California Supreme Court CEQA Update: Summer 2020

With 2020 more than half gone, here’s a quick look at what’s been going on with the California Supreme Court in CEQA matters:

• POWER Case Argued and Submitted. We can expect more guidance regarding the fine points of CEQA’s key “ministerial/discretionary” distinction from the high court soon. On June 2, 2020, it heard virtual oral arguments in Protecting Our Water & Environmental Resources v. Stanislaus County, Case No. S251709, a case in which review was granted of an unpublished Fifth District decision. The issue presented is whether the issuance of a well permit pursuant to state groundwater well-drilling standards is a discretionary decision subject to CEQA review or a ministerial decision not subject to review. Matt Henderson and I submitted an amicus brief on behalf of the League of California Cities in support of defendants and respondents Stanislaus County, et al. The Court’s opinion should be issued not later than August 31, 2020.
• County of Butte Federal Power Act Preemption Case Nears Completion of Briefing. The high court’s other currently pending CEQA case is County of Butte v. Department of Water Resources, Case No. S258574 (C071785; 39 Cal.App.5th 708), in which the Court granted review on December 11, 2019, after the Third District Court of Appeal dismissed a CEQA administrative mandamus action on federal preemption grounds. (See my 4/20/20 post.) The issues presented are: (1) to what extent is CEQA preempted by the Federal Power Act when the State acts on its own behalf (“FPA”; 16 U.S.C. § 791a et seq) and exercises discretion in seeking licensing for a hydroelectric dam project:?; and (2) to what extent does the FPA preempt state court actions challenging an EIR prepared under CEQA for a related Clean Water Act (“CWA”) § 401 water quality certification? The extended due date for the Petitioners’ reply brief on the merits is July 29, 2020, and following completion of briefing the case will in due course be set for oral argument.
• Review Denied And Depublication Ordered In First District Case Upholding Mitigated Negative Declaration. The Supreme Court killed a unicorn – a published decision actually upholding a Mitigated Negative Declaration (“MND”) – when on January 2, 2020, it denied review and ordered depublished the First District’s opinion in Maacama Watershed Alliance v. County of Sonoma (2019) (formerly published at 40 Cal.App.5th 1007), my October 28, 2019 post on which can be found here. The Court of Appeal’s decision, in upholding a second revised Final 2017 MND for a rural winery use permit had, inter alia, rejected “speculation and unsubstantiated expert opinion” as not constituting “substantial evidence for [a] fair argument.” Too bad this opinion was depublished, as that action merely seems to confirm the unhappy consensus of most development-side CEQA practitioners, i.e., that an MND is so vulnerable that it can virtually never withstand any determined legal challenge.