California High Court Could Play Major Role In CEQA Reform

Source: Law360

3/7/2013

Michael Zischke was quoted in a Law360 article published March 7, 2013 about a number of cases the California Supreme Court has taken up that involve the California Environmental Quality Act and what appears to the court's greater willingness to try to resolve conflicts involving the law. According to the article, between 1970 when the law took effect and 2005, the court decided a total of 13 cases involving the law. Since then, it has decided the same number of cases involving CEQA – 13 – and has granted review to five CEQA cases in just the past year.
 
Zischke told Law360 that the pending cases demonstrate the court's interest in giving guidance on the law. The article also mentions a key CEQA case, Berkeley Hillside Preservation v. City of Berkeley (Logan), involving a dispute over a residential project in Berkeley that lawyers say could end up making it tougher for infill and smaller projects to qualify for exemptions.
 
Zischke, who is representing building groups in support of the city’s position, said if the court of appeal decision's is ultimately affirmed, “it would make it much harder, and much less certain, to use exemptions in the CEQA guidelines.
 
“It’s a really important decision with respect to agencies’ ability to use exemptions, which help keep CEQA a little more workable so that minor projects don’t have to go through CEQA review,” he said.
 
Zischke also commented on another CEQA case under review, Neighbors For Smart Rail v. Exposition Metro Line Construction Authority, which will decide whether a Los Angeles light-rail project can use future conditions as an environmental baseline.
 
Zischke told the paper that is can be more accurate to base an environmental impact assessment on the time when a project is expected to be up and running, rather than present conditions.

“There’s been a concern that the other decisions stilted the CEQA process when looking at projects for infrastructure or transit, roads and rail lines that take a long time to build,” he said.

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