California Supreme Court Declines to Find Permit Regime "Categorically" Discretionary Under CEQA
In POWER Case, Court Affirms That Determining Whether a Permit Is Ministerial Depends on Circumstances of Specific Permit
- In its first major decision on the California Environmental Quality Act's (CEQA) distinction between discretionary and ministerial acts, the California Supreme Court held in Protecting Our Water & Environmental Resources v. County of Stanislaus (POWER) that permits issued under an ordinance are not necessarily discretionary simply because the ordinance contains some discretionary provisions.
- However, if an ordinance does allow CEQA-triggering discretion over some approvals, an agency practice of categorically classifying permits as ministerial may violate CEQA. This may invite more "as-applied" challenges to specific permits that have long been understood to be generally ministerial.
- However, under the decision, local governments should continue to enjoy deference from the courts on their factual and legal conclusions that a specific permit is, under their own ordinances, a ministerial act.
In a closely watched case, Protecting Our Water & Environmental Resources v. County of Stanislaus (POWER), Case No. S251708 (Aug. 27, 2020), the California Supreme Court has issued its first significant decision about the California Environmental Quality Act's (CEQA) vital distinction between "discretionary" and "ministerial" acts. However, the decision breaks little new ground about how to determine whether a specific project is or is not ministerial. Because the plaintiffs in the case did not challenge any specific permits, but instead argued that Stanislaus County had a "pattern of practice" of violating CEQA based solely on the language in the county's groundwater well permitting ordinance, the questions the court answered were whether the ordinance could be challenged as only authorizing discretionary permits – or whether it could be defended as only authorizing ministerial permits. The answer to both questions was no.
The purpose of CEQA is to inform a public agency's discretion in deciding whether and how to approve a project. Accordingly, since its infancy, CEQA has only applied to discretionary approvals, and has not applied to ministerial acts that an agency is required to take.1 "The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency [is authorized to] shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise."2
A quintessential "discretionary" approval is a zoning change, variance or conditional use permit, in which the local agency has broad authority to decide whether and under what conditions to act.3 A quintessential example of a "ministerial" approval is a garden-variety building permit, which officials must issue upon confirming a building's compliance with the uniform building code.4 Between these two categories lies a wide gulf, in which the appellate courts have variously defined different agency actions as either ministerial or discretionary. Until POWER, the Supreme Court had yet to weigh in with a significant examination of the issue.
The County of Stanislaus, like many counties, requires a permit from the county health officer to construct a groundwater well. The county's ordinance includes fixed and objective standards to govern issuance of the permits, but it also incorporates by reference state-adopted standards that require wells to "be located an adequate horizontal distance" from sources of contamination. The county classifies all of its groundwater well permits (other than certain "variance permits") as ministerial.
In 2014, plaintiffs sued the county, asserting that permits granted under the ordinance are discretionary, and that the county therefore had a "pattern and practice" of violating CEQA by treating them as ministerial. In an unpublished opinion, the Fifth District Court of Appeal agreed, and affirmed plaintiffs' entitlement to declaratory relief that the challenged well permits were categorically discretionary. The Supreme Court granted review. At the same time, the Supreme Court "held" a decision from the Second District Court of Appeal, which had classified a very similar San Luis Obispo County ordinance to be ministerial,5 pending Supreme Court review in the POWER case.
Before the Supreme Court, the county argued that it was permitted to classify all of the challenged permits as ministerial. Plaintiffs argued that all of the challenged permits should be classified as discretionary. The court disappointed both sides. Instead, the court held that "[w]hether [the] County's issuance of the challenged permits is discretionary or ministerial depends on the circumstances."6
First, the court held that, at least in some instances, the issuance of well permits could involve CEQA-triggering discretion. Applying Court of Appeal precedents, the court concluded that the state and local provisions governing issuance of a permit allowed county officials to shape a well construction project in response to concerns that could be identified by an environmental review. The court noted that although the relevant regulations provided minimum suggested distances from contamination sources, the county retained significant latitude to set other distances and to condition permit issuance accordingly. The court also concluded that it would not apply the normal principles of judicial deference to the county's determination that its permits were ministerial, because the purportedly discretionary standards at issue were adopted by the state rather than the county. "Against this backdrop," the court concluded that the "County's practice of categorically classifying all the permits as ministerial violates CEQA."7
But having concluded that the permits were not categorically discretionary, and that the question of whether a permit is discretionary depends "on the circumstances" of the specific permit, the court next rejected plaintiffs' argument that the issuance of the challenged permits would always be discretionary. "Permits issued under an ordinance are not necessarily discretionary simply because the ordinance contains some discretionary provisions."8 As the court noted, many of the purportedly "discretionary" provisions plaintiffs challenged simply do not apply to many well projects. For example, if there is no contamination source nearby, the requirement to determine whether the well is an "adequate distance" from contamination simply does not come into play, and therefore the county exercises no CEQA-triggering discretion in deciding whether to issue a permit in that instance. Accordingly, the court held that although plaintiffs are "entitled to a declaration that County's blanket ministerial categorization is unlawful," plaintiffs "are not entitled to a judicial declaration to that effect nor to an injunction requiring County to treat all such permit issuances as discretionary."9
For understandable practical reasons, many agencies have a long-standing practice – specifically endorsed in the CEQA Guidelines – of classifying certain categories of actions as ministerial.10 By affirming that plaintiffs can win a declaratory judgment against these blanket categorizations by merely showing that discretion may be issued in some instances, the court's ruling creates significant tension with this Guideline-endorsed practice. It remains to be seen whether POWER will invite successful efforts by project opponents bringing "as-applied" challenges to approvals, such as individual building permits, that have long been understood to be ministerial as a general matter.
But at the same time, the court notably declined to express any disagreement with the well-established case law, and specific provisions of the CEQA Guidelines, that classify garden-variety building permits as ministerial acts.11 The court also affirmed an important recent case as holding that "even if a statute grants an agency some discretionary authority over an aspect of a project, the project is ministerial for CEQA purposes if the agency lacks authority to address environmental impacts."12 Therefore, the fact that an agency may exercise discretion over an issue such as design review does not render the approval subject to CEQA. Moreover, although the Supreme Court did not find it appropriate to defer to Stanislaus County's interpretation of State-adopted standards, the court specifically affirmed that, in an "as-applied" challenge to a ministerial permit, some significant level of judicial deference would be appropriate to the local agency's interpretation of its own adopted ordinance, as well as to the agency's related factual determinations.13
The Supreme Court also did not foreclose the possibility that an agency could win a facial declaration of "ministeriality," if its ordinance, unlike the one in Stanislaus County, simply does not authorize any official to exercise CEQA-triggering discretion in deciding whether to issue a permit. Precedent continues to support an agency's right to such relief.14 But POWER does helpfully affirm that plaintiffs will rarely, if ever, be able to win a "facial" declaration that all permits issued under a ministerial permitting regime will always trigger CEQA. Such challenges will almost inevitably require an "as-applied" review, and put plaintiffs to the burden to show that CEQA-triggering discretion is exercised by the agency under the specific factual circumstance of the challenged permit.
Holland & Knight represented the California Building Industry Association in filing an amicus brief in the POWER case.
1 Pub. Res. Code § 21080(b)(1).
2 Protecting Our Water & Environmental Resources v. County of Stanislaus (POWER), No. S251708 (Cal. Supreme Ct., Aug. 27, 2020), slip op. at 12, quoting Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117
3 Pub. Res. Code § 21080(a).
4 CEQA Guidelines, 14 Cal. Code Regs. §§ 15268(b)(1) & 15369.
5 California Water Impact Network v. County of San Luis Obispo, No. B283846 (Cal. Ct. App. June 28, 2018), previously published at 25 Cal.App.5th 666.
6 POWER, slip op. at 10.
7 Id.at 16 (emphasis in original).
8 Id. at 22.
9 Id. at 24.
10 CEQA Guidelines, 14 Cal. Code Regs. § 15268(c).
11 CEQA Guidelines, 14 Cal. Code Regs. §§ 15268(b)(1), 15369; Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal. App. 4th 286, 302 (permits issued "for a project meeting the criteria of the applicable zoning ordinance and Uniform Building Code" are ordinarily ministerial); Prentiss v. City of South Pasadena (1993) 15 Cal. App. 4th 85, 89-91 (same)
12 POWER, slip op. at 12 (citing McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 94) (emphasis in original).
13 POWER, slip op. at 20-21.
14 Sierra Club v. Napa County Bd. of Supervisors (2012) 205 Cal. App. 4th 162, 177-181 (affirming that Napa County lot line adjustment process does not authorize discretionary decision-making and that lot line adjustments under that process were therefore ministerial).
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