Berkeley Hillside Preservation v. City of Berkeley , 60 Cal. 4th 1086 ( 2015 )

Filed 3/2/15
IN THE SUPREME COURT OF CALIFORNIA
BERKELEY HILLSIDE )
PRESERVATION et al. )
)
Plaintiffs and Appellants, )
) S201116
v. )
) Ct.App. 1/4 A131254
CITY OF BERKELEY et al., )
) Alameda County
Defendants and Respondents; ) Super. Ct. No. RG10517314
)
DONN LOGAN et al., )
)
Real Parties in Interest and )
Respondents. )
____________________________________)
The California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.)1 establishes a comprehensive scheme to provide long-term
protection to the environment. It prescribes review procedures a public agency
must follow before approving or carrying out certain projects. For policy reasons,
the Legislature has expressly exempted several categories of projects from review
under CEQA. (See § 21080, subd. (b)(1) – (15).) By statute, the Legislature has
also directed the Secretary of the Natural Resources Agency (Secretary) to
establish ―a list of classes of projects that have been determined not to have a
significant effect on the environment and that shall be exempt from‖ CEQA.
1 All further unlabeled statutory references are to the Public Resources Code.
(§ 21084, subd. (a).) ―In response to that mandate,‖ the Secretary ―has found‖ that
certain ―classes of projects . . . do not have a significant effect on the
environment‖ and, in administrative regulations known as guidelines, has listed
those classes and ―declared [them] to be categorically exempt from the
requirement for the preparation of environmental documents.‖ (Cal. Code Regs.,
tit. 14, § 15300; see id., § 15000 et seq., Guidelines for Implementation of CEQA
(Guidelines).) Respondent City of Berkeley (City), in approving a permit
application to build a 6,478-square-foot house with an attached 3,394-square-foot
10-car garage, relied on two of the class exemptions the Secretary has established
pursuant to the Legislature‘s mandate: (1) ―Class 3,‖ which comprises the
construction of ―new, small facilities or structures,‖ including ―[o]ne single-family
residence, or a second dwelling unit in a residential zone‖ (Guidelines, § 15303);
and (2) ―Class 32,‖ which comprises ―in-fill development‖ projects, i.e., projects
that ―occur[] within city limits on a project site of no more than five acres
substantially surrounded by urban uses‖ and that meet other specified conditions
(Guidelines, § 15332).
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 environmental impact,
the court held that the exemptions the City invoked do not apply, and it ordered
the trial court to issue a writ of mandate directing the City to set aside the permit
2
approvals and its finding of a categorical exemption, and to order preparation of an
environmental impact report (EIR).
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
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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 appeal with the city council, arguing in part that CEQA‘s categorical
exemptions do not apply because the proposed project‘s ―unusual size, location,
nature and scope will have significant environmental impact on its surroundings.‖
They asserted that the proposed residence would be ―one of the largest houses in
Berkeley, four times the average house size in its vicinity, and situated in a canyon
where the existing houses are of a much smaller scale.‖ They submitted evidence
that, of Berkeley‘s over 17,000 single-family residences, only 17 exceed 6,000
square feet, only 10 exceed 6,400 square feet, and only one exceeds 9,000 square
feet. They also asserted that the proposed residence would exceed the maximum
allowable height under Berkeley‘s municipal code and would be inconsistent with
the policies of the City‘s general plan, and that an EIR is appropriate to evaluate
the proposed construction‘s potential impact on noise, air quality, historic
resources, and neighborhood safety. In response, the City‘s director of planning
and development stated that 16 residences within 300 feet of the project have a
greater floor-area-to-lot-area ratio and that 68 Berkeley ―dwellings‖ exceed 6,000
square feet, nine exceed 9,000 square feet, and five exceed 10,000 square feet.
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
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construction site; (2) ―[p]ortions of the major fill for the project are shown to be
placed on an existing slope inclined at about 42º (~1.1h:1v) to create a new slope
more than 50º (~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
accomplished 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 (~27º) or for wall heights more than
12 feet‖; (2) the project‘s architectural plans ―include cross-sections and elevations
that are inconsistent with the Site Plan and limitations in‖ Kropp‘s report; (3) ―all
vegetation will have to be removed for grading, and retaining walls totaling 27 feet
in height will be necessary to achieve grades. Vertical cuts for grading and
retaining walls will total about 43 feet (17 feet for bench cutting and 26 feet for
wall cutting). [¶] A drawing in the [Kropp] report depicts site drainage to be
collected and discharged into an energy dissipater dug into the slope, which is
inconsistent with the intended very steep fill slopes‖; and (4) ―the project as
proposed is likely to have very significant environmental impacts not only during
5
construction, but in service due to the probability of seismic lurching of the
oversteepened side-hill fills.‖
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 the 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
6
three‖; (4) has ―experience‖ that ―includes over 50 years of design and
construction in Berkeley‖; and (5) ―prepare[s] feasibility studies before, and
engineering during, construction of unusual projects.‖ After affirming the opinion
he had earlier stated in his letters, he offered this response to the assertion that he
had misread the project plans: ―The recent report from [applicants] say I don‘t
know how to read architectural drawings, but I have been a licensed architect for
many years and I do know how. [¶] Their reports have not changed my opinion.‖
After hearing from Karp, Kropp, and others, the city council adopted the Board‘s
findings, affirmed the permit approval, and dismissed the appeal. The city
planning department later filed a notice of exemption, stating that the project is
categorically exempt from CEQA under Guidelines sections 15303, subdivision
(a), and 15332, and that Guidelines section 15300.2 did not apply.
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
2 The concurring opinion prefers to call section 15300.2, subdivision (c), ―the
significant effect exception,‖ based on its title. (Conc. opn. of Liu, J., post, at p.
7
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 significant effect on the
environment, not whether substantial evidence supports the agency‘s
determination. Finally, finding substantial evidence of a fair argument that the
proposed project may have a significant environmental impact, the court held that
the unusual circumstances exception renders the categorical exemptions
inapplicable. It ordered the trial court ―to issue a writ of mandate directing the
City to set aside the approval of use permits and its finding of a categorical
exemption, and to order the preparation of an EIR.‖
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
6.) Our use of the term ―unusual circumstances exception‖ is consistent with the
Court of Appeal‘s decision in this case and the vast majority of published case
law. Of course, a provision‘s title ―is never allowed to enlarge or control the
language in the body of the [provision].‖ (Hagar v. Sup. of Yolo Co. (1874) 47
Cal. 222, 232; see DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 602 [―Title or
chapter headings are unofficial and do not alter the explicit scope, meaning, or
intent of a statute.‖].)
8
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, it is
not alone enough that there is a reasonable possibility the project will have a
significant environmental effect; instead, in the words of the Guideline, there must
be ―a reasonable possibility that the activity will have a significant effect on the
environment due to unusual circumstances.‖ (Guidelines, § 15300.2, subd. (c),
italics added.)
9
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 will have such effects.‖ (Conc.
opn, post, at p. 2.) 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 concurring opinion
(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
10
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.‖ (§ 21080, subd. (d).) As a corollary to this principle, CEQA
also specifies that, if ―[t]here is no substantial evidence, in light of the whole
record before the lead agency, that the project may have a significant effect on the
environment,‖ then the proposed project is not subject to further CEQA review.
(§ 21080, subd. (c)(1).) Guidelines section 15061, subdivision (b)(3), captures
these principles by specifying: ―Where it can be seen with certainty that there is
no possibility that the activity in question may have a significant effect on the
environment, the activity is not subject to CEQA.‖
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 inapplicable unless an agency ―check[s] its files‖ and
finds no ―evidence of potentially significant impacts.‖ But this is precisely 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].) And appellants‘ test for determining whether the unusual
circumstances exception applies —whether there is a ―reasonable possibility‖ the
proposed project ―will have a significant effect on the environment‖ (Guidelines, §
15300.2, subd. (c)) — is precisely the test used to determine whether Guidelines
section 15061, subdivision (b)(3), applies. (California Farm Bureau Federation v.
11
California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 194
[Guidelines, § 15061, subd. (b)(3), inapplicable if ―there is a reasonable possibility
that a proposed project will have a significant effect upon the environment‖].)
Thus, under appellants‘ view, the categorical exemptions would serve no purpose;
they would apply only when the proposed project is, by statute and Guidelines
section 15061, subdivision (b)(3), 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) section 21100, subdivision (a), which directs preparation of an EIR
―on any project . . . that may have a significant effect on the environment‖; (2)
section 21151, which similarly directs preparation of an EIR ―on any project . . .
which may have a significant effect on the environment‖; and (3) section 21082.2,
subdivision (d), which states that an EIR ―shall‖ be prepared ―[i]f there is
substantial evidence, in light of the whole record before the lead agency, that a
project may have a significant effect on the environment.‖ This statutory
authority, appellants assert, ―does not allow categorical exemptions for any project
that may have a significant effect on the environment.‖ In other words, ―the
documented presence of a potential environmental effect . . . always defeat[s] a
categorical exemption.‖ ―[T]he statutory authority [the Legislature] has given to
the Secretary only allows categorical exemption for projects that have no
significant environmental effect, and ‗no statutory policy exists in favor of
applying categorical exemptions where a fair argument can be made that a project
will create a significant effect on the environment.‘ ‖ Thus, appellants assert,
requiring more than a showing that a proposed project may have a significant
effect in the environment ―would be inconsistent with‖ CEQA‘s statutory
―mandates.‖
12
Appellants‘ argument ignores a basic principle of statutory interpretation:
courts ―do not construe statutes in isolation, but rather read every statute ‗with
reference to the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.‘ ‖ (People v. Pieters (1991) 52 Cal.3d 894,
899.) Thus, we must consider the three sections appellants cite, not in isolation,
but ― ‗in the context of the statutory framework as a whole‘ ‖ in order to
harmonize CEQA‘s ― ‗various parts.‘ ‖ (Palos Verdes Faculty Assn. v. Palos
Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659 [construing the Ed.
Code].)
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
13
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 section 21083, which generally directed the
OPR, ―as soon as possible,‖ to ―prepare and develop proposed guidelines for the
implementation of [CEQA],‖ and directed the Secretary to ―certify and adopt the
[OPR‘s proposed] guidelines pursuant to‖ the Administrative Procedure Act.
(Stats. 1972, ch. 1154, § 1, pp. 2271, 2272-2273.) These directives exist today as
subdivisions (a) and (e) of section 21083. More specifically, in several provisions,
the Legislature provided for categorical exemptions to CEQA. In section 21084, it
provided: ―The guidelines prepared and adopted pursuant to Section 21083 shall
include a list of classes of projects which have been determined not to have a
significant effect on the environment and which shall be exempt from the
provisions of [CEQA]. In adopting the guidelines, the Secretary . . . shall make a
finding that the list or classification of projects referred to in this section do not
have a significant effect on the environment.‖ (§ 21084, as added by Stats. 1972,
ch. 1154, § 1, pp. 2271, 2273.) This provision remains substantively the same
today. In former section 21085, the Legislature provided that ―[a]ll classes of
projects designated pursuant to Section 21084 . . . shall be exempt from the
provisions of [CEQA].‖ (Stats. 1972, ch. 1154, § 1, pp. 2271, 2273.) The
substance of this section appears today in section 21080, subdivision (b)(9), which
provides that CEQA ―does not apply‖ to ―[a]ll classes of projects designated
14
pursuant to Section 21084.‖ Finally, the Legislature enacted section 21086 to
establish a mechanism for challenging the Secretary‘s categorical exemptions.
(Stats. 1972, ch. 1154, § 1, pp. 2271, 2273-2274.) Subdivision (a) of that section
provides: ―A public agency may, at any time, request the addition or deletion of a
class of projects, to the list designated pursuant to Section 21084. That request
shall be made in writing to the [OPR] and shall include information supporting the
public agency‘s position that the class of projects does, or does not, have a
significant effect on the environment.‖ Subdivision (b) of section 21086 requires
the OPR to ―review each request‖ and ―submit‖ a recommendation to the
Secretary, and authorizes the Secretary, ―[f]ollowing the receipt of [the OPR‘s]
recommendation,‖ to ―add or delete the class of projects to the list of classes of
projects designated pursuant to Section 21084 that are exempt from the
requirements of [CEQA].‖ Subdivision (c) of section 21086 then provides: ―The
addition or deletion of a class of projects, as provided in this section, to the list
specified in Section 21084 shall constitute an amendment to the guidelines
adopted pursuant to Section 21083 and shall be adopted in the manner prescribed
in Sections 21083 and 21084.‖
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. (§ 21084, subd. (a).) This conclusion comports with
the impetus for the Legislature‘s enactment of these provisions: our decision in
Mammoth, which (1) observed that CEQA‘s applicability turns on ―questions of
degree,‖ (2) stated that ―the majority‖ of private projects ―may be approved
15
exactly as before‖ CEQA‘s enactment because they ―are minor in scope . . . and
hence, in the absence of unusual circumstances, have little or no effect on the
public environment,‖ and (3) called for ―[f]urther legislative or administrative
guidance‖ on these issues. (Mammoth, supra, 8 Cal.3d at pp. 271-272.) To
address these considerations, the Legislature, through the Guidelines, intended to
enumerate classes of projects that are exempt from CEQA because,
notwithstanding their potential effect on the environment, they already ―have been
determined not to have a significant effect on the environment.‖ (§ 21084.) The
Guidelines implement this intent, by setting forth the ―classes of projects‖ that the
Secretary, acting ―[i]n response to [the Legislature‘s] mandate,‖ ―has found . . . do
not have a significant effect on the environment.‖ (Guidelines, § 15300.) Thus,
construing the unusual circumstances exception as requiring more than a showing
of a fair argument that the proposed activity may have a significant environmental
effect is fully consistent with the Legislature‘s intent.
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
any time 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.)
16
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. 9) — 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. (Conc. opn., post, at p. 10.) 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, § 15061,
subd. (b)(3) applies].) As already explained, the concurring opinion‘s
interpretation renders the categorical exemptions duplicative of this guideline, and
the concurring opinion does not persuasively demonstrate otherwise. Thus, its
discussion of these so-called procedural advantages fails to show that, under its
interpretation, the categorical exemptions have independent value.
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 impact,‖ and ―the burden shifts to‖ project opponents ―to produce
evidence‖ that the unusual circumstances exception applies. (Conc. opn, post, at
pp. 9-10.) 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.‖ (Id. at p. 10.)
However, even if a proposed project faces no opposition, an agency
invoking a categorical exemption may not simply ignore the unusual
17
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 p. 14.) 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. 10.)
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. 11.)
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) ―the project‘s dimensions
18
or features are not unusual compared to typical projects in the exempt category,
thereby suggesting that the project is similar to those that the Secretary has
determined not to have a significant environmental effect.‖ (Id. at pp. 11-12.)
However, under the fair argument test the concurring opinion would apply here,
―an agency is merely supposed to look to see if the record shows substantial
evidence of a fair argument that there may be a significant effect. [Citations.] In
other words, the agency is not to weigh the evidence to come to its own conclusion
about whether there will be a significant effect. It is merely supposed to inquire,
as a matter of law, whether the record reveals a fair argument. . . . ‗ ―[I]t does not
resolve conflicts in the evidence but determines only whether substantial evidence
exists in the record to support the prescribed fair argument.‖ ‘ [Citation.] ‖
(Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San
Diego (2006) 139 Cal.App.4th 249, 263 (Banker’s Hill); see Guidelines, § 15064,
subd. (f)(1) [a lead agency ―presented with a fair argument that a project may have
a significant effect on the environment . . . shall prepare an EIR even though it
may also be presented with other substantial evidence that the project will not
have a significant effect‖].) Thus, under the concurring opinion‘s interpretation,
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
that the project will have a significant environmental effect. For these reasons, the
concurring opinion fails to demonstrate that the categorical exemptions would
retain any significant ―value‖ under its interpretation. (Conc. opn, post, at p. 9.)
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. 14) to reject that
construction. First, as earlier explained (ante, p. 10), because that construction
19
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 might
be made that they are potentially significant. The plain language of Guidelines
section 15300.2, subdivision (c), requires that a potentially significant effect must
be ―due to unusual circumstances‖ for the exception to apply. The requirement of
unusual circumstances recognizes and gives effect to the Secretary‘s general
finding that projects in the exempt class typically do not have significant impacts.
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 Cal. Environmental Quality Act
(2d ed. 2008) § 5.71 (citing cases).) As explained above, to 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.
(§ 21151.) Such a showing is inadequate to overcome the Secretary‘s
determination that the typical effects of a project within an exempt class are not
significant for CEQA purposes. On the other hand, evidence that the project will
20
have a significant effect does tend to prove that some circumstance of the project
is unusual. An agency presented with such evidence must determine, based on the
entire record before it — including contrary evidence regarding significant
environmental effects — whether there is an unusual circumstance that justifies
removing the project from the exempt class.
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 significant
environmental effect, it necessarily follows that the project presents unusual
circumstances.‖ (Conc. opn, post, at p. 2, italics added.) However, for reasons
already set forth, we part company with the concurring opinion when it moves
from this central proposition to the conclusion that a reviewing court must find the
exception applicable, and overturn an agency‘s application of an exemption, if
there is ―substantial evidence‖ of ―a fair argument that the project will have
21
significant environmental effects.‖ (Ibid.) The Secretary, in complying with the
Legislature‘s command to determine the ―classes of projects‖ that ―do not have a
significant effect on the environment‖ (§ 21084, subd. (a)), necessarily resolved
any number of ―fair arguments‖ as to the possible environmental effects of
projects in those classes. Allowing project opponents to negate those
determinations based on nothing more than ―a fair argument that the project will
have significant environmental effects‖ (conc. opn., post, at p. 12) would be
fundamentally inconsistent with the Legislature‘s intent in establishing the
categorical exemptions.
Appellants assert that Wildlife Alive v. Chickering (1976) 18 Cal.3d 190(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
22
[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 afford the ‗fullest possible
protection‘ to the environment.‖ (Ibid.) Moreover, we explained in a passage
appellants quote, ―if‖ we ―expand[ed]‖ (id. at p. 206) the former guideline‘s
language ―to cover the commission‘s hunting program, it is doubtful that such a
categorical exemption [would be] authorized under the statute. . . . [N]o regulation
is valid if its issuance exceeds the scope of the enabling statute. [Citations.] The
secretary is empowered to exempt only those activities which do not have a
significant effect on the environment. (Pub. Resources Code, § 21084.) It follows
that where there is any reasonable possibility that a project or activity may have a
significant effect on the environment, an exemption would be improper,‖ and ―the
setting of hunting and fishing seasons has the potential for a significant
environmental impact . . . .‖ (Id. at pp. 205-206.)
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 15107l.
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.
23
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 section 21083.1, which directs courts ―not [to] interpret [the
CEQA statutes] or the state guidelines adopted pursuant to Section 21083 in a
manner which imposes procedural or substantive requirements beyond those
explicitly stated in [CEQA] or in the state guidelines.‖ (§ 21083.1, italics added.)
According to the legislative history, the purpose of this statute was to ―limit
judicial expansion of CEQA requirements‖ and to ― ‗reduce the uncertainty and
litigation risks facing local governments and project applicants by providing a
―safe harbor‖ to local entities and developers who comply with the explicit
requirements of the law.‘ ‖ (Assem. Com. on Natural Resources, Analysis of Sen.
Bill No. 722 (1993-1994 Reg. Sess.) for hearing on July 12, 1993, p. 2.) Given
appellants‘ concession for purposes of appeal that the proposed project here falls
within two of the categorical exemptions, under Guidelines section 15300.2,
subdivision (c), environmental review is necessary only if ―there is a reasonable
possibility [the project] will have a significant effect on the environment due to
unusual circumstances.‖ Given that the listing of a class of projects as exempt
constitutes the Secretary‘s finding, pursuant to the Legislature‘s command, that the
typical effects of projects within that class are not significant within the meaning
of CEQA, interpreting the unusual circumstances exception to require
environmental review absent unusual circumstances would violate the
Legislature‘s express directive in section 21083.1 ―not [to] interpret‖ the CEQA
statutes and the Guidelines ―in a manner which imposes procedural or substantive
requirements beyond those‖ the statutes and the Guidelines ―explicitly state[].‖
24
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 § 21080, subd. (b)(1)-[(15)].) This
court does not sit in review of the Legislature‘s wisdom in balancing these policies
against the goal of environmental protection because, no matter how important its
original purpose, CEQA remains a legislative act, subject to legislative limitation
and legislative amendment.‖ (Napa Valley Wine Train, Inc. v. Public Utilities
Com. (1990) 50 Cal.3d 370, 376.) Consistent with section 21083.1‘s directive, we
have held that ―rules regulating the protection of the environment must not be
subverted into an instrument for the oppression and delay of social, economic, or
recreational development and advancement.‖ (Citizens of Goleta Valley v. Board
of Supervisors (1990) 52 Cal.3d 553, 576.) Adopting appellants‘ interpretation
would do precisely that, by requiring environmental review of projects that one
could argue may have a significant environmental effect, but that the OPR and the
Secretary, exercising the authority the Legislature has by statute delegated to them
and required them to exercise, have already determined do not, in fact, ―have a
significant effect on the environment.‖ (§ 21084, subd. (a).)
Appellants also substantially rely on this court‘s decision in Mountain Lion
Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105 (Mountain
Lion). There, the majority held in relevant part that the same categorical
exemption previously at issue in Wildlife Alive — 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
25
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. (Mountain Lion, supra, at p. 125.) Moreover,
the majority added, in light of other Guidelines, a delisting could not come within
a categorical exemption. ―[A] categorical exemption represents a determination
by the Secretary that a particular project does not have a significant effect on the
environment. (§ 21084.)‖ (Mountain Lion, supra, at 124.) ―It follows,‖ the
majority stated in the passage on which appellants rely, ―that an activity that may
have a significant effect on the environment cannot be categorically exempt.‖
(Ibid.) Under Guidelines section 15065, subdivision (a), an agency ―must find‖
that a proposed project may have that effect if it has ― ‗the potential to . . . reduce
the . . . number or restrict the range of an endangered, rare or threatened species.‘ ‖
(Mountain Lion, supra, at p. 124.) Because a delisting, by ―withdraw[ing] existing
levels of protection,‖ ―creates at least the potential for population reduction or
habitat restriction,‖ this guideline ―obligate[s]‖ the Commission ―to find a
delisting may have a significant environmental effect. Such a finding precludes
invocation of a categorical exemption.‖ (Ibid.)
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
26
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.
(§ 21084.) It does not, as appellants assert, establish that where the Secretary,
exercising statutorily delegated authority, has found that projects of a certain kind
―do not have a significant effect on the environment‖ and are exempt from CEQA,
a proposed project that falls within that class and does not involve any unusual
circumstances is, nonetheless, subject to environmental review if an argument can
be made that it may have a significant effect on the environment. That question
simply was not before us in Mountain Lion, supra, 16 Cal.4th 105.3
B. Standards of Review.
Several CEQA statutes expressly address judicial review of agency action.
Section 21168 provides the standard of review for decisions ―made as a result of a
proceeding in which by law a hearing is required to be given, evidence is required
to be taken and discretion in the determination of facts is vested in a public
agency.‖ Section 21168.5 provides the standard of review in all other actions ―to
attack, review, set aside, void or annul a determination, finding, or decision of a
public agency on the grounds of noncompliance with [CEQA].‖ Because nothing
required the City to hold an evidentiary hearing in this case, the latter section
governs. Under it, a court‘s inquiry is ―whether there was a prejudicial abuse of
discretion. Abuse of discretion is established if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by
3 Consistent with the preceding analysis, we disapprove Communities for a
Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98,
129, insofar as it suggests that a proposed project‘s potential environmental effects
alone render the unusual circumstances exception applicable.
27
substantial evidence.‖ (Ibid.) Thus, reversal of the City‘s action here is
appropriate only if (a) the City, in finding the proposed project categorically
exempt, did not proceed in the manner required by law, or (b) substantial evidence
fails to support that finding.4
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 section 21168.5
in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68 (No Oil). There, we
4 We have previously observed that ―the standard of review is essentially the
same‖ under sections 21168 and 21168.5. (Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1133, fn. 17 (Laurel
Heights II).) Section 21168 requires review ―in accordance with the provisions of
Section 1094.5 of the Code of Civil Procedure,‖ and declares that ―the court shall
not exercise its independent judgment on the evidence but shall only determine
whether the act or decision is supported by substantial evidence in the light of the
whole record.‖ Code of Civil Procedure section 1094.5, subdivision (b), provides,
similarly to section 21168.5, that ―[a]buse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or decision
is not supported by the findings, or the findings are not supported by the
evidence.‖
28
reviewed the City of Los Angeles‘s application of section 21151, which requires
preparation of an EIR for a nonexempt project that ―may have a significant effect
on the environment.‖ Although the proposed project in No Oil did not qualify for
an exemption under the CEQA statutes or the Guidelines, Los Angeles had found,
after conducting an initial threshold environmental study, that no EIR was
necessary because the project would not have a significant effect on the
environment. We reversed, concluding that the finding constituted a prejudicial
abuse of discretion under section 21168.5 because, in making it, Los Angeles had
failed to proceed as required by law in two ways: (1) it had not made its
determination in writing; and (2) it had used the wrong standard to determine
whether the proposed project might have a significant effect on the environment.
Regarding the latter, we construed section 21151 to require preparation of an EIR
for a nonexempt project ―whenever it can be fairly argued on the basis of
substantial evidence that the project may have a significant environmental
impact.‖ (No Oil, supra, at p. 75.) At the trial court‘s direction, Los Angeles had
applied ―a far more restrictive test that limited use of an EIR to projects which
may have an ‗important‘ or ‗momentous‘ effect of semi-permanent duration.‖
(Ibid.) In reaching our conclusion, we cited the following factors: (1) ―the
preparation of an EIR is the key to environmental protection under CEQA‖ (ibid.);
(2) the statute speaks, not of projects that will have a significant effect on the
environment, but of projects that ―may‖ have such effect (id. at p. 83, fn. 16); (3)
the Legislature intended that CEQA be interpreted to afford the fullest protection
to the environment within the reasonable scope of the statutory language, but the
test Los Angeles had applied afforded the least possible protection within the
statutory language (id. at p. 85); and (4) by ―bar[ring] preparation of an EIR‖ in
―close and doubtful cases,‖ the test Los Angeles applied would ―defeat the
Legislature‘s objective of ensuring that environmental protection serve as the
29
guiding criterion in agency decisions‖ (id. at p. 84). Because we concluded that
Los Angeles had failed to proceed as required by law, in part by applying the
wrong standard, we expressly declined to decide whether its decision was
―supported by substantial evidence.‖ (Id. at p. 75.)
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). 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).‖5 If, however, an agency‘s ―initial
study‖ for a nonexempt project ―shows that there is no substantial evidence that
the project may 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 (§ 21064).
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 sections 21168 and 21168.5, judicial review of agency decisions is for
abuse of discretion. (Laurel Heights II, supra, 6 Cal.4th at p. 1135.) The scope of
review of an agency‘s application of the fair argument standard is described in
Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002
5 This guideline first appeared in 1983 as Guidelines section 15064,
subdivision (g)(1). (See Guidelines, § 15064, Register 83, No. 29 (July 16, 1983)
p. 308.)
30
(Friends of “B” Street), a decision that section 15064, subdivision (f)(1), cites.
Friends of “B” Street explained that a reviewing court may not uphold an
agency‘s decision ―merely because substantial evidence was presented that the
project would not have [a significant environmental] impact. The [reviewing]
court‘s function is to determine whether substantial evidence support[s] the
agency‘s conclusion as to whether the prescribed ‗fair argument‘ could be made.
If there [is] substantial evidence that the proposed project might have a significant
environmental impact, evidence to the contrary is not sufficient to support a
decision to dispense with preparation of an EIR and adopt a negative declaration,
because it [can] be ‗fairly argued‘ that the project might have a significant
environmental impact. Stated another way, if the [reviewing] court perceives
substantial evidence that the project might have such an impact, but the agency
failed to secure preparation of the required EIR, the agency‘s action is to be set
aside because the agency abused its discretion by failing to proceed ‗in a manner
required by law.‘ ‖ (Friends of “B” Street, supra, at p. 1002.)
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. Section 21092.1 requires
recirculation if ―significant new information is added to‖ an EIR after initial
circulation and before certification. In Laurel Heights II, a neighborhood
improvement association argued that in determining whether recirculation is
required, ―the ‗fair argument‘ test used to review the decision . . . to prepare a
negative declaration‖ in lieu of an EIR should apply. (Laurel Heights II, supra, 6
Cal.4th at p. 1134.) We disagreed, explaining: ―[S]ection 21151 commands that
an EIR must be prepared whenever a project ‗may have a significant effect on the
31
environment.‘ (Italics added.) In No Oil . . . , we interpreted section 21151 to
require preparation of an EIR whenever it can be fairly argued on the basis of
substantial evidence that the project may have significant environmental impact.
[Citation.] Our decision, however, expressly acknowledged that judicial review of
agency decisions under CEQA is governed by sections 21168 (administrative
mandamus) and 21168.5 (traditional mandamus) and, of course, did not purport to
alter the standard of review set forth in those statutes. Rather, the ‗fair argument‘
test was derived from an interpretation of the language of, and policies underlying,
section 21151 itself. For this reason, the ‗fair argument‘ test has been applied only
to the decision whether to prepare an original EIR or a negative declaration.
[Citations.] The Association has advanced no persuasive authority or reasons for
taking this test out of the context of the statutory language of section 21151 and
applying it to an agency‘s decision under section 21092.1. [¶] We conclude that
the substantial evidence standard set forth in section 21168.5 governs the
[agency‘s] decision not to recirculate the EIR in this case.‖ (Id. at pp. 1134-1135,
fns. omitted.)
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 Irr. Dist. (2012) 209 Cal.App.4th 1096,
1108 (Voices); Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1350;
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;
Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9
Cal.App.4th 644, 654-656.) 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
32
(2013) 222 Cal.App.4th 863, 879; Hines v. California Coastal Commission (2010)
186 Cal.App.4th 830, 855; San Lorenzo Valley Community Advocates for
Responsible Educ. v. San Lorenzo Valley Unified School Dist. (2006) 139
Cal.App.4th 1356, 1390; Santa Monica Chamber of Commerce v. City of Santa
Monica (2002) 101 Cal.App.4th 786, 796 (Santa Monica); Fairbank v. City of Mill
Valley (1999) 75 Cal.App.4th 1243, 1259-1260; Ukiah, supra, 2 Cal.App.4th at p.
728, 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. 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 place increased demands on public services such as police and fire
protection,‘ appellant is asking us to adopt an improper standard of review and
independently reweigh the evidence. We conclude that substantial evidence
supports the express findings of the [City of Inglewood Planning] Commission
and city council as to traffic and public health and safety issues and substantial
evidence supports the implied finding in the notice of exemption that the facility
would not cause any significant environmental effects.‖6 (Centinela, at p. 1601.)
We conclude that both prongs of section 21168.5‘s abuse of discretion
standard apply on review of an agency‘s decision with respect to the unusual
circumstances exception. The determination as to whether there are ―unusual
circumstances‖ (Guidelines, § 15300.2, subd. (c)) is reviewed under section
21168.5‘s substantial evidence prong. However, an agency‘s finding as to
6 The courts noting judicial disagreement regarding the applicable standard
also cite Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, but that
decision does not mention or discuss the unusual circumstances exception.
33
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 reviewed to determine whether the agency, in applying the fair
argument standard, ―proceeded in [the] manner required by law.‖ (§ 21168.5;
Friends of “B” Street, supra, 106 Cal.App.3d at p. 1002.)
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.) Accordingly,
as to this question, the agency serves as ―the finder of fact‖ (Save Our Peninsula
Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99,
117), and a reviewing court should apply the traditional substantial evidence
standard that section 21168.5 incorporates. (Save Our Peninsula Committee, at p.
117.) Under that relatively deferential standard of review, the reviewing court‘s
― ‗role‘ ‖ in considering the evidence differs from the agency‘s. (Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576.) ― ‗Agencies must
weigh the evidence and determine ―which way the scales tip,‖ while courts
conducting [traditional] substantial evidence . . . review generally do not.‘ ‖
(Ibid.) Instead, reviewing courts, after resolving all evidentiary conflicts in the
agency‘s favor and indulging in all legitimate and reasonable inferences to uphold
the agency‘s finding, must affirm that finding if there is any substantial evidence,
contradicted or uncontradicted, to support it. (Id. at p. 571; see Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
393 `(Laurel Heights I ) [reviewing court‘s ―task is not to weigh conflicting
evidence and determine who has the better argument‖ or whether ―an opposite
conclusion would have been equally or more reasonable‖].)
34
As to the 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 1134-1135, the fair argument standard ―was
derived from an interpretation of the language of, and policies underlying,‖ the
statute at issue in No Oil — section 21151 — which ―commands that an EIR must
be prepared whenever a project ‗may have a significant effect on the
environment.‘ ‖ (Italics omitted.) As the Court of Appeal observed in Banker’s
Hill, supra, 139 Cal.App.4th at page 264, there are ―close textual similarities‖
between this statutory language and the language of Guidelines section 15300.2,
subdivision (c), which precludes application of categorical exemptions ―where
there is a reasonable possibility that the activity will have a significant effect on
the environment due to unusual circumstances.‖ (Italics added.) Notably, we
observed in No Oil that ―the word ‗may‘ connotes a ‗reasonable possibility . . . .‘ ‖
(No Oil, supra, 13 Cal.3d at p. 83, fn. 16.) Accordingly, when there are ―unusual
circumstances,‖ it is appropriate for agencies to apply the fair argument standard
in determining whether ―there is a reasonable possibility of a significant effect on
the environment due to unusual circumstances.‖ (Guidelines, § 15300.2, subd.
(c).) As to this question, the reviewing court‘s function ―is to determine whether
substantial evidence support[s] the agency‘s conclusion as to whether the
prescribed ‗fair argument‘ could be made.‖ (Friends of “B” Street, supra, 106
Cal.App.3d at p. 1002.)
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
35
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.‖ (§ 21084, subd. (a), italics added; cf.
Laurel Heights II, supra, 6 Cal.4th at p. 1134; No Oil, supra, 13 Cal.3d at p. 83,
fn. 16 .) Therefore, an agency must weigh the evidence of environmental effects
along with all the other evidence relevant to the unusual circumstances
determination, and make a finding of fact. Judicial review of such determinations
is limited to ascertaining whether they are ―supported by substantial evidence.‖
(§ 21168.5.)
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.‖ (§ 21168.5.)
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
36
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 section 21168.5‘s substantial evidence prong to
unusual circumstance determinations, and its ―proceeded in a manner required by
law‖ prong to determinations as to potentially significant effects. Courts are well
versed in bringing a variety of considerations to bear in making such
determinations.
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, subd. (c)). Thus, even under respondents‘ reading of Muzzy Ranch,
applying the fair argument standard in the context of the unusual circumstances
exception creates no conflict with that decision.
37
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. At issue there
were the following CEQA provisions: (1) section 21084.1, which provides that
―[a] project that may cause a substantial adverse change in the significance of an
historical resource is a project that may have a significant effect on the
environment‖; (2) section 21084, subdivision (e), which provides that ―[a] project
that may cause a substantial adverse change in the significance of a historical
resource, as specified in Section 21084.1, shall not be exempted from [CEQA]
pursuant to subdivision (a)‖; and (3) Guidelines section 15300.2, subdivision (f),
which provides that ―[a] categorical exemption shall not be used for a project
which may cause a substantial adverse change in the significance of a historical
resource.‖ The court held that, in applying these provisions, ―the fair argument
standard does not govern‖ an agency‘s determination of whether a building
qualifies as a ―historical resource.‖ (Valley Advocates, supra, at p. 1072.)
However, the court continued, ―once the resource has been determined to be an
historical resource, then the fair argument standard applies to the question whether
the proposed project ‗may cause a substantial adverse change in the significance of
an historical resource‘ [citation] and thereby have a significant effect on the
environment.‖ (Ibid.) This discussion supports the conclusion that, if ―unusual
circumstances‖ are established, an agency should apply the fair argument standard
in determining whether there is ―a reasonable possibility‖ that those circumstances
will produce ―a significant effect‖ within the meaning of CEQA. (Guidelines, §
15300.2, subd. (c).)
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
38
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 present ―unusual
circumstances,‖ explaining: ―Though the Project involves a large house, built in
the hills on a steep slope, there is nothing so out of the ordinary about such a
project that it would take it out of the exemption. Moreover, there is no evidence
to support a finding that any of the circumstances surrounding the Project make it
‗unusual.‘ . . . [T]hough it is a large house proposed to be built on a large and steep
hillside lot with grading and retaining walls, the Project is not so unusual for a
single family residence, particularly in this vicinity, as to constitute the type of
unusual circumstances required to support application of this exception.‖
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
39
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 to conditions in the immediate vicinity of a proposed
project to determine whether the unusual circumstances exception applied.
(Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1315-1316; City of Pasadena v.
State of California (1993) 14 Cal.App.4th 810, 826-827; Ukiah, supra, 2
Cal.App.4th at p. 736.) Indeed, in the only decision the Court of Appeal cited for
its contrary view — Santa Monica, supra, 101 Cal.App.4th 786 — the court
7 In reversing based on potential geotechnical effects, the Court of Appeal
did not address other potential effects appellants allege, including aesthetic and
view impacts, inconsistencies with land use plans and policies the City has
adopted for environmental protection, construction-related traffic impacts, and
permanent traffic impacts related to contemplated fundraising activities at the
house. Nor did the Court of Appeal address appellants‘ argument that the City‘s
adoption of a traffic management plan is a mitigation measure that precludes a
finding that the proposed project is categorically exempt. Rather than address
these issues here in the first instance, we leave their consideration to the Court of
Appeal on remand.
40
quoted Ukiah on this point and declared it to be ―instructive.‖ (Santa Monica, at
p. 802.) Insofar as these decisions indicate that local conditions are relevant, we
agree. In determining whether the environmental effects of a proposed project are
unusual or typical, local agencies have discretion to consider conditions in the
vicinity of the proposed project.
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,
41
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.
393.) Although UCSF admitted it intended to use the remainder of the building
when existing tenants left, the EIR it prepared did not consider the potential
environmental effect of that intended future use. (Id. at pp. 393, 397.) To justify
this omission, UCSF argued that it had ―not formally decided precisely how [it
would] use the remainder of the building.‖ (Id. at p. 396.) In rejecting this
argument, we first held that an EIR for a proposed project must consider the
potential environmental effects of future expansion if expansion (1) ―is a
reasonably foreseeable consequence of the initial project‖ and (2) ―will be
significant in that it will likely change the scope or nature of the initial project or
its environmental effects.‖ (Ibid.) This standard, we reasoned, properly balances
the following considerations: (1) delayed review may produce ―bureaucratic and
financial momentum‖ that ―provid[es] a strong incentive to ignore environmental
concerns that could be dealt with more easily at an early stage of the project‖ (id.
at p. 395); (2) ― ‗environmental considerations do not become submerged by
chopping a large project into many little ones — each with a minimal potential
impact on the environment — which cumulatively may have disastrous
consequences‘ [citation]‖; and (3) ―premature environmental analysis may be
meaningless and financially wasteful‖ (id. at p. 396). We then concluded that
UCSF‘s EIR had to address the potential effects of future use because there was
―telling evidence‖ UCSF had, by the time it prepared the EIR, ―either made
decisions or formulated reasonably definite proposals as to future uses of the
building.‖ (Id. at p. 397.) We clarified, however, that an EIR need not discuss
42
―specific future action that is merely contemplated or a gleam in a planner‘s eye.‖
(Id. at p. 398.)
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 for the
project. In opining that the proposed project would result in ―oversteepened side-
hill fills‖ with potentially significant environmental effects — including ―seismic
lurching‖ — Karp relied largely, if not entirely, on a page of those plans entitled
―TRANSVERSE SECTION LOOKING EAST.‖ In April 2010, during the appeal
to the city council, Karp stated that this page ―indicates [that] fills [will be] placed
directly on very steep existing slopes,‖ ―creat[ing] a new slope more than 50º.‖
43
However, the plans the Board had already approved three months earlier (along
with the use permit) did not include this page. Nor, as appellants concede, do the
project plans the city council ultimately approved include this page.8 Insofar as
Karp thus based his opinion regarding the project‘s potential effects on side-hill
fill that has not been approved, his opinion is legally insufficient.9 On remand, the
Court of Appeal should apply these principles to Karp‘s opinion should it reach
that point in its analysis.10
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.
Section 21168.9 specifically addresses the available remedies for CEQA
violations. As here relevant, subdivision (a) provides that, upon finding that a
8 In its resolution affirming the Board‘s decision, the city council stated:
―[T]he Council hereby adopts . . . the project plans on Exhibit B.‖ The page on
which Karp relied does not appear in that exhibit.
9 Based on other expert evidence before the city council — the letters from
Kropp and Toby — respondents also assert that Karp misread the omitted page,
and that what he identified on that page as side-hill fill is actually nothing more
than the lot‘s current ground surface. In light of our conclusion, we need not
address this argument.
10 Respondents also argue that the ―the probability of seismic lurching‖ Karp
identified is an effect, not of the project, but of Berkeley‘s ―existing earthquake-
prone environment,‖ and that application of the unusual circumstances exception
may not be based on evidence of the existing environment‘s impact on a proposed
project. In California Building Industry Assn. v. Bay Area Air Quality
Management Dist. (review granted Nov. 26, 2013, S213478), we granted review to
decide whether CEQA requires an analysis of how existing environmental
conditions will impact future residents or users of a proposed project. Given this
fact, and the other errors that require reversal and remand, we do not address this
claim.
44
public agency‘s decision violates CEQA, a court should enter an order that
includes (1) a mandate that the decision be voided in whole or in part, and/or (2) a
mandate that the agency ―take specific action as may be necessary to bring
the . . . decision into compliance with‖ CEQA. (§ 21168.9, subd. (a)(1), (3).)
Subdivision (b) states that any such order ―shall be made by the issuance of a
peremptory writ of mandate specifying what action by the public agency is
necessary to comply with [CEQA].‖ (§ 21168.9, subd. (b), italics added.)
Consistent with these provisions, we have ordered preparation of an EIR upon
finding that a public agency had improperly issued a negative declaration for a
proposed project (Communities for a Better Environment v. South Coast Air
Quality Management Dist. (2010) 48 Cal.4th 310, 320), and upon finding that a
certified EIR was inadequate (Laurel Heights I, supra, 47 Cal.3d at p. 388).
However, as respondents note, subdivision (c) of section 21168.9 provides
in part that ―[n]othing in this section authorizes a court to direct any public agency
to exercise its discretion in any particular way.‖ In Voices, supra, 209
Cal.App.4th at page 1113, the Court of Appeal held that, upon finding that an
agency erred in applying a categorical exemption, the trial court had ―exceeded its
authority‖ in ordering the agency to prepare an EIR. ―How an agency complies
with CEQA,‖ the Court of Appeal reasoned, ―is a matter first left to the agency‘s
discretion. Having determined the project was not exempt from CEQA, the court
should have ordered [the agency] to proceed with further CEQA compliance,
which in this case would have been the preparation of an initial study and a
determination of whether further environmental review would require an EIR or a
mitigated negative declaration.‖ (Ibid.) Consistent with these authorities, if, on
remand, the Court of Appeal determines that neither of the categorical exemptions
discussed above applies, then it may order preparation of an EIR only if, under the
45
circumstances, the City would lack discretion to apply another exemption or to
issue a negative declaration, mitigated or otherwise.
III. DISPOSITION
The Court of Appeal‘s judgment is reversed and the matter is remanded for
further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
BAXTER, J.*
BOREN, J.**
_____________________________
* 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.
46
CONCURRING OPINION BY LIU, J.
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, cannot be built.‖ (Maj. opn., ante, at p. 42.) This rule will not lead
to evasion of the environmental review requirements of the California
Environmental Quality Act (CEQA) because presumably a developer‘s failure to
build the project as approved will be remedied by the local agency that approved
the project. Where opponents of a project make a credible argument that it cannot
be built as approved, a trial court may exercise its discretion to retain continuing
jurisdiction after rendering a judgment in order to ensure CEQA compliance. (See
2 Witkin, Cal. Procedure, Jurisdiction, § 420, pp. 1070–1071; City of Pasadena v.
City of Alhambra (1949) 33 Cal.2d 908, 936 [court reserves jurisdiction to modify
water rights judgment ― ‗in the event material change be found or any such
abandonment or forfeiture be established‘ ‖].) In this case, because the trial court
and Court of Appeal did not limit environmental review to projects actually
approved, I agree that reversal and remand are warranted. (Maj. opn., ante, at
pp. 41–44.)
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.
1
(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 Pub. Resources Code, § 21084,
subd. (a).) When there is a reasonable possibility that a project otherwise covered
by a categorical exemption will have a significant environmental effect, it
necessarily follows that the project presents unusual circumstances. In other
words, the reasonable possibility of a significant environmental effect means that
some circumstance of the project is not usual in comparison to the typical project
in the exempt category. Instead of comprising a distinct requirement, the phrase
―unusual circumstances‖ in section 15300.2(c) 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. The sole
question for courts reviewing agency determinations under section 15300.2(c) is
whether substantial evidence supports a fair argument that the project will have
significant environmental effects.
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
2
agency determinations under section 15300.2(c) will be guided by that guideline‘s
basic purpose, which echoes the statutory mandate: to ensure that projects with a
reasonable possibility of significant environmental effects are not exempted from
CEQA review.
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. (Pub. Resources Code, § 21002.1,
subd. (a); all statutory references are to this code unless otherwise indicated.)
Consistent with that purpose, the Legislature created categorical exemptions and
directed the Secretary of the Natural Resources Agency (the Secretary) to list
classes of projects exempt from CEQA review. Section 21084, subdivision (a)
(hereafter section 21084(a)) provides: ―The guidelines prepared and adopted
pursuant to Section 21083 shall include a list of classes of projects that have been
determined not to have a significant effect on the environment and that shall be
exempt from this division. In adopting the guidelines, the Secretary of the Natural
Resources Agency shall make a finding that the listed classes of projects referred
to in this section do not have a significant effect on the environment.‖ (Italics
added.) Thus, section 21084(a) instructs the Secretary to exempt from CEQA
review only classes of projects that do not have a significant effect on the
environment.
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 (§ 21159.23), certain high priority transit projects
(§ 21155.1), and the construction of certain prisons (§§ 21080.01, 21080.02). The
statutory exemptions are not based on any determination that the exempt projects
will not have significant environmental effects. Instead, they are based on the
3
Legislature‘s determination that each of the exemptions ―promote[s] an interest
important enough to justify forgoing the benefits of environmental review.‖
(Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 382.)
The categorical exemptions authorized by section 21084(a) are fundamentally
different. They are not based on a judgment that certain categories of projects
should be exempt despite their potential effect on the environment. They are
based on a wholesale judgment that projects within the exempt category will not
have significant environmental effects.
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‖ (§ 21084(a)) — for example, a
single-family residence — may turn out to be overinclusive insofar as it includes
some projects that fit the category but nevertheless may have significant
environmental effects. How are such outliers to be treated under the CEQA
scheme?
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
(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. (Pub.
Resources Code, § 21084.) It follows that where there is any reasonable
4
possibility that a project or activity may have a significant effect on the
environment, an exemption would be improper.‖ Section 15300.2(c), promulgated
shortly after Chickering, was an attempt to codify Chickering and its
understanding of section 21084(a). A portion of section 15300.2‘s rulemaking file
reproduced by appellants confirms this regulatory intent, and respondents do not
suggest otherwise. (See 1 Kostka & Zischke, Practice Under the California
Environmental Quality Act (2d ed. 2008) § 5.72, p. 5-62 (1 Kostka & Zischke)
[§ 15300.2(c) ―adopted to codify the court‘s ruling‖ in Chickering that the
Secretary ―may exempt only activities that do not have a significant effect on the
environment‖]; Communities for a Better Environment v. California Resources
Agency (2002) 103 Cal.App.4th 98, 129 (Communities for a Better Environment)
[§ 15300.2(c) exception to categorical exemptions was ―based on the Chickering
decision‖].)
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 CEQA 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) [exception for ―a project which may result in damage to scenic
resources . . . within . . . a state scenic highway‖], 15300.2, subd. (e) [exception for
5
a project located on a hazardous waste site], 15300.2, subd. (f) [exception for a
project that may adversely affect a historical resource].)
This regulatory structure — categorical exemptions, with various
exceptions to the exemptions — confirms that ―a categorical exemption authorized
by CEQA section 21084 is an exemption from CEQA for a class of projects that
the Resources Agency determines will generally not have a significant effect on
the environment.‖ (Communities for a Better Environment, supra, 103
Cal.App.4th at p. 127; see Azusa Land Reclamation Co. v. Main San Gabriel
Basin Watermaster (1997) 52 Cal.App.4th 1165, 1206 (Azusa) [a categorical
exemption identifies ―a class of activities that does not normally threaten the
environment‖ (italics added)].) The CEQA guidelines anticipate the
overinclusivity of categorical exemptions and address the problem by establishing
a list of exceptions.
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 circumstances‖ first
appeared in the context of CEQA review in Friends of Mammoth v. Board of
Supervisors (1972) 8 Cal.3d 247 (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
6
exactly as before the enactment of the [CEQA].‖ (Id. 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-fill
development exemption under section 15332 of the CEQA guidelines. In
explaining that environmental effects not mentioned in section 15332, such as
aesthetics or health and safety impacts, must be considered in determining the
exemption‘s applicability, the court said: ―These other environmental effects . . .
would constitute ‗unusual circumstances‘ under this exception for a project that
otherwise meets the Guidelines section 15332 criteria. This is because a project
that does meet the comprehensive environmentally protective criteria of section
15332 normally would not have other significant environmental effects; if there
was a reasonable possibility that the project would have such effects, those effects
would be ‗unusual circumstances‘ covered by the section 15300.2, subdivision (c)
exception.‖ (Communities for a Better Environment, at p. 129.)
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.
7
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
exemption statutes if, as they assert, a showing of potential environmental effect
precludes application of all categorical exemptions.‖ (Maj. opn., ante, at p. 16.)
―[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. (§ 21151.) Such a showing is inadequate to overcome the
Secretary‘s determination that the typical effects of a project within an exempt
class are not significant for CEQA purposes.‖ (Id. at pp. 20–21.) The court is thus
led to conclude that the term ―due to unusual circumstances‖ sets forth a
requirement separate and distinct from ―a reasonable possibility of significant
effects‖ in section 15300.2(c). In turn, the court devises a novel ―bifurcated‖
standard of review that evaluates whether there is a reasonable possibility of a
significant environmental effect under the fair argument standard, while evaluating
whether significant effects are due to unusual circumstances under a deferential
substantial evidence standard. (Maj. opn., ante, at pp. 34–37.) This approach, the
court suggests, is necessary in order to treat categorically exempt projects
differently from nonexempt projects and thereby realize the purpose of categorical
exemptions.
But the major premise of the court‘s reasoning is faulty, for there are two
reasons why it is not true that categorical exemptions would have no value if we
interpret section 15300.2(c) to apply whenever there is a reasonable possibility of
significant environmental effects.
8
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.) Notice and public review and comment are required
of a negative declaration, and an agency must consider comments and potentially
modify 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.)
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.) 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 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
9
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 evidence comes
from its own investigation, the proponent‘s submissions, a project opponent, or
some other source.‖ (Maj. opn., ante, at p. 18.) But an agency‘s obligation to
consider evidence in its files of potentially significant effects can hardly be
equated with an agency‘s obligation, in the case of a nonexempt project, to
undertake an initial study of the project‘s environmental effects, to solicit and
consider public comments on the study, and to issue a negative declaration
explaining why potential environmental impacts would not be significant. The
procedural burdens falling on agencies when they review nonexempt projects are
considerably greater than when they review categorically exempt projects. The
court‘s suggestion to the contrary will certainly come as news to the agencies that
undertake these different review procedures.
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 section 21084(a). The Secretary‘s designation of an
exempt category reflects a judgment that projects in the category typically do not
have significant environmental effects, and this judgment is entitled to
considerable weight. When an opponent seeks to subject such a project to CEQA
review, the proponent can make two comparative arguments (assuming they are
supported by evidence) that are unavailable in the case of a nonexempt project.
10
First, the proponent can argue that the project‘s effects are typical of the effects
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. Second, the
proponent can argue that the project‘s dimensions or features are not unusual
compared to typical projects in the exempt category, thereby suggesting that the
project is similar to those that the Secretary has determined not to have a
significant environmental effect. The availability of these arguments shows that
the phrase ―due to unusual circumstances‖ is not ―meaningless surplusage.‖ (Maj.
opn., ante, at p. 20.) Such arguments make it more likely that a project belonging
to an exempt category will be able to bypass the environmental review that would
otherwise be required in the absence of any categorical exemption. (See, e.g., San
Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th
1012, 1025 (San Francisco Beautiful); Fairbank v. City of Mill Valley (1999) 75
Cal.App.4th 1243, 1260 (Fairbank); Association for Protection of Environmental
Values in Ukiah v. City of Ukiah (1991) 2 Cal.App.4th 720, 736 (Ukiah).
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 that the
project will have a significant environmental effect.‖ (Maj. opn., ante, at p. 19.)
But evidence of typicality is surely relevant to whether a project opponent can
make a fair argument of atypical features or significant effects. This is confirmed
by the cases just cited (San Francisco Beautiful, Fairbank, and Ukiah), each of
which relies on such comparative arguments in finding no substantial evidence of
a fair argument of significant effects. The court nowhere suggests these cases
erred in their reasoning or results. The fact that comparative arguments may not
11
always defeat a fair argument of significant effects does not negate their value in
the cases where they do.
Today‘s opinion also contends that my reading of section 15300.2(c) puts a
project proponent who claims a categorical exemption in the same position as the
proponent of a nonexempt project who claims the common sense exemption in
Guidelines section 15061, subdivision (b)(3). (Maj. opn., ante, at p. 17.) But the
common sense 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.)
This exacting requirement exceeds an agency‘s obligation, before applying a
categorical exemption, to consider the evidence in its files and preliminarily rule
out a reasonable possibility of significant effects. Indeed, if an agency could
apply the common sense exemption to a project not covered by a categorical
exemption simply by making a preliminary determination based on evidence in its
files that there is no reasonable possibility of significant effects, then the common
sense exemption would swallow the general rule that an agency must conduct an
initial study to determine whether a project not covered by a categorical exemption
will have significant effects. (See Guidelines, § 15063, subd. (a).)
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 Hollywoodland Specific
Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186–1187.) In
addition, project proponents seeking to invoke a categorical exemption may
employ comparative arguments that are not available to project proponents
12
seeking to invoke the common sense exemption. Thus, the availability of the
common sense 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 precludes
application of all categorical exemptions.‖ (Maj. opn., ante, at p. 16.) Without
this erroneous premise, there is no reason to construe ―due to unusual
circumstances‖ as an independent requirement in section 15300.2(c) or to adopt a
separate standard of review for the determination of ―unusual circumstances.‖ As
explained above, this approach is at odds with section 15300.2(c)‘s origins in
Chickering and Friends of Mammoth. Section 15300.2(c) affirms the principle
that ―where there is any reasonable possibility that a project or activity may have a
significant effect on the environment, an exemption would be improper.‖
(Chickering, supra, 18 Cal.3d at p. 206.) And just as a project belonging to an
exempt class will have no significant effects ―in the absence of unusual
circumstances‖ (Friends of Mammoth, supra, 8 Cal.3d at p. 272), a project that
may have significant effects, despite belonging to an exempt class, is necessarily a
project that presents unusual circumstances. The only question for a court
reviewing an agency‘s section 15300.2(c) determination is whether substantial
evidence supports a fair argument that the project will have significant
environmental effects. (See Friends of “B” Street v. City of Hayward (1980) 106
Cal.App.3d 988, 1002.) It need not be more complicated than that.
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 section 21084(a) somehow violates ―the Legislature‘s express
directive in section 21083.1 ‗not [to] interpret‘ the CEQA statutes and the Guidelines
‗in a manner which imposes procedural or substantive requirements beyond those‘ the
13
statutes and the Guidelines ‗explicitly state[].‘ ‖ (Maj. opn., ante, at p. 24.) But the
court‘s reluctance to follow Chickering is ultimately based not on the language or
legislative history of section 21084(a), but on the premise that reading section
21084(a) and section 15300.2(c) in harmony with Chickering would deprive
categorical exemptions of any purpose or effect. Because this premise is flawed, so is
the court‘s haphazard effort to minimize Chickering‘s simple and sensible reading of
section 21084(a).
III.
It is true that over the years, the Courts of Appeal have divided on whether
―unusual circumstances‖ and ―significant effects‖ 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 or 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 due to unusual circumstances. The
only court on record to have reached such a conclusion is the trial court in this
case. But, as today‘s opinion suggests, that conclusion is unlikely to stand. The
absence of case law finding a reasonable possibility of significant effects but no
unusual circumstances further confirms that section 15300.2(c) boils down to one
inquiry, not two.
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 [finding no evidence of possible
14
significant environmental effects while assuming without deciding that there were
―unusual circumstances‖]; Banker’s Hill, Hillcrest, Park West Community
Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 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 (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 (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
[insufficient evidence of significant effects]; City of Pasadena v. State of
California (1993) 14 Cal.App.4th 810, 827–834 [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 (Centinela) [substantial evidence supported finding of no
significant environmental effect]; McQueen v. Board of Directors (1988) 202
Cal.App.3d 1136, 1149 [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, 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, the court
15
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 potential for
significant environmental risks. Other courts have employed similar reasoning.
(See Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1315–1316 [―existing
facilities‖ exemption applied to medical waste facility, and there were no ―unusual
circumstances‖ because the facility was located in an area zoned for heavy
industry and not adjacent to a residential area that might be adversely affected by
such a facility]; Azusa, supra, 52 Cal.App.4th at p. 1207 [finding landfill
―unusual‖ because it overlay a major drinking water aquifer and presented a
substantial risk of pollution].) Again, it appears that no court, other than the trial
court here, has ever found a reasonable possibility of significant effects while also
finding that the effects were not due to unusual circumstances.
As for the proper standard of review, many courts have held that the fair
argument test applies. (Maj. opn., ante, at pp. 32–33 [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. 33, citing Save the Plastic Bag Coalition v. City
and County of San Francisco (2013) 222 Cal.App.4th 863, 879; Hines v.
California Coastal Commission (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
16
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. 21.) This observation, though understating the
real relationship between ―significant effects‖ and ―unusual circumstances,‖
authorizes courts applying section 15300.2(c) to continue reasoning the way they
have been doing for years — i.e., focusing their inquiry on whether there is a
reasonable possibility that the project will have significant environmental effects.
Indeed, before a project has been subject to environmental review, the only thing
that courts are generally positioned to assess with confidence is whether there is a
reasonable possibility of significant environmental effects. (See No Oil, Inc. v.
City of Los Angeles (1974) 13 Cal.3d 68, 84–85.) Even under the cumbersome
rules set forth today, it is hard to imagine that any court, upon finding a reasonable
possibility of significant effects under the fair argument standard, will ever be
compelled to find no unusual circumstances and thereby uphold the applicability
of a categorical exemption. Rather, courts may continue to affirm in practice what
we have stated as a simple principle: ―where there is any reasonable
17
possibility that a project or activity may have a significant effect on the
environment, an exemption would be improper.‖ (Chickering, supra, 18 Cal.3d at
p. 206.)
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).
LIU, J.
I CONCUR:
WERDEGAR, J.
18
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Berkeley Hillside Preservation v. City of Berkeley
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 203 Cal.App.4th 656Rehearing Granted
__________________________________________________________________________________
Opinion No. S201116
Date Filed: March 2, 2015
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: Frank Roesch
__________________________________________________________________________________
Counsel:
Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiffs and Appellants.
Michael W. Graf for Center for Biological Diversity and High Sierra Rural Alliance as Amici Curiae on
behalf of 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.
1
Page 2 – S20116 – counsel continued
Counsel:
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 for California Cities and
California State Association of Counties as Amici Curiae on behalf of Defendants and Respondents and
Real Parties in Interest and Respondents.
Kamala D. Harris, Attorney General, Sally Magnani, Assistant Attorney General, Janill Richards and
Catherine M. Wieman, Deputy Attorneys General, as Amici Curiae.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA 95442
(707) 938-3900
Amrit S. Kulkarni
Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
(510) 808-2000
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