Environmental Law
Envt'l Law News Spring 2016, Vol. 25, No. 1
Content
- 2016-2017 Environmental Law Section Executive Committee
- Editor's Note...
- Environmental Law News Publications Committee
- Environmental Streamlining Measures in Title 41 of the Fast Act: What Will They Mean for Infrastructure Project Developers?
- How to Ethically and Effectively Talk to Reporters
- Reprise of Fireside Chat Yosemite Environmental Law Conference October 24, 2015
- Table of Contents
- The 2015 Legislative Recap: Settling in and Taking a Breath
- The Clean Power Plan: Friend or Foe of California's Climate Policy?
- The New Federal Clean Water Rule
- Ceqa's "Unusual Circumstances Exception" In the Wake of Berkeley Hillside
CEQA’s "Unusual Circumstances Exception" In the Wake of Berkeley Hillside
by Nicole H. Gordon* and Lauren K. Chang**
I. INTRODUCTION
In a highly anticipated decision, Berkeley Hillside Preservation v. City of Berkeley ("Berkeley Hillside"),1 the California Supreme Court sought to resolve a long-standing question of what standard of review agencies and courts should apply when assessing whether "there is a reasonable possibility that [an] activity will have a significant effect on the environment due to unusual circumstances,"2 thereby precluding use of otherwise-applicable categorical exemptions from the California Environmental Quality Act (CEQA).3 Ultimately, the Supreme Court determined two separate standards apply: the deferential "substantial evidence" test applies to the question of whether unusual circumstances exist, and the "fair argument" test applies to the question of whether unusual circumstances give rise to a reasonable possibility of a significant effect.4
The majority opinion, authored by Justice Chin and joined by four other justices, claims that agencies and reviewing courts should have no trouble applying these tests.5 Whether that is true remains to be seen. This article summarizes the Berkeley Hillside decision, discusses subsequent cases, and observes that to prevail under Berkeley Hillside, petitioners may be required to not only demonstrate that an agency’s finding of no unusual circumstances is not supported by substantial evidence, but to "produce" evidence of unusual circumstances, and in some cases, to produce "more than substantial" evidence to "convincingly" demonstrate that a project will have a significant effect.