CEQA Nuts and Bolts Adam U. Lindgren

The California Environmental Quality Act (CEQA) was passed in 1970 with numerous expressed legislative intents and purposes: (Pub. Res. Code, §§21000 et seq., ; see also Cal. Code Regs., tit. 14, div. 6 ch. 3 (“CEQA Guidelines”))  To inform state and local agency decision-makes of the potential environmental consequences of proposed actions;  To identify ways to avoid or significantly reduce environmental impacts;  To prevent significant, unavoidable environmental harm by requiring either changes to proposed projects, and/or by requiring mitigation to lessen the environmental impacts; and,  To demonstrate to the public that the decision-makers have considered and analyzed the environmental implications of a proposed action.

Procedural Devices of Environmental Review: CEQA Documents  Initial Study  Exemptions  Negative Declarations and Mitigated Negative Declarations  The “fair argument” standard sets a low threshold for preparation of an environmental impact report.  Environmental Impact Reports (EIRs)

CEQA “Project” A “project” is a discretionary activity directly undertaken by any public agency, or an activity involving issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies (14 Cal Code Regs. §15378) The “whole of an action” includes not just specific approvals, but the underlying activity, as well as the development or activity that could result from the approval.  No “piecemealing”: a single project may not be divided into smaller pieces for individual environmental reviews that don’t account for the projects overall impacts. Association for a Cleaner Environment v. Yosemite Community College Dist (2004) 116 Cal.App.4th 629 as modified, 10 CR3d 560 and citizens Ass’n for Sensible Dev. of Bishop Area v County of Inyo (1985) 172 Cal.App.3d 151. Annexations and other actions by LAFCOs can be “projects”. E.g., Bozung v LAFCO (1975) 13 Cal.3d 263.

Players Lead Agency: The “lead agency” for a project is the public agency with the primary responsibility for carrying out or approving a project (14 Cal Code Regs. §15367 ) Responsible Agency: Responsible agencies are public agencies other than the lead agency that have responsibility for carrying out or approving a project (14 Cal Code Regs. §15381) Trustee Agency: Trustee agencies are state agencies having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the state of California (14 Cal Code Regs. §15386)

What is the Role of LAFCO in CEQA? Answer: depends on the action. LAFCO often functions as a responsible agency. LAFCOs can be lead agency for certain types of reorganizations, such as actions brought by landowner petitioners because LAFCO is the first agency to act on the matter. People ex rel Younger v LAFCO (1978) 81 Cal.App.3d 464, 481(also discussing the role of LAFCO guidelines in CEQA lead agency determination)  E.g., when LAFCO considers a public agency’s application for a boundary change or other reorganization, the agency seeking the LAFCO action is the lead agency because it has the general governmental authority over the area and because it took the first discretionary action in applying to LAFCO. 14 Cal Code Regs. §15051(b).  Responsible agencies consider the CEQA document prepared by the lead agency and then decide whether to approve the project. 14 Cal Code Regs § 15096(a).  Responsible agencies participate primarily via consultation on the type and scope of CEQA documentation prepared by the lead agency.  Comments of consulted agencies are limited to matters within the agency’s area of expertise or related to the potential discretionary action by the agency. Pub. Res. Code §§ , 21104, 21153; 14 Cal Code Regs §§ 15086(c), 15096(d).  A responsible agency must make findings about mitigation and alternative for impacts related to the part of the project it decides to carry out or approve, including adoption of a SOC

Exemptions from CEQA  Statutory Exemptions:  Based on legislative policy, not necessarily on environmental protection.  Categorical Exemptions:  Apply to classes of discretionary agency actions that have been found to not result in significant environmental effects.  Two apply to LAFCO: 1.Reorganizations that don’t change the area in which previously established powers are exercised. 14 Cal Code Regs. §15319(a) 2.Annexations of areas containing structures developed to the density allowed by current zoning. 14 Cal Code Regs. §15319(b)  Exceptions can Defeat the Exemptions.

Initial Study  Generally:  Purpose: To determine if the project may have a significant effect on the environment.  Results in decision to prepare negative declaration, mitigated negative declaration, or environmental impact report.  Contents of Initial Study:  Project Description  Environmental Setting  Identify Previous CEQA Reviews  Appendices G, H of the CEQA Guidelines provide a recommended checklist and sample environmental information form.

Negative Declaration The lead agency may prepare a negative declaration if the lead agency determines that a project “would not have a significant impact on the environment.” (Pub. Res. Code, § 21080, subd. (c).) A mitigated negative declaration is prepared for a project when the initial study has identified potentially significant effects on the environment, but  Revisions/mitigations are made to the project before the proposed negative declaration and initial study are released for public review that would avoid the effects or mitigate the effects to a level of insignificance.  The project, with the mitigation measures, would not have a significant effect on the environment.

Standard of Review: Fair Argument Standard If there is “substantial evidence” in the record supporting a “fair argument” that significant impacts may occur, even though other substantial evidence supports a different conclusion, the lead agency must prepare an EIR. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, ) “Fair Argument” creates a “low threshold” for requiring preparation of an EIR.

Public Review of Negative Declarations Before approving a draft negative declaration or “MND,” the lead agency must provide a notice of intent to adopt the negative declaration or MND to the public, responsible agencies, and the county clerk of the county in which the project is located. The notice of intent to adopt must allow for a minimum 20-day public review period; 30-days if submitted to State Clearinghouse. Unlike EIR, no requirement to respond to comments in writing in final document, but lead agency is required to “consider” comments.

Adoption of a Negative Declaration Prior to approving project lead agency must consider negative declaration and any comments received. Lead agency can adopt the negative declaration if it makes findings that, based on substantial evidence in light of the whole record, the project will not have any significant impact on the environment (or in the case of an MND, that the project as mitigated will have no significant impact on the environment). If adopting an MND, lead agency must also adopt a mitigation monitoring and reporting program. Must adopt ND before approving project. (14 Cal Code Regs. § )

Environmental Impact Reports

Checklist for Critical Required Contents of an EIR Summary. An EIR must briefly summarize the proposed project and its consequences in clear, simple, practical language (Pub. Res. Code §21061) List of agencies, individuals, and organizations consulted during the preparation of the draft EIR (14 Cal Code Regs. §15129) Project description. The project description must be accurate and consistent, and it must contain sufficient specific information about the project to allow the public and the reviewing agencies to evaluate and comment on its environmental impacts (14 Cal Code Regs. §15124)

Checklist for Required Contents of an EIR Environmental setting. An EIR must include a description of the existing environment in the vicinity of the project from both a local and a regional perspective (14 Cal Code Regs. §15125) Plan inconsistencies. An EIR must evaluate any inconsistencies between the proposed project and applicable general or regional plans (14 Cal Code Regs §15125(d)) Significant environmental impacts. An EIR must identify and describe the project’s significant environmental impacts, including direct, indirect, and long-term impacts (Pub. Res. Code §21100(b)(1)) Cumulative impacts. An EIR must include an analysis of significant cumulative impacts. The cumulative impact analysis may be based on a list of projects that includes the proposed project and existing or anticipated projects that produce related impacts, or on a summary of projections that is based on a planning document that anticipates regional or area-wide conditions (14 Cal Code Regs. §15130)

Checklist for Required Contents of an EIR Growth-inducing impacts. An EIR must examine whether a project will lead to economic or population growth, or will encourage development or other activities that could affect the environment (14 Cal. Code Regs. §15126(f)) Unavoidable environmental impacts. An EIR must explain potentially significant impacts that cannot be mitigated. If the impacts cannot be alleviated without imposing an alternative project design, the EIR should describe the implications of the impacts and the reasons the project is being proposed despite the impacts (14 Cal Code Regs. §§15126(b), (b)) Mitigation measures. An EIR must identify and describe measures which could reduce or avoid each significant environmental impact of the project (14 Cal. Code Regs. §15126(b)(3)) Alternatives. An EIR must describe a reasonable range of alternatives to the project, or to its location, that could feasibly attain most of the projects basic objectives and reduce or avoid the significant environmental impacts of the project (14 Cal. Code Regs. §§15126, )

For any significant impact, the EIR must propose and describe feasible mitigation measures that could avoid or substantially lessen the significant environmental effects of the project. Pub. Res. C §§ ; 14 Cal Code Regs.§  Only significant impacts need to be mitigated.  Infeasible mitigation measures generally do not need to be discussed. Mitigation Measures

In general, agencies are not permitted to rely on speculative mitigation measures. It may be permissible, however, to defer some amount of mitigation in appropriate circumstances.  For example, it is permissible if the mitigation measure commits the agency to a realistic performance standard or criterion, and disallows the adverse environmental impact until the performance standard can be shown to be satisfied. Deferred Mitigation

EIR Process  Prepare Administrative Draft EIR  Prepare Draft EIR  Circulate Draft EIR for public review (generally at least 45 days)  Hearing on Draft EIR is optional  Prepare responses to comments on Draft EIR  Send draft response to agency commentors  Determine if Draft EIR must be recirculated

Certifying the EIR  Lead agency must certify that:  The EIR complies with CEQA  The EIR was presented to, reviewed and considered by the lead agency prior to project approval  The EIR reflects the lead agency’s independent judgment and analysis.  Lead agency must also adopt a mitigation monitoring and reporting program (MMRP).  If project will have significant unmitigated impacts, it must adopt findings regarding alternatives and a statement of overriding considerations (SOC).  File Notice of Determination.

Adequacy Standard CEQA Guidelines Section provides the following standard for a lead agency preparing an EIR: “An EIR should be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.”

Adequacy Standard “A court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’” (Ibid, internal quotation marks and citations omitted.) Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 392

Subsequent and Supplemental EIRs May be prepared when, after certification of an EIR, changes to a project or new information necessitate further environmental review (Pub. Resources Code, § 21166; 14 Cal Code Regs. §§15162, 15163)