An August 12, 2022 letter to the Supreme Court – signed onto by more than a dozen leading CEQA attorneys not representing parties to the action or other clients – has requested the Court to modify its August 1, 2022 majority opinion in County of Butte v. Dept. of Water Resources, Supreme Court Case No. S258574 to correct an error in one of the opinion’s background statements concerning a basic principle of CEQA law. (The error was pointed out in my August 7, 2022 post on the case, which can be found here.)
The CEQA practitioners’ letter, a copy of which can be found here, asks the Court to modify its opinion by deleting a statement indicating that an EIR “must” include a discussion of a project’s “economic and social effects.” The letter points out that this apparently inadvertent erroneous statement contradicts CEQA, its Guidelines, and decades of published case law authority, all of which re-affirm CEQA’s general rule that – with every limited exceptions – economic and social effects are outside CEQA’s scope and need not be analyzed in an EIR. The letter expressed concern that the erroneous passage “could be misrepresented to suggest that the CEQA Guidelines generally require an EIR to analyze a project’s social and economic effects” and observed that “there is nothing in the Opinion suggesting that the Court intended to make an important change to the law[.]”
The letter was signed onto by, among others, Michael H. Zischke and Stephen Kostka, (authors of the leading CEQA treatise, Practice Under the California Environmental Quality Act, (CEB 2d Ed.)); James G. Moose; Jennifer L. Hernandez and Daniel R. Golub; Tina Thomas; David Blackwell; and myself and my partner, Bryan Wenter. Another letter joining in the request for modification was filed on August 16, 2022, by Jolie-Ann S. Ansley of Duane Morris LLP, representing Real Parties (State Water Contractors, Inc. et al) in the case. That letter echoed that the inadvertent incorrect statement “has no bearing on the Court’s holding, but out of context could create confusion and misunderstanding regarding CEQA’s requirements[.]”
The letters requesting modification are well-taken; the potential for mischief in the law is real if the high court’s fundamental error is not corrected since CEQA attorneys scrutinize and hang on every word of new Supreme Court decisions. In short, the last thing we need is any inadvertent judicial error that risks making CEQA more onerous than it already is. Under the California Rules of Court, the Supreme Court can modify the opinion before it becomes final on August 31, 2022, which is 30 days after its filing. For the sake of the law – and all who practice and are impacted by it – let’s hope that it does.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.