Welcome to “CEQA News You Can Use,” a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
Air Resources Board regulation targeting ocean-going vessel emissions slips by CEQA claims
In Western States Petroleum Ass’n v. Cal. Air Resources Bd. (2025) 108 Cal.App.5th 938, the Second District upheld the California Air Resources Board’s (CARB) 2020 regulation limiting emissions from tankers and ocean-going vessels at berth (while docked or at anchor at a California port). Although the Western State Petroleum Association (WSPA) challenged the regulation on multiple grounds, we focus on the CEQA-esque aspects of the decision. CARB is a certified regulatory program, which means it prepares its own environmental analysis (EA) as the functional equivalent of an EIR, which must comply with special requirements set forth in Public Resources Code Section 21159 for emissions reduction measures. First, WSPA argued that the EA lacked specifics about potential safety hazards from the regulation and foreseeable mitigation measures, but the court found that the EA could analyze the regulation at a program level and defer project-level mitigation to land use and/or permitting agencies for individual projects at California ports. Second, WSPA claimed the EA failed to adequately analyze cumulative impacts associated with the regulation, but the court found the EA could reasonably rely on a cumulative impacts analysis set forth in a prior CARB document and was correct in addressing cumulative impacts at a program level.
First District orders MND set aside for lack of meaningful tribal consultation
In Koi Nation of Northern California v. City of Clearlake (2025) ___ Cal.App.5th ___, 2025 WL 814759, the First District issued the first published decision interpreting Assembly Bill (AB) 52 and what it means to meaningfully conduct tribal consultation. The case involved a four-story hotel in Clearlake, California. On Feb. 15, 2022, the City of Clearlake (“City”) met with a Koi Nation tribal representative and Robert Geary, the tribal historic preservation officer for the Habematolel Pomo of Upper Lake (HPUL), who was named as the Koi Nation representative for consultation. The next day, the City sent formal AB 52 notification of the project to Geary. On Feb. 23, Geary responded, requesting consultation, which occurred on March 9, where Geary identified mitigation measures for the project. Although Geary later followed up with the City, there was no further communication until the City issued its notice of intent to adopt the Mitigated Negative Declaration (MND). The Planning Commission certified the MND and approved the project, which the Koi Nation appealed on the basis that the MND did not adequately mitigate potential impacts to tribal cultural resources. While the City Council modified the MND’s mitigation measures to require consultation with the Koi Nation if tribal remains were found, it denied the appeal. Litigation ensued. The trial court denied the Koi Nation’s petition, but the First District overturned it, finding the administrative record did not show that the City met the statutory requirement for meaningful consultation by engaging in a “process of seeking, discussing and considering carefully the views of others” and “where feasible, seeking agreement.” (Gov. Code, § 65352.4.) Because there was no evidence that meaningful consultation took place, the court found it need not reach the question as to when consultation could lawfully be concluded. Thus, the court found the City failed to comply with CEQA’s consultation requirement—a prejudicial abuse of discretion—and ordered the MND and related project approvals be set aside.
Fourth District overturns San Diego County CEQA threshold for infill and small projects
In 2022, San Diego County (“County”) adopted thresholds of significance for vehicle miles traveled (VMT) that would allow certain projects to avoid analyzing project-specific VMT. For example, the County identified “infill” areas where projects would be exempt from further VMT analysis, and adopted a “small project” threshold for projects with 110 or less average trips per day from the Office of Planning & Research “Technical Advisory on Evaluating Transportation Impacts in CEQA” (2019). In Cleveland National Forest Foundation et al. v. County of San Diego (2025) ___ Cal.App.5th __, 2025 WL 923764, however, the Fourth District overturned both these thresholds as unsupported by substantial evidence. With respect to the “infill” threshold, while the court confirmed that the County could establish on a qualitative threshold as a matter of law, it found that the County could not rely on the legislature’s conclusion, as adopted by County staff, that “infill” development would have less VMT. Further, the “small project” threshold, which the County adopted from the OPR’s Technical Advisory, also lacked substantial evidence without a showing that it also held true in San Diego County. The court referred the case back to the trial court to determine whether the other VMT thresholds adopted by the County in 2022 could continue while the County takes those actions necessary to comply with CEQA.
Is that what you call a plethora? Gov. Newsom uses executive orders to address immediate and long-term impacts from Southern California wildfires
Since the tragic wildfires in Los Angeles and Ventura counties earlier this year, Gov. Newsom has utilized emergency powers under the declared state of emergency to issue 20 executive orders related to wildfire impacts. Initial executive orders focused on emergency response efforts, facilitating cleanup by suspending environmental regulation, ordering coordination with FEMA and prohibiting predatory practices like price gouging and land speculation. Executive orders also addressed replacement of vital documents, relaxing licensing requirements on care facilities, addressing temporary housing needs and providing eviction protection. Later orders extended housing-related protections and further waived regulatory hurdles that might hamper a quick rebuild. Interestingly, the fires spurred action aimed at wildfire risks more broadly, such as efforts to fast-track wildfire prevention, maximization of water capture and ordering CAL FIRE to create Fire Hazard Severity Zone maps. It remains to be seen what additional actions the governor will take as recovery efforts continue and the state addresses wildfire preparedness more broadly.
2025 legislative agenda filled with CEQA bills
The 2025 legislative docket is filled with CEQA bills. On the major projects side, AB 35 (Alvarez) would provide streamlined CEQA review for clean hydrogen transportation projects, including litigation streamlining; AB 527 (Papan) would deem certain geothermal exploratory projects CEQA-compliant; and AB 941 (Zbur) would apply CEQA streamlining to certain priority electrical infrastructure projects. AB 52 (Aguiar-Curry) would revise the way that tribal consultation works under CEQA. And on the housing side, AB 609 (Wicks et al.) would exempt certain infill housing projects from CEQA (see also, SB 607 description, below), and AB 507 (Haney) would provide for a ministerial permitting pathway for adaptive reuse projects, defined as converting vacant commercial space into housing. Stay tuned—more CEQA legislative updates to come as the session progresses.
Sen. Wiener Proposes CEQA Glow Up Bill – SB 607
Sen. Scott Wiener has introduced SB 607, which proposes significant reform to CEQA. The bill aims to revise several aspects of existing law including broadening Class 32 infill CEQA exemptions, exempting any rezoning needed to comply with a Housing Element, streamlining EIRs for projects that nearly fall under an exemption, and restricting the scope of the administrative record that is required to be prepared if litigation is filed. Notably, the bill would also realign the legal standard of review for a mitigated negative declaration (MND) to match that used for an environmental impact report (EIR), making an MND easier to defend and, possibly, a more appealing option for future projects. While the bill’s reforms are significant, it remains to be seen whether Sen. Wiener’s attempt at CEQA reform will founder on the shoals that have swamped past CEQA reform efforts.
CEQA News celebrates its 10th year!
All year we’ll be celebrating 10 years of CEQA News, our quarterly newsletter designed to bring bite-sized, digestible chunks of CEQA updates to a broad readership. Along the way, we’ll be peppering our CEQA News issues with giveaways, opportunities to win prizes and other fun stuff.
To start us off, how about a multiple choice quiz?
Here’s the question: How many Brownstein CEQA nerds have been involved in the production of CEQA News over the past 10 years? (only counting each author once)
a. 10
b. 22
c. 30
d. 45
Send your answer to scavanaugh@bhfs.com. The first five correct responses will earn a Brownstein swag bag.
This document is intended to provide you with general information regarding CEQA-related updates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.