Quick Review of CEQA, from Guide to California Planning

William Fulton & Paul Shigley, Guide to California Planning 155-79 (2005).

CEQA was enacted in 1970 to address some of California’s environmental protection needs. Since its enactment, it has probably become “the most hotly debated planning-related law in California.” We have heard many times about the effects of CEQA on Berkeley development, but we have not yet managed to include an introduction to the Act itself in our blog. I thought I would briefly do so here in list format for our quick reference.

PURPOSE
→ To unearth information about the likely environmental consequences of any “project”
→ To encourage debate by public and elected officials about those consequences

ROLE
CEQA does not function to:
→ Improve CA’s environment directly
→ Usurp local authority over land use decisions
→ Establish a state enforcement agency
→ Require a wholesale denial of harmful projects

CEQA does function to:
→ Inform decisionmakers about significant environmental effects
→ Identify ways environmental damage can be avoided
→ Prevent avoidable environmental damage
→ Disclose to the public why a project is approved even if it leads to environmental damage

PROCESS

→ Step 1. Is the action in question a “project” under CEQA?
o Ministerial Actions – Are not projects because their issuance does not involve any discretion
o Discretionary Actions - Generally, any discretionary action that involves the physical environment is a "project" and is subject to CEQA
o Exemptions:
§ Statutory exemptions – e.g., demolition permits, adoption of coastal and timberland plans, some mass transit projects, and certain types of small infill and affordable housing projects
§ Categorical (Resources Agency) exemptions – divided into around 32 categories – e.g., projects under 10,000 sq. ft., projects of three homes or fewer, projects resulting in “minor alterations on the land,” and transfer of land ownership to create parks

→ Step 2. If the action is a project and no exemption applies, local government planners will conduct an initial study of probable, significant environmental consequences
o No formal threshold for “significance,” though some “significant effects” are indicated in the Guidelines – e.g., projects that would (1) have a major impact on area aesthetics; (2) substantially diminish fish, wildlife, or plant life habitats; or (3) displace a large number of people
o Planners or consultants will use a “checklist” to assess environmental factors and speculate as to potential impacts
o If nothing is significant, a negative declaration is made so that no further review is needed; If something is significant but is mitigated/changed, a mitigated negative declaration is made and no further review is needed; otherwise, if there remains something significant, proceed to Step 3

→ Step 3. If consequences are likely significant, then an environmental impact report (EIR) must be prepared specifying the damage and ways of mitigating that damage
o Most often required for larger projects
o Frequently expensive and time-consuming; developer often carries the costs during this time, which may kill the project
o Additions/Supplements/New EIR may be required as the project changes or new information becomes available
o Types of EIRs:
§ Development-specific EIRs
§ General plan EIRs
§ Master EIRs and tiering

→ Step 4. Engage in public discussion based on the initial study and, if applicable, the EIR

→ Step 5. Local Government resolves the outcome
o There are no absolute requirements to reject harmful projects nor are there specifications for minimizing damage; however,
o Guidelines do indicate that an agency should not approve a project if there are feasible alternatives available that would substantially lessen any significant effects
o Resolution Options:
§ Deny the project
§ Approve an environmentally preferable alternative
§ Approve the project, but only if mitigation measures are adopted
§ Approve the project in spite of its effects

ENFORCEMENT
→ No state agency is empowered to enforce CEQA, though state attorney general may file lawsuits to force compliance
→ Primarily meant to be enforced by citizens through litigation; this has given rise to citizen groups threatening litigation to obtain leverage over planning and over individual development projects

COURT RULINGS ON CEQA
→ Court rulings fall into four general categories:
o Whether CEQA applies
o Whether an EIR should be prepared
o Whether the EIR is adequate
o Whether procedures were followed