This morning the California Supreme Court issued its decision in Berkeley Hillside Preservation v. City of Berkeley, announcing that projects which are categorically exempt from review under the California Environmental Quality Act are exempt even if they might have negative environmental impacts. The Court’s decision is consistent with Pacific Legal Foundation’s amicus brief in support of property owners who are trying to build a home without endless environmental review.
CEQA requires extensive review of a project’s potential impacts, analysis of alternatives to the project, and mitigation of unavoidable project impacts, unless the project is exempt. The statute establishes several exemptions, and requires the California Resources Secretary to establish others by regulation. A limitation, or exception, to the exemption applies where otherwise exempt projects may have adverse environmental impacts “due to unusual circumstances.”
One of the common sense CEQA exemptions is for single family homes. In this case the City of Berkeley agreed that a property owner’s proposed single family home was exempt from CEQA and approved it. Various activists objected to the size of the home, and successfully argued to the lower court that the categorical exemption should not apply if they could show that the home might have negative environmental impacts, whether or not these impacts were due to unusual circumstances.
The California Supreme Court reversed the lower court and ruled that the categorical exemption applies unless a project opponent can show unusual circumstances about the project which may cause harm to the environment. In doing so, the Court followed PLF’s amicus advice and limited the holdings of two prior CEQA exemption cases to their specific circumstances: Wildlife Alive v. Chickering (California Fish and Game Commission hunting season regulations are not entitled to categorical CEQA exemption) and Mountain Lion Foundation v. Fish & Game Commission (California Endangered Species Act delisting action not entitled to categorical exemption from CEQA).
This is significant for reasons beyond this case. First, Justice Chin authored today’s opinion in Berkeley Hillside Preservation, limiting the holding of Mountain Lion Foundation. Justice Chin dissented in Mountain Lion Foundation, and would have held in that case that CESA delistings are exempt from CEQA. As the California Supreme Court is reshaped by recent retirements and new appointments, Justice Chin demonstrates at least some ability to bring members of the Court in his direction on certain issues, particularly in methods of statutory construction. Second, the Court in today’s decision appears very comfortable with the state legislature adjusting the application of CEQA, including outright exemptions, according to policy and economic goals aside from environmental considerations.