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CALIFORNIA ENVIROMENTAL QUALITY ACT (CEQA) 

Shute, Mihaly & Weinberger LLP brings and defends CEQA litigation and provides consultation regarding CEQA issues on behalf of community groups, environmental organizations, and local and state government agencies. Members of the firm have participated in drafting CEQA legislation, reviewed and commented on proposed amendments to CEQA, and assisted the California Resources Agency in drafting the initial CEQA Guidelines following the adoption of CEQA. Firm members also have organized citizen workshops and taught CEQA courses at law schools, planning seminars and attorney continuing education conferences.

• The firm successfully represented the Citizens League for Airport Safety and Serenity (CLASS) in a challenge to the adequacy of an environmental impact report (EIR) prepared for the Airport Development Program for Oakland International Airport. The Port of Oakland had certified the EIR in 1997, paving the way for construction of a long-range expansion proposal designed to provide dramatic increases in capacity for both air cargo and passenger operations. The trial court held that the EIR violated CEQA by failing to analyze a reasonable range of alternatives and by failing to properly evaluate the project’s cumulative impacts. The Court of Appeal held that the EIR did not comply with CEQA on four other critical issues because the EIR: (1) failed to analyze adequately the noise impacts from planned additional nighttime flights; (2) erred in using outdated information in assessing the emission of toxic air contaminants from jet aircraft; (3) failed to support its decision not to evaluate the health risks associated with the emission of those contaminants; and (4) improperly deferred devising a mitigation plan for the western burrowing owl. (Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners, 91 Cal.App.4th 1344 (2001).)

• On behalf of the Alameda County Waste Management Authority, the firm is preparing an environmental impact report for the development of up to two green and food waste composting facilities within Alameda County. The programmatic and project-level EIR will address issues relating to endangered and other sensitive biological resources, wetlands, air quality, odors, and noise. In addition to preparing the EIR and managing technical consultants, the firm is advising the Authority in a complex regulartory setting including the California Integrated Waste Management Board, the United States Fish & Wildlife Service, the Army Corps of Engineers, and the San Francisco Public Utilities Commission.

• Shute, Mihaly & Weinberger LLP represented the Environmental Protection Information Center, and Desert Citizens Against Pollution, in challenging several provisions of the CEQA Guidelines adopted in 1998. The trial court struck down eight of the challenged Guidelines, which would have seriously limited review of potentially significant environmental impacts. The decision was appealed by the Building Industry Association. The Court of Appeal upheld the trial court’s decision with respect to all but one of the challenged Guidelines. The published decision appears at Communities for a Better Environment v. California Resources Agency, 103 Cal.App.4th 98 (2002).

• On behalf of the City of Carmel-by-the-Sea, the Sierra Club, the Hatton Canyon Coalition, and the Monterey Peninsula Regional Park District, the firm challenged the approval by the Federal Highway Administration, Caltrans and the California Transportation Commission of the proposed Hatton Canyon Freeway east of Carmel. The Ninth Circuit Court of Appeals reversed the district court’s determination that the agencies’ cumulative impacts analysis was adequate under NEPA and CEQA. (City of Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142 (1997).) On remand, the trial court set aside the agencies’ approval of the Hatton Canyon Freeway and enjoined them from undertaking any construction pending full compliance with NEPA and CEQA. The firm prepared comments on the agencies’ supplemental environmental review and the client groups successfully lobbied state and federal resource agencies to reconsider their prior project approvals. Subsequently, the local transportation agency voted to withdraw funding from the project and the Hatton Canyon Freeway was effectively halted. When the local transportation agency was then sued by freeway proponents to restore the funding, the firm was hired by the agency to successfully defend that action.

• On behalf of the City of Patterson, the firm managed the preparation of an environmental impact report on the West Patterson Business Park Master Development Plan, a large scale mixed-use development within the City of Patterson and Stanislaus County. The EIR addressed a complex array of issues including adequacy of water supply, endangered species impacts, loss of agricultural lands and cancellation of Williamson Act contracts. The firm advised the City in its negotiations with regulatory agencies, the Local Agency Formation Commission, Stanislaus County, water supply providers, and the project applicant. The firm also provided advice and assistance on compliance with water supply statues SB 610 and SB 221 and on implementing the City’s Mello-Roos District.

• The firm has represented the San Francisco Community College District, also known as City College, in several matters including a successful defense to a CEQA action challenging an environmental impact report (EIR) that City College prepared in order to develop a new campus in the Mission District of San Francisco. The firm also successfully defended a challenge to City College's EIR for its Chinatown/North Beach campus and negotiated a settlement that preserved historic elements of the Colombo building.

• On behalf of the cities of Livermore and Pleasanton, the firm filed suit against Alameda County and Waste Management Inc. of Alameda County to challenge numerous inadequacies of the EIR for the Altamont Landfill expansion. The project was originally planned as a 196 million ton expansion of landfill capacity. The cities and other petitioners prevailed on the grounds that the EIR should have examined an alternative size to meet local needs; that the EIR did not adequately analyze impacts on recycling and other diversion programs; and that the EIR used obsolete information about diversion rates to justify the need for the landfill. Thereafter, the lawsuit was settled based upon the issuance of a revised use permit for the landfill that substantially reduced both the size of the expansion and the importation of waste from outside the county.

• On behalf of Save Our Forest and Ranchlands (SOFAR), the firm successfully challenged San Diego County’s rezoning of 200,000 acres of wilderness in the County’s backcountry. The court rejected the County’s theory that it could examine impacts on biological resources simply through a literature search and held that there was no substantial evidence to support the County’s conclusion that there is no feasible mitigation measure that would address the problems posed by agricultural grading. Quoting Joni Mitchell, the court said of CEQA’s core purpose: “It has been said--and sung--that ’you don’t know what you’ve got ’til it’s gone.’ Yet where CEQA applies, the opposite is true: Citizens and decision makers must, in fact, be informed of what they have before, and not after, it is gone.”

• The firm has advised the University of California, Davis campus, on numerous CEQA compliance issues related to development, and has assisted in preparing seven EIRs for the campus. The firm also has defended a number of CEQA lawsuits on behalf of the Davis campus. The firm assisted the University of California in its preparation of a revised EIR for its San Francisco campus following the California Supreme Court’s decision in Laurel Heights v. Regents of the University of California 47 Cal.3d 376 (1988), and assisted in the litigation successfully defending the revised EIR (Laurel Heights Improvement Association of San Francisco, Inc. v. The Regents of the University of California, 6 Cal.4th 1112 (1993)).

• The firm advised the San Francisco Redevelopment Agency (SFRA) in connection with SFRA’s preparation of a joint environmental impact report/environmental impact statement (EIR/EIS) with the federal General Services Administration (GSA) for construction of a federal office building in downtown San Francisco. The firm negotiated a memorandum of understanding with GSA regarding the procedure for preparation of the EIR/EIS and resolution of interagency disputes, and provided advice regarding the interrelationship between CEQA and its federal equivalent, the National Environmental Policy Act (NEPA). The firm also assisted in the EIR/EIS scoping and the determination of approaches for evaluation of potential impacts, reviewed consultant drafts for legal adequacy, and drafted mitigation policies.

• On behalf of the East Bay Municipal Utility District, the firm successfully challenged Contra Costa County’s approval of an 11,000-home development in the Dougherty Valley, persuading the trial court that the EIR failed to consider adequately the availability of water and impacts to the local water supply in violation of CEQA. As a result, the court set aside the project approval. The firm also successfully represented the cities of Danville, San Ramon, Pleasanton, and Walnut Creek, and several environmental groups in separate litigation challenging other aspects of the County’s CEQA compliance in connection with the same project.

• The firm represented Kings County Citizens for a Healthy Environment in a successful CEQA lawsuit to halt construction and operation of a coal-fired power plant within the City of Hanford. In a landmark opinion, the Court of Appeal found the environmental impact report (EIR) for the power plant and the local entity’s general plan legally inadequate. (Kings County Citizens for a Healthy Environment v. City of Hanford, 221 Cal.App.3d 692 (1990).) As a result of the lawsuit, the plant was temporarily shut down and the parties negotiated an agreement requiring the facility to burn a mixture of natural gas and a low polluting form of petroleum coke instead of coal.