Capitol Alert Breaking

Court: Governor not a ‘public agency’ when it comes to CEQA

The governor is not a “public agency” subject to the requirements of the California Environmental Quality Act. As of Wednesday, that is the law unless and until the state’s Supreme Court sees it differently

The specific examples of a public agency included in CEQA “are all, in common parlance, governmental bodies rather than governmental officials like the governor,” the 3rd District Court of Appeal in Sacramento ruled Wednesday in a 17-page published opinion.

In other contexts, the Legislature has specifically defined “state agency” to include state offices and officers, the three-justice appellate panel pointed out. “Its decision not to do so here must be treated as indicative of an intent to exclude such individuals from the scope of the term ‘public agency’ as used in CEQA,” the panel declared.

The question came up in connection with Gov. Jerry Brown’s concurrence with a federal decision – required by law for the project to move foward – that a new American Indian gaming establishment in Madera County would not be detrimental to the surrounding community.

The North Fork Rancheria of Mono Indians plans to build a casino on a 305-acre site next Highway 99 in Madera County. The site is approximately 30 miles from a casino owned and operated by the Picayune Rancheria of Chukchansi Indians.

Despite requests by the Picayune tribe and others that he prepare an environmental impact report under CEQA before acting, Brown issued his concurrence without an EIR on Aug. 30, 2012. The next day, the government executed a tribal-state gaming compact with the North Fork tribe.

The Picayune tribe sued, asserting that Brown’s concurrence constituted an “approval” of a “project” under CEQA that “must be the subject of the CEQA environmental review process.”

Attorneys for the governor argued that Brown is not subject to the EIR requirement because he is not a “public agency” under the terms of CEQA.

Sacramento Superior Court Judge Michael P. Kenny agreed, and on Wednesday he was upheld by 3rd District Justices Ronald B. Robie, who authored the opinion; Cole Blease, acting presiding justice of the panel, and Elena J. Duarte.