CEQA’s Categorical Exemption for “Existing Facilities” Again Found Ambiguous

Los Angeles Dept. of Water & Power v. County of Inyo
2021 Cal. App. LEXIS 676

Section 15301 of CEQA’s Guidelines categorically exempts, among other things, ongoing operations at “existing facilities.” A new decision from the Fifth Appellate District will make it more difficult to apply the “existing facilities” exemption to complex land uses, and particularly to industrial operations.

In Los Angeles Dept. of Water & Power v. County of Inyo, the county attempted to invoke the exemption for operations at an unlined landfill, as part of an effort to acquire the landfill from the Los Angeles Department of Water & Power by eminent domain. LADWP responded by filing suit to challenge the lack of CEQA review. On appeal, the arguments centered on whether the ongoing operation of an unlined landfill comes within the “existing facilities” exemption and is thus exempt from CEQA review.

The appellate court first determined that the term “facilities” is ambiguous in the landfill setting. While landfill operations include structures, gates, tipping floors, scales, gas recovery systems and administrative buildings that can be described as “facilities,” they also feature excavations, trenches and fills better that are described as “alterations to land” and subject to a different categorical exemption. The court then proceeded to resolve the ambiguity by finding that unlined landfills pose a range of adverse impacts (to groundwater, air and public health) that make it unsuitable for the exemption. The decision tracked the reasoning of an earlier case, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, which also found the exemption ambiguous as applied to a landfill.

While the decision nominally applies to unlined landfills, the rationale used by the court could apply equally to other complex industrial operations, such as quarries, that have similar characteristics.

Sean Hungerford is a Partner at
Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.

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