[UPDATED THROUGH AUGUST 29, 2016]
What Steps Are Required for a City to Approve a Development Plan on Coastal Property? After the Fourth District, division 3, Court of Appeal reversed an administrative mandamus judgment disapproving of some actions by the City, the Supreme Court granted review on the following issues: (1) Did the City’s approval of the project at issue comport with the directives in its general plan to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas — as defined in the Cal. Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) — in the environmental impact report for the project? Banning Ranch Conservancy v. City of Newport Beach, S227473, (opinion below, G049691, formerly 236 Cal.App.4th 1341). Review was granted 8/19/15.
What Authority Does the State Water Resources Control Board have to Set the Annual Discharge Fee? After a divided First District Court of Appeal affirmed the Board’s authority to set the annual permit fee, the Supreme Court granted review on the following issues: (1) Does Water Code § 181 permit the State Water Resources Control Board to approve its annual fee under the waste discharge permit program by a majority of the quorum? (2) Does Proposition 26 apply to the waste discharge permit program fee? (3) Does the Board have the initial burden of demonstrating the validity of its fee? (4) Is the fee, which is based on balancing the fees and costs of the waste discharge permit program, an invalid tax unless it separately balances the fees and costs of each of the eight program areas within the program? California Building Industry Assn. v. State Water Resources Control Bd., S226753 (opinion below A137680, as modified, formerly 235 Cal.App.4th 1430 and 236 Cal.App.4th 529a). Review was granted 7/20/15.
Do Pumping Charges and Water Rate Ratios Violate Propositions 218 or 26? After the Court of Appeal reversed the judgment in a civil action, the Supreme Court limited review to the following issues: (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26? (2) Does the rate ratio mandated by Water Code § 75594 violate Proposition 218 or Proposition 26? City of San Buenaventura v. United Water Conservation Dist., S226036, (opinon below B251810, formerly 235 Cal.App.4th 228, as modified 235 Cal.App.4th 956b). Review was granted 6/24/15. Update 3/23/16: Review granted in Great Oaks Water Co. v. Santa Clara Valley Water Dist. S231846 (opinion below H035260, formerly 242 Cal.App.4th 1187). Briefing deferred pending resolution of City of San Buenaventura.
Does an EIR Need to Address Greenhouse Gas Emission Goals in Executive Order? After the Court of Appeal affirmed the judgment below, the Supreme Court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? Cleveland National Forest Foundation v. San Diego Assn. of Governments, S223603, (opinion below D063288, formerly 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a). Review was granted 3/11/15.
What Is the Scope of ICCTA Preemption? After the Court of Appeal affirmed the judgments in actions for writ of administrative mandate, the Supreme Court granted review on the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property? Friends of the Eel River v. North Coast Railroad Authority, S222472 (opinion below A139222, formerly 230 Cal.App.4th 85). Review was granted 12/10/14.
What Conditions Can the Cal. Coastal Comm. Impose on Permits and Does Proceeding with Construction Waive a Challenge? After the Court of Appeal reversed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issues: (1) Did plaintiffs, who objected in writing and orally to certain conditions contained within a coastal development permit approved by defendant California Coastal Commission and who filed a petition for writ of mandate (C.C.P. § 1094.5) challenging those conditions, waive their right to challenge the conditions by subsequently executing and recording deed restrictions recognizing the existence of the conditions and constructing the project as approved? (2) Did the permit condition allowing plaintiffs to construct a seawall on their property, but requiring them to apply for a new permit in 20 years or to remove the seawall, violate Public Resources Code § 30235 or the federal Constitution? (3) Were plaintiffs required to obtain a permit to reconstruct the bottom portion of a bluff-to-beach staircase that had been destroyed by a series of winter storms, or was that portion of the project exempt from permitting requirements pursuant to Public Resources Code § 30610(g)(1)? Lynch v. California Coastal Com., S221980 (opinion below D064120, formerly 229 Cal.App.4th 658). Review was granted 12/10/14.
What Is the Scope of Review Under CEQA? After the Court of Appeal reversed judgment for the City rejecting a petition for administrative mandate , the Supreme Court granted review concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.) Sierra Club v. County of Fresno, S219783 (opinion below F066798, formerlly 226 Cal.App.4th 704). Review was granted 10/1/14.
When Do Testing Activities Constitute a Taking Which Allows the Application of Precondemnation Entry Statutes? After the Court of Appeal affirmed in part and reversed in part an order granting a petition for precondemnation entry, the Supreme Court limited review to the following issues: (1) Do the geological testing activities proposed by the Dept. of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the 2/22/11, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (CCP §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking? Property Reserve v. Superior Court, S217738 (opinion below C067758, formerly 224 Cal.App.4th 828). Review was granted on 6/25/14. Update 1/13/16: The Court granted review after the Fourth District, division one, Court of Appeal affirmed an order granting a petition for precondemnation entry in Young’s Market Company v. Superior Court, S230808, (opinion below D068213, formerly 242 Cal.App.4th 356). Briefing was deferred pending resolution of Property Reserve. Update 4/1/16: Oral argument scheduled for 5/3/16. The briefs are here. Update 5/3/16: Case argued and submitted. Update 7/21/16: Opinion filed. The Supreme Court declined to resolve the first two issues listed above, assuming for the sake of argument that both sets of activities constituted a taking. In an 8-1 decision, the Court found that the precondemnation entry process established by C.C.P. §§ 1245.010-1245.060, which required a court order and a deposit to cover anticipated damages before the requested activity could begin, constituted a constitutionally valid eminent domain proceeding once it was reformed by the Court to allow for a jury determination of damages. As a result, it was unnecessary to initiate “classic eminent domain proceedings” for such testing. In a concurring opinion, Justice Liu agreed in the result, but found that this process did not invoke the eminent domain requirements at all, but instead that it addressed a reasonable basis to prepare for such proceedings.
Are NPDES Requirements Subject to Reimbursement? After the Court of Appeal affirmed the judgment below, the Supreme Court granted review on the following issue: Are the requirements in the National Pollutant Discharge Elimination System (NPDES) permits issued to real parties in interest by the regional water quality control board state mandates subject to reimbursement under article XIII B, section 6, subdivision (b), of the state Constitution? Dept. of Finance v. Comm. on State Mandates, S214855 (opinion below B237153, formerly 220 Cal.App.4th 740, as modified 221 Cal.App.4th 166d). Review granted 1/29/14. Update 5/12/16: Oral argument scheduled for 6/2/16. The briefs are here. Update 6/2/16: Case argued and submitted. Update 8/29/16: Opinion filed. In a 4-3 decision, the Supreme Court reversed and found that there was no federal law or regulation which imposed these conditions or which required the state to impose them. Instead, the Court found that the permit conditions were imposed as a result of the state’s discretionary action. The Court then remanded for consideration of issues not previously reached or raised on appeal. Update 9/13/16: Petition for rehearing filed. Update 9/14/16: Time to consider petition is extended to 11/27/16.
What Is the Standard of Review for a Subsequent EIR? After the Court of Appeal affirmed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)? Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061, (opinion below A135892, nonpublished opinion). Review granted 1/15/14. Update 4/1/16: Oral argument scheduled for 5/4/16. The briefs are here. Update 5/4/16: Case argued and submitted. Update 5/11/16: Submission of the matter is vacated and the Court directed the parties to submit supplemental briefs in the following questions: (1) Under California Environmental Quality Act (CEQA) Guidelines § 15162, what standard of judicial review applies to an agency’s determination that no EIR is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479–1482.) (2) Does CEQA Guidelines § 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073–1074 with Benton at pp. 1479–1480.). Update 6/23/16: Cause is resubmitted. Update 9/19/16: Opinion issued. The unanimous Supreme Court reversed the Court of Appeal, and held that the agency’s decision was subject to review for substantial evidence. The Court explained that when an agency proposes changes to a previously approved project, its environmental review obligations depend on the effect of the proposed changes on the decision making process and not on any abstract notion of whether this is a ”new” project. An agency that proposes project changes must determine whether it can rely on the previous environmental document in light of the proposed changes and, whether major revisions to the previous environmental document are required due to the existence of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence. The Court held there is no place in this scheme for the courts to impose their own determination of whether the final proposal is a new project or a modified version of an old one.
What Are the Procedures for a Petition to Delist a Species Under the California Endangered Species Act? The Supreme Court limited review to the following issues: (1) Under the California Endangered Species Act, Fish and Game Code § 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error? (2) If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration? Central Coast Forest Assn. v. Fish & Game Com., S208181 (opinion below C060569, formerly 211 Cal.App.4th 1433). The Court granted review on 2/27/13.