State attorneys union tests CEQA in return-to-office fight

A lawsuit by state attorneys seeking to block a return-to-office mandate might sound like a novel use of the California Environmental Quality Act. But attorneys say the state's most famous environmental law poses few barriers to the lawsuit on behalf of roughly 90,000 state workers surviving an initial challenge.

The complaint asks the court to set aside the in-person work policies and block agencies from implementing them until they complete CEQA review.

UC Davis School of Law professor Christopher Elmendorf commented Monday that standing requirements in CEQA cases are "very loose." He also doubts the state can dismiss the case by arguing that the link between office work and environmental effects is too attenuated.

Yet, even if the union wins on CEQA Newsom's mandate may survive largely unchanged.

Elmendorf said a judge could conclude that agencies lacked enough discretion under the governor's mandate for CEQA to apply.

He also noted that courts have discretion to craft alternative remedies under CEQA.

"Even assuming that this is a 'project' for CEQA purposes, a court might deem it exempt on the ground that the agency's scope of discretion is too limited to substantially mitigate impacts given the governor's order and the fact that the governor is exempt from CEQA," he said.

He pointed to Department of Transportation v. Public Citizen, 541 U.S. 752 (2004). A unanimous U.S. Supreme Court rejected claims under the National Environmental Policy Act, a law that has often been characterized as the federal version of CEQA. The court held that transportation regulators did not violate environmental laws because the agencies lacked authority to prevent Mexican trucks from entering the United States.

Appellate attorney Arthur F. Coon agreed the state attorneys case is likely to survive an early challenge. "CEQA applies to a project's indirect impacts if they are reasonably foreseeable, and I think the Petition makes a fair argument for that with the evidence of increased air pollution it cites," Coon said in an email. He is a shareholder and chair emeritus of Miller Starr Regalia's Land Use and Appellate Practice Groups in Walnut Creek.

But Coon said the unions might win the battle but lose the war.

"Requiring an [Environmental Impact Report] to analyze mitigation for and alternatives to the four-day minimum directive might produce an interesting but expensive and useless study if the agencies aren't free to reject or modify that requirement based on its impacts as revealed by the EIR," he said.

Before reaching questions about remedies, however, the court must first decide whether the policy is subject to CEQA at all.

The state might argue that the policies are not a CEQA project. Not every government decision is subject to CEQA. Generally, the law applies to actions a public agency undertakes, funds or approves that may result in physical changes to the environment. Those provisions were intended to prevent plaintiffs from using CEQA as a general good-government law.

The state attorneys union argues those policies are discretionary "projects" under CEQA because departments had authority over how the mandate would be implemented and when exceptions would be granted. The union says agencies adopted the policies without environmental review, public notice, hearings or analysis of the added traffic, air pollution and greenhouse gas emissions that would result from thousands of additional commutes.

"There is no clear CEQA exemption that applies to state agency approval of labor contracts with public employee unions," Jennifer Hernandez, who leads Holland & Knight's West Coast Land Use & Environmental Law practice but is not involved in the case, commented in an email Monday. "The threshold for alleging that a discretionary agency action - like approving a labor contract - could have potential environmental impacts and thus requires CEQA review is quite low."

The union that represents the state's attorneys, administrative law judges and hearing officers filed the complaint in Alameda County Superior Court on Friday. It targets agencies that adopted policies requiring employees to work from state offices four days a week beginning July 1.

Gov. Gavin Newsom announced the mandate in a March executive order, and the Department of Human Resources later issued implementation guidelines. His office had no comment on the lawsuit Monday.

Victoria A. Yundt of Lozeau Drury LLP in Oakland wrote in the complaint that "90,003 telework-eligible state employees" will have "significant" environmental consequences if they must work in state offices four days a week. She cited an August report from the State Auditor finding "the State saved nearly 50 million commute miles and avoided over 18,000 metric tons of carbon dioxide (CO2) in just the month of December 2023."

"Many of these state employees, including Petitioner's members, have been working remotely since the COVID-19 pandemic, have never regularly worked in a physical office, and do not even have dedicated office space to return to," Yundt wrote in California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. California Environmental Protection Agency, case number pending (Alameda Super. Ct., filed June 5, 2026).

Hernandez said there is "a 'common sense' exemption for agency actions that clearly have no environmental consequences," but it would not apply in this case.

"Here the physical impacts of workforce commutes on a large scale would clear the hurdle of showing a CEQA impact to the environment," she said.

Hernandez said courts and petitioners have "consistently but unpredictably" expanded CEQA's reach.

"A recent notorious example was the expansion of CEQA's 'noise' impact category to cover the noise made by a type of future residents - undergraduates on the Cal campus," she said. "It took legislation to roll back that surprise expansion, and even the legislation didn't deter the campus neighbors from continuing to sue."