Introduction to the California Environmental Quality Act (CEQA)

CEQA 101: Overview History and purpose of CEQA? Who must comply? When does CEQA apply? What are a lead agency’s duties? What document(s) must the agency prepare? What are the main elements of an Environmental Impact Report? Are there tools for streamlining the process? How can/does the public participate?

History and Purpose of CEQA California statute passed in 1970, in response to the first Federally passed environmental protection statute the National Environmental Policy Act Purpose: Prevent significant, avoidable damage to the environment Foster informed public decision making Ensure transparency in governmental decision making process Encourage public participation See CEQA §§ 21000-21006; Guidelines 15001-15003  passage of the first federal environmental protection statute in 1969, the National Environmental Policy Act (NEPA) CEQA, or the California Environmental Quality Act, is a statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.

Who Must Comply A public agency must comply with CEQA when it undertakes an activity defined by CEQA as a "project." Project is an activity undertaken by a public agency or a private activity which must receive some discretionary approval (the agency has the authority to deny the requested permit or approval) from a government agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment.  CEQA applies to certain activities of state and local public agencies. A public agency must comply with CEQA when it undertakes an activity defined by CEQA as a "project." A project is an activity undertaken by a public agency or a private activity which must receive some discretionary approval (meaning that the agency has the authority to deny the requested permit or approval) from a government agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment.  It is important to note – when putting together a project description, the more details available for the lead agency and the public, the easier it is to analyze the project impacts on the environment.

When Does CEQA Apply CEQA contains a “substantive mandate” – public agencies must refrain from approving projects with significant environmental effects if “there are feasible alternatives or mitigation measures” that can substantially lessen or avoid those effects.

CEQA Process CEQA EIR Excluded Review for Exemptions Negative Declaration or Mitigated Negative Declaration Initial Study EIR Notice of Preparation Scoping Draft EIR Public and Agency Review State Clearinghouse Review Final EIR Review of Responses by Commenting Agencies Agency Decision Findings; Statement of Overriding Consideration; Mitigation Monitoring Program

Types of CEQA Documents Exemptions –Statutory Exemption/Categorical Agency prepares initial study to assist in determining if the physical change in the environment is potentially significant. (Guidelines § 15063; Appendix G). Two types of documents: Negative Declaration (includes mitigated negative declaration) (Guidelines, § 15070, et seq.) Environmental Impact Report (EIR) (§ 15080, et seq.) If project may have “significant” environmental impact, an EIR is required (§ 15064(a)(1), (f)(1)). Statutory exemptions are projects specifically excluded from CEQA consideration as defined by the State Legislature. These exemptions are delineated in PRC § 21080 et seq. ... Categorical exemptions are made up of classes of projects that generally are considered not to have potential impacts on the environment. If the project is not exempt, agency must determine what type of document to prepare. Statutory exemptions are descriptions of types of projects for which the California Legislature has provided a blanket exemption from CEQA procedures and policies. Categorical exemptions are descriptions of types of projects which the Secretary of the Resources Agency has determined do not have a significant effect on the environment. Categorical exemptions are found in Article 19 of the CEQA Guidelines. Unlike statutory exemptions, categorical exemptions are not absolute. There are exceptions to the exemptions depending on the nature or location of the project Negative declaration: A Negative Declaration is a document that describes the proposed project, presents the findings, and states the reasons why the decision maker has concluded that there will be no significant effect. A completed Initial Study must be attached to a Negative Declaration to support the determination of no significant effect A Mitigated Negative Declaration is appropriate when an Initial Study has been prepared and a determination can be made that no significant environmental effects will occur because revisions to the project have been made or mitigation measures will be implemented which will reduce all potentially significant impacts to less than significant levels. The content of the Mitigated Negative Declaration is the same as a Negative Declaration, with the addition of identified mitigation measures and a Mitigation Monitoring Program. The overarching purpose in preparing an Environmental Impact Report is to provide the public and the decision-makers with detailed information about a project’s environmental effects, ways to minimize the project’s significant environmental effects, and reasonable alternatives to the project. Under the California Environmental Quality Act (CEQA), an EIR must be prepared whenever there is substantial evidence, in light of the whole record, that a project may have a significant effect on the environment. In accordance with California case law, if the Department is presented with a fair argument that a project may have a significant effect on the environment, it shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect.

Environmental Factors Aesthetics Air Quality Biological Resources Cultural Resources Geology and Soils Greenhouse Gas Emissions Hazards and Hazardous Materials Hydrology and Water Quality Land Use and Planning Mineral Resources Noise Population and Housing Public Services Recreation Transportation and Traffic Utilities and Service Systems

Significant or Not Significant effect on the environment” is a substantial or potentially substantial adverse change in the physical conditions of the area. (Pub. Resources Code §21068; Guidelines §§15002(g), 15382) Determination calls for agency judgment; “ironclad definition” not always possible Must consider context and setting Effects can be direct or indirect Effects can be incremental or cumulative Determination must be based on substantial evidence in the record – scientific and factual data (Guidelines § 15064, et seq.; new section on GHGs, see § 15064.4 and Statement of Reasons.)

Significant or Not Significance “normally” measured against existing “physical environmental conditions” – that “will normally constitute the baseline.” (Guidelines § 15125(a).)

Mitigation and Alternatives “A public agency should not approve a project as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen any significant effects that the project would have on the environment.” – Guidelines § 15021(a)(2)

Mitigation Measures “Mitigation Measure” is an action or change to the project that reduces or avoids some impact on the environment (including actions that completely avoid an impact), The CEQA Guidelines provide, for the significant environmental effect of the proposed project, five categories of mitigation measures that: Avoid Minimize Rectify Reduce and Eliminate Compensate action or change to the project that reduces or avoids some impact on the environment (including actions that completely avoid an impact), actions that reduce or minimize an impact, actions that correct an impact, or actions that compensate for an impact by providing substantive resources. (Pub. Res. Code § 21002, 21002.1(b), 21004; Guidelines §15370.)

Mitigation Measures A good mitigation measure involves clearly explaining its objectives-specifically how it will be implemented, who is responsible for its implementation, where it will occur and when it will occur. Why? What? Who? Where? When? Why? State the objectives of the mitigation measure and why it is recommended. What? Explain the specifics of the mitigation measure and how it will be designated and implemented. Identify measurable performance standards by which the success of the mitigation can be determined. Provide for contingent mitigation if monitoring reveals that the success standards are not satisfied. Who? Identify the agency, organization or individual responsible for implementing the measure. Where? Identify the specific location of the mitigation measure. When? Develop a schedule for implementation.

Mitigation Measures “An EIR shall describe feasible measures which could minimize significant adverse impacts, including where relevant, inefficient and unnecessary consumption of energy.” – Guidelines § 15126.4(a)(1)

Alternatives “An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” – Guidelines §15126.6

Alternatives In range of alternatives, lead agency must include: • Only “feasible” alternatives (economic, practical, legal) • Alternatives that would achieve most of the project’s basic objectives and fundamental goals • Alternatives that would reduce at least one impact • “No project” alternative (can be different from the baseline) Range of alternatives governed by “rule of reason” The “rule of reason” requires the EIR to set forth only those alternatives necessary to permit a reasoned choice. The alternatives must be limited to ones that would avoid or substantially lessen any of the significant effects of the project. Of those alternatives, the EIR need examine in detail only the ones that could feasibly attain most of the basic objectives of the project. The range of feasible alternatives must be selected and discussed in a manner to foster meaningful public participation and informed decision-making.

Streamlining Subsequent change to the project does not necessarily require new environmental document Only required if: A new significant impact is caused by a substantial change in the project or substantial changed circumstances that requires major revisions to the environmental document; New information not known at the time of project approval becomes available; Proposed change never analyzed in original environmental document

Tiering “Tiering" refers to the coverage of general environmental matters in broad program-level Environmental Impact Reports (EIRs), with subsequent focused environmental documents for individual projects that implement the program. CEQA and the CEQA Guidelines encourage the use of tiered environmental documents to reduce delays and excessive paperwork in the environmental review process. This is accomplished in tiered documents by eliminating repetitive analyses of issues that were adequately addressed in the Program EIR and by incorporating those analyses by reference.

Project Approval After circulating Draft EIR (45 days), agency must: Evaluate and respond to comments Prepare Final EIR Certify final EIR Make findings concerning significant impacts Approve (or reject) the project Impose a mitigation monitoring/reporting program If necessary, issue a Statement of Overriding Considerations (Pub. Res. Code § 21081; § 15093) Statement of Overriding Considerations is a statement of the lead agency’s views on the ultimate balancing of the merits of approving a project despite its environmental damage. When Does a Lead Agency Adopt a Statement of Overriding Considerations? When the agency decides to approve a project that will cause one or more significant environmental effects, the lead agency shall prepare a statement of overriding considerations which reflects the ultimate balancing of competing public objectives (including environmental, legal, technical, social, and economic factors).

Public Participation CEQA environmental documents are disclosure documents for the public Opportunities for public participation at every stage of process. Public and other agency commenters can provide recommendations and submit data/information, to the lead agency. Main opportunities for comments; during the notice of intent to adopt period (negative declaration); notice of preparation comment period (EIR), during the draft EIR comment and before the close of the hearing on project. Administrative appeal may be available Legal challenges governed by strict time limits and criteria in Pub. Res. Code § 21167, et seq. and Guidelines § 15112. Exhaustion of administrative remedies prerequisite to lawsuit. CEQA lawsuits much different then other lawsuits. Only information contained in the administrative can be brought forward in the lawsuit

Questions?