[UPDATED THROUGH DECEMBER 10, 2014]
What Is the Scope of ICCTA Preemption? After the Court of Appeal affirmed the judgments in actions for writ of administrative mandate, the 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 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 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.
To What Degree Does The California Environmental Quality Act Restrict Judicial Review and Supersede Other Statutes? The Court granted review on the following issues: (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report? (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline? Center for Biological Diversity v. Dept. of Fish & Wildlife, S217763 (opinion below B245131, formerly 224 Cal.App.4th 1105). Review was granted on 7/9/14.
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 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.
Are NPDES requirements subject to reimbursement? After the Court of Appeal affirmed the judgment below, the 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.
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 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.
When does CEQA Require Consideration of Existing Conditions on Future Residents? After the Court of Appeal reversed the judgment in an action for writ of administrative mandate, the court granted review on the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project? California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478 (opinion below A135335, A136212, formerly 218 Cal.App.4th 1171). Review granted 11/26/13.
What Are the Procedures for a Petition to Delist a Species Under the California Endangered Species Act? The 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.
Was a Proposed Project Properly Exempted from the California Environmental Quality Act? Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, §§ 15303(a) and 15332, and that the “Significant Effects Exception” set forth in § 15300.2(c), of the regulations did not operate to remove the project from the scope of those categorical exemptions? Berkeley Hillside Preservation v. City of Berkeley, S201116 (opinion below A131254, formerly 203 Cal.App.4th 656, as modified). Review was granted 5/23/12. Update 7/9/14: Review granted in Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn., S218240 (opinion below C070836, formerly 224 Cal.App.4th 1542) with briefing deferred pending a decision in Berkeley. Update 10/31/14: Oral argument scheduled for 12/2/14. Update 12/2/14: Case argued and submitted. The briefs are here.
Does a Failed Request for Funds Satisfy a State Agency’s Duty To Mitigate Off-Site Impacts? 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 the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) 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? City of San Diego v. Trustees of the California State University, S199557 (opinion below D057446, formerly 201 Cal.App.4th 1134). Review granted 4/18/12. Update 10/17/12: Review is granted in City of Hayward v. Trustees of California State University, S203939 (opinion below A131412 (lead case), as modified, formerly 207 Cal.App.4th 446), with briefing deferred pending the resolution of City of San Diego.