Helping Our Peninsula's Environment

 

California Environmental Quality Act (CEQA) Overview

(c) Copyright 1999-2012 David Dilworth

 

CEQA is intended to let the public know about the environmental impacts of a project BEFORE it is approved. What kinds of damage and how much.

 

CEQA is a Serious Law

CEQA was adopted by both houses of California's Legislature after a fierce debate and then signed by California's Governor. It is taken very seriously by California's Courts and almost always upheld.

In sharp contrast, local government agencies rarely treat it seriously; one Councilowman frivolously disregarded CEQA's importance with "Its just a technicality." Her superficial attitude to this state law cost her city hundreds of thousands of dollars when they lost the subsequent CEQA lawsuit.

Every construction project in California.

In California EVERY construction project, not many or most, is subject to the California Environmental Quality Act (CEQA).

CEQA Applies To All Governmental Decisions

In addition, every decision by every governmental agency (except for ballot initiatives, the courts and the legislature) in California is subject to CEQA. That includes what may be called "minor" changes to an already approved project. It even includes actions which appear to be merely paperwork - such as General Plan updates and amendments,

Some trivial actions (such as buying pencils) may quickly be found to be exempt, but first even buying pencils must be held up to CEQA to see if it could cause any possible potentially significant environmental impact. If not, only then may that action (buying pencils) be concluded as exempt.

Government agencies typically get this wrongly backwards by believing that only actions which have potentially significant environmental impacts are subject to CEQA.

(Even when an agency uses the catch-all exemption for trivial actions like pencil buying (15061.b3) CEQA still controls making the decision to use that exemption.) 

 All Agencies Subject To CEQA

All Local and State California government agencies are subject to CEQA. The only exceptions are for the Legislature while drafting laws, and the Courts in making rulings, and the public when making law through initiatives. (Federal Agencies are also exempt, but are subject to a similar law called NEPA).

What do Agencies Have To Do?

CEQA requires the city (or county or other agency) in charge of the action (such as a tree cutting project or a building approval) must do one of three things before it approves any project.

  • Prepare an Environmental Impact Report (EIR).
  • Claim the project is exempt from CEQA, or
  • Prepare an Initial Study AND a Negative Declaration. 

Is It Exempt?

California government agencies routinely approve projects by illegally bypassing or ignoring CEQA.

When caught rather than comply, agencies typically unethically try to defend their practice by claiming a project is either exempt or has no significant environmental impacts.

If a government agency claims a project is it exempt from CEQA - ask which specific exemption they are claiming. Exemptions are either identified by their Guideline number (e.g. a Guideline 15261 exemption is for an ongoing project) or Class number (e.g. a Class 2 exemption is for the replacement or reconstruction of existing structures)

Call the Agency (often the City or County "Planning" department). Ask what department is in charge of the project and ask which of the three CEQA choices they did. If they won't tell you, you should prepare a Public Records Act Request and go down to deliver the request to inspect (not copy which triggers a 10 day delay) the relevant documents.

1. When you learn the Exemption they claim - look it up and determine whether they have made a mistake. Faulty Exemptions (whether accidental or intentional) are alarmingly common.

2. Determine whether significant environmental impacts would occur even if one of the Categorical Exemptions seems to apply. This is important because

They cannot use a categorical exemption if there would be any potentially significant environmental impact.

CEQA Guidelines 15300.2(c). regarding Exceptions and Significant Effects. "A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances."

The following shows how the mere "possibility" of an environmental impact triggers deeper CEQA review.

"Potential Impact"

The Significant Effects Definition of CEQA Guidelines Section 15382 states:

"Significant effect on the environment" means a substantial, or POTENTIALLY substantial, adverse change in any of the physical conditions within the area affected by the project, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.

Exemption Uses "Fair Argument"

For a Categorical Exemption a "Fair Argument" is the standard of evidence.

In everyday language this means if you can make a reasonable argument that the proposed action could potentially (not probably) have an impact on some environmental value - it doesn't matter if the city has a room full of experts and a library full of books saying it won't. The Courts are required to ignore all the agency's evidence.

CEQA Guidelines Sec 15308. Discussion

"The court followed the ruling in Wildlife Alive v. Chickering, (1976) 18 Cal. 3d 190 that provided that where there is a reasonable possibility that a project or activity may have a significant effect on the environment, an exemption is improper."

It is improper to rely on a Categorical Exemption in the face of a fair argument. "If the court perceives there was substantial evidence that the project might have an adverse impact, but the agency failed to secure preparation of an EIR, the agency's action must be set aside because the agency abused its discretion by failing to follow the law." Dunn-Edwards Corporation v Bay Area Air Quality Management District (1992) 9 Cal.App.4th at p. 656 [11 Cal.Rptr.2d. 850]

Fair Argument - Easiest Suit To Win

As you know now - for a Fair Argument - the Courts are required to disregard all evidence an Agency presents. Because of this many CEQA attorneys consider a suit using the Fair Argument standard the easiest lawsuit to win (plus they win attorney's fees). A suit like this on an Exemption is far easier to win than the successful lawsuit over the EIR on September Ranch which uses the much higher standard of Substantial Evidence.

"... if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect

(No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68).

Better for Public Than a "Fair Argument" if Failure To Look

"[t]he agency should not be allowed to hide behind its failure to gather relevant data," because "CEQA places the burden of environmental investigation on government rather than on the public." Where the agency has failed to produce crucial information," [d]eficiencies in the record may actually enlarge the scope of fair argument by lending a plausibility to a wider range of inferences." Sundstrom v. Mendocino County (1988) 202 Cal.App.3d 296

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This Page Last Updated August 2012