CEQA Portal Updates: First Half of 2021 Published CEQA Cases

The following is a listing of published cases that are available for review on the AEP CEQA Portal for the first half of 2021.


Organizacion Comunidad de Alviso v. City of San Jose (Microsoft Corporation, et al., Real Parties in Interest) (Feb. 9, 2021) Cal.App.5th

The Sixth District Court of Appeal affirmed the trial court’s judgment dismissing a CEQA action challenging the Environmental Impact Report (EIR) and project approvals for two development options on a 64.5-acre fallow farmland site in the City of San Jose. The Court of Appeal held that the trial court did not err in dismissing the action as time-barred after plaintiff failed to timely join a necessary and indispensable real party in interest within 30 days of the City’s filing of a second Notice of Determination (NOD) for the project.

Schmidt v. City and County of San Francisco (Feb. 25, 2021) Cal.App.5th

The First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies. The project at issue was the San Francisco Historic Preservation Commission’s granting, at the request of the City’s Arts Commission, of a Certificate of Appropriateness to remove and store the 1894 “Early Days” bronze statute due to complaints that it exhibited racial insensitivity. The Court of Appeal affirmed the trial court’s determination that no CEQA claim had been stated because plaintiffs’ failure to appeal the approval to the Board of Supervisors constituted a fatal failure to exhaust administrative remedies.

Stop Syar Expansion v. County of Napa (April 23, 2021) Cal.App.5th

The First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations. Due to previous rulings, and because the County determined the project was consistent with its General Plan, the trial court declined to consider the merits of the General Plan consistency arguments. This case serves as a good reminder to CEQA practitioners of the important role of local administrative appeal procedures in defining the nature and requirements of the administrative remedies that must be exhausted under long-established common law to bring a court case (under CEQA or otherwise).

California Coastkeeper Alliance v. State Lands Commission (May 5, 2021) Cal.App.5th

The Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Lands Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach. The Lands Commission properly prepared a supplemental EIR addressing the limited proposed lease modifications before it, and it did not need to “start from scratch” with a wholly new EIR.

Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (May 23, 2021) Cal.App.5th

The Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP [Strategic Lawsuit Against Public Participation] motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys. In affirming in part and reversing in part the trial court’s order denying the anti-SLAPP motion, the Court of Appeal held that plaintiffs established a probability of prevailing on the malicious prosecution claim against Clews Horse Ranch, but not against the attorney defendants who represented the ranch in its unsuccessful CEQA action.

Newtown Preservation Society, et al. v. County of El Dorado, et al. (June 16, 2021) Cal.App.5th

The Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging El Dorado County’s Mitigated Negative Declaration (MND) for and approval of the Newtown Road Bridge at South Fork Weber Creek Replacement Project. The Court of Appeal set forth the applicable legal principles governing CEQA’s “fair argument” test and quoted at length from the trial court’s detailed final ruling analyzing appellants’ proffered evidence and whether it constituted the requisite “substantial evidence” supporting a fair argument that the project would have significant unmitigated environmental impacts. The Court of Appeal found no need to address appellants’ argument that the County failed to properly reject the public comments for lack of credibility because it did not first identify the evidence it found non-credible with sufficient particularity.