BERKELEY HILLSIDE PRESERVATION et al. Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents; DONN LOGAN et al., Real Parties in Interest and Respondents.
No. S201116
Supreme Court of California
Mar. 2, 2015
60 Cal. 4th 1086
Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiffs and Appellants.
Chatten-Brown & Carstens, Jan Chatten-Brown, Douglas P. Carstens; Law Offices of Michael W. Stamp, Michael W. Stamp and Molly Erickson for Planning and Conservation League, Endangered Habitats League, Inc., California Preservation Foundation, Save Our Heritage Organisation, Save Our Carmel River and The Open Monterey Project as Amici Curiae on behalf of Plaintiffs and Appellants.
Veneruso & Moncharsh and Leila H. Moncharsh for Berkley Architectural Heritage Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Zach Cowan, City Attorney, and Laura McKinney, Deputy City Attorney, for Defendants and Respondents.
Perkins Coie, Stephen L. Kostka and Barbara J. Schussman for Building Industry Association of the Bay Area as Amicus Curiae on behalf of Defendants and Respondents.
Downey Brand, Christian L. Marsh, Andrea P. Clark and Graham St. Michel for Association of California Water Agencies as Amicus Curiae on behalf of Defendants and Respondents.
Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni and Julia L. Bond for Real Parties in Interest and Respondents.
Cox, Castle & Nicholson, Michael H. Zischke and Andrew B. Sabey for California Building Industry Association, California Business Properties Association and Building Industry Legal Defense Foundation as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
Lozano Smith, Harold M. Freiman, Kelly M. Rem; Charles F. Robinson and Kelly L. Drumm for California School Boards Association‘s Education Legal Alliance, The Regents of the University of California and The Board of Trustee of the California State University as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
M. Reed Hopper for Pacific Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
Holland & Knight, Amanda Monchamp and Melanie Sengupta for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
OPINION
CHIN, J.—The California Environmental Quality Act (CEQA) (
The Court of Appeal invalidated the permit approval, relying on Guidelines section 15300.2, subdivision (c), which provides: “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” In the Court of Appeal‘s view, that a proposed activity may have a significant effect on the environment is itself an unusual circumstance that renders the categorical exemptions inapplicable. Finding substantial evidence of a fair argument that the proposed project may have a significant
We granted review to consider the proper interpretation and application of Guidelines section 15300.2, subdivision (c). We reverse the Court of Appeal‘s decision.
I. FACTUAL BACKGROUND
Real parties in interest and respondents Mitchell Kapor and Freada Kapor-Klein (applicants) want to build a large house on their lot on Rose Street in Berkeley. The lot is on a steep slope (approximately 50 percent grade) in a heavily wooded area. In May 2009, their architect applied to the City for a use permit to demolish the existing house on the lot and to build a 6,478-square-foot house with an attached 3,394-square-foot 10-car garage. The residence would be built on two floors, would include an open-air lower level, and would cover about 16 percent of the lot.
In January 2010, the City‘s zoning adjustments board (Board), after holding a public hearing and receiving comments about the project, approved the use permit. It found the project exempt from CEQA review under Guidelines sections 15303, subdivision (a), and 15332. The former, which the Secretary has designated Class 3, includes “construction and location of limited numbers of new, small facilities or structures,” including “[o]ne single-family residence, or a second dwelling unit in a residential zone,” and “up to three single-family residences” “[i]n urbanized areas.” (Guidelines, § 15303, subd. (a).) The latter, which the Secretary has designated Class 32, applies to a project “characterized as in-fill development” meeting the following conditions: (1) it “is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations“; (2) it “occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses“; (3) its “site has no value as habitat for endangered, rare or threatened species” and “can be adequately served by all required utilities and public services“; and (4) its approval “would not result in any significant effects relating to traffic, noise, air quality, or water quality.” (Guidelines, § 15332.) The Board also found that Guidelines section 15300.2, subdivision (c), does not preclude use of these categorical exemptions because the project as proposed and approved will not have any significant effects on the environment due to unusual circumstances.
Several residents of the City, including appellant Susan Nunes Fadley, filed an apрeal with the city council, arguing in part that CEQA‘s categorical
The city council received numerous letters and e-mails regarding the appeal, some in support and some in opposition. Among the appeal‘s supporters was Lawrence Karp, an architect and geotechnical engineer. In a letter dated April 16, 2010, Karp stated (1) he had reviewed the architectural plans and topographical survey filed with the Board, and had visited the proposed construction site; (2) “[p]ortions of the major fill for the project are shown to be placed on an existing slope inclined at about 42° (~1.1h:1v) to create a new slope more than 50° (~0.8h:1v)“; (3) “[t]hese slopes cannot be constructed by earthwork and all fill must be benched and keyed into the slope which is not shown in the sections or accounted for in the earthwork quantities. To accomplish elevations shown on the architectural plans, shoring and major retaining walls not shown will have to be constructed resulting in much larger earthwork quantities than now expected“; (4) the “massive grading” necessary would involve “extensive trucking operations“; (5) the work that would be necessary “has never before been accоmplished in the greater area of the project outside of reservoirs or construction on the University of California campus and Tilden Park“; (6) the project site is “located alongside the major trace of the Hayward fault and it is mapped within a state designated earthquake-induced landslide hazard zone“; and (7) “the project as proposed is likely to have very significant environmental impacts not only during construction but in service due to the probability of seismic lurching of the oversteepened side-hill fills.”
In a second letter addressing the investigation of geotechnical engineer Alan Kropp, Karp stated (1) no “fill slopes” were shown in Kropp‘s plan and “the recommendations for retaining walls do not include lateral earth pressures for slopes with inclinations of more than 2h:1v (~27°) or for wall
In response, Kropp stated that the project site is in an area where an investigation is required to evaluate the potential for landslides, and that he had conducted the necessary investigation and found there is, in fact, no landslide hazard. Kropp also stated that, in raising concerns about “side-hill fill,” Karp had “misread[]” the project plans. According to Kropp, “the only fill placed by the downhill portion of the home will be backfill for backyard retaining walls and there will be no side-hill fill placed for the project. The current ground surface, along with the vegetation, will be maintained on the downhill portion of the lot.” Because there will not, as Karp claimed, be any “steep, side-hill fill constructed,” Karp‘s concerns do not apply to the proposed construction. A civil engineer, Jim Toby, also submitted a letter stating that he saw “no evidence” in thе project plans that fill will be placed “‘directly on steep slopes’ ” and that Karp‘s contrary assertion is based on a “misreading” of the plans.
In support of the permit approval, the City‘s director of planning and development submitted a supplemental report stating: “A geotechnical report was prepared and signed by a licensed Geotechnical Engineer and a Certified Engineering Geologist. This report concluded that the site was suitable for the proposed dwelling from a geotechnical standpoint and that no landslide risk was present at the site. Should this project proceed, the design of the dwelling will require site-specific engineering to obtain a building permit.”
The city council addressed the appeal at a meeting on April 27, 2010. Karp was one of the speakers at the meeting. He began by stating his credentials, explaining that he (1) is “a geotechnical engineer specializing in foundation engineering and construction“; (2) has “an earned doctorate degree in civil engineering and other degrees from U.C. Berkeley including two masters and a post-doctoral certificate in earthquake engineering“; (3) is “fully licensed” and had “taught foundational engineering at Berkeley for 14 years and at Stanford for three“; (4) has “experience” that “includes over 50 years of
Fadley then filed a petition for writ of mandate in the trial court, joined by appellant Berkeley Hillside Preservation, which is a self-described unincorporated association of “City residents and concerned citizens who enjoy and appreciate the Berkeley hills and their environs and desire to protect the City‘s historic, cultural, architectural, and natural resources.” Following a hearing, the trial court denied the petition. It first concluded that the administrative record contains substantial evidence to support the City‘s application of the Class 32 in-fill and Class 3 small structures categorical exemptions. It next found that Guidelines section 15300.2, subdivision (c), did not preclude application of these categorical exemptions because, notwithstanding evidence of potentially significant environmental effects, the proposed project does not present any unusual circumstances.
The Court of Appeal reversed. After noting appellants’ concession, for purposes of appeal, that the project satisfies the requirements of the Class 3 and Class 32 exemptions, the Court of Appeal agreed with appellants that the unusual circumstances exception precludes the City from relying on those exemptions.2 In the court‘s view, “the fact that proposed activity may have an effect on the environment is itself an unusual circumstance” that triggers the exception, “because such action would not fall ‘within a class of activities that does not normally threaten the environment,’ and thus should be subject to further environmental review.” The court next reasoned that the standard of judicial review for an agency‘s determination that the exception does not apply is whether the record contains evidence of a fair argument of a
We then granted respondents’ petition for review.
II. DISCUSSION
As they did in the Court of Appeal, appellants concede for purposes of this appeal that the proposed project comes within the terms of the Class 3 (small structures) and Class 32 (in-fill development) exemptions under the Guidelines. What they do not concede is that the City may rely on those exemptions. In their view, as the Court of Appeal held, the unusual circumstances exception precludes such reliance. Respondents, in challenging the Court of Appeal‘s decision, raise two primary arguments: (1) a proposed project‘s potential significant effect on the environment is not, as the Court of Appeal held, itself an unusual circumstance that triggers the exception, and an unusual circumstance apart from the project‘s potential environmental effect is a prerequisite to the exception‘s application; and (2) in reviewing the City‘s conclusion that the exception is inapplicable, the Court of Appeal should have determined whether there was substantial evidence in the record to support that conclusion, not whether the record contains evidence of a fair argument of a significant effect on the environment. To these arguments, we now turn.
A. A Potentially Significant Environmental Effect Is Not Alone Sufficient to Trigger the Unusual Circumstances Exception.
Generally, the rules that govern interpretation of statutes also govern interpretation of administrative regulations. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898; Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292.) Thus, we begin here with the language of the unusual circumstances exception, giving effect to its usual meaning and avoiding interpretations that render any language surplusage. (Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1021.) As noted earlier, Guidelines section 15300.2, subdivision (c), provides: “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The plain language of this provision supports the view that, for the exception to apply,
Contrary to our rules for interpreting regulations, appellants’ proposed construction, which mirrors that of the Court of Appeal and which the concurring opinion would adopt, would give no meaning to the phrase “due to unusual circumstances.” According to appellants, this phrase is merely “descriptive” in that “[u]nusual circumstances” are simply “self-evident underpinnings” when a project that otherwise satisfies the requirements of a categorical exemption nevertheless “has potentially significant impacts.” Likewise, the concurring opinion asserts that “the phrase ‘unusual circumstances’ . . . simply describes the nature of a project that, while belonging to a class of projects that typically have no significant environmental effects, nonetheless may have such effects.” (Conc. opn., post, at p. 1123.) In other words, in the view of appellants and the concurring opinion, the phrase “due to unusual circumstances” adds nothing to the meaning of the regulation, and the exception applies if there is a fair argument that a project “may” (according to appellants) or “will” (according to the conc. opn., ibid.), have a significant environmental effect. However, had that been the Secretary‘s intent, the phrase “due to unusual circumstances” would, no doubt, have been omitted from the regulation; rather than confuse the issue with meaningless language, the regulation would clearly and simply provide that the exception applies “if there is a reasonable possibility that the activity will have a significant effect on the environment.” Reading the phrase “due to unusual circumstances” out of the regulation, as appellants and the concurring opinion propose, would be contrary to the principle of construction that directs us to “accord meaning to every word and phrase in a regulation.” (Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1145.)
In addition, we agree with respondents that, under the construction of appellants and the concurring opinion, the categorical exemptions the Legislature, through the Secretary, has established would have little, if any, effect. CEQA specifies that environmental review through preparation of an EIR is required only “[i]f there is substantial evidence . . . that the project may have a significant effect on the environment.” (
Under these provisions, where there is no substantial evidence a proposed project may have a significant environmental effect, further CEQA review is unnecessary; no categorical exemption is necessary to establish that proposition. According to appellants, under the unusual circumstances exception, the categorical exemptions are inapplicаble unless an agency “check[s] its files” and finds no “evidence of potentially significant impacts.” But this is similar to the inquiry an agency makes under Guidelines section 15061, subdivision (b)(3), to determine whether the proposed project is subject to CEQA review in the first instance. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 387 (Muzzy Ranch) [under Guidelines, § 15061, subd. (b)(3), agency must determine whether the evidence in the administrative record shows no possibility the proposed activity may have a significant effect on the environment].) Thus, under appellants’ view, the categorical exemptions would serve little purpose; they would generally apply only when the proposed project is already outside of CEQA review.
Appellants assert that applying a categorical exemption despite a proposed project‘s potential significant environmental effect would contravene CEQA statutes and the Legislature‘s intent in passing CEQA. They rely on three CEQA provisions: (1)
Appellants’ argument ignores a basic principle of statutory interpretation: courts “do not construe statutes in isolation, but rather read every statute
Here, several CEQA provisions, as well as their evolution, are relevant to the issue. When the Legislature enacted CEQA in 1970, it directed the Governor‘s Office of Planning and Research (OPR), “in conjunction with appropriate state, regional, and local agencies,” to “coordinate the development of objectives, criteria, and procedures to assure the orderly preparation and evaluation of” EIRs. (Former § 21103, added by Stats. 1970, ch. 1433, § 1, pp. 2780, 2782.) Two years later, in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 (Mammoth), we held that CEQA applies, not just to public projects, but also to private activities requiring a government permit or similar entitlement. Before Mammoth, it had been “generally believed” that CEQA “appl[ied] only to projects undertaken or funded by public agencies.” (Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 513.) Cognizant of our decision‘s potential ramifications, after recognizing that “the reach of the statutory phrase, ‘significant effect on the environment,’ is not immediately clear,” we noted: “To some extent this is inevitable in a statute which deals, as the [CEQA] must, with questions of degree. Further legislative or administrative guidance may be forthcoming on this point among others.” (Mammoth, supra, at p. 271, italics added.) We then added: “[C]ommon sense tells us that the majority of private projects for which a government permit or similar entitlement is necessary are minor in scope—e.g., relating only to the construction, improvement, or operation of an individual dwelling or small business—and hence, in the absence of unusual circumstances, have little or no effect on the public environment. Such projects, accordingly, may be approved exactly as before the enactment of the [CEQA].” (Id. at p. 272.)
The Legislature immediately responded to Mammoth by amending CEQA through urgency legislation. (See County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 803.) As relevant here, it added
Collectively, these provisions indicate that the Legislature intended to establish by statute “classes of projects” that “have been determined not to have a significant effect on the environment,” to require the OPR and the Secretary to apply their expertise and identify those “classes” by “mak[ing] a finding” that the projects they comprise “do not have a significant effect on the environment,” and to “exempt” from CEQA proposed projects within the classes the OPR and the Secretary have identified. (
By contrast, as earlier explained, appellants’ construction of the unusual circumstances exception would render useless and unnecessary the statutes the Legislature passed to identify and make exempt classes of projects that have no significant environmental effect. Try as they might, appellants can identify no purpose or effect of the categorical exemption statutes if, as they assert, a showing of a fair argument of a potential environmental effect precludes application of all categorical exemptions. Construing the unusual circumstances exception to apply anytime there is a reasonable possibility of a significant environmental effect would, therefore, contravene our duty to adopt a construction that gives effect to all parts of the statutory and regulatory framework, rather than one that renders part of the framework “wholly useless and unnecessary.” (French Bank Case (1879) 53 Cal. 495, 530.)
The concurring opinion‘s attempt to succeed where appellants have failed—i.e., to show that the categorical exemptions still have some “value” under their construction (Conc. opn., post, at p. 1128.)—is also unpersuasive. The concurring opinion first asserts that proposed projects enjoy “a considerable procedural advantage” when an agency finds that they fall within the terms of an exempt category. (Ibid.) As to such projects, the concurring opinion notes, an agency “need not follow any particular procedure,” “include any written determination,” “undertake an initial study, or adopt a negative declaration.” (Ibid.) However, the same is true of proposed projects that fall within the terms of Guidelines section 15061, subdivision (b)(3), i.e., projects that are “not subject to CEQA” because “it can be seen with certainty that there is no possibility that [they] may have a significant effect on the environment . . . .” (See Muzzy Ranch, supra, 41 Cal.4th at p. 380 [initial study not required where Guidelines,
The concurring opinion also notes that, when an agency finds that a project meets the terms of a categorical exemption, it “impliedly finds that it has no significant environmental effect,” and “the burden shifts to” project opponents “to produce evidence” that the unusual circumstances exception applies. (Conc. opn., post, at p. 1128.) This is significant, the concurring opinion maintains, because “[i]n many cases, categorical exemptions are not litigated, and the applicability of the exemption is evident.” (Ibid.)
However, even if a proposed project faces no opposition, an agency invoking a categorical exemption may not simply ignore the unusual circumstances exception; it must “consider the issue of significant effects . . . in determining whether the project is exempt from CEQA where there is some information or evidence in the record that the project might have a significant environmental effect.” (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 732 (Ukiah).) This follows from Guidelines section 15061, subdivisions (a) and (b)(2), which, respectively, (1) direct a lead agency to determine whether a proposed project is “exempt from CEQA,” and (2) specify that a project is exempt if a categorical exemption applies “and the application of that categorical exemption is not barred by one of the exceptions set forth in Section 15300.2.” Thus, an agency may not apply a categorical exemption without considering evidence in its files of potentially significant effects, regardless of whether that evidence comes from its own investigation, the proponent‘s submissions, a project opponent, or some other source. Moreover, under the concurring opinion‘s interpretation, if those files contain “substantial evidence” of a “mere fair argument” that the project will have significant environmental effects, the agency may not apply a categorical exemption. (Conc. opn., post, at pp. 1129-1130.) Thus, under the concurring opinion‘s interpretation of the unusual circumstances exception, the “considerable procedural advantage” the concurring opinion posits is largely illusory. (Id. at p. 1128.)
Also illusory is the “second advantage” that, in the view of the concurring opinion, gives some value to categorical exemptions under its interpretation: the “comparative arguments” available to project proponents when an opponent invokes the unusual circumstances exception. (Conc. opn., post, at p. 1129.) According to the concurring opinion, proponents may “argue,” if “supported by evidence,” that (1) the project‘s effects are “typical” of those generated by projects in the exempt category, “such that few or no projects in the category would be exempt if the effects were deemed significant,” and (2)
Moreover, contrary to the assertion of the concurring opinion, even were the categorical exemptions to retain some limited value under its construction, there would still be “reason[s]” (conc. opn., post, at p. 1131) to reject that construction. First, as earlier explained (ante, at p. 1097), because that construction would transform the phrase “due to unusual circumstances” into meaningless surplusage, it is one we “should avoid.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1135.) Second, nothing suggests that either the Legislature or the Secretary intended the categorical exemptions to have such minuscule value. Had that been their intent, surely they would have expressed it in a more clear, concise, direct, and obvious way.
Accordingly, the Court of Appeal erred by holding that a potentially significant environmental effect itself constitutes an unusual circumstance. In listing a class of projects as exempt, the Secretary has determined that the environmental changes typically associated with projects in that class are not significant effects within the meaning of CEQA, even though an argument
As to projects that meet the requirements of a categorical exemption, a party challenging the exemption has the burden of producing evidence supporting an exception. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115; see 1 Kostka & Zischke, Practice Under the
This reading of the guideline is not inconsistent with the phrase “reasonable possibility that the activity will have a significant effect on the environment.” (Guidelines, § 15300.2, subd. (c).) A party invoking the exception may establish an unusual circumstance without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. Alternatively, under our reading of the guideline, a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect. That evidence, if convincing, necessarily also establishes “a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).)
As this discussion demonstrates, our approach is consistent with the concurring opinion‘s statement of its central proposition: When it is shown “that a project otherwise covered by a categorical exemption will have a
Appellants assert that Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 [132 Cal.Rptr. 377, 553 P.2d 537] (Chickering) precludes us from construing the unusual circumstances exception to require a showing of something more than a potentially significant environmental effect. There, we held in relevant part that the setting of hunting and fishing seasons by the Fish and Game Commission (Commission) was not exempt from CEQA under Guidelines former section 15107. (Chickering, supra, at p. 205.) That former guideline established a categorical exemption for “‘actions taken by regulatory agencies... to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment‘” (id. at p. 204), and it described as an example “‘the wildlife preservation activities of the State Department of Fish and Game.‘” (Id. at p. 205.) We gave two reasons for finding this exemption inapplicable on its terms. First, the Commission “is not” the Department of Fish and Game. (Ibid.) Second, and “[m]ore significantly,” several of the statutes that granted powers and duties to the Department of Fish and Game “contemplate projects specifically designed for the preservation of wildlife.” (Ibid.) These are the “departmental functions” to which the former guideline referred in mentioning “[t]he ‘wildlife preservation activities of the State Department of Fish and Game.‘” (Ibid.) “The [Commission‘s] fixing of hunting seasons, while doubtless having an indirect beneficial effect on the continuing survival of certain species, cannot fairly or readily be characterized as a preservation activity in a strict sense.” (Ibid.)
After concluding in Chickering that the Commission‘s activity did not fall within the language of the former guideline, we discussed why it would have been problematic to “expand[]” that “language to imply” an exemption for that activity. (Chickering, supra, 18 Cal.3d at p. 206.) Doing so, we stated, would contravene the “principle” that “CEQA must be interpreted so as to
For several reasons, appellants’ reliance on Chickering is unavailing. First, Chickering predated the Secretary‘s adoption of the unusual circumstances exception and, thus, addressed neither the meaning nor the validity of that exception. Second, as here relevant, the only issue in Chickering was whether the Commission‘s activity fell within the scope of Guidelines former section 15107. After concluding it did not, we added the discussion appellants cite, which, to buttress our conclusion, explored the validity of a hypothetical exemption that would include the Commission‘s activity. (Chickering, supra, 18 Cal.3d at pp. 205-206.) Third, because that added discussion was tangential to the issue before us and unnecessary to resolve the case, it was, understandably, summary. For example, it did not consider the broader statutory framework, the evolution of the CEQA statutes, or the implications of its statement for the effectiveness of various other CEQA statutes. Finally, in 1993, after we decided Chickering, the Legislature enacted
As we have explained, “in the... years since CEQA was enacted the Legislature has, for reasons of policy, expressly exempted several categories of projects from environmental review. (See
Appellants also substantially rely on this court‘s decision in Mountain Lion Foundation v. Fish and Game Com. (1997) 16 Cal.4th 105 [65 Cal.Rptr.2d 580, 939 P.2d 1280] (Mountain Lion). There, the majority held in relevant part that the same categorical exemption previously at issue in Chickering—which had been renumbered as Guidelines section 15307—did not apply to the Commission‘s decision to remove the Mojave ground squirrel from the threatened species list. (Mountain Lion, supra, at pp. 124-127.) As noted earlier, that guideline establishes an exemption for “actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment.” (Guidelines, § 15307.) The majority found that “a delisting action cannot be fairly included within this class” because it “removes rather than secures [the] protections” that an endangered or threatened species enjoys under the California Endangered Species Act (
For reasons similar to those earlier discussed in connection with Chickering, supra, 18 Cal.3d 190, appellants’ reliance on Mountain Lion is unavailing. Like Chickering, Mountain Lion addressed neither the meaning nor the validity of the unusual circumstances exception. Also like Chickering, as here relevant, Mountain Lion presented only the issue of whether the Commission‘s activity fell within the express terms of a categorical exemption. Because the court found it did not, the hypothetical discussion of whether the Secretary could have established a categorical exemption was tangential, unnecessary, and summary. In any event, properly understood, the discussion in Mountain Lion stands only for the proposition that the Secretary, having established in one guideline that a delisting may have a significant effect on the environment, may not in another guideline “make a finding” that delistings, as a class, “do not have a significant effect on the environment” and are therefore exempt from CEQA. (
B. Standards of Review.
Several CEQA statutes expressly address judicial review of agency action.
The parties disagree about how these standards apply to an agency‘s determination that the unusual circumstances exception is inapplicable. Respondents, invoking the traditional substantial evidence standard, argue that a reviewing court must uphold such a determination if substantial evidence supports it, even if substantial evidence in the record also shows that a contrary conclusion would be equally, or even more, reasonable. Appellants, on the other hand, contend that, even if substantial evidence supports the agency‘s determination, a reviewing court must overturn the determination if there is a fair argument based on substantial evidence that the proposed project may have a significant effect on the environment due to unusual circumstances. A fair argument exists, appellants assert, “if any facts, fact-based assumptions, or expert opinion in the administrative record support... arguments that [the] exception may apply, regardless of contrary evidence.”
The fair argument approach derives from our application of
The Natural Resources Agency has since expressly incorporated No Oil‘s fair argument approach into the Guidelines. Guidelines section 15064, subdivision (f)(1), now states: “If the lead agency determines there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR (Friends of B Street v. City of Hayward (1980) 106 Cal. App. 3d 988 [165 Cal.Rptr. 514]). Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68 [118 Cal.Rptr. 34, 529 P.2d 66]).”5 If, however, an agency‘s “initial study” for a nonexempt project “shows that there is no substantial evidence that the project mаy have a significant effect” on the environment, the agency “prepares a negative declaration” (Guidelines, § 15002, subd. (k)(2)) describing “the reasons” why no EIR is required (
The fair argument standard Guidelines section 15064, subdivision (f)(1), sets forth applies by its terms to determinations of a lead agency, not of a court. Under
There have been several attempts to extend the fair argument standard to CEQA determinations other than the one at issue in No Oil, supra, 13 Cal.3d 68, i.e., whether to prepare an EIR for a nonexempt project. We considered, and rejected, one such attempt in Laurel Heights II, which involved an agency‘s decision not to recirculate an EIR for public comment.
Several courts, however, have extended the fair argument approach to aspects of the determination whether the unusual circumstances exception applies. (Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1108 [147 Cal.Rptr.3d 480] (Voices); Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1350 [122 Cal.Rptr.3d 781]; Banker‘s Hill, supra, 139 Cal.App.4th at pp. 261-267; Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1206 [61 Cal.Rptr.2d 447]; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 654-656 [11 Cal.Rptr.2d 850].) Other courts have noted judicial disagreement as to whether the fair argument standard applies in this context, but have declined to decide the issue, finding that the standard‘s application would not have affected the result. (Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863, 879 [166 Cal.Rptr.3d 253]; Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 855 [112 Cal.Rptr.3d 354]; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1390 [44 Cal.Rptr.3d 128]; Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 796 [124 Cal.Rptr.2d 731] (Santa Monica); Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259-1260 [89 Cal.Rptr.2d 233]; Ukiah, supra, 2 Cal.App.4th at pp. 728-729, fn. 7.) The principal supporting authority these courts cite for the fair argument standard‘s inapplicability is Centinela Hospital Assn. v. City of Inglewood (1990) 225 Cal.App.3d 1586 [275 Cal.Rptr. 901]. There, in rejecting the claim that the unusual circumstances exception applied, the court reasoned: “When appellant argues that the facility is located ‘at an extremely sensitive location in terms of public usage and traffic,’ and it ‘will create a health and safety hazard, which in turn, will
We conclude that both prongs of
Whether a particular project presents circumstances that are unusual for projects in an exempt class is an essentially factual inquiry, “‘founded “on the application of the fact-finding tribunal‘s experience with the mainsprings of human conduct.“‘” (People v. Louis (1986) 42 Cal.3d 969, 987 [232 Cal.Rptr. 110, 728 P.2d 180].) Accordingly, as to this question, the agency serves as “the finder of fact” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 [104 Cal.Rptr.2d 326]), and a reviewing court should apply the traditional substantial evidence standard that
As to whether there is “a reasonable possibility” that an unusual circumstance will produce “a significant effect on the environment” (Guidelines, § 15300.2, subd. (c)), a different approach is appropriate, both by the agency making the determination and by reviewing courts. As we explained in Laurel Heights II, supra, 6 Cal.4th at pages 1135, 1134, the fair argument standard “was derived from an interpretation of the language of, and policies underlying,” the statute at issue in No Oil—
This bifurcated approach to the questions of unusual circumstances and potentially significant effects comports with our construction of the unusual circumstances exception to require findings of both unusual circumstances and a potentially significant effect. It would be inappropriate for an agency to apply the fair argument standard to determine whether unusual circumstances exist. That standard is intended to guide the determination of whether a project has a potentially significant effect, not whether it presents unusual circumstances. While evidence of a significant effect may be offered to prove unusual circumstances, circumstances do not become unusual merely because a fair argument can be made that they might have a significant effect. Evidence that a project may have a significant effect is not alone enough to remove it from a class consisting of similar projects that the Secretary has found “do not have a significant effect on the environment.” (
On the other hand, when unusual circumstances are established, the Secretary‘s findings as to the typical environmental effects of projects in an exempt category no longer control. Because there has been no prior review of the effects of unusual circumstances, the policy considerations we discussed in No Oil apply. An agency must evaluate potential environmental effects under the fair argument standard, and judicial review is limited to determining whether the agency applied the standard “in [the] manner required by law.” (
We reject respondents’ assertion that applying two different standards to the unusual circumstances exception is “fundamentally inconsistent with the legal framework for categorical exemptions” and would, by making the process “too complicated and cumbersome,” “defeat the Legislature‘s intent in having categorical exemptions.” As explained above, requiring an agency to apply the fair argument standard to determine whether unusual circumstances give rise to “a reasonable possibility that the activity will have a significant effect on the environment” (Guidelines, § 15300.2, subd. (c)) is fully consistent with CEQA‘s framework and the Legislature‘s intent to provide categorical exemptions. Nor, for a reviewing court, is there anything particularly “complicated” or “cumbersome” about applying
Contrary to respondents’ assertion, applying the fair argument standard to aspects of the unusual circumstances exception does not conflict with our decision in Muzzy Ranch, supra, 41 Cal.4th 372. The premise of respondents’ argument is that, in Muzzy Ranch, we applied the traditional substantial evidence test in reviewing an agency‘s determination under Guidelines section 15061, subdivision (b)(3), that a proposed project was not subject to CEQA. However, in Muzzy Ranch, we had no occasion to identify the standard of review we applied. Moreover, as appellants explain, the language of Guidelines section 15061, subdivision (b)(3), is considerably different from the language of the unusual circumstances exception; the former applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment” (Guidelines, § 15061, subd. (b)(3)), whereas the latter applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances” (Guidelines, § 15300.2,
Finally, and again contrary to respondents’ assertion, our approach is fully consistent with—and is, indeed, affirmatively supported by—the decision in Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039 [72 Cal.Rptr.3d 690]. At issue there were the following CEQA provisions: (1)
C. Lower Court Rulings.
In reviewing the City‘s determination that the unusual circumstances exception does not apply, the trial court identified and made “two separate determinations“: (1) whether “there is a reasonable possibility that the activity will have a significant effect on the environment“; and (2) “whether such reasonable possibility of a significant effect is due to unusual circumstances associated with the project.” It answered the first question in the affirmative, explaining in part that, “[d]espite Respondents’ criticisms of [Karp‘s] report and [his] methodology, and even when discounting the clearly erroneous and misleading portions, Dr. Karp‘s opinion” regarding the “‘probability of seismic lurching of oversteepened side-hill fills‘” “provides substantial evidence of a fair argument of a significant environmental effect consequent to the Project.” However, the court also found that the proposed project did not
In reversing the judgment, the Court of Appeal agreed with the trial court “that Karp‘s letters... amounted to substantial evidence of a fair argument that the proposed construction would result in significant environmental impacts.” But it disagreed that the unusual circumstances exception applies only if the proposed project‘s potentially significant environmental effects are due to unusual circumstances. In the Court of Appeal‘s view, “the fact” that the proposed project “may” have a significant effect on the environment “is itself an unusual circumstance” that “preclude[s]” the City from applying a categorical exemption. The Court of Appeal went on to note that it may nevertheless “be helpful” to determine “whether unusual circumstances exist” apart from the project‘s potentially significant environmental effect. Considering this question de novo, it found that, with respect to the Class 3 small structure exemption, the proposed project‘s size constitutes such a circumstance. In reaching this result, it reasoned that “whether a circumstance is unusual ‘is judged relative to the typical circumstances related to an otherwise typically exempt project,’ as opposed to the typical circumstances in one particular neighborhood.” As to the Class 32 in-fill development exemption, the court offered no additional analysis.
It is apparent that neither the trial court nor the Court of Appeal applied principles like those we have set out above. Remand for application of the standards we announce today is therefore both appropriate and necessary.7
The Court of Appeal erred in another respect by indicating, as noted above, that the unusual circumstances inquiry excludes consideration of “the typical circumstances in one particular neighborhood.” In a number of decisions, our appellate courts have looked tо conditions in the immediate
Respondents separately attack the conclusion of both the trial court and the Court of Appeal that Karp‘s submissions constitute substantial evidence of a fair argument that the proposed project may have a significant environmental effect. As earlier noted, Karp opined that the proposed project “is likely to have very significant environmental impacts... due to the probability of seismic lurching of the oversteepened side-hill fills.” Respondents contend that Karp‘s opinion does not constitute substantial evidence of a fair argument because it is based on a misreading of the plans the City approved. In their view, the evidence in the record, including the submissions of Kropp and Toby, conclusively establishes that “the project approved by the City does not involve ‘side-hill fill‘” and that Karp was mistaken in reading the plans otherwise. Because of Karp‘s erroneous belief there would be side-hill fill, his opinion, respondents assert, “is not substantial evidence.” A finding of potential environmental impacts, respondents argue, must be based on the proposed project as actually approved, and may not be based on unapproved activities that opponents assert will be necessary because the project as approved cannot be built. If the proposed project “cannot be built as approved” and applicants want to build a different project, then “they must return to the City for approval of a different project and the City could issue a stop-work notice to prevent unauthorized construction.”
We agree with respondents that a finding of environmental impacts must be based on the proposed project as actually approved and may not be based on unapproved activities that opponents assert will be necessary because the project, as approved, cannot be built. In Laurel Heights I, supra, 47 Cal.3d at page 395, we considered whether there are circumstances under which an EIR must address “future action related to” a proposed project. There, the University of California, San Francisco (UCSF), had certified an EIR for moving its school of pharmacy to 100,000 square feet of a 354,000-square-foot building it had purchased. (Id. at p. 393Id. at pp. 393, 397.) To justify this
We decline to extend Laurel Heights I to situations where project opponents claim, not that the proposed project will lead to additional future development, but that the proposed project cannot be carried out as approved and will require additional work that may or will have a significant environmental effect. The latter situation, unlike the former, presents little risk of either bureaucratic and financial impediments to proper environmental review or piecemeal review of a project with the potential for significant cumulative effects. As respondents argue, if a proposed project cannot be built as approved, then the project‘s proponents will have to seek approval of any additional activities and, at that time, will have to address the potential environmental effects of those additional activities. As respondents also argue, if a project opponent‘s opinion that unapproved activities may have a significant environmental effect constitutes fair argument, then it is doubtful that any project could survive challenge. Accordingly, Karp‘s opinion is insufficient as a matter of law insofar as it is based on the potential effect of unapproved activities Karp believes will be necessary because the project cannot be built as approved.
This conclusion has implications for respondents’ claim that, because Karp misread the proposed project‘s plans, his opinion is legally insufficient. As part of the permit application, applicants submitted a set of architectural plans
Finally, because reversal and remand is appropriate for reasons explained above, we need not resolve respondents’ claim that the remedy the Court of Appeal chose upon finding the proposed project not to be exempt under Class 3 or Class 32—ordering preparation of an EIR—was improper. However, it is appropriate to discuss that issue because the question of remedy could arise again on remand.
However, as respondents note, subdivision (c) of
III. DISPOSITION
The Court of Appeal‘s judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Corrigan, J., Baxter, J.,* and Boren, J.,† concurred.
LIU, J., Concurring.—I agree with today‘s opinion that “a finding of environmental impacts must be based on the proposed project as actually approved and may not be based on unapproved activities that opponents assert will be necessary because the project, as approved, сannot be built.” (Maj. opn., ante, at p. 1119.) This rule will not lead to evasion of the environmental review requirements of the California Environmental Quality Act (CEQA;
*Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
†Administrative Presiding Justice of the Court of Appeal, Second Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I do not agree, however, with the court‘s reading of section 15300.2, subdivision (c) of the CEQA guidelines (Cal. Code Regs., tit. 14, § 15000 et seq. (Guidelines)) or with the court‘s novel and unnecessarily complicated approach to the standard of review. Section 15300.2, subdivision (c) (hereafter section 15300.2(c)) provides that a categorical exemption from CEQA review shall not apply when “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The court says this language establishes two distinct requirements for section 15300.2(c)‘s applicability: (1) there must be a reasonable possibility the project will have significant environmental effects and (2) those effects must be due to unusual circumstances. But, as explained below, a project falling within a categorical exemption is, by definition, a project belonging to a class of projects that does not have significant environmental effects. (See
It is unfortunate that today‘s opinion, instead of simplifying the law in accordance with the CEQA statute and Guidelines, adds further complexity to an area that many courts, practitioners, and citizens already find difficult to navigate. Nevertheless, I expect that after today‘s decision, as before, courts reviewing agency determinations under section 15300.2(c) will be guided by
I.
The main purpose of environmental review under CEQA is to “identify the significant effects on the environment of a project” and to identify project alternatives and feasible mitigation measures. (
The exempt classes of projects listed by the Secretary stand in contrast to statutory exemptions created by the Legislature. The latter include certain kinds of affordable housing (
The fact that a categorical exemption reflects a wholesale judgment about a class of projects, and not an individual judgment about a particular project, gives rise to the interpretive question before us. A class of projects “determined not to have a significant effect on the environment” (
One approach would be to say that section 21084(a) permits such overinclusion because most projects in an exempt class will not have significant environmental effects and the efficiency gains of exempting the entire class outweigh the value of requiring CEQA review of the few projects in the class that may have significant effects. But neither the court nor any party has advanced this theory, and for good reason.
In Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205-206 [132 Cal.Rptr. 377, 553 P.2d 537] (Chickering), we said that “no regulation is valid if its issuance exceeds the scope of the enabling statute. [Citations.] The [S]ecretary is empowered to exempt only those activities which do not have a significant effect on the environment. (
Section 15300.2(c) reads in full: “Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” This language is one of six provisions under the heading “Exceptions” in section 15300.2 of the Guidelines. Like section 15300.2(c), each of the other five provisions makes the categorical exemptions authorized by section 21084(a) inapplicable to projects that, while belonging to an exempt class, have certain characteristics that raise environmental concerns. (See §§ 15300.2, subd. (a) [exception for “a project... ordinarily insignificant in its impact on the environment [that] may in a particularly sensitive environment be significant“], 15300.2, subd. (b) [exception for “successive projects of the same type in the same place” whose “cumulative impact... over time is significant“], 15300.2, subd. (d)
This regulatory structure—categorical exemptions, with various exceptions to the exemptions—confirms that “a categorical exemption authorized by CEQA
In construing section 15300.2(c), it is worth noting that the title of the provision is “Significant Effect.” Hence I shall refer to section 15300.2(c) as the “significant effect exception.” In calling section 15300.2(c) the “unusual circumstances exception,” today‘s opinion ignores the title and places primary emphasis on a term that the provision itself does not emphasize.
As the court acknowledges, the term “unusual сircumstances” first appeared in the context of CEQA review in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 272 [104 Cal.Rptr. 761, 502 P.2d 1049] (Friends of Mammoth), and this usage is key to understanding section 15300.2(c). In Friends of Mammoth, we said that “common sense tells us that the majority of private projects for which a government permit or similar entitlement is necessary are minor in scope—e.g., relating only to the construction, improvement, or operation of an individual dwelling or small business—and hence, in the absence of unusual circumstances, have little or no effect on the public environment. Such projects, accordingly, may be approved exactly as before the enactment of the [CEQA].” (8 Cal.3d at p. 272, italics added.) We did not suggest that a finding of “unusual circumstances” was a prerequisite to CEQA review. Rather, we used that phrase in the course of acknowledging that private projects generally do not have significant effects on the environment, and so when they do, such effects will be due to unusual circumstances. Reading “unusual circumstances” in this straightforward manner squares section 15300.2(c) with both Friends of Mammoth and Chickering.
This understanding of “unusual circumstances” is restated in Communities for a Better Environment, supra, 103 Cal.App.4th 98, a case concerning the
In sum, when there is a reasonable possibility of a significant environmental effect from a project belonging to a class that generally does not have such effects, the project necessarily presents “unusual circumstances,” and section 15300.2(c) applies.
II.
Today‘s opinion objects that this reading of section 15300.2(c) would result in categorically exempt projects being treated the same as nonexempt projects, thereby undermining the purpose of categorical exemptions. “Try as they might,” the court says, “appellants can identify no purpose or effect of the categorical exеmption statutes if, as they assert, a showing of... potential environmental effect precludes application of all categorical exemptions.” (Maj. opn., ante, at p. 1102.) “[T]o establish the unusual circumstances exception, it is not enough for a challenger merely to provide substantial evidence that the project may have a significant effect on the environment, because that is the inquiry CEQA requires absent an exemption. (
First, when an agency has determined that a project falls within an exempt category, the project enjoys a considerable procedural advantage. For any project not covered by a categorical or other exemption, the reviewing agency has the burden of conducting an initial study into whether the project will have significant environmental effects. (See Guidelines, § 15063, subd. (a).) The project may proceed without further environmental review only if the agency issues a negative declaration identifying the project‘s environmental effects and explaining why they are not significant. (See id., § 15063, subd. (b)(2); 1 Kostka & Zischke, supra, § 6.2, pp. 6-6 to 6-7 (rev. 3/14).) Notice and public review and comment are required of a negative declaration, and an agency must consider comments and potentially mоdify its conclusions in response to those comments. (See 1 Kostka & Zischke, supra, §§ 7.10, pp. 7-9 to 7-10, 7.19, pp. 7-16 to 7-17 (rev. 3/14).)
By contrast, an agency finding that a project falls into an exempt category need not follow any particular procedure nor include any written determination, and the agency need not undertake an initial study or adopt a negative declaration. (See 1 Kostka & Zischke, supra, § 5.114, pp. 5-100 to 5-101 (rev. 3/14).) When an agency finds that a project is subject to a categorical exemption, it impliedly finds that it has no significant environmental effect, and the burden shifts to the challengers of the proposed project to produce evidence that the project will have a significant effect. (Id. at § 5.71, pp. 5-61 to 5-62 (rev. 3/14), and cases cited therein.) Once an agency finds a project categorically exempt, it is the project opponent‘s burden to produce evidence that the significant effect exception applies.
This procedural advantage should not be underestimated. In many cases, categorical exemptions are not litigated, and the applicability of the exemption is evident. In the mine-run of cases, the efficiency gains of sparing the agency the task of conducting an initial study and issuing a negative declaration provide a strong policy justification for categorical exemptions. Moreover, as is generally true of burden allocations in the law, in cases where an exemption‘s applicability presents a close issue, requiring the challenger to show the reasonable possibility of a significant effect, instead of requiring the agency to show no such effects, can be determinative.
The court says this procedural advantage is “largely illusory” because “an agency may not apply a categorical exemption without considering evidence in its files of potentially significant effects, regardless of whether that
Moreover, an agency finding that a project falls into an exempt category confers a second advantage. As the court observes, the Secretary had to interpret the meaning of “significant effects” in order to identify classes of projects with no significant effects pursuant to
The court says this advantage is also “illusory” because “evidence a project proponent offers to show that the project will only have typical effects, dimensions, and features is irrelevant if a project opponent can make a mere fair argument that those effects, dimensions, or features are not typical, or
Today‘s opinion also contends that under my reading of section 15300.2(c), a project proponent who claims a categorical exemption is in a “similar” position to the proponent of a nonexempt project who claims the common-sense exemption in Guidelines section 15061, subdivision (b)(3). (Maj. opn., ante, at pp. 1098-1099, 1102.) But the term “similar” is a fudge. The court says “similar” rather than “equivalent” because it does not and cannot deny that there is a difference between the commonsense exemption and the reasonable possibility standard. The commonsense exemption is available only when the agency, based on the record evidence, meets its burden of demonstrating “with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (Guidelines, § 15061, subd. (b)(3), italics added; see Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 386-387 [60 Cal.Rptr.3d 247, 160 P.3d 116].) This exacting requirement exceeds an agency‘s obligation under section 15300.2(c), before applying a categorical exemption, to consider the evidence in its files and preliminarily rule out a reasonable possibility of significant effects. This well-established difference in standards undermines the court‘s claim that a project‘s classification as categorically exempt has no significant procedural advantage.
Furthermore, an agency may find that a project falls within a categorical exemption without first making an express or definitive finding that no section 15300.2 exception applies; the burden is on the party challenging the categorical exemption to show that an exception applies. (Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186-1187 [74 Cal.Rptr.3d 665].) In addition, project proponents seeking to invoke a categorical exemption may employ comparative arguments that are not available to project proponents seeking to invoke the commonsense exemption. Thus, the availability of the commonsense exemption for projects meeting its narrow standard of “certainty” does not negate the advantages that a categorical exemption confers.
The court is thus mistaken that the categorical exemption statutes have “no purpose or effect... if... a showing of... potential environmental effect
Today‘s decision ventures a panoply of reasons why Chickering should not be read to mean what it says, including the opaque contention that Chickering‘s interpretation of
III.
It is true that over the years, the Courts of Appeal have divided on whether “unusual circumstances” and “significant effect[s]” are distinct requirements in section 15300.2(c). However, when one examines the reasoning of the many cases applying section 15300.2(c), it is clear that “unusual circumstances” and “significant effects” have invariably traveled together. In the nearly four decades since section 15300.2(c) was adopted, no published case has ever found оr even hinted that a project that belongs to an exempt category yet has a reasonable possibility of significant environmental effects may nonetheless evade CEQA review on the ground that the effects are not
Indeed, most courts applying section 15300.2(c) have focused directly on whether there is a reasonable possibility that the project will have significant environmental effects. (See, e.g., North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 871–874 [174 Cal.Rptr.3d 229] [finding no evidence of possible significant environmental effects while assuming without deciding that there were “unusual circumstances“]; Banker‘s Hill, supra, 139 Cal.App.4th at pp. 278–281 [rejecting application of the exception on the ground that there were no significant environmental effects]; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1392–1394 [44 Cal.Rptr.3d 128] (San Lorenzo) [no substantial evidence of significant environmental effects]; Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 800–801 [124 Cal.Rptr.2d 731] (Santa Monica) [only effects of adopting a new preferred parking zone were socioeconomic, not environmental, and therefore not cognizable under CEQA]; Apartment Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1175–1176 [109 Cal.Rptr.2d 504] [insufficient evidence of significant effects]; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 827–834 [17 Cal.Rptr.2d 766] [rejecting various arguments that a parole office located in downtown Pasadena would have significant environmental effects]; Centinela Hospital Assn. v. City of Inglewood (1990) 225 Cal.App.3d 1586, 1601 [275 Cal.Rptr. 901] (Centinela) [substantial evidence supported finding of no significant environmental effect]; McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1149 [249 Cal.Rptr. 439] [known existence of hazardous materials on the property threatening the environment brings the project within the exception].)
Among cases that have focused on “unusual circumstances,” it is evident that courts have treated unusual circumstances as a proxy for significant effects. In Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1350–1352 [122 Cal.Rptr.3d 781], for example, the court titled one part of its opinion “No Unusual Circumstances Preventing Categorical Exemption” and then proceeded to find no substantial evidence of potential significant environmental effects. In Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1108–1113 [147 Cal.Rptr.3d 480], the court concluded that a casino requiring a high volume of water usage was an unusual circumstance for a project within the “‘small facilities‘” exemption, and it then proceeded to find that such high volume water usage presented the
As for the proper standard of review, many courts have held that the fair argument test applies. (Maj. opn., ante, at pp. 1113–1114 [citing cases].) One older case has disagreed, holding that section 15300.2(c) does not apply if there is substantial evidence supporting the agency‘s conclusion that the project will not generate significant effects. (Centinela, supra, 225 Cal.App.3d at p. 1601.) As today‘s opinion notes, “[o]ther courts have noted judicial disagreement as to whether the fair argument standard applies in this context, but have declined to decide the issue, finding that the standard‘s application would not have affected the result.” (Maj. opn., ante, at p. 1113, citing Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863, 879; Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 855; San Lorenzo, supra, 139 Cal.App.4th at p. 1390; Santa Monica, supra, 101 Cal.App.4th at p. 796; Fairbank, supra, 75 Cal.App.4th at pp. 1259-1260; Ukiah, supra, 2 Cal.App.4th at p. 728, fn. 7.) In each of these cases, the court found no substantial evidence supporting a fair argument that the project would have significant environmental effects.
Thus, courts have overwhelmingly used the fair argument standard in reviewing the applicability of the significant effect exception either because they believed it was the appropriate standard or because they assumed it was. For more than two decades, courts have not felt the need to resolve the question of the proper standard because the fair argument standard has proven adequate to the task of ferreting out bogus CEQA challenges that would subject categorically exempt projects to unnecessary environmental review. The ultimate touchstone of all of these courts’ inquiries has been whether there is a reasonable possibility that the project would have significant environmental effects.
Today‘s opinion observes that “evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual.” (Maj. opn., ante, at p. 1105.) This observation, though
Although I join the court in reversing and remanding for further proceedings, I would hold that the Court of Appeal did not err in its reading of section 15300.2(c).
Werdegar, J., concurred.
Appellants’ petition for a rehearing was denied May 20, 2015, and on May 27, 2015, the opinion was modified to read as printed above. Werdegar, J., and Liu, J., were of the opinion that the petition should be granted.