In the Spring of last year, I posted an analysis of what I called the Third District Court of Appeal’s “exceptionally thorough and well-reasoned opinion” in Citizens for Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 2014) 224 Cal.App.4th 152, rev. gtd. and action deferred 7/9/14. (See, “Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event”, by Arthur F. Coon, posted April 7, 2014.) In concluding that post, I noted that the Third District’s position on application of the “unusual circumstances” exception to categorical exemptions was “very clear” and “also diametrically opposed to that taken by the First District in a case in which the California Supreme Court has granted review, and which [had at that time] been pending for almost two years in that Court, Berkeley Hillside Preservation et al. v. City of Berkeley, et al., Case No. S20116.”

On July 9, 2014, the California Supreme Court granted appellants’ petition for review of the Third District’s decision (S218240), but expressly deferred further action pending its consideration and disposition of the related issue in Berkeley Hillside Preservation. On August 12, 2015, the Supreme Court transferred the matter back to the Third District for reconsideration in light of its decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. (For my analysis of the Supreme court’s opinion, see, “California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision”, by Arthur F. Coon, posted March 3, 2015.)

In response to the Supreme Court’s remand order, the Third District promptly vacated its earlier decision and resubmitted the cause. Thereafter, in a move that should surprise no one, on November 23, 2015, it filed its revised published opinion again affirming the trial court’s judgment upholding application of the Class 23 categorical exemption for “normal operations of existing facilities for public gatherings” to the challenged rodeo event project, again rejecting appellants’ arguments that the “unusual circumstances” exception applied to preclude use of the exemption.

With the exception of its citations to and description of the Supreme Court’s new decision (including the two alternative ways to prove the “unusual circumstances” exception), the new Third District Opinion’s analysis is substantially the same as that of its prior opinion; those seeking a detailed analysis should therefore consult my prior post on the vacated opinion, although obviously that version of the opinion can no longer be cited as legal authority.

CEQA practitioners involved with Class 23 exemption issues will benefit from the new opinion’s detailed discussion of that exemption, including its analysis of the limited body of case law addressing that exemption. The new opinion continues to contain an interesting discussion distinguishing numerous cases in considering whether water-and pollution-related circumstances are “unusual” in various contexts. Its concluding section discussing the “alternative method” for proving the “unusual circumstances” exception explains how “a challenger seeking to prove unusual circumstances based on an environmental effect must provide or identify substantial evidence indicating: (1) the project will actually have an effect on the environment; and (2) that effect will be significant.” This discussion underscores the heavy burden of proof challengers attempting to go this route will have to bear in attempting to prove that the “unusual circumstances” exception applies to preclude a categorical exemption.