Environmental Law

Envt'l Law News VOLUME 33, NUMBER 1, SPRING/SUMMER 2024

WHY CALIFORNIA’S COURTS SHOULD REVISIT THE CEQA UNUSUAL CIRCUMSTANCES EXCEPTION

Written by Patrick M. Huber1

INTRODUCTION

Under the California Environmental Quality Act (CEQA), public agencies must conduct environmental review of projects that may have a significant effect on the environment.2 As directed in statute, the Secretary of Natural Resources (Secretary) has identified classes of projects that do not have a significant effect on the environment.3 These classes of projects are "exempt" from CEQA’s environmental review requirements. However, there are exceptions to the exemptions.4 The subject of this article is the "unusual circumstances exception" (exception).5

In 2015, the California Supreme Court overhauled the exception jurisprudence in Berkeley Hillside Preservation v. City of Berkeley (Berkeley Hillside).6 The Court’s decision preceded a surge in the usage of categorical exemptions, which continues to rise.7 As public agencies apply categorical exemptions more often, challengers will more frequently try to require agencies to conduct environmental review. Consequently, petitioners will increasingly test Berkeley Hillside’s rules and guidance.

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