Top Appellate Reversals: Center for Biological Diversity v. California Department of Fish and Wildlife

California Environmental Quality Act and Fully Protected Species Laws

California Supreme Court

Plaintiffs' attorneys: Center for Biological Diversity, John T. Buse, Kevin P. Bundy, Adam F. Keats, Aruna M. Prabhala,; Jason A. Weiner; Chatten-Brown & Carstens LLP, Jan Chatten-Brown, Douglas P. Carstens; UCLA School of Law, Sean B. Hecht

Defense attorneys: Thomas Law Group, Tina A. Thomas, Ashle T. Crocker, Amy R. Higuera; California Department of Fish and Wildlife, John H. Mattox, Wendy L. Bogdan; Gatzke Dillon & Ballance LLP, Mark J. Dillon, David P. Hubbard;Nielsen Merksamer Parrinello Gross & Leoni LLP, Arthur G. Scotland; Morrison and Foerster LLP, Miriam A. Vogel; Downey Brand LLP, Patrick G. Mitchell,

In a fight that began almost 20 years ago against a developer hoping to build a new city on the outskirts of Los Angeles, one of environmentalists' last hopes for stopping the project was with the state Supreme Court.

The Center for Biological Diversity, Friends of the Santa Clara River and others had sued the state agency that granted permits to the Newhall Land and Farming Co. to begin major work on the defunct ranch near Valencia that they envisioned having housing for 58,000 people, 5.5 million square feet of commercial space, schools, a golf course and parks.

Their lawsuit, alleging that the California Department of Fish and Wildlife had violated environmental laws when it granted project permits, went down in flames at the 2nd District Court of Appeal after an initial win in the trial court.

In December, the state Supreme Court reversed the 2nd District across the board in a 5-1-1 ruling. Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2015 DJDAR 12754.

The court held that the fish and wildlife agency, or CDFW, failed to back up its conclusions that the project would have a minor effect on climate change. CDFW had found the project's greenhouse gas emissions were not "significant" under the California Environmental Quality Act, a 1970 law which requires project proponents take steps to reduce any significant environmental impacts.

"The decision underscores that building a new city, or any other project that's going to increase greenhouse gas emissions, should provoke some soul searching in terms of the public and public officials on how that squares with California's goals for reducing greenhouse gas emissions," said Kevin P. Bundy, climate legal director at the Center of Biological Diversity.

What the court said is that "agencies have to be really careful to show their work ... and show that their conclusions are backed up by the evidence," Bundy said.

Other plaintiffs involved in the case alongside Bundy's group are the Santa Clarita Organization for Planning and the Environment, Wishtoyo Foundation, Ventura Coastkeeper and the California Native Plant Society.

The groups' concerns not only focused on the increased sprawl and traffic, with its concomitant greenhouse gas spike, but also on the plan's effect on wildlife and the Santa Clara River - including filling some of its tributaries and erecting levees on Southern California's last largely free-flowing river.

The lawsuit claimed that a plan to capture and relocate a small fish called the unarmored threespine stickleback violated an obscure series of laws called the Fully Protected Species Laws.

The laws confer a high level of protection to close to 40 species in the state, including the stickleback, the California condor and the California sea otter. The high court ruled that CDFW's approval of a relocation plan to protect the fish during construction violated the Fully Protected Species Laws.

Newhall has filed a petition for rehearing at the court which is still pending.

If the court declines to revisit its decision, the ruling will lead the California Department of Fish and Wildlife to take another look both at its greenhouse gas analysis of the project, as well as how the work to alter the Santa Clara River can be done without harming the stickleback.

"It's been a long haul and it's a tremendous cap to the history of working on the project," said John T. Buse, legal director at the Center for Biological Diversity who has fought Newhall from the get-go.

"But at the same time, we have a sense it's not over yet," he added. "Newhall's not just going to decide to go home. The project will come back in some form or another."

- Fiona Smith