Michael H. Zischke

Partner

Overview

Mike has practiced land use and environmental law for 36 years, and is recognized for his extensive knowledge in California Environmental Quality Act (CEQA) litigation and compliance. He co-authored the two-volume treatise Practice Under the California Environmental Quality Act, the CEQA treatise most often cited by California courts, which was first published in 1993, has been updated every calendar year since, and is now in its second edition. He is recognized in numerous publications as one of the leading environmental and land use lawyers in California, and he has been named as one of the top 100 Northern California lawyers for the last eleven years.

Unparalleled Experience In Land Use And Environmental Law

Mike represents businesses and public agencies which are navigating California's permitting and environmental impact review processes with the goal of obtaining approval of development projects and plans, and associated environmental impact reports. He also represents businesses and agencies in defending project approvals against land use and environmental lawsuits challenging those approval decisions. 

Supreme Court, Appellate, And Trial Court Litigation Throughout California

Mike has represented clients in land use and environmental cases at all levels of the California courts and throughout the state. He has defended projects approvals against challenges under CEQA, the Planning and Zoning Law, and the initiative and referendum provisions of the Elections Code. He has litigated projects from the North Coast redwood forests to the Sierras to the Colorado River and desert highlands, in addition to downtown and suburban development.

Mike also has substantial experience in negotiating and settling land use disputes, and has reached favorable settlements in numerous matters, including port developments, aggregate and hard rock mines, planned residential communities, and environmental cleanups. He regularly represents clients in both mediations and in private settlement negotiations.

Environmental Impact Compliance And Litigation

Mike has a particular specialty in environmental impact reviews under CEQA and the National Environmental Policy Act (NEPA) and frequently handles cutting edge CEQA cases. He defended and successfully settled the first CEQA lawsuit over greenhouse gas emissions, the California Attorney General's challenge to the San Bernardino County general plan. He later worked with the County in formulating the greenhouse gas reduction plan and associated environmental impact report pursuant to that settlement.  Most recently, he won a California Supreme Court ruling upholding the greenhouse gas emissions analysis in the EIR for the San Diego Association of Governments regional transportation plan.

State Agency Expertise

In addition to handling entitlement and environmental impact issues in numerous local jurisdictions, Mike has a broad range of experience in handling matters before specialized state agencies. Mike has handled matters before the State Lands Commission, the California Energy Commission, the California Public Utilities Commission, regional water boards, the California Building Standards Commission, the Coastal Commission, the California Historical Resources Commission, and the California Native American Heritage Commission.

Land Use Ballot Measures And Litigation

Mike also advises clients and litigates in the area of land use ballot measures. This includes both the substantive validity of initiatives and referenda, as well as legal issues relating to ballot arguments and signature-gathering. Mike co-authored the Solano Press 1990 text, Land Use Initiatives and Referenda in California.

Representative
Matters

University Research Campus. For a national research campus, represented university in formulating and defending environmental impact report for 20-year long range development plan. Legal advice on specific development projects. Prevailed in every CEQA challenge filed over 15-year period.

Alternative Energy Projects. Defended several wind and solar projects in the central valley and desert regions against environmental impact challenges in federal and state court. Assisted project developers with completion of EIR and EIS documents under NEPA and CEQA.

Transmission Lines & Pipelines. Represented proponents of new transmission lines and pipelines in permitting and CEQA review, and in subsequent CEQA litigation successfully defending project approval.

Downtown Master Plans & Projects. Represented public agencies and project applicants in permitting and defending urban master planned projects, including substantial downtown retail and mixed-use projects in Northern and Southern California.

Public Agency CEQA Compliance & Litigation. Represented a variety of cities, counties, and special districts in CEQA compliance and litigation regarding general plans, specific plans, and agency-sponsored projects, including trial and appellate litigation. Projects have included airport and port expansions, rail transit projects, master planned residential projects, and downtown development and redevelopment projects.

Mining Projects. Represented mining clients in valley, foothill, Sierra and North Coast regions in permitting and defending hard rock, terrace and instream mining projects. Successfully settled CEQA litigation challenges, and prevailed in trial and appellate decisions on other projects.

Homebuilders. Represented a variety of homebuilders throughout the state in the permitting and CEQA review for residential development projects. Resolved tribal claims relating to implementation of approved projects. Represent homebuilding organizations in CEQA legislation in Sacramento, and amicus advocacy in appellate courts throughout the state.

In-fill Housing Developments. Advised a number of developers regarding in-fill development, including CEQA review, use of CEQA exemptions, and traffic mitigation and related issues.

Transportation Projects. Represented tribal government in completing the approval, environmental review, and construction of a new interchange to serve tribal lands. Represented local rail authority in preparing EIR for new rail line, and defending EIR at California Public Utilities Commission against legal challenges.

Solid Waste. Represented a variety of landfills and solid waste facilities in local and state permitting for expansions, additional waste streams, and proposed new landfills.

More »

Hospitals and Medical Campus Development. Successfully permitted and defended EIR for new hospital campus in Sonoma County, including defense of land use and CEQA claims. Advised both public and private developers on hospital projects.

Environmental Cleanups. Advised clients on environmental impact reports for major environmental cleanups, including resolution of environmental mitigation claims.

Published Opinions

California Supreme Court

Cleveland National Forest Foundation v. San Diego Ass’n of Governments (2017) 3 Cal.5th 497.  Represented SANDAG in defending the analysis of greenhouse gas emissions in the EIR for their long-range transportation plan.  The Supreme Court ruled that SANDAG was not required to determine the significance of emissions impacts based on executive order targets.

Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677.  Represented the rail operator, Northwestern Pacific Railroad, as real party in interest, in case confirming that federal law preempts the application of CEQA to private rail operations, even though public rail authority decisions are subject to CEQA review.

California Building Industry Association v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369. Represented CBIA in this case, which clarified that CEQA evaluates impacts of a project on the environment, not the environment’s impacts on a project.

Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310.  Represented the owner of a refinery as real party in interest, in case involving the proper environmental baseline for evaluating the impacts of a proposed modification of the operation of the existing refinery.

Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165.  Represented the City of Sierra Madre in decision which held that council-sponsored initiative measures are subject to CEQA review.

California Court of Appeal

California Building Industry Association v. Bay Area Air Quality Management Dist. (2016) 2 Cal.App.5th 485. On remand from Supreme Court, represented CBIA in decision confirming that BAAQMD’s CEQA guidelines exceeded statutory authority and must be revised.

Citizens for Sustainable Treasure Island v. San Francisco (2014) 227 Cal.App.4th 1036. On  behalf of an affordable housing developer, defended EIR for master plan and new community on Treasure Island.

Jones v. Regents of University of California (2010) 183 Cal.App.4th 818.  Represented the Regents and the Lawrence Berkeley National Laboratory in defending the  EIR for the Lab’s long range development plan, against neighborhood group challenges based on project alternatives, hazardous materials, and greenhouse gas emission issues..

Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743.  Represented subdivision developer in successful defense of map approval based on statute of limitations and service of process deadlines.

Shea Homes Ltd. Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246.  Represented developer in challenge to initiative slow growth measure.

Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.App.4th 268.  Represented port in defending approval of  new shipping terminal against CEQA challenge.

San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656.  Defended EIR and redevelopment plan amendment for rehabilitated downtown shopping center.

Placer Ranch Partners v. County of Placer (2001) 91 Cal.App.4th 1336.  Represented county in defending general plan update against CEQA and planning law challenges.

Merritt v. City of Pleasanton (2001) 89 Cal.App.4th 1032.  Represented landowner in challenge to land use referendum.

Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223.  Represented landfill operator in challenging CEQA process for amendment to landfill use permit.

Federal Cases

Desert Protective Council v. U.S. Department of Interior, 927 F. Supp.2d 949 (S. D. Cal. 2013).  Represented wind farm operator in defending federal approvals for 265 MW facility against challenges based on Administrative Procedures Act and National Environmental Policy Act.

Publications &
Speaking Engagements

Books

Practice Under the California Quality Act (Second Edition, California Continuing Education of the Bar, updated annually). Co-author.

Land Use Initiatives and Referenda in California (Solano Press, 1990).  Co-author

Recent Publications

Selected Recent Speaking Engagements

"Case Law and Legislative Update," 13th Annual SuperConference  - CEQA - A Review of 2017, 12/14/2017

“CEQA: What Did the Legislature and Courts Do to Us This Year” Annual Conference, Land Use Section, County Counsels Association of California, 11/30/2017

“GHG and Climate Change – California Update” Annual Conference, Land Use Section, County Counsels Association of California, 11/30/2017 (panelist)

"Recent and Pending California Supreme Court Land Use Cases," Law Seminars International - Land Use Planning In California, 4/27/2016

"Fixing Up Your Projects: Strategies and Tools for Revising and Retooling Previously Approved Projects," APA California Conference, 10/6/2015

"Tribal Cultural Resources and CEQA: Time to Get Ready for AB 52," APA California Conference, 10/5/2015

CEB Webinar - “Update on Recent and Pending California Supreme Court Land Use Cases”, 6/25/2015

The California Environmental Quality Act: What's Happening In The Courts And The Legislature, Lambda Alpha Los Angeles Chapter, 2/27/2013

Greenhouse Gas Reduction Plans: Lessons Learned – The San Bernardino County Experience, County Counsels Association Of California, May 2012

The Future Of CEQA At UC Davis Law School CEQA At 40: A Look Back, And Ahead, November 2011

Awards &
Affiliations

Awards & Recognition

  • Who’s Who Legal: Environment 2017-2018
  • Who’s Who Legal: Real Estate 2016
  • Legal 500, Land Use/Zoning, 2015
  • Best Lawyers, "Lawyers of the Year," 2012, 2014-2017
  • Best Lawyers, Environmental Law, Land Use and Zoning Law; Litigation-Environmental, Litigation-Land Use & Zoning; & Real Estate Law, 2018; ranked in various categories since 2008
  • Chambers USA, one of California’s leading attorneys in both environmental law and real estate/land use, 2003-2017
  • San Francisco Environmental Litigator of the Year, 2012
  • Northern California Super Lawyers, 2004-2018
  • Top 100 Northern California Super Lawyers, 2007-2018

Professional Affiliations

  • Real Property Advisory Committee, California Continuing Education of the Bar
  • Center for Law, Energy & Environment, Berkeley Law, Founding Member of Advisory Board
  • Lambda Alpha (honorary land economics society)
  • American College of Real Estate Lawyers
  • California Building Industry Association, Select Conference on Industry Litigation
  • San Francisco Lawyers Club, Board of Directors, 2001-2003
  • Environmental Law Section of the State Bar of California, Advisor, 1999-2004; Executive Committee, 1996-1999
  • Ecology Law Research Institute, Founding Member & Secretary, 1983-1999
  • Ecology Law Quarterly, Articles Editor, 1982
  • Legislative Assistant for Energy and Environmental Matters, Representative Bob Carr (D-Michigan) 1977-1979

Community Affiliations

  • Boys & Girls Clubs of Oakland, Board of Advisors, 1997-present; Director, 1986-1996;
  • Child Care Law Center, Board of Directors, 1999-2008

Bar and Court Admissions

  • State Bar of California
  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. District Court for the Central, Northern, and Southern Districts of California

Education

  • J.D., University of California, Berkeley School of Law (Boalt Hall), 1982
  • B.A., Dartmouth College, 1977, magna cum laude