was a “significant factor” behind the opposition, even in cases where project opponents avoided “explicitly racial language.”230 So too, when the great mass of public comment at a CEQA hearing focuses on a project’s objectionable scale or socioeconomic impacts, a judicial fact finder should have little trouble concluding that rabble rousers’ goal was to block the project or reduce its density, not to ensure that environmental impacts are properly studied and mitigated.231
Another important precedent for our proposal is the Second Circuit’s decision in Fortress Bible Church v. Feiner, which holds that a city’s pretextual use of environmental review can violate the Religious Land Use and Institutionalized Persons Act (RLUIPA). 232 RLUIPA forbids a city
from imposing a substantial burden on religious practice through an “individualized assessment[] of the proposed uses for the property” “in the implementation of a land use regulation”233 The statute defines “land use regulation” as a “zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land).”234 In Fortress Bible Church v. Feiner, the court found that the Town of Greenburgh violated RLUIPA when it used environmental review to delay and reject a Pentacostal Church’s proposed project.235 The court observed that the town had rejected the recommendation of its own Planning Commissioner that the project’s impacts did not warrant a positive declaration under New York’s State Environmental Quality and Review Act (SEQRA) and initiated review anyway “after the Church refused to accede to the Town’s demand that it donate a fire truck or provide some other payment in lieu of taxes.”236 The court also noted that a Zoning Board member had told the Planning Commissioner “on multiple occasions” that he should “stop” or “kill” the project, and that the Planning Commissioner (who disagreed) was replaced.237 Although RLUIPA does not mention environmental laws, the Second Circuit concluded that environmental review fell within its scope when it was used “as a vehicle to 230 Mihany, 819 F.3d at 606-12; Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982); Avenue 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504-07 (9th Cir. 2016). 231 This inference would be especially straightforward if the CEQA clearance at issue is an EIR or negative declaration because these clearances may not be issued until the project is officially approved or denied. 14 C.C.R. § 15025(b). Because of this, a party that wants a legitimate condition of approval (one which doesn’t reduce density) placed on the project can ask for it at the same time they pursue their CEQA argument. If they make flimsy CEQA demands without asking for legitimate conditions of approval, it’s a fair inference that they probably want to achieve through CEQA something that the HAA disallows.
232 694 F.3d 208, 217-18 (2d Cir. 2012).
233 42 U.S.C. § 2000cc(a)(2)(c).
234 Id. [233] § 2000cc-5(5).
235 694 F.3d 208, 217-18 (2d Cir. 2012).
236 Id. [235] at 218.
237 Id. [235] at 214.

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33 resolve zoning and land use issues.”238 In short, the Court found bad faith: the town had “disingenuously used SEQRA to obstruct and ultimately deny the Church’s project” and had “manipulated its SEQRA findings statement to ‘kill’ the project.”239 Would reading HAA “disapproval” to encompass the bad-faith denial of a CEQA clearance “relieve[]” cities of complying with CEQA?
240 No. Consider the Stevenson St. project again. San
Francisco’s planning department prepared a full EIR for the project, which the planning commission certified as complete.241 So long as the court concludes that the EIR was in fact legally sufficient, an order directing the city to approve the project would do no violence to the HAA’s CEQA-savings clause.242 The court could also allow the Board of Supervisors a brief window of time to decide whether to impose any additional mitigation requirements on the project, in light of the findings of the EIR.243 This would honor CEQA’s policy that elected officials bear final responsibility for deciding what to do about identified environmental impacts.244
238 Id. [235] at 218.
239 Id. [235] The Ninth Circuit has noted the argument that an application of CEQA might violate RLUIPA but has not reached the question. San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1036 (9th Cir. 2004).

Although no other circuits have squarely considered whether RLUIPA applies to environmental review, they have found that non-land use laws such as building or sewer codes might, citing Feiner and noting that “it is not the label that a government puts on its regulation that determines whether RLUIPA applies, but rather how the regulation actually functions.” See, e.g., Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George’s Cnty., Maryland, 17 F.4th 497, 509 (4th Cir. 2021) (emphasis added). 240 CAL. GOV’T CODE § 65589.5(e).
241 S.F. Planning Com’n Motions Nos. 20960 & 20961 (July 29, 2021), available at https://sfbos.org/sites/default/files/bag102621_agenda.pdf. 242 We discuss the legislative history of this clause in Part IV, infra. By way of preview: there’s no evidence that the legislature gave any consideration to the issues raised in this paper. 243 The HAA specifies that a court which finds a violation “shall issue an order ... compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergency shelter.” CAL. GOV’T CODE § 65589.5(k)(1)(A)(ii).

One wrinkle is that the city might use CEQA mitigation requirements pretextually. Recall that the HAA provides that a housing project “shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application” containing the required information is submitted. CAL. GOV’T CODE § 65589.5(o)(1). Yet subdivision (o) goes on to provide that a city can subject the project to a “ordinance, policy, standard, or any other measure” postdating the preliminary application if that measure is “necessary to avoid or substantially lessen an impact of the project” under CEQA. Id. § 65589.5(o)(2), (o)(2)(C). Thus, a city might try to impose onerous post hoc “measures” that it insists are “necessary to avoid or substantially lessen” CEQA impacts of the project but that in fact are not. An unlawful mitigation measure could come in at least two varieties: it could either (1) pertain to an impact that is cognizable under CEQA (say, water quality) but not be “necessary to avoid or substantially lessen” it; or (2) be “necessary to avoid or substantially lessen” an impact that is not cognizable under CEQA at all (say, gentrification). In an action brought under § 65589.5(k)(1)(A)(III)(ia), the court would need to determine whether the city’s mitigation requirement runs afoul of subsection (o), likely by engaging in a bad faith/pretext analysis similar to that the Second Circuit employed in Fortress Bible Church v. Feiner. 244 See CAL. PUB. RES. CODE § 21151(c) (providing that if a nonelected decision-making body of a local lead agency certifies a final EIR, the agency must allow the certification to be appealed to the agency’s elected decision-making body, if one exists); 14 CAL. CODE REGS § 15090(b) (same). It might also be argued that a court must give the Board an opportunity to specify further mitigation conditions, in view of the CEQA provision stating, “Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way.” CAL. PUB.

RES. CODE § 21168.9(c). We disagree. The court order we’re contemplating would be an order issued pursuant to the HAA, not pursuant to CEQA, so the limitations on judicial remedial authority under CEQA would not apply to it.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

34 Another counterargument is that the Board in voting to reverse the EIR certification didn’t actually determine whether the project could go forward or what its density would be. It just said it wanted more information. This finality argument would be a strong counter under general administrative law principles. But in taking a practical, real-world approach to “disapproval,” the HAA undercuts it. For example, delay beyond the time limits of the PSA is explicitly an HAA disapproval,245 even though such delay doesn’t entail any de jure act or statement of reasons by the city. A formal vote reversing a CEQA clearance looks considerably more final and at least has the trappings of an agency action.

It is also worth emphasizing that while the terms “finality” and “exhaustion” connote on-off switches—a decision is either final or not, a plaintiff has either exhausted their administrative remedies or not—finality and exhaustion in the permitting context are always matters of degree.

Thus, courts have long treated a city council’s vote to deny a development proposal as final enough for judicial review, despite the fact that the developer could return to the city with a different proposal for the site that the council might find satisfactory. This doctrine reflects a practical judgment that requiring developers to suffer two or three rounds of defeat at the city council before gaining access to the courts would strike the wrong balance between conservation of judicial resources and municipal autonomy, on the one hand, and protection for the rights of property owners, on the other.

The HAA tips the balance toward earlier judicial review. It emphasizes that the public interest, rather than mere property rights, is at stake when a California city thwarts a housing development project. The HAA’s judgment about the public interest, and its warning about municipal bad faith, ought to inform judicial thinking about finality and exhaustion in the housing context.

California’s HCD has signaled support for reading “HAA disapproval” to include pretextual CEQA-clearance reversals.
246 In a letter to San Francisco about Stevenson St. and another project, the Department called the Supervisors’ vote an “effective denial” and asked the city to explain its rationale within thirty days.247 The letter emphasized, as we do, that disapproval includes “denial of other required land use approvals or entitlements necessary for the issuance of a building permit.”248 And it noted that, in light of the Supervisors’ “various vague concerns” with the project, it was “unclear what actions these project applicants are required to take to advance these projects.”249 If an agency that the Legislature has authorized to enforce the HAA concludes that bad-faith denials of CEQA clearances are “disapprovals” within the meaning of the HAA,250 a court need not go out of its way to conclude the same. 245 CAL. GOV’T CODE § 65589.5(h)(6)(B).
246
Letter from Shannan West, Housing Accountability Unit Chief, Dep’t of Hous. & Cmty. Dev., to Kate Conner, LEED AP, Manager, Priority Projects and Process, San Francisco Planning Dep’t, Nov. 22, 2021 (on file with authors).
247 Id. [246] at 1.
248 Id. [246] at 3.
249 Id. [246] at 1-2.
250 CAL. GOV’T CODE § 65585(j)(1) (authorizing Department to notify the local government and, as appropriate, the Attorney General, when it finds “that any local government has taken an action in violation of [enumerated statutes],” the first of which is the HAA).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

35 2. Enforcing CEQA Timelines in Light of the HAA
Another way for courts to tackle the problem of CEQA-laundered housing denials is to use the Legislature’s bolstering of the HAA as an invitation to limit or reject Schellinger Brothers v. City of Sebastopol,
251 the case that rendered CEQA’s one-year deadline practically unenforceable.

Under this approach, a court would not order the project approved (as in our first solution).

Rather, the court would order the city to certify any legally sufficient CEQA study after the pertinent CEQA deadline has lapsed. By making CEQA’s deadlines enforceable, this approach would also give practical effect to the HAA’s incorporation of the PSA’s timelines into the definition of “disapproval,” as the PSA clock starts to run only after completion of CEQA review.252
As we explained in Part I, Schellinger held that judges may not order a city to certify an EIR (as opposed to ordering the city to make up its mind about whether to certify it).253 Schellinger also said that the project applicant had, by cooperating with the city and making project revisions well past CEQA’s deadline, forfeited its right to enforce the deadline.254 The most basic problem with Schellinger is that it makes a hash of the HAA’s definition of “disapproval.” As noted, the HAA defines disapproval to include noncompliance with the PSA deadlines, but the PSA clock only starts to run after CEQA review is done.255 So if there’s no practical way of forcing cities to comply with CEQA’s deadlines, then the delay-oriented piece of the HAA’s definition of disapproval is a dead letter. That doesn’t befit any statute, let alone one which the legislature has declared to be super.

As for Schellinger’s laches holding (that the developer who cooperates past a deadline forfeits her right to enforce it), equitable doctrines are not supposed to be used in ways that “nullify an important policy adopted for the benefit of the public.”256 Whatever might have been said about the HAA when Schellinger was decided in 2009, there is no gainsaying that, today, the Act's policy of expeditious permitting is “important” and inures to the “benefit of the public.257 251 179 Cal. App. 4th 1245 (2009).
252 CAL. GOV’T CODE § 65589.5(h)(6).
253 See supra text accompanying notes 61-63.
254 179 Cal. App. 4th 1245, 1267–70. A future court might distinguish Schellinger on the ground that the project proposal at issue morphed considerably during the long period of CEQA review. See id. at 1250-53. On the other hand, cities should not be able to evade the CEQA deadlines by pressuring developers into revising their project proposals.
255 CAL. GOV’T CODE § 65950.
256 Golden Gate Water Ski Club v. Cty. of Contra Costa, 165 Cal. App. 4th 249, 263 (2008) (holding that laches is unavailable for this reason); Feduniak v. California Coastal Com., 148 Cal. App. 4th 1346, 1381 (2007) (same). 257 The laches holding of Schellinger is also suspect on traditional equitable grounds. First, the doctrine of laches is only supposed to penalize plaintiffs who “unreasonabl[y]” delay bringing suit. Conti v. Bd. of Civ. Serv.

Commissioners, 461 P.2d 617, 622 (Cal. 1969). Schellinger failed to ask whether it’s reasonable for a developer whose business depends on securing discretionary permits from a city to cooperate with the city’s review process well past any statutory deadline (bringing suit only as a last resort). Second, as an equitable doctrine, the laches defense should have no currency when the city acts in bad faith (has “unclean hands”), as San Francisco appears to have done in reversing the EIR certification for Stevenson St. See Prang v. Los Angeles Cty. Assessment Appeals Bd. No. 2, 54 Cal. App. 5th 1, 18 (2020) (“Factually, laches, as an equitable doctrine, is not available to a party with unclean hands.”).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

36 CEQA allows one year for completion of an EIR.258 A recent study of housing project entitlements in twenty California cities found that the median project in San Francisco took twenty-seven months to entitle; only 5 percent were entitled in under a year.259 Stevenson St. is more of the same. The project application was submitted on October 3, 2018.260 The Initial Study, which determined that an EIR was required, was completed almost a year later.261 By statute, however, an Initial Study is supposed to be completed within a month, not a year. 262 The
planning department released its draft EIR for public comment not long after the Initial Study (March 11, 2020), but the department took ages compiling its response to comments, and the final EIR wasn’t certified by the planning commission until July 29, 2021.263 This was nearly three years after the developer’s submission of the project application. And then came the appeal to the Board of Supervisors, resulting in further delay.

Bearing these facts in mind, and reading CEQA in light of the newly “super” policy of the HAA, a court might reasonably hold (1) that CEQA’s deadlines are enforceable by mandamus regardless of whether the developer has cooperated with the city past the deadline (contra Schellinger), and (2) that if the applicable CEQA deadline has passed and a legally sufficient environmental review document has been prepared, the city must certify it.

The second holding might seem to depart from the background norm that a court can only order an agency to act, rather than telling it how to act.264 But sometimes only one course of action is available to the agency, in which case a court may direct the agency to do what the law requires of it.265
In short, we’re proposing that, in light of the HAA, courts hold that cities have a ministerial duty to certify any legally sufficient environmental review document once the CEQA review deadline has passed.266
258 CAL. PUB. RES. CODE § 21151.5(a).
259 Moira K. O’Neill et al., Examining Entitlement in California to Inform Policy and Process: Advancing Social Equity in Housing Development Patterns 93 (Nov. 8, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3956250. 260 San Francisco Planning Com’n Motion No. 20961 (hearing date: July 29, 2021). 261 Notice of Preparation of Environmental Impact Report, Case No. 2017-014833ENV, San Francisco Planning Department, Oct. 2, 2019.
262 CAL. PUB. RES. CODE §§ 21080.1, 21080.2 (requiring lead agency to make “final” determination of whether to prepare an EIR, negative declaration, or mitigated negative declaration within thirty days of project application being determined to be or deemed complete).
263 S.F. Planning Com’n Motions Nos. 20960 & 20961 (July 29, 2021), available at https://sfbos.org/sites/default/files/bag102621_agenda.pdf. 264 CEQA’s remedial provisions authorize courts to order “specific action as may be necessary to bring the [an agency] decision into compliance with” the statute, CAL. PUB. RES. CODE § 21168.9(a)(1), (3), but also declare, “Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way,” CAL. PUB. RES. CODE § 21168.9(c).
265 Berkeley Hillside Pres. v. City of Berkeley, 60 Cal. 4th 1086, 1122, 343 P.3d 834, 858 (2015), as modified (May 27, 2015) (stating that lower court on remand “may order preparation of an EIR only if, under the circumstances, the City would lack discretion to apply [an] exemption or to issue a negative declaration”). 266 A possible counterargument might be that this would only incentivize an anti-housing city council to put maximal pressure on the planning department so that it rejects the EIR of any large housing project in the first instance. That way, a city would avoid ever having a “legally sufficient EIR” for the court to order the city to Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

37 The courts could also give cities a brief window to decide what changes to the project or other mitigation should be required in view of the environmental study. This splitting of the baby— letting the politicians choose mitigation but not legally unnecessary environmental study past the CEQA deadline—would go a good distance toward reconciling CEQA with the HAA. It would breathe some life into the PSA deadlines (which the HAA incorporates into its definition of disapproval267) without impinging on municipal authority to impose mitigation conditions on development approvals (which the HAA countenances so long as they don’t reduce the project’s density268).

3. Levering “Pretext” for Judicial Review of CEQA-Clearance Denials Our third solution is inspired by Chief Justice Roberts’s opinion in Department of Commerce v.

New York.269 Instead of putting an expansive gloss on HAA “disapproval,” or battling Schellinger to make the CEQA deadlines judicially enforceable, a court would hold that a citycouncil or planning-commission vote to deny a CEQA clearance is reviewable for pretext in limited circumstances. Specifically, a plaintiff’s “strong showing of bad faith” would render the decision to require further environmental study reviewable (notwithstanding the usual exhaustion requirement), and, if the court determines that the city acted in bad faith, the court would hold the city’s decision unlawful under background principles of administrative law.

This solution invites a number of questions. First, is it even available in California? Second, once the door has been opened to pretext inquiries in this context, what’s to keep them from spreading across all of state administrative law, at a high cost to courts and agencies alike?270 Third, would this solution be meaningful as a practical matter, given that the standard judicial remedy in CEQA cases is a remand for a do-over, which is basically an invitation for the bad-faith agency to better cover its tracks? Whereas our prior two solutions yield straightforward and effective remedies—a court order directing the city to approve the project (solution #1) or to certify a CEQA clearance (solution #2)—designing an effective remedy for pretextual use of CEQA without reference to HAA “disapproval” or the CEQA deadlines may be a bit trickier.

As to the first question: The solution is available in the sense that it hasn’t been ruled out by the California Supreme Court. Although there is a pretty strong norm against looking behind the official record assembled by an agency, the Court has reserved the question of whether there approve. However, this work-around might be difficult. Because the developer is paying for the EIR and hiring the consultants, a planning department will have trouble disguising unusually slow processing, and it cannot altogether refuse to consider a complete EIR. Yet, at least in some cities, there is still probably some risk of political pressure down the chain. Cf. David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Polarization, 76 GEO. WASH. L. REV. 1095, 1096 (2008) (noting that, in the federal context, agency officials often want to align their actions with the preferences of their political overseers). 267 CAL. GOV’T CODE § 65589.5(h)(6).
268 CAL. GOV’T CODE § 65589.5(j)(1).
269 139 S. Ct. 2551 (2019).
270 See sources cited in note 186, supra.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

38 might be a “limited” exception for “agency misconduct.”271 The state supreme court has also allowed extra-record evidence in challenges to “ministerial or informal administrative actions,” on the theory that they merit less deference.272
The second question—whether pretext claims can be cabined—is serious273 but not hard to answer. The HAA and the institutions now being erected to enforce it offer guardrails. In light of the HAA’s skepticism about municipal good faith, a court could hold that “CEQA pretext” claims are only available if the environmental clearance concerns an HAA-protected project. Or, going a step further, a court could hold that pretext claims are available only if HCD or the Attorney General makes the preliminary “strong showing of bad faith,” or otherwise raises serious concerns about the city’s development-review processes.274 This holding would limit pretext litigation to cases where a coordinate branch of state government has balanced the benefits and costs and deemed the inquiry worthwhile.

The remedy question concerns us more.275 If a court finds that a city’s CEQA reversal was pretextual, must it send the whole thing back and give the city another chance to dress up its decision all over again? Not necessarily. The California Supreme Court has endorsed the “inherent power” of a trial court to send only part of a decision back to the agency, while retaining jurisdiction to issue judgment later.276 Perhaps a court in a pretext case could treat a CEQA certification as mostly complete (and valid), retain jurisdiction, and give the city a short period of time to address any legitimate concerns identified by the court on a limited remand.

This would light a fire under the city and ensure that the case comes back to the same judge.277 Other unusual remedies would also be worth considering. Consider what courts do when a decision maker is found to have prejudged the facts or otherwise manifested bias in violation of due process. Normally, the court disqualifies the biased arbiter and remands for a fair hearing before another hearing officer. The Court of Appeal has said that a city’s “malicious[] or 271 Western States Petroleum Ass’n v. Superior Court, 888 P.2d 1268, 1276 n.5 (Cal. 1995); see id. at 1278 (leaving open the possibility that such evidence may be admissible “under unusual circumstances or for very limited purposes not presented in the case now before us”).
272 Id. [271] at 1277; see Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1234-37 (1995) (discussing and critiquing the use of an “open record” in these cases).
273 See supra Part II.A (discussing reasons why courts generally abjure inquiry into pretext). 274 Cf. Letter from Shannan West, Housing Accountability Unit Chief, Dep’t of Hous. & Cmty. Dev., to Kate Conner, LEED AP, Manager, Priority Projects and Process, San Francisco Planning Dep’t, Nov. 22, 2021 (on file with authors) (concluding, “HCD is concerned specifically that the Stevenson Project and O’Farrell Project that have been effectively denied without written findings as well as larger trends in the City/County’s review of housing”) (emphasis added).
275 See supra text accompanying notes 188-190.
276 Voices of the Wetlands v. State Water Res. Control Bd., 257 P.3d 81, 98-99 (Cal. 2011) (stating that administrative mandamus “impose[s] no absolute bar on the use of prejudgment limited remand procedures such as the one employed here”).
277 Although the traditional remedy is to give the city another chance to rationalize its pretextual decision to require further environmental studies, the administrative mandamus statute also allows a court to order a city to “take such further action as is specially enjoined upon it by law.” CAL. CIV. PROC. CODE § 1094.5(f). This provision therefore may authorize a stronger remedy, when read in light of the HAA’s definition of disapproval or the synergism of PSA and the CEQA time limits.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

39 arbitrar[y]” refusal to certify a CEQA document violates due process.278 If that’s right, a city council’s bad-faith reversal of a CEQA clearance would violate due process too, and the biased decision maker should be disqualified on remand. If just a few councilmembers were found to be biased, a court could disqualify them and remand for a do-over by the rest of the council (if a quorum remains).279 But a court generally cannot disqualify the whole decision-making body that must decide the case, so there is no analogous remedy if a quorum of the council has shown bad faith.280 Hence the need for innovation beyond the usual do-over remedy.281 On the other hand, the judicial norm against telling agencies what they must do is very strong, and without specific textual authorization—e.g., the HAA directing courts to order projects approved, or CEQA specifying deadlines for completion of environmental review—we fear that judges would be reluctant to deviate from the standard remedy, even in a pretext case.

One more point about remedies is worth mentioning. Insofar as bad-faith denials of a CEQA clearance violate due process, the city is liable for damages.282 The prospect of having to compensate a developer for holding costs and the expense of additional environmental studies might be enough to discourage some cities from trying to launder housing denials through CEQA.
* * *
After a forty-year saga, the HAA is at a moment of truth. Will courts nodding to background principles of administrative law stand by while city councils deny 500-home projects on frivolous environmental grounds? Or will courts take to heart the HAA’s renunciation of the old ways and appreciate—finally—that housing is the rare domain in which city councils are not to be trusted at all?
278 Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 225, 86 Cal. Rptr. 2d 209, 217 (1999). 279 Nasha v. City of Los Angeles, 125 Cal. App. 4th 470, 484, 22 Cal. Rptr. 3d 772, 781 (2004) (vacating a decision where the outcome was determined by the vote of a council member who was not a “reasonably impartial, noninvolved reviewer”).
280 Caminetti v. Pac. Mut. Life Ins. Co. of Cal., 139 P.2d 908, 920 (1943). But in at least one case, this rule did not apply where there was a legally sufficient underlying decision that the court could let stand. See Mennig v. City Council, 86 Cal. App. 3d 341, 351–52 (1978) (disqualifying the city council because it was “embroiled” in the dispute and letting stand the civil service commission’s earlier decision). 281 Consider the following thought experiment: what if a court, after concluding that an entire city council must be disqualified, remanded to a different city council? For example, what if the court disqualified the San Francisco Board of Supervisors from certifying the EIR as to Stevenson St. and remanded to the Oakland City Council? (No doubt Oakland would have considerably less hesitation in helpfully approving a legally sufficient EIR on behalf its neighbor...while also getting to bill its time!). This solution strikes us as promising, but it would probably require explicit legislative authorization.
282 73 Cal. App. 4th 215, 225, 86 Cal. Rptr. 2d 209, 217 (1999) (holding that a city’s “malicious[] or arbitrar[y] refus[al] … to complete [within the statutory time period] an EIR for a project which requires one” period violates due process and exposes the city to liability for damages under 42 U.S.C. § 1983).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

40 III. Calibrating Environmental Review to the Scope of Municipal Discretion Under the HAA
This paper has focused thus far on whether the HAA, CEQA, or background principles of administrative law can provide a remedy if a city refuses to approve a legally sufficient CEQA clearance for a housing development project, in order to pressure the developer to withdraw or agree to a density reduction that the HAA prohibits. This Part takes up the prior question of what is a legally sufficient CEQA review when the project in question is protected by the HAA. We argue that present-day conventions rest on a fundamental mistake about the proper scope of CEQA review. The typical HAA-protected project should trigger only a very narrow review.

CEQA requires state and local agencies that have discretion to choose among possible options to study environmental effects before making their choice.283 In theory, this leads to better agency decisions. But when other laws require an agency to select a particular option, CEQA doesn’t apply.284 There’s no reason to write a detailed list of the pros and cons of different options if you know from the start exactly which choice you have to make.

When a developer submits a housing proposal, the HAA substantially limits the choices open to the city. So you would think that review under CEQA would be limited accordingly. You would, unfortunately, be wrong—at least as a description of current practice.285 So it is that a proposal to build 500 apartments on a downtown San Francisco parking lot, a block from the subway, in a designated “priority development area” under the region’s climate plan, ended up mired for years in the most extensive and costly form of environmental review required by CEQA: the EIR.

And why? Because San Francisco’s planning department had concluded, on the basis of a 342- page Initial Study, that a “fair argument” could be made that the Stevenson St. project may have a significant local environmental impact in the form of shadows, wind, or (during construction) noise and air pollution.286 The Initial Study evaluated the project’s potential impact relative to current environmental conditions nearby.287 It did not ask whether the project would have a significant marginal impact, relative to any other project of the size that the HAA entitles the developer to build on the site.

If the Stevenson St. project’s marginal impact would be close to nil (as we think likely), then the EIR was an environmentally pointless exercise. Its real function, apparently, was to give local 283 CAL. PUB. RES. CODE § 21080(a) (CEQA applies to “discretionary projects proposed to be carried out or approved by public agencies”).
284 KOSTKA & ZISCHKE, supra note 21, §§ 4.24 - 4.26A.
285 See infra notes 286-288 and 299 (explaining course of environmental review for Stevenson St. project in San Francisco). Discussions with leading CEQA practitioners have persuaded us that the Stevenson Street project’s EIR is representative of current practice.
286 Notice of Preparation of Environmental Impact Report, Case No. 2017-014833ENV, San Francisco Planning Department, Oct. 2, 2019.
287 Id. [286] at 2-3, 73-218.

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

41 activists and city officials a way to tie up the project until the developer either walked away or paid off the politically connected nonprofit that led the charge against it.288 The argument of this Part is that the scope of CEQA review of housing development projects should be tailored to the scope of municipal discretion. A housing project should require an EIR only if the city exercises discretion to shape the project in some way that generates a significant marginal impact, relative to what the HAA compels the city to approve.289 This approach would not “relieve local governments from complying with” CEQA.290 But it would require overturning or significantly limiting several judicial precedents that have been incorporated into the official CEQA Guidelines.291 As such, our proposal poses a stark test of whether the HAA really is a super-statute, one which “sticks in the public culture” and exerts “a broad effect on the law.”292 If courts and the gubernatorial appointees responsible for the CEQA Guidelines get behind our approach, then the HAA will in fact “meaningfully and effectively curb[] the capability of local governments” to hobble housing development projects.293 If they do not, there can be little doubt that NIMBY (“Not In My Back Yard”) cities will become ever more expert at exploiting CEQA to undermine the HAA.

A. “Effect” Relative to What? Defining a Reference Alternative for CEQA Review of HAA-Protected Projects
We begin with an elementary point about causation. It is senseless to try to characterize the environmental effect of a proposed housing project without comparing it to some alternative use of the site. Consider an analogy: What is the effect of a new drug or medical device? The answer depends on what you’re comparing it to. Relative to a placebo, the effect of the new drug may be large. Compared to the best treatment currently in use, the effect of the very same drug could be small or even negative.294
The same goes for housing projects. They have effects only when they are compared to some alternative. Let’s call the point of comparison the reference alternative. What is conventionally labeled “the baseline” in an environmental impacts study is, properly understood, a compound of two things: an alternative use of the site (the “reference alternative”) and a projection of environmental conditions in and around the site conditional on that use of it. 288 See Heather K. Knight, S.F.’s Real Housing Crisis: Supervisors Who Took a Wrecking Ball to Plans for 800 Units, S.F. CHRONICLE, Oct. 30, 2021 (quoting one supervisor who said he’d “feel very good about this vote” if the project site becomes “a 100% affordable housing project,” and another who complained that the developer hadn’t struck a deal with a local nonprofit, TODCO); J.K. Dineen, ‘You Don’t Mess with Him’: How an S.F. Housing Advocate Wields Power by Funding Ballot Measures, S.F. CHRONICLE, Nov. 18, 2021 (profiling the head of TODCO).
289 CEQA is not an independent source of municipal discretion. CAL. PUB. RES. CODE § 21004 (“In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division.”). 290 CAL. GOV’T CODE § 65589.5(e).
291 See infra notes 314-320 and accompanying text.
292 Eskridge & Ferejohn, supra note 10, at 1216.
293 CAL. GOV’T CODE § 65589.5(a)(2)(K).
294 These points follow from what is now called the “potential outcomes” framework for causal inference. See generally Donald B. Rubin, Causal Inference Using Potential Outcomes: Design, Modeling, Decisions, 100 J. AM.

STATISTICAL ASS’N 322 (2005).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

42 CEQA analyses, relying on CEQA caselaw, usually elide this fundamental point. By convention, they purport to measure the “effect” of a project relative to “current environmental conditions” on the site and in its vicinity.295 This is a misleading point of reference if current environmental conditions would change absent the project. No medical researcher would measure the “effect” of an experimental treatment by comparing the health status several years in the future of elderly patients who received the treatment with their health at the time the treatment was administered.

That comparison would obscure the effect of the treatment, because old people tend to decline as they age.

The CEQA analyst’s conceptual mistake about baselines is not a problem if the permitting agency has authority to deny the project and doing so would maintain current environmental conditions. In such circumstances, the current-environmental-conditions baseline is equivalent to treating the “no-action alternative” as the reference alternative. This is like a placebo reference condition in a drug trial.

But the current-environmental-conditions baseline is nonsensical when the public decisionmaker lacks legal authority to maintain it. This is precisely the situation that cities face when developers propose HAA-protected housing projects. Cities may place discretionary conditions of approval on such projects, but they may not deny the project or reduce its density.296 The environmental impact of the project should therefore be gauged relative to a reference-alternative project of the scale the city is required by law to approve. Because the purpose of CEQA is to guide the exercise of discretion, the only “effects” that belong in a CEQA-mandated environmental review are those that would be caused by the agency’s exercise of discretion. * * *
How would this work in practice? The first step in CEQA review (for non-exempt projects) is preparation of an Initial Study, which determines whether the project will be processed with an EIR or a simpler negative declaration. An EIR is required if the Initial Study reveals any “fair argument” that the project “may” have a significant impact on the environment.297 Current practice elides the question of whether potential impacts are fairly traceable to the agency’s exercise of discretion.

An HAA-informed protocol for CEQA review of housing projects would pose the threshold HAA question at the outset of the Initial Study: Does the project as proposed comply with applicable, objective general plan, zoning and development standards, as defined in the HAA? 298
295 See generally KOSTKA & ZISCHKE, supra note 21, §§ 12.16 - 12.20 (summarizing CEQA caselaw and guidelines about baselines).
296 CAL. GOV’T CODE § 65589.5(j)(1). Again, CEQA is not an independent source of discretion—“a public agency may exercise only those express or implied powers provided by law other than this division.” CAL. PUB. RES. CODE § 21004.
297 KOSTKA & ZISCHKE, supra note 21, §§ 6.1 - 6.80.
298 Cal. Gov’t Code 65589.5(f)(4). This inquiry should address only those standards of which the city gave proper notice to the developer of noncompliance, as specified in Cal. Gov’t Code 65589.5(j)(2). Note also that if the project qualifies for a density bonus under state law, this will render some local development standards inapplicable. See generally JON GOETZ & TOM SAKAI, GUIDE TO THE CALIFORNIA DENSITY BONUS LAW (rev’d Jan. 2021).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

43 If this question is answered affirmatively, the project is HAA-protected, and the city may deny or downsize the project only if it violates a written, objective health or safety standard within the meaning of the HAA. The Initial Study for an HAA-protected project should gather information about potential health / safety violations and determine whether a preponderance of the evidence establishes a violation. A conventional CEQA review (using a no-project or currentenvironmental-conditions baseline) is in order only if such a violation is established, because in that case the city may deny the project.

If an HAA-protected project doesn’t violate health or safety standards, the city’s discretion is limited to altering the project with conditions of approval that do not reduce its density, and the CEQA baseline should be defined accordingly.

There are two plausible reference alternatives in this circumstance. First, the analysis could proceed using a project-as-proposed benchmark. The reviewer would inventory any discretionary conditions of approval that the city is considering imposing on the project, and then benchmark (1) environmental conditions if the project goes forward with the discretionary condition(s) imposed, against (2) environmental conditions if the project goes forward without the panels.

The difference represents the environmental effect of the city’s exercise of discretion.

To illustrate, if a city was considering a discretionary condition of approval that would require rooftop solar panels, and concerns were raised about glare from the panels, the Initial Study would undertake to determine whether there is a fair argument that the rooftop solar panels may cause a significant environmental impact in the form of glare, relative to the scenario in which the city approves the project in the form it was proposed.

Alternatively, the city could posit a green-reference benchmark, measuring the impact of an HAA-protected project relative to a model “green” project of the same density on the same site.

The green-reference alternative might be defined as a project that provides the minimum number of on-site parking spaces; that uses low-energy building materials; and that minimizes impermeable ground cover (insofar as the city has authority to impose such conditions). The key point is that the green reference alternative would be a legally available option, and as such represents an informative benchmark against which to compare the proposed project.

Under either model, it would be the rare HAA-protected project that requires an EIR. Cities do not often impose conditions that reduce environmental amenities in the vicinity of a project, so the project-as-proposed benchmark would yield pro forma negative declarations in most cases.

As for the green-reference benchmark, developers who anticipate opposition from neighbors, unions, or other interest groups would likely conform their proposal to the green benchmark, which would result in a negative declaration. If the project as proposed is HAA-protected and uses the green-reference design, then by construction it would have no environmental effects for CEQA purposes.299
299 Needless to say, the environmental studies prepared for the Stevenson St. project in San Francisco did not hew to these principles. The HAA was nowhere mentioned in the Initial Study. The study did briefly discuss general plan and zoning standards, noting one potential violation, but it did not distinguish objective from subjective standards or explain whether the city had provided the developer with timely written notice of noncompliance. Notice of Preparation of Environmental Impact Report 67-71, Case No. 2017-014833ENV, San Francisco Planning Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.

44 B. Does CEQA Allow It?
The idea of tailoring the scope of environmental review to the scope of agency discretion has precedent under statutory analogues to CEQA at the national level and in New York. In U.S.

Department of Transportation v. Public Citizen, the U.S. Supreme Court held that an environmental impact study prepared by the Department in connection with the North American Free Trade Agreement need not analyze pollution resulting from an increase in Mexican truck traffic, because the Department had no legal authority to exclude Mexican trucks.300 “[W]here an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect” and need not consider it during environmental review.
301 To date, no California court has ruled on
whether CEQA incorporates the proximate-causation theory of Public Citizen, but California courts do seek guidance from NEPA precedents when tough questions arise under CEQA.302 In New York, courts got to a similar place by rejecting the “no-build baseline” in cases where the project proponent may build something as of right.303 Specifically, if a developer proposes an office or residential building that would require rezoning, on a site where a smaller building is allowed as of right, the effect of the proposed project is analyzed relative to the “as-of-right Department, Oct. 2, 2019. Putative effects were assessed relative to current conditions on the site and in the vicinity.

See id. at 2-3, 59-67, 73-218. Had the analysis proceeded as we recommend, the Initial Study probably would have concluded that no EIR was required, since the city had not proposed (so far as we can tell) any discretionary condition of approval that would damage the environment; since nothing in the Initial Study identified any respects in which the proposed design and materials fell short of any green-design norm; and since the study did not identify an objective, properly noticed general plan or zoning standard, or health or safety standard, that the project arguably violated.

The Initial Study did note that the project relied on waivers of several local development regulations, pursuant to state density bonus law. Id. at 67-68. However, the HAA protects projects that rely on state density bonus law. CAL.

GOV’T CODE § 65589.5(j)(3) (“For purposes of this section, the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.”). 300 541 U.S. 752, 767 (2004)
301 Id. [300] at 770 (emphasis added). The current status of this principle under NEPA is uncertain. The Trump Administration issued regulations that read Public Citizen broadly. See CEQ, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,305, 43,343-44, 43,375 (July 16, 2020). The Biden Administration then issued regulations that read it quite narrowly—essentially an option that an agency may elect in some circumstances rather than as a constraint on the scope of review. See CEQ, National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23,453, 23,465 (April 20, 2022) (stating that Public Citizen addressed a “unique context” and that the Trump rule “inappropriately transform[ed] a Court holding affirming an agency’s exercise of discretion in a particular factual and legal context into a rule that could be read to limit agency discretion”). See also id. at 23,466 (“CEQ also is removing the potential limitations on consideration of … “effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action”). 302 KOSTKA & ZISCHKE, supra note 21, § 22.4 (observing that “NEPA cases continue to play an important role in adjudication of CEQA cases, especially when a concept developed in NEPA decisions has not yet been applied in CEQA cases”) (emphasis added).
303 MICHAEL B. GERRARD ET AL., ENVIRONMENTAL IMPACT REVIEW IN NEW YORK § 8A.04 (2021).

Electronic copy available at: https://ssrn.com/abstract=3980396 Agenda Item #5.1.