A Little NEPA with Teeth: CEQA and the Duty to Mitigate

At least some courts are willing to give "hard law" that requires ecological sustainability teeth.  In City of Marina v. Board of Trustee of California State University, the California Supreme Court held that the state university trustees' duty under the California Environmental Quality Act (CEQA) to mitigate the offsite environmental effects of a major campus expansion was violated when the university planned to expand a small campus on a former Army base into a major institution, but refused to mitigate off-campus impacts on drainage, water supply, traffic, wastewater management, and fire protection and refused to share the cost of certain infrastructure improvements proposed by the base's new civilian governing authority.   The court held that the mitigation requirement was not rendered infeasible by any state constitutional or statutory restrictions on the trustees' funding of such mitigation measures. It reasoned that  the cost-sharing measures proposed by the authority were not rendered infeasible by state constitutional provisions prohibiting property taxation of state-owned property and gifts of public funds to public agencies, nor were they rendered infeasible by any uncertainty in the authority's ability to obtain the necessary funding. The court further held that off-campus mitigation was not exclusively the responsibility of the governing authority, but was properly shared by the trustees. Finally, given the feasibility of the proposed shared mitigation measures, the court held that overriding circumstances did not justify the trustees' certification of the EIR and approval of the proposed project. The court therefore held that the trustee's certification of the environmental impact report (EIR), despite the remaining unmitigated effects, was an abuse of discretion. 

Westlaw link: City Of Marina v. Board Of Trustees Of The California State University, (Cal.)