Helping Our Peninsula's Environment

(c) Copyright 1999-2006 David Dilworth

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

In addition, every decision by every governmental agency 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 (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 have this incorrectly backwards by asserting that only actions which have potentially significant environmental impacts are subject to CEQA.

All Local and State California government agencies are subject to CEQA - except the Legislature while drafting laws, 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.

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

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

Government agencies routinely approve projects illegally by bypassing CEQA. Agencies typically falsely claim a project is either exempt or has no significant environmental impacts.

If they claim the 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 City (or County) "Planning" Department and ask which of the three they did. If they won't tell you should prepare a public records act request and go down to deliver it and inspect 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 does apply.

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 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.

For a Categorical Exemption a "Fair Argument" is the standard of 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]

As you know - 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).

"[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 6, 2006