[author: Arthur F. Coon]

As Halloween approaches, there is a “mixed bag” of CEQA developments to briefly note:

• Just a week after extending its time to act on the City of Hayward’s petition for review of the First Appellate District’s (Div. 3) decision in City of Hayward v. Trustees of the California State University (“City of Hayward”) the California Supreme Court, on October 17, 2012, granted the petition and held the case (Case No. S203939), deferring further action pending its consideration and disposition of a related issue in City of San Diego v. Board of Trustees of the California State University, Case No. S199557. The City of Hayward case, which is now unciteable as precedent due to the grant of review, was summarized in my blog post of July 12, 2012 (“First District Reaffirms CEQA Is Concerned With Physical Impacts on the Environment, Not Economic Ones on Government Services”). The Supreme Court’s docket identified the relevant issue under consideration in City of San Diego as: “Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under [CEQA] by stating that it has sought funding from the legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?” 
• In a case of continuing interest, on October 19, 2012, counsel for Plaintiffs and Appellants Berkeley Hillside Preservation, et al., submitted their oversized 106-page Answer Brief on the Merits in the California Supreme Court. While the fact-intensive brief makes much of the alleged “unusual” features of the proposed hillside home, the bulk of it is dedicated to legal argument attempting to defend the proposition that the “unusual circumstances” language in Guidelines section 15300.2(c)’s exception to categorical exemptions does not represent a separate requirement for the exception to apply. According to the Answer Brief, the “unusual circumstances” language is merely tautological and without independent significance; accordingly, it repeatedly asserts that a mere “fair argument” of significant impact always defeats the application of a categorical exemption. Of course, accepting this position would mean that a proposed project’s status as falling within a categorically exempt class of projects confers upon it no more beneficial standard of review than applies to any other – i.e., any non-exempt – project. The Answer Brief will undoubtedly raise a few eyebrows with some of its more dubious assertions. (E.g., p. 89 [asserting “degreed artist[’s]” opinion of proposed house’s appearance is “expert” evidence]; pp. 93-94 [asserting CEQA protects private views]; pp. 103-104 [distorting the holding of the recent Voices for Rural Living decision by claiming its order “in light of the substance of the opinion would require an EIR,” when, in fact, the Court expressly reversed the trial court on that very point; see my October 18, 2012 “CEQA’s Unusual Circumstances Exceptions to Small Structures Categorical Exemption Is Applied By Third District to Water Supply MOU With Indian Tribe”]). Nonetheless, the Answer Brief provides a thorough and well-written argument in support of its primary position as to the nature of the “unusual circumstances” exception (which it consistently refers to as the “significant effects” exception). The CEQA bar and interested stakeholders will eagerly await further developments in this critically important case, which involves the resolution of fundamental legislative and judicial policy questions governing CEQA’s implementation.
• Last, but not least, on September 13, 2012, Senator Darrell Steinberg, the California Senate’s President Pro-Tem, issued a statement indicating that reforming CEQA will be a priority item on his agenda in the 2013 legislative session. While emphasizing his long-standing support of CEQA, Steinberg’s statement said that “like any well intentioned law in existence for more than 40 years, changes are needed to eliminate abuses. We must ensure CEQA is used to protect our environment through a more efficient and timely process.” While legislative reform has proven elusive in the past, if anyone has the intellect and political savvy to tackle the task successfully, it may be Steinberg, who also announced he intends to recommend Senator Michael Rubio (D-Bakersfield) to chair the Senate Committee on Environmental Quality.

Will this Fall season’s “mixed bag” of CEQA developments ultimately produce “tricks or treats?” With CEQA, its always difficult to tell, and will probably depend largely on your perspective anyway, so …. stay tuned!