Ruling leaves Wal-Mart more vulnerable to CEQA suits
November 16, 2012
Wal-Mart may now face lawsuits for using the initiative process to sidestep the California Environmental Quality Act due to a state appellate court ruling. [California Watch]
The retail giant, which currently faces a CEQA suit for its newly approved Atascadero location, had been avoiding such litigation in cities where it gathered signatures to pressure city councils into approving new superstores. When 15 percent of local voters sign a petition supporting a new Wal-Mart location, city councils must either approve the project or hold a special election. Wal-Mart then pressure councils for project approval on the grounds that special elections unnecessarily burden taxpayers.
If projects become ballot measures and gain voter approval, they are exempt from environmental review and CEQA lawsuits. Wal-Mart has also argued that projects initiated by petitions and approved by councils without elections are likewise protected from CEQA challenges.
But, a three-judge appellate panel ruled last month that CEQA still applies to petition initiated developments that gain approval from city councils. The Fresno-based 5th District Court of Appeal issued an opinion saying that sidestepping CEQA in such a manner threatened the democratic process in California.
“Developers’ strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA’s important statutory objectives and to subvert the constitutional goals of the initiative process.”
The appellate court added that a petition signed by 15 percent of voters does not hold the same weight as a ballot measure approved by a majority of voters.
“To hold otherwise would authorize rule by a few — the antithesis of democracy.”
The case, centering on a proposed Wal-Mart store in the small California foothill town of Sonora, may now reach the California Supreme Court. The Fresno court’s ruling reversed a 2004 decision by another appellate court.
Attorneys have also sued Wal-Mart on environmental grounds for its use of the initiative process in the San Bernardino County town of Apple Valley and the Silicon Valley suburb of Milpitas.
But, Sonora Mayor Hank Russell said the pattern of environmental lawsuits threatens free market competition.
“These people just want to delay a process that should be part of free market economy,” Russell said. “I don’t think it’s the city’s role to decide who can compete.”