ConnectingCalifornia.org

Tuesday, March 10, 2009

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Courtroom Battles that Affect all of California:

CA Supreme Court Denounces Conditional Approval of Projects before Conducting Environmental Review

By: Jan Chatten-Brown of Chatten-Brown and Carstens, http://www.cbcearthlaw.com

In a landmark ruling, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the Supreme Court unanimously affirmed a ruling by the Court of Appeal that the City of West Hollywood violated the CEQA when it approved a redevelopment project before completing the EIR for the project, and that making the approval conditional upon subsequent preparation of an EIR did not cure the defect. The case has profound implications for when public agencies must conduct CEQA review.

Save Tara, the Plaintiff, argued that by approving a residential development project, even though conditioned on subsequent environmental review, the City of West Hollywood effectively predetermined the outcome of the later environmental review. The Supreme Court agreed. The Court stressed that merely conditioning an approval on subsequent review would undermine the purposes of CEQA, which is both to protect the environment and to ensure government accountability. By committing its resources and prestige to the project, the City undermined the integrity of the subsequent review process. “Rather than a document of accountability…the EIR may appear, under these circumstances, a document of post hoc rationalization.” The Supreme Court also indicated that courts must closely scrutinize agency decisions on the timing of the environmental review process: “an agency has no discretion to define approval so as to make its commitment to a project precede the required preparation of an EIR.”

Jan Chatten-Brown, a PCL Regional Vice President and founder of the environmental law firm of Chatten-Brown & Carstens in Santa Monica, who successfully litigated the case, stated “Increasingly, public agencies have sought to move projects forward before conducting environmental review, thus shutting the public out of a key part of the decisionmaking process, and creating irresistible momentum for many projects. The Court’s decision rejects such pre-review commitment to projects and provides guidance for planning processes by public agencies large and small throughout the state. In reaching its decision, the Court reiterated that the review must be conducted before a commitment to the project is made.”

The Court did not establish a “bright line” rule against conditional agreements, but rather said courts must consider all of the circumstances when determining whether an agency had gone too far in its approval process before conducting CEQA review. However, as a practical matter, the manner in which the Court applied its principles to the facts of the Save Tara case should have the effect of discouraging agencies from using conditional agreements. Most importantly, as at least one Court of Appeal has now recognized, the Supreme Court in Save Tara limited the application of a number of earlier Court of Appeal decisions that had been relied upon by public agencies to allow approval of aspects of projects before environmental review was conducted.

The Supreme Court’s decision also rejected the City’s claim that its after-the-fact preparation of an EIR had rendered the case moot. The Court noted that the City had not taken any irreversible physical or legal decisions since the EIR was prepared, and that it must reconsider its decisions after it has the benefit of an environmental evaluation. Therefore, the Plaintiff could still obtain the relief it sought.

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Obama Announces Endangered Species Act Rescue

3/6/2009--Our country's best wildlife law will soon rise from the ashes of its Bush administration near-demise, according to a Tuesday memorandum issued by President Obama announcing he'll rescind Bush's rules eviscerating the Endangered Species Act. The undoing of the rules means that thousands of potentially species-harming federal activities exempted by Bush from independent review -- including activities generating greenhouse gases -- will again be the rightful subjects of scientific scrutiny by federal agencies. A full defeat of the rules may require more action by the new administration, but Tuesday's announcement is an essential first step. The Senate is now considering a bill that would let the Obama administration, with the stroke of a pen, rescind both Bush's Endangered Species Act changes and a special rule weakening protections for the polar bear.

When Bush's Endangered Species Act regulations were finalized in December, the Center for Biological Diversity was already in court to fight them. We're glad to see scientists back in the driver's seat for endangered-species management and hope Obama will fully rescind both the Endangered Species Act changes and the polar bear rule.

Tuesday, March 10, 2009

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