California Supreme Court Civil Issues Pending: Environmental

[UPDATED THROUGH JUNE 25, 2014]

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.

Does a City Have to Comply with CEQA When Implementing a Voter-Sponsored Initiative Adopted Without Election? After the Court of Appeal granted a petition for peremptory writ of mandate, creating a split in authority, the Court granted review on the following issues: (1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative pursuant to Elections Code § 9214(a)? (2) Is the adoption of an ordinance enacting a voter-sponsored initiative under Elections Code § 9214(a), a “ministerial project” exempt from CEQA pursuant to Public Resources Code § 21080(b)(1)? Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173 (opinion below F063849, formerly 210 Cal.App.4th 1006). Review was granted 2/13/13. Update 5/1/14: Oral argument scheduled for 5/28/14. Update 5/28/14: Case argued and submitted. Briefs are here.

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.

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.

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