The California Environmental Quality Act (CEQA) is a California statute passed in 1970, shortly after the Federal Government passed the National Environmental Policy Act (NEPA), to institute a statewide policy of environmental protection. CEQA does not directly regulate land uses, but instead requires state and local agencies within California to follow a protocol of analysis and public disclosure of the potential environmental impacts of development projects. As CEQA makes environmental protection a mandatory part of every state and local agency's decision making process, it has become a model for environmental protection laws in other states, but it has also become the basis for numerous lawsuits concerning public and private projects.
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Policy
The CEQA statute, California Public Resources Code § 21000 et seq., codifies a statewide policy of environmental protection. According to CEQA, all state and local agencies must give major consideration to environmental protection in regulating public and private activities, and should not approve projects for which there exist feasible and environmentally superior mitigation measures or alternatives.[1]
Protocol
In addition to establishing a statewide environmental policy, CEQA also mandates actions all state and local agencies must take to advance that policy. Specifically, for any project under CEQA's jurisdiction with potentially significant environmental impacts, agencies must identify mitigation measures and alternatives by preparing an Environmental Impact Report, and may approve only projects with no feasible mitigation measures or environmentally superior alternatives.[2]
The California Resources Agency promulgates the CEQA Guidelines, California Code of Regulations Title 14 § 15000 et seq., which detail the protocol by which state and local agencies comply with CEQA requirements. Appendix A of the CEQA Guidelines summarizes this protocol in flowchart form.[3]
Exemptions
CEQA originally applied to only public projects, but California Supreme Court interpretation of the statute, as well as later revisions to the wording, have expanded the CEQA's jurisdiction to nearly all projects within California. § 21002.1: "Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so." For private projects, CEQA applies when a government permit or other entitlement for use is necessary.[4]
Ministerial decisions
In general CEQA applies to any land use activity, but there are many details in determining if a project falls under CEQA or not. General rule of thumb has been that CEQA applies to any discretionary project, that is a project that requires approval by a state or local government body. This includes building projects as well as planning documents such as general plans and zoning ordinances. In general, CEQA does not apply when only ministerial approval is necessary, such as a building permit application. The presumption is that CEQA would have already been applied to such projects during discretionary approval process. There are however both times when CEQA does not apply to discretionary decisions and times with CEQA does apply to ministerial decisions.
Abrogation
The California state legislature has, on occasion, abrogated CEQA such that specific projects could proceed without an EIR.[5]
One such abrogation occurred in October 2009, with the passage of a union-backed law exempting the proposed construction of Los Angeles Stadium from CEQA's requirements. The abrogation mooted an ongoing lawsuit, brought by eight residents of a neighboring city, challenging the validity of the developer's EIR. The developer had originally prepared an EIR for a commercial development on the site, then prepared a supplemental EIR to include a proposed 75,000 seat stadium situated within 3,000 feet of homes in that neighboring city; the plaintiffs argued that a single new EIR studying the entire project was required.[6] State officials said the abrogation ended an abuse of CEQA by individuals seeking to obstruct the project; at the signing ceremony, Governor Arnold Schwarzenegger said he would "terminate the frivolous lawsuit."[7] A plaintiff in the lawsuit said the abrogation "opens up the door for other developers... to hire lobbyists... and get exemptions from the environmental laws."[8] An environmental lawyer said that the slow economy would probably encourage developers to seek more abrogations, as legislators become more eager to stimulate job growth.[5]
Lead agency
When more than one agency is involved in a project, the agency with "primary responsibility for approving a project" is the lead agency, for purposes of following the CEQA protocol. Other agencies with responsibilities for approving a project are responsible agencies. The lead agency is normally the agency with general governing powers, such as a city or county. Agencies with limited governing powers, such as public utilities and parks and recreation districts, are normally responsible agencies.[9]
Significance study
To comply with CEQA, a lead agency must first prepare an initial study to assess whether a project will have no environmental impacts, less than significant impacts, less than significant impacts if mitigated, or potentially significant impacts. Appendix G of the CEQA Guidelines lists types of environmental impacts to consider in checklist form.[10]
Thresholds of significance
Under CEQA, every agency in the state "is encouraged to develop and publish thresholds of significance" against which to compare the environmental impacts of projects. Such thresholds are to be published for public review and supported by substantial evidence before their adoption. A lead agency will normally consider the environmental impacts of a project to be significant if and only if they exceed established thresholds of significance.
According to a 2001 survey, however, few agencies have actually developed thresholds of significance. The survey's analysts wondered, "if most agencies are not developing thresholds and publishing them for public review, then what criteria are they using?"[11]
Results
If the lead agency determines the project could have no significant environmental impacts, no EIR will be necessary, but the lead agency must prepare a Negative Declaration (Neg Dec) explaining the agency's decision. If the project could have significant environmental impacts, but the developer has revised the project to mitigate those impacts to a level of less than significant, no EIR will be necessary, but the lead agency must prepare a Mitigated Negative Declaration. Finally, if the lead agency determines the project may have significant environmental impacts, the lead agency must prepare an EIR.[10]
If the lead agency adopts either a Neg Dec or a Mitigated Neg Dec, the agency must make it available for public review and comment before further action is taken on the project.[3]
Environmental Impact Report
According to case law, the requirement to prepare an EIR is "the heart of CEQA."[12] An EIR serves to inform governmental agencies and the public of a project's environmental impacts.[13] Further, an EIR proposes mitigations and alternatives which may reduce or avoid the environmental impacts; as the EIR is considered the heart of CEQA, mitigation and alternatives are considered the heart of the EIR.[14] One alternative that a lead agency must usually consider is the no project alternative, that is, cancellation of the project and anticipated proposals of new projects in its place. Among all the alternatives, the EIR identifies the environmentally superior alternative; if the environmentally superior alternative is the no project alternative, the EIR identifies the environmentally superior alternative among the other alternatives.[15]
In general the lead agency hires an outside consultant, paid for by the entity that proposed the project, to prepare an EIR.[citation needed] The lead agency must make a draft EIR available to public review and comment before a final EIR is approved.[15]
Feasibility study
Upon adoption of the final EIR, the lead agency studies the mitigation measures and alternatives proposed by the EIR for feasibility. The agency may approve the project only if all mitigation measures and environmentally superior alternatives, including the no project alternative, are infeasible.
Comparisons to similar laws
Similar laws at the federal and state levels require environmental impact analysis before commencing major projects.
National Environmental Policy Act
NEPA, a United States federal statute passed the year before CEQA, is similar to CEQA in that both statutes set forth a policy of environmental protection, and a protocol by which all agencies in their respective jurisdictions make environmental protection part of their decision making process.
NEPA is narrower in scope than CEQA. NEPA applies only to projects receiving federal funding or work, while CEQA applies to projects receiving any form of state or local approval, permit, or oversight. Thus, development projects in California funded only by private sources would be exempt from NEPA, but would likely be subject to CEQA.
The environmental impact statement (EIS) required under NEPA and the EIR required under CEQA are similar documents, yet have some crucial differences. For example, under NEPA, an agency can list all reasonable alternatives and their impacts, then choose the worst one for the environment. Under CEQA, the lead agency can approve a project without mitigations or alternatives only if the agency adopts a Statement of Overriding Considerations, which details specific overriding economic, legal, social, technological, or other considerations that outweigh the project's significant, unmitigated impacts. If a major federal project, or project using federal funds is seeking approval in California, its lead agency must prepare both an EIS and an EIR, but both can be combined into one document (since the EIS and EIR have the same elements for the most part).
Laws in other states
As of 2005, 14 states as well as the District of Columbia have CEQA-style laws requiring impacts be reported for development. CEQA influenced many of these laws, and New York state's law actually used CEQA as a foundation. The various state laws are not entirely similar to CEQA, as most only apply to public projects and few have as rigorous review standards.
Litigation
CEQA's broad scope and lack of clear thresholds often lead to litigation, both by groups that support development, and individuals and agencies opposing such development.
Complaints
CEQA plaintiffs such as community and environmental groups often challenge projects with Neg Decs, on the grounds that EIRs should have been carried out. Litigation also occurs on the grounds that EIRs are too brief or overlooked possible impacts, as there are no guidelines for the length or content of the EIRs.
Plaintiffs also sometimes accuse developers of a practice called piece-mealing. Piece-mealing is a practice by which projects are analyzed incrementally by parts to make the environmental impacts appear smaller to the overseeing agency.
CEQA plaintiffs succeeded on one such claim in June 2009, concerning an expansion of the Chevron Richmond Refinery, the largest employer in Richmond, California. The judge ruled that Chevron erred by defining the project inconsistently, and the city of Richmond erred in allowing Chevron to piece-meal its project, and allowing Chevron to develop a mitigation plan after the project begins. The judge consequently ruled the EIR to be insufficient to meet CEQA's requirements, ordering the preparation of a new EIR covering the whole, accurately defined project before the refinery's expansion could proceed.[16]
Settlements
Plaintiffs in CEQA lawsuits seek various forms of redress, such as amending the EIR, preparing a new EIR, agreeing to mitigation measures, or paying money to local agencies to offset environmental impacts.
References
- ^ "CEQA Chapter 1: Policy". California Resources Agency. 2005-05-25. http://ceres.ca.gov/ceqa/stat/chap1.html. Retrieved 2009-12-02.
- ^ "CEQA Chapter 3: State Agencies, Boards and Commissions". California Resources Agency. 2005-05-25. http://ceres.ca.gov/ceqa/stat/chap3.html. Retrieved 2009-12-02.
- ^ a b "CEQA Guidelines Appendix A: CEQA Process Flow Chart". California Resources Agency. 2005-12-01. http://ceres.ca.gov/ceqa/guidelines/appa.html. Retrieved 2009-12-02.
- ^ Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 (Supreme Court of California 1972-09-21).
- ^ a b Shadley, Steve (2009-09-14). "Senate Delays Vote On Los Angeles NFL Stadium Bill". KPBS. http://www.kpbs.org/news/2009/sep/14/senate-delays-vote-los-angeles-nfl-stadium-bill/. Retrieved 2009-11-19.
- ^ Haldane, David (2009-01-12). "Neighbor blitzes stadium proposal: Walnut wants new EIR for Industry arena plan.". Los Angeles Business Journal. http://www.thefreelibrary.com/Neighbor+blitzes+stadium+proposal:+Walnut+wants+new+EIR+for+Industry...-a0192852067. Retrieved 2009-11-19.
- ^ Wagner, James (2009-10-23). "Governor signs bill clearing way for NFL stadium in Industry". Los Angeles Daily News. http://www.dailynews.com/breakingnews/ci_13623726. Retrieved 2009-11-19.
- ^ McGreevy, Patrick (2009-10-15). "Environmental exemptions OKd for football stadium in City of Industry". Los Angeles Times. http://articles.latimes.com/2009/oct/15/local/me-stadium15. Retrieved 2009-11-19.
- ^ "CEQA Process Flowchart: Determination of Lead Agency". California Resources Agency. 2003. http://ceres.ca.gov/ceqa/flowchart/lead_agency.html. Retrieved 2009-11-19.
- ^ a b "CEQA Guidelines Appendix G: Environmental Checklist Form". California Resources Agency. 2005-12-01. http://ceres.ca.gov/ceqa/guidelines/Appendix_G.html. Retrieved 2009-11-22.
- ^ Seiver, Owen H. and Thomas H. Hatfield (March 2001). "The Determination of Thresholds of Environmental Singificance in the Application of the California Environmental Quality Act (CEQA)". http://www.csus.edu/calst/Government_Affairs/reports/ffp43.pdf. Retrieved 2009-11-22.
- ^ County of Inyo v. Yorty, 32 Cal.App.3d 795 (California Court of Appeal for the Third District 1973-06-05).
- ^ No Oil v. City of Los Angeles, 13 Cal.3d 68 (Supreme Court of California 1974-12-10).
- ^ Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (Supreme Court of California 1990-12-31).
- ^ a b "CEQA Guidelines Article 9: Contents of Environmental Impact Reports". California Resources Agency. 2007-07-24. http://ceres.ca.gov/ceqa/guidelines/art9.html. Retrieved 2009-12-02.
- ^ Brenneman, Richard (2009-06-11). "Chevron Defeated in CEQA Lawsuit; Richmond Refinery Plans in Doubt". Berkeley Daily Planet. http://www.berkeleydaily.org/issue/2009-06-11/article/33129?headline=Chevron-Defeated-in-CEQA-Lawsuit-Richmond-Refinery-Plans-in-Doubt. Retrieved 2009-11-28.
- Fulton, W; Shigley, P Guide to California Planning Third Edition, (2005) Point Arena, California ISBN 0-923956-45-X
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