CEQA: More precious than the Constitution?

We previously reported on the decision from California’s Fifth Appellate District in the case of Tuolumne Jobs, holding that CEQA applies to local voter initiatives under certain circumstances.  Earlier this month, the real parties in interest in the case, James Grinnell, Wal-Mart Stores, and the City of Sonora, filed petitions for review in the California Supreme Court.  This case involves important issues under both CEQA and the California voters’ right of initiative, so PLF has written an amicus curiae letter encouraging the Court to grant review in the case.

The case arises from a local voter initiative to approve an expansion of the Wal-Mart in the City of Sonora.  The proponent, James Grinnell, submitted the initiative petition with the requisite number of signatures to the city council, following the prescribed procedures.  Under the California Elections Code, the Sonora City Council was required to either (a) adopt the initiative outright, as a city ordinance, or (b) put the initiative to a vote at the next election.  Under the law, the Council had no ability to modify the initiative in any way.  Prior Supreme Court and Court of Appeal decisions have held that the initiative process is not subject to CEQA.  So the City Council adopted the initiative as an ordinance, and no EIR was certified.  But in Tuolumne Jobs, the Court of Appeal ruled that the City Council should have complied with CEQA before adopting the initiative as an ordinance.

The decision makes little sense.  The appellate court admitted that a city could not possibly prepare an EIR within the time required to act on the initiative, nor could a city consider alternatives or impose mitigation measures on an initiative.  The Tuolumne Jobs decision is in direct conflict with another appellate court decision, so it creates a conflict of law that the Supreme Court will need to resolve.

Additionally, Tuolumne Jobs is disturbing in the way it describes the Constitutional right of initiative.  The California Supreme Court has repeatedly noted that all power of government resides ultimately in the people, and emphasized that the initiative and referendum are not rights granted to the people by the government, but ‘precious’ rights reserved by the people of California.  In contrast, Tuolumne Jobs views the voters, and the Constitutional right of initiative, with deep suspicion:

“Elections Code section 9214 allows as little as 15 percent of the city’s voters to place a ballot measure before all the voters, but neither that section nor the constitutional provisions it implements authorizes a small majority of voters in a local jurisdiction, with no election having been held, to overcome the will of the people of the state as expressed by a majority of their representatives in the Legislature.”

Tuolumne Jobs then goes on to say something remarkable about CEQA itself: it would be useful to prepare an otherwise pointless EIR on a voter initiative so that a city council could use the results to campaign against the initiative!

Not much respect for voters or the state Constitution on display here!  As the saying goes, this is wrong on so may levels, and PLF looks forward to the state Supreme Court granting review .  We will know if the Court will take the case in the next few months, so stay tuned.

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