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California Environmental Quality Act (CEQA)

California Environmental Quality Act (CEQA). An Overview. Introduction. CEQA is California’s most important environmental laws A cherished institution, but also one of the most controversial. A Little History.

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California Environmental Quality Act (CEQA)

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  1. California Environmental Quality Act(CEQA) An Overview

  2. Introduction • CEQA is California’s 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.

  4. 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.

  5. Legislature’s 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)

  6. Seems innocuous enough, doesn’t 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

  7. Then what’s 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”

  8. 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.

  9. 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 (EIR’s)--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

  10. 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”))

  11. 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.

  12. 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?

  13. Statutory and Categorical Exemptions from CEQA • CEQA sets out statutory exemptions that limits CEQA’s 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.

  14. 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.

  15. 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.

  16. 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); Ass’n for protection of Envtl. Values v. City of Ukiah, 2 Cal. App. 4th 720, 731-732 (1991).

  17. 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 agency’s approval.

  18. So the project doesn’t 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]

  19. 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.

  20. 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.

  21. 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)

  22. 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.

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

  24. Preparation of Draft EIR • Following the scoping process, either agency themselves prepare and draft EIR, or the applicant’s 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.

  25. 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.

  26. 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.

  27. 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 agency’s comments.

  28. So what’s 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

  29. 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

  30. 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.

  31. 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

  32. 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.

  33. 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 project’s 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."

  37. 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”

  38. 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

  39. 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.

  40. 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.

  41. 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.

  42. 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

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