October 22, 2019

October 21, 2019

Subscribe to Latest Legal News and Analysis

CEQA Strikes Again: Supreme Court of California Decision Highlights Importance of Managing Environmental Issues in Project Development

On Monday, the California Supreme Court halted a nearly 12,000 acre mixed-use development project that was 15-years in the making in Los Angeles County, and had earned both state and local agency support.  The reason?  The Court cited a number of environmental issues with the proposed development as the basis for its decision.  Although the project in question was not an energy-specific project, the decision is an important reminder of the significant effect environmental issues have in project design and development.  This decision also demonstrates the need for project developers to fully consider environmental issues at all stages of project planning, and to appreciate the roll that environmental groups can play in challenging projects.

The opinion interprets the requirements and provisions of the California Environmental Quality Act (“CEQA”), specifically addressing: (1) the standards for finding that a project would not significantly impact the environment, and (2) appropriate measures for mitigating a project’s impacts to the environment.

The court found that under CEQA, the lead agency, the California Department of Fish and Wildlife (“CDFW”), did not adequately address the cumulative impacts of the project’s greenhouse gas emissions when it found that the the project would not significantly impact the environment.  The Court agreed with CDFW’s methodology for determining the project’s air emissions impacts on a state-wide basis, but disagreed with CDFW’s decision that the emissions would not be significant.

Additionally, the Court found that the mitigation measures for certain special-status species violated CEQA.  Specifically, the project would impact the unarmored threespine stickleback fish—a California fully protected species.  The project called for the capture and relocation of the fish to mitigate the project’s adverse impacts.  The Court noted that California law prohibits the “taking” of any fully protected species, which includes pursuing, catching or capturing the species.  In this instance the Court found that the capture and relocation of the unarmored threespine stickleback fish constituted an unlawful “taking,” disagreeing with CDFW’s position that the capture and relocation was just a mitigation measure that was protective of the species.

Ultimately, this decision barred a large-scale development that had already been in the planning process for more than 15 years and that had garnered the support of both state and local agencies.  No matter the scope or type of project, developers need to consider and address environmental issues throughout the entire project development process, and should be thoughtful and aware of  the role environmental groups can play in challenging projects.

© 2019 Foley & Lardner LLP

TRENDING LEGAL ANALYSIS


About this Author

Sarah Slack, environmental compliance counseling lawyer, Foley Lardner law
Partner

Sarah Slack is senior counsel and an environmental lawyer in the Business Law Department at Foley & Lardner LLP. Ms. Slack is a member of the Environmental Regulation Practice and the Life Sciences and Energy Industry Teams.

Ms. Slack divides her time between remediation/redevelopment work, environmental compliance counseling, transactions and environmental litigation. Ms. Slack has extensive experience on the cutting edge of Clean Air Act, Clean Water Act, Superfund, and RCRA enforcement, as well as citizen suit litigation, settlement...

608-258-4239
Amanda Beggs, Foley Lardner Law Firm, Milwaukee, Environmental and Energy Law Attorney
Associate

Amanda Beggs is an associate and business lawyer with Foley & Lardner LLP. She is a member of the firm’s Environmental Regulation Practice.

During law school, Ms. Beggs gained experience as a student legal intern at the University of Iowa College of Law Legal Clinic and as a summer associate with Foley (2014). She has also served as a research assistant at the University of Iowa College of Law, a volunteer law clerk at the United States Attorney’s Office Northern District of Iowa, and a judicial extern to the Honorable Justice Robert E. Gordon of the Illinois Appellate Court, First District, Sixth Division.

Prior to her legal career, Ms. Beggs received her Missouri teaching certificate and for two years was a secondary social studies teacher for Kansas City Public Schools.

414-319-7037