California Environmental Quality Act CEQA

1
California Environmental Quality Act(CEQA)

• An Overview

2
Introduction

• CEQA is Californias most important environmental
  laws
• A cherished institution, but also one of the most
  controversial

3
A Little History

• CEQA was adopted by the California Legislature,
  and signed into law by then Governor Ronald
  Reagan in 1970.
• Loosely based on the National Environmental
  Policy Act (NEPA), which had been signed into law
  by President Nixon several months earlier on Jan
  1, 1970.

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What is CEQA?

• Really simple in concept CEQA requires
  government agencies to consider the environmental
  consequences of their actions before approving
  plans and policies or committing to a course of
  action on a project.
• CEQA requires public agencies to deny approval
  for a project if it poses significant adverse
  environmental effects when feasible alternatives
  or mitigation measures can substantially lessen
  the effect.

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Legislatures explanation for enacting CEQA

• Inform government decision makers and the public
  about the potential environmental effects of
  proposed activities
• Identify the ways that environmental damage can
  be avoided or significantly reduced
• Prevent significant, avoidable environmental
  damage by requiring changes in projects, either
  by the adoption of alternatives or imposition of
  mitigation measures and
• Disclose to the public why a project was approved
  if that project would have significant
  environmental effects. (pub. Res. Code 21000,
  21001)

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Seems innocuous enough, doesnt it?

• CEQA does not directly limit development (as does
  the California Coastal Act)
• CEQA does not mandate environmental clean-up (as
  do the Federal Clean Air and Water Acts)
• Time tested procedures for complying with CEQA

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Then whats the hub-bub?

• CEQA does require that a development proposal be
  accompanied by an analysis listing its
  environmental impacts and that, where feasible,
  those impacts be mitigated.
• Questions of as to the definitions terms such as
  Project, Significant Effect, Approval

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The Heart of CEQA

• CEQA requires that public agencies prepare an
  Environmental Impact Report whenever the approval
  of a proposed project may cause significant
  adverse effects or impacts on the environment
• A "public agency" is any California state agency,
  board, or commission, or any county, local or
  regional agency, but not including any state
  court or any agency or arm of the United States
  government
• "project" is any activity undertaken by any
  public agency, supported in whole or in part by a
  public agency, or requiring approval by a public
  agency
• A "significant effect on the environment" means a
  substantial, or potentially substantial, adverse
  change in any of the physical conditions within
  the area of the project, including land, air,
  water, minerals, flora, fauna, noise, or any
  objects of historic or aesthetic significance.

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CEQA is fundamentally a law about process

• At the heart of the process is the requirement
  that governmental agencies conduct environmental
  reviews especially Environmental Impact Reports
  (EIRs)--before approving or disapproving
  projects
• "project" is any activity undertaken by any
  public agency, supported in whole or in part by a
  public agency, or requiring approval by a public
  agency.
• A "public agency" is any California state agency,
  board, or commission, or any county, local or
  regional agency, but not including any state
  court or any agency or arm of the United States
  government

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If CEQA is a law about process, how does the
process begin?

• The CEQA process begins with a preliminary review
  of the proposal to determine whether CEQA applies
  to the agency action, or whether the action is
  instead exempt. (California Code of Regulations,
  title 14, section 15000 et. seq. (Guidelines))

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• If the agency determines that the activity is not
  subject to CEQA, it files a notice of exemption,
  and not further action is necessary for CEQA
  compliance.
• If the agency determines that the activity is a
  project subject to CEQA, the agency must prepare
  either an EIR, a Negative Declaration or a
  Mitigated Negative Declaration.

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Determining if the Activity is Exempt from CEQA

• If it can be said with certainty that a project
  will not have a significant effect on the
  environment, it is exempt from CEQA review.
• Can you think of a project that will not have a
  significant effect on the environment?

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Statutory and Categorical Exemptions from CEQA

• CEQA sets out statutory exemptions that limits
  CEQAs application to certain types of projects
• Example No specific compliance with CEQA is
  required for a residential development (of any
  size) if the project is consistent with an
  earlier zoning, community plan, or general plan
  for which an EIR was prepared unless (1) the new
  project will have significant effects not
  addressed in the earlier EIR (2) substantial new
  information shows those effects will be more
  significant than those described in the prior
  EIR or (3) there are significant impacts
  peculiar to the parcel or the project.

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Statutory and Categorical Exemptions from CEQA

• The Guidelines also contain categorical
  exemptions that the Secretary of Resources has
  found not to have a significant effect on the
  environment
• Big example approvals which are ministerial in
  nature rather than discretionary. Presumptively
  ministerial projects include the issuance of
  building permits, the issuance of business
  licenses, the approval of final subdivision maps,
  and the approval of individual utility service
  connections and disconnections
• The operation, repair, maintenance, or minor
  alteration of an existing facility is exempt.
• replacement or reconstruction of an existing
  facility is exempt
• The new construction or conversion of a small
  structure is exempt, g.g., construction of an
  apartment house with fewer than four units or
  construction of a commercial store with an
  occupancy load of fewer than thirty persons.

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Limitation on the Categorical Exemptions

• A categorical exemption will not apply if
• There is a reasonable possibility of a
  significant effect on the environment due to
  unusual circumstances
• Significant cumulative impacts from projects of
  the same type will result or
• Projects will have an impact on a uniquely
  sensitive environment.

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Procedures for making an exemption determination
under CEQA or the Guidelines

• There are none! City of Pasadena v. State, 14
  Cal. App 4th 810, 819-820 (1993) Assn for
  protection of Envtl. Values v. City of Ukiah, 2
  Cal. App. 4th 720, 731-732 (1991).

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What can an Agency Do?

• An agency may elect to file a notice of
  exemption. Guidelines 15062(a)
• If an agency files the notice, it triggers a 35
  day statute of limitations for challenging the
  project approval on any ground under CEQA. Pub.
  Res. Code 21167(d)
• If no notice is filed, challenge period runs 180
  days following agencys approval.

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So the project doesnt fit into a statutory or
categorical exclusion, now what?

• Prepare an initial Study.
• What is it? A preliminary analysis prepared by
  the lead agency (usually the city or county
  having primary jurisdiction over the project) to
  determine whether an EIR must be prepared, or
  whether a negative, or mitigated negative
  declaration will be sufficient. Talk about who
  really prepares, and what is contained in an
  initial study

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Conclusions of Initial Study

• If I.S. concludes that there will not be a
  significant effect on the environment, agency can
  issue a neg dec. Done with CEQA!
• Negative declaration is a written statement from
  the agency that an EIR is not required because a
  project will not have a significant adverse
  impact on the environment.

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Conclusions of Initial Study

• An agency can also issue a mitigated neg. dec.
• A mitigated neg. dec. states that revisions to
  the project made or agreed to by the applicant
  would avoid potentially significant adverse
  impacts, and that there is no substantial
  evidence that the project, as revised, will have
  a significant effect on the environment.

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Conclusions of Initial Study

• Upon issuance of neg. dec. or mitigated neg.
  dec., agency must notify the public that it is
  available for review.
• The dec. must also be filed with State Clearing
  house for review by relevant public agencies
  prior to approval.
• Agency then may receive and consider comments,
  may make changes to mitigation measures depending
  on comments.
• The agency will then likely file a notice of
  determination (starts clock on judicial
  challenges to decision)

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Conclusions of Initial Study

• As a general rule, an agency cannot adopt a neg.
  dec. or mitigated neg dec., and must prepare an
  EIR if it can be argued on the basis of
  substantial evidence that the project may have a
  significant effect on the environment.
• Substantial evidence means enough relevant
  information and reasonable inferences from the
  available information that a fair argument can be
  made to support a conclusion, even though other
  conclusions may be reached.

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Preparation of EIR

• Step 1 The Scoping process.
• Agency consults with applicant, other agencies
  and the public to determine the scope of the EIR.
  

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Preparation of Draft EIR

• Following the scoping process, either agency
  themselves prepare and draft EIR, or the
  applicants consultant prepares an EIR
• If the consultant prepares the EIR, the agency
  independently reviews, evaluates and exercises
  judgment over the document, and issues it raises
  or addresses.
• Final responsibility to provide an adequate EIR
  resides with the lead agency.

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Circulation of Draft EIR

• Upon the completion of a draft EIR, it is
  circulated to the public and to public agencies
  for review and comment.
• After receiving comments, the public agency must
  prepare responses to significant issues raised by
  the reviewers, and in many instances, will revise
  the EIR.

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Final EIR

• Final EIR consists of
• The Draft EIR
• Comments and recommendations received on the
  Draft EIR
• The responses of the lead agency to the
  significant environmental points raised in the
  review and consultation process
• A list of persons and agencies commenting on the
  draft EIR and
• Anything else the agency wants to add.

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Final EIR

• The lead agency actually has no duty to make the
  final EIR a public document, but usually make it
  a point to do so. Note, however, if the Final
  EIR contains significant new info is added prior
  to certification of the Final EIR, changes, it
  must be recirculated.
• At least 10 days before certifying a final EIR,
  the lead agency must provide any other public
  agency that commented on the EIR a written
  response to that agencys comments.

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So whats in an EIR anyway?

• An EIR Must contain the following
• A table of Contents or index
• Summary of the proposed action and its
  consequences
• A project description
• The environmental setting
• An evaluation of the environmental impacts
• Mitigation efforts for the environmental impacts
• Project Alternatives

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Project Description

• The description should extend to the entire
  activity that will ultimately result
• Must also include reasonably foreseeable future
  activities that are consequences of the action

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Evaluation of Environmental Impacts

• Should be prepared with sufficient analysis to
  provide decision makers the ability to review
  possible environmental consequences
  intelligently.
• Disagreement among experts does not, by itself,
  make an EIR inadequate.
• Courts are not really looking for perfection, but
  really looking at a complete, good faith effort
  in the completion of an EIR. Nonetheless, it
  must be responsive to the concerns raised during
  the draft EIR.

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Evaluation of Environmental Impacts

• All phases of the project must be considered when
  evaluating its impact on the environment
  Planning, acquisition, development, and
  operation.
• The EIR's discussion of environmental impacts
  must include relevant specifics of the area, the
  resources involved, physical changes, alterations
  to ecological systems, changes induced in
  population distribution, changes induced in the
  human use of the land (including both commercial
  and residential development), health and safety
  problems caused by the physical changes, and
  other aspects of the resource base, including
  water, scenic quality, and public services.
• Items that must be included
• Significant environmental effects of the proposed
  project
• Significant environmental effects, which cannot
  be avoided if the proposal is implemented
• The growth inducing impacts of the proposed
  project
• Cumulative impacts of the proposed action
• Effects not found to be significant
• Traffic impacts
• Mitigation measures, i.e., measures proposed to
  avoid or minimize the significant impacts.
• Alternatives to the proposed action
• Inconsistencies with specific plans, general
  plans
• Organizations or persons consulted in the
  preparation of the EIR

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Cumulative Impacts

• Two or more individual effects, that when
  considered together, are considerable or that
  compound a particular environmental effect.
• Thus, an EIR discussion on cumulative impacts
  must discuss past, present and any probable
  future projects.
• Goal is also to avoid the piecemeal effect of
  projects.

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Cumulative Impacts

• Not proper to discount cumulative effects merely
  because the project contributes to an already
  unacceptable condition
• But a cumulative impact can be found to be less
  than significant if the effects will essentially
  be the same with the project as they would be
  than without

34
Mitigation Measures

• EIR must describe measures to minimize the
  projects significant environmental impacts
• EIR must also describe any significant
  environmental effects that the mitigation
  measures will cause.

35
Project Alternatives

• A range of reasonable alternatives must be
  considered.
• Alternative in size, location are common
  alternatives considered.
• A no project alternative must be considered.

36
Project Approval and Findings

• After Final EIR is complete, the agency
  determines whether to approve a project
• CEQA contains explicit requirements pertaining to
  the approval of a project with significant
  impacts. For example, all mitigation measures
  necessary to eliminate the significant effects of
  the project must be incorporated if they are
  within the public agency's authority unless both
  of the following result if "specific economic,
  social, or other considerations make infeasible
  the mitigation measures . . . identified in the
  EIR" and if the "benefits of the projects
  outweigh the significant effects on the
  environment."

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Statement of Overriding Considerations

• An agency can approve a project which damages the
  environment.
• If social, economic or other conditions make it
  infeasible to mitigate significant environmental
  effects on the project, the agency must adopt a
  Statement of Overriding Considerations

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What is the Statement of Overriding
Considerations?

• Although adverse impacts may result, specific
  overriding economic, social, legal,
  technological, or other situations outweigh the
  damage to the projects significant unmitigated
  impacts.
• Findings must be supported by substantial
  evidence in the record

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Project Approval

• The EIR must be certified as completed in
  compliance with CEQA
• The EIR was presented to the decision makers
  within the lead agency, was considered, prior to
  approving the project
• The EIR must reflect the independent judgment of
  the lead agency.

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Notice of Determination

• Must be filed within 5 working days after project
  approval
• The filing of the notice of determination starts
  the 30 day statute of limitations on court
  challenges to the approval under CEQA.

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Other Deadlines (Good Luck!!!)

• Initial study 30 days to determine whether an
  EIR or negative declaration is required
• Notice of Preparation of EIR Other agencies
  have 30 days from NOP to review and comment.
• Convening of scope and content meetings 30 days
• Public Review period for draft EIR 30 to 60
  days
• Notice of Completion of EIR Generally an EIR
  for a project must be completed within 1 year
  (good luck!)
• Approval or disapproval of an EIR based on an EIR
  (a private project must be approved or
  disapproved within 180 days of the certification
  of an EIR)
• Notice of Determination Starts 30 day statute
  of limitations for filing suits.

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Judicial Challenges to Agency Actions

• 30 day clock starts upon notice of determination
• In certain situations, the statute of limitations
  is increased to 180 days for example, if no
  posting of notice of determination or if, for
  example if subsequent changes to a project were
  not discussed in an EIR