In Save the Capitol, Save the Trees v. Department of General Services (2024) 101 Cal.App.5th 1237, the Third District Court of Appeal reversed the trial court’s discharge of a peremptory writ of mandate and found that on remand, the trial court must determine whether a revised Final EIR remedied the CEQA violations identified by the appellate court in its earlier opinion before discharging the writ. The court held that the matter could be brought by a challenge to the writ return because the court retained jurisdiction to address issues within the scope of the previous merits challenge.
Background
In an earlier case, Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 711 (Save Our Capitol), the Court of Appeal determined that an EIR analyzing alterations to the California State Capitol violated CEQA. The court remanded the matter with directions to the trial court to issue a writ “directing [the Department of General Services] (DGS) to partially vacate its certification of the EIR and to revise and recirculate the deficient portions of the EIR consistent with this opinion before it considers recertifying the EIR.” On remand, the trial court ordered: (1) partial EIR decertification and vacation of the project approvals “consistent with the Opinion of the Court of Appeal”; (2) suspension of activities that would physically alter the capitol and no further discretionary approvals in reliance on the decertified EIR; and (3) for DGS to file a final return to the writ “upon certification of a revised EIR.”
DGS partially vacated its certification of the EIR and the associated project approvals and revised, recirculated, and certified the Final EIR. DGS then partially reapproved the project without a visitor center component that was part of the originally approved project. DGS then filed a final return, requesting that the court discharge the writ. The trial court discharged the writ, over plaintiff Save the Capitol’s objection, without determining whether the revised Final EIR remedied the CEQA violations identified by the appellate court.
The Court of Appeal’s Opinion
Remedial Action Ordered
The Court of Appeal held that the trial court could not discharge the writ without determining whether the revised EIR remedied the CEQA deficiencies identified earlier in Save Our Capitol. The trial court’s peremptory writ issued all three types of mandates authorized by Public Resources Code section 21168.9: (1) to void the action or decision by the agency under subdivision (a)(1); (2) to suspend project activities that affect the physical environment until action is taken to bring the situation into compliance under subdivision (a)(2); and (3) to take specific action to bring the determination into compliance under subdivision (a)(3). The court emphasized that the third directive required DGS to remedy the CEQA deficiencies consistent with the appellate court’s earlier opinion. In addition, section 21168.9, subdivision (b), required the trial court to retain jurisdiction, pending compliance with CEQA. The court noted that “ensur[ing] CEQA compliance after violations have been identified” is the “manifest purpose of a peremptory writ in this context.”
The court distinguished McCann v. City of San Diego (2023) 94 Cal.App.5th 284, as an instance where the appellate court’s prior direction to the trial court did not order remedial action in compliance with CEQA.
Writ Return Challenge
The parties disagreed whether Save the Capitol was permitted to challenge the sufficiency of the discharge of the writ by writ return or whether it was required to file a new action. The court held that it was acceptable for Save the Capitol to proceed by writ return challenge because the court retained jurisdiction under Public Resources Code section 21168.9, subdivision (b), as expressly stated in the writ.
The court rejected DGS’s argument that Save the Capitol should have used clearer language in the writ to make its preferred interpretation explicit, finding instead that the writ properly encompassed applicable law, the purpose of the writ, and the court’s order. The court also rejected DGS’s argument that requiring remedial action could result in inconsistent adjudications of the same issue if one plaintiff challenges the adequacy of the revised EIR via a new writ, while another does so by objection to the writ return. The court explained that such a result could be eliminated through a consolidation order. The court was similarly unpersuaded by DGS’s argument that allowing Save the Capitol to challenge the revised EIR via objection to the writ return would open the door to new merits challenges because no new issues are permitted to be raised in this manner.
Lastly, the court disagreed with Save the Capitol’s argument that discharge of the writ was premature because one component of the project was not yet reapproved. The court held that that because that component was not reapproved, it was no longer part of the project, and any later approval of that component would trigger a new deadline to challenge the action under CEQA.