State high court wrong to not depublish CEQA case

The California Environmental Quality Act is controversial. It's credited with preserving our environment; providing government decisionmakers with essential information, holding them accountable, and providing the public with a privileged position in the development process. It's blamed for extortionate "greenmail," anti-competitive and "NIMBY" litigation, stifling business, and contributing to a state housing crisis of epic proportions. CEQA has produced byzantine case law and prolix statutory amendments and regulations. Gov. Jerry Brown dubbed its reform "the Lord's work."

For the most part, courts seem to do their best to rationally interpret and apply this complex law. Still, some case law developments are puzzling. A case in point is the California Supreme Court's Nov. 26 decision not to depublish a recent 2nd District Court of Appeal opinion that misstates the law in a manner harmful to lead agencies and the regulated community. Despite depublication requests by the city of Los Angeles, the California Building Industry Association, the California State Association of Counties and the League of California Cities, Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al., 39 Cal. App. 5th 1 (2019), remains "on the books" as published precedent. Only Justice Carol Corrigan and Justice Leondra Kruger voted to depublish it.

The decision affirmed a judgment granting a CEQA writ petition invalidating the final EIR and entitlements for the Millennium Project, a proposed mixed-use development on a 4.47-acre parcel straddling Vine Street and surrounding the historic Capital Records building in Hollywood. The court upheld the trial court's finding that the environmental impact report violated CEQA's requirement for a stable and finite project description. Asserting that "the project description is at the heart of the EIR process in this case," the court found it "not necessary to reach appellants' [the city and developer Millennium]" challenges to several other grounds upon which the trial court issued its writ, including findings that the EIR's transportation analysis improperly failed to use Caltrans' methodology, that its analysis of cumulative traffic impacts lacked substantial evidence, and that a condition of approval improperly expanded the approved project uses beyond those actually analyzed. It also declined to address the plaintiff/cross-appellant's claim that the city failed to notice and consult with the California Geological Survey regarding potential seismic hazards.

The opinion's failure to address all these issues, and its published reasons for that omission, violate CEQA and warrant its depublication. I understand that, in some circles, the practice of depublication itself is controversial, and that some Supreme Court justices may share to some extent a general reluctance to depublish opinions. Be that as it may, as a practical matter it would be impossible for the Supreme Court, with its crushing workload, to properly carry out its duties and manage the state's published judicial precedents -- so as to secure uniformity of decision and provide useful guidance to courts, lawyers and litigants -- if it did not exercise its depublication power. It has, in fact, exercised that power numerous times in recent years to depublish CEQA decisions.

Setting aside its questionable CEQA project description analysis -- a topic area the Supreme Court might want to percolate in the appellate courts -- depublication of the Stopthemillenniumhollywood.com decision was more than justified by its clearly erroneous analysis of whether CEQA requires a reviewing court to address all CEQA deficiencies alleged in an action, even after it finds prejudicial error sufficient to require invalidation of the agency's action on one of the grounds alleged. On this issue, the 2nd District relied solely on a criminal case citing a personal injury case -- both of which dealt with minimum constitutional requirements for memorandum opinions of appellate courts to "state reasons for the disposition;" and a CEQA statute (Pub. Resources Code Section 21168.9) which did not address the relevant issue.

Stopthemillenniumhollywood.com reasons:

"The parties raise other issues regarding the EIR's sufficiency on appeal, including, inter alia, whether the City is required by law to use Caltrans' methodology for the study of traffic effects, whether the City was required to consider cumulative effects, including those on the 101 Freeway, in evaluating the project under CEQA, and whether the seismic issues were sufficiently disclosed. Given that the project description is fatally defective and supports the trial court's decision to issue the writ, we need not reach these issues .... [citations]. An appellate court is not required to address every one of the parties' respective arguments or express every ground for rejecting every contention advanced by every party."

The court's attached footnote then observes that CEQA's remedies provision, "Public Resources Code Section 21168.9[,] does not mandate that we rule on every issue presented on appeal" and instead "provides that the trial court's order, upon remand, shall include only those mandates that are necessary to achieve CEQA compliance."

Unfortunately, this whole "analysis" is wrong and mostly off-topic. The minimum constitutional requirements for a valid appellate opinion have no bearing on whether courts are required by law to address all alleged noncompliance issues in CEQA cases. Section 21168.9, which governs mandatory contents of writs after a court has found an actual violation or violations of CEQA, has nothing to say about whether the court must address all claimed violations. And the court's analysis flies in the face of a directly-on-point CEQA statute that the opinion fails to even cite. Public Resources Code Section 21005(c) provides: "It is the further intent of the Legislature that any court, which finds, or, in the process of reviewing a previous court finding, finds, that a public agency has taken an action without compliance with this division, shall specifically address each of the alleged grounds for non-compliance." See also, e.g., North Coast Rivers Alliance v. Kawamura, Cal. App. 4th 647, 654 (2015).

Plain enough? While it has been held that Section 21005(c) "does not require [an] appellate court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon CEQA review following remand," that judicially created exception was not cited or referred to by the 2nd District, nor is it apparent that the CEQA issues left undecided would be at all affected by a post-remand EIR providing a more specific project description. Rather, since the project EIR analyzed a maximum building envelope/environmental impact scenario, it is quite likely those discrete issues -- all involving essentially fungible urban environmental impacts -- would be entirely unaffected or at least would not be "addressed in a completely different and more comprehensive manner" in any revised EIR. In any event, the court's reasoning for not reaching those issues did not take such considerations into account, and basically boiled down to "we don't have to and you can't make us."

The court's reasoning was not only exceptionally poor, and its statement of governing law wrong, but it will set harmful CEQA precedent if cited -- as it undoubtedly will be -- by litigious project opponents, and followed -- as it hopefully will not be -- by overworked or lazy judges in future cases. CEQA actions commonly raise numerous issues and alleged grounds for non-compliance in "shotgun" fashion. Section 21005's purposes in requiring all issues to be addressed include providing lead agencies with useful guidance on remand where some violations are found (thus requiring a new process and new or revised CEQA documents), and preventing inefficient and wasteful "piecemeal" litigation where the very same claimed but unadjudicated violations are raised in subsequent "rounds" of litigation. Endless rounds of piecemeal CEQA litigation may be an obstructive CEQA plaintiff's dream, but pose a real nightmare for public agencies and project proponents trying to comply with the law.

The Supreme Court majority's reasons for not depublishing will never be known. But I doubt that the majority believes the decision, on the points discussed above, correctly states the law or sound public policy. Depublication would seemingly have been an ideal solution to address the opinion's flaws, leaving it in place as to the parties but erasing the bad precedent. Depublication also provides judicial "cover" (if needed or desired) because the rules of court provide it "is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion."

If the Supreme Court majority's objection to depublication was based on some principle of "transparency," or not wanting to offend the Court of Appeal, then it fails to sufficiently appreciate its critical role as the gatekeeper of published California precedent -- which exists as such primarily to provide helpful guidance to judges, lawyers and litigants in other cases. Leaving bad law "on the books" does "real world" harm -- here, judicially sanctioning wasteful piecemeal CEQA litigation. It's a shame that only Justices Corrigan and Kruger appeared to recognize or care about that. 