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.