Lead Committee: Land Use and Environmental Information Committee: (none) Level of Government Committee: (none) January 29, 2015

THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) THE QUESTION: What is CEQA? ACTION REQUIRED? Information Only POSSIBLE POSITION: 1. Take no action 2. Other DISCUSSION HISTORY Enacted in 1970, the California Environmental Quality Act, aka CEQA, requires environmental analysis for “state actions significantly affecting the quality of the human environment.” CEQA was expanded during the early 1970s through court rulings. CEQA now applies to all development proposals in California – public or private – regulated by public agencies. Its implementation falls largely on local governments because they process most regulatory permits. 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 environmental impacts of proposed projects and adopt all feasible measures to mitigate those impacts. Essentially, CEQA is a statewide mandate on state and local agencies to evaluate the impact of a project on the environment using existing federal, state and local standards and to ensure that any impacts are minimized. INTENT According to statute, CEQA has four major purposes: 1. To inform governmental decision makers and the public about the potential significant environmental effects of a proposed project. 2. To identify ways that environmental damage can be avoided or significantly reduced. 3. To prevent significant, avoidable damage to the environment by requiring changes when the governmental agency finds the changes to be feasible. 4. To ensure that a governmental agency discloses to the public the reasons why it approved a project if significant environmental effects are involved. Thus, CEQA aims to open government projects and development decisions to scrutiny and to enable action to be taken to offset negative environmental effects. By incorporating scientific information and public input into a systematic decision process, it is hoped that better-informed decisions and greater public accountability will result.

Policy Position Paper WHO IS IN CHARGE OF CEQA? CEQA was established by the Legislature. The California Resources Agency is charged with the adoption of CEQA Guidelines, and may often assist public agencies in the interpretation of CEQA. However, it is each public agency's duty to determine what is and is not subject to CEQA and what the objectives, criteria, and procedures are for the evaluation of projects and preparation of reports. CEQA is a self-executing statute. Public agencies are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof. The state or local agency which has the authority to approve the project is known as the lead agency. CEQA places the burden on the lead agency to affirmatively show that it has considered all the potential effects a project may have on the environment and has identified means of lessening or avoiding the project's significant effects. A lead agency is also responsible for seeing that the proposed environmental work is done appropriately by the project consultants. WHAT IS A ‘PROJECT’? "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: 1. An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof. 2. An activity undertaken by a person which is supported in whole or in part through public agency contacts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. 3. An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. WHAT IS IN AN ENVIRONMENTAL IMPACT REPORT (EIR)? The environmental review required under CEQA imposes both procedural and substantive requirements. At a minimum, an initial review of the project and its environmental effects must be conducted. This is often called an Initial Study. If significant environmental impacts are identified in the Initial Study, CEQA requires the preparation of an EIR. CEQA also demands that a project cannot be approved as submitted if feasible alternatives or mitigation measures are able to substantially lessen the significant environmental effects of the project. EIRs are prepared by project consultants and then either certified or rejected by the lead agency. Generally speaking an EIR must identify and analyze of the following:  Significant Environmental Effects of the Proposed Project.  Significant Environmental Effects Which Cannot be Avoided if the Proposed Project is Implemented.  Significant Irreversible Environmental Changes Which Would be Involved in the Proposed Project Should it be Implemented.  Growth-Inducing Impact of the Proposed Project.  The Mitigation Measures Proposed to Minimize the Significant Effects.  Alternatives to the Proposed Project.

Impacts must be considered on all of the following: Aesthetics Agricultural Resources Biological Resources Cultural Resources Hazards & Hazardous Hydrology/Water Quality Materials Mineral Resources Noise Public Services Recreation Utilities/Service Systems

Air Quality Geology/Soils Land Use/Planning Population/Housing Transportation/Traffic 2

Policy Position Paper As described in law, "an EIR shall identify and focus on the significant environmental effects of a proposed project. Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to short term and long term effects. The discussion should include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of land, ...and other aspects of the resource base such as water, scenic quality, and public services.” WHAT IS A MITIGATED NEGATIVE DECLARATION? A Negative Declaration or a Mitigated Negative Declaration is prepared when the Initial Study shows that: (1) there is no substantial evidence, in light of the whole record, that the project may have a significant effect on the environment; or (2) the Initial Study identifies potentially significant effects, but revisions to the project agreed to prior to public review would avoid the significant effects, or reduce them to a less-thansignificant level; and there is no substantial evidence that the revised project would result in a significant environmental effect. A Negative Declaration or Mitigated Negative Declaration is a short document that describes the proposed project, presents findings related to environmental conditions, includes a copy of the Initial Study which documents the reasons to support the findings, and includes mitigation measures, if any, included in the project to avoid potentially significant effects. CEQA PROCESS OVERVIEW Is the project exempt

NO The Initial Study

under CEQA? YES YES Is it discretionary?

Will the project have a significant

Environmental YES

Impact Report

environmental impact? NO

NO

NOT IF WE MITIGATE

No further action

NO Negative

Mitigated Negative

required

Declaration

Declaration

PUBLIC PARTICIPATION CEQA does not require formal hearings at any stage of the environmental review process. However, agencies are encouraged to include environmental review as a topic when the agency holds a hearing on its decision to carry out or approve a project. CEQA does require that lead agencies solicit and respond to comments from the public and other agencies concerned with the project. Many lead agencies have adopted policies to involve the public during the entire CEQA process. In these jurisdictions, public involvement starts during the scoping process, which is used to determine what environmental impacts will be studied and what type of environmental document will be needed. Next there is a formal comment period after the initial environmental document is circulated. Finally, there are hearings, sometimes during and always after the public comment period. Regardless of the public's participation, the decision remains with the agency on whether or not to permit a project.

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Policy Position Paper PROTECTING THE ENVIRONMENT IS IMPORTANT, SO WHAT'S THE PROBLEM WITH CEQA? When CEQA was enacted 40 years ago, the wide array of local, state, and federal environmental and land use regulations that are now on the books didn’t exist. CEQA was essentially it. In the 40 years since, Congress and the Legislature have adopted more than 120 laws to protect environmental quality in many of the same topical areas required to be independently mitigated under CEQA, including laws like the Clean Air Act, Clean Water Act, Endangered Species Act, AB 32 GHG emissions reduction standards, SB 375 transportation-based planning, and more. Despite these stringent environmental laws and local planning requirements, public and private projects throughout the state are commonly challenged under CEQA even when a project meets all other environmental standards of existing laws. Many lawsuits are brought or threatened for non-environmental reasons and often times these lawsuits seek to halt environmentally desirable projects like clean power, infill and transit. Thus, it is time to modernize CEQA to conform to California’s comprehensive environmental laws and regulations. This can be done through legislation that would reform the CEQA process in a way that would eliminate inefficiencies and avenues for abuse while preserving the law’s original intent – environmental protection. HOW CAN REFORM HAPPEN? CEQA can be "reformed" in any number of ways. In fact, the Legislature has passed numerous token measures, such as giving CEQA exemptions to specific, special projects, and minor activities. Unfortunately, every time legislation is introduced to create sweeping changes that would be meaningful to the general development community, the measure is defeated. Several meaningful reform options that have been considered over the years include: 1. Limiting the ability of plaintiffs to recover attorneys' fee from defendant cities and project applicants (CA law only affords plaintiffs the opportunity to recover their attorneys' fees and not the defendants, even if the defendants prevail). 2. Limiting the standing to bring CEQA lawsuits to designated entities by focusing CEQA Litigation on Compliance with Environmental and Planning Laws. Rationale for this reform included: a. That CEQA lawsuits would still be allowed to be filed for failure to comply with CEQA’s procedural and substantive requirements, including, for example adequate notice, adequate disclosure, adequate mitigation of environmental effects not regulated by other environmental or planning law, adequate consideration of alternatives to avoid unmitigated significant adverse impacts. b. That CEQA lawsuits could therefore not be used to challenge adopted environmental standards, or to endlessly re-challenge approved plans by challenging projects that comply with plans. c. That environmental and other public advocacy efforts to enact environmental protection laws would not be affected by any CEQA reform, and that refocusing CEQA on how compliance with standards and plans reduce impacts would also inform advocacy efforts to revisit standards or plans. d. That "real" environmental lawsuits - seeking to enforce true environmental objectives - could still be pursued against agencies that fail to make regulatory or permitting decisions in compliance with standards and plans. This proposed reform highlights the opinion that the current system of broad brush CEQA lawsuits that can be filed by any party for any purpose to challenge any or all environmental attributes of projects that otherwise comply with standards and plans are an outdated artifact of the "anything goes" environment of 1970, which now hinders both environmental improvement and economic recovery. 3. Streamlining CEQA review for development projects that are consistent with regional plans. Rationale for this reform included:

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Policy Position Paper a. As originally enacted, CEQA did not require further analysis of projects that already complied with CEQA-certified plans such as General Plans. It was a 1987 court decision dramatically changed CEQA’s application. b. CEQA should be returned to its original intent and not require duplicative review for projects that already comply with approved plans for which an EIR has already been completed – particularly since existing laws also require both plans and projects to comply with our stringent environmental standards. c. Local governments and other lead agencies would continue to retain full authority to reject projects or to condition project approvals and impose additional mitigation measures, consistent with their full authority under law other than CEQA. 4. Increasing the ability of agencies to use the Mitigated Negative Declarations when approving projects. 5. Eliminating duplicative review of environmental impacts that are already addressed by the permitting requirements of other environmental agencies by integrating environmental and planning Laws. With this reform: a. CEQA would continue to serve as the state environmental law for environmental impacts not regulated by standards set forth in other environmental and planning laws adopted since 1970. b. However, where a federal, state or local environmental or land use law has been enacted to achieve environmental protection objectives (e.g., air and water quality, greenhouse gas emission reductions, endangered species, wetlands protections, etc.), CEQA review documents like EIRs would focus on fostering informed debate by the public and decision makers about how applicable environmental standards reduce project impacts. c. State agencies, local governments and other lead agencies would continue to retain full authority to reject projects, or to condition project approvals and impose additional mitigation measures consistent with their full authority under law other than CEQA. 6. Enhancing Public Disclosure and Accountability. Under this reform: a. CEQA would continue to mandate comprehensive environmental disclosure and informed public debate for all environmental impacts, including those covered by standards set in other environmental and planning laws. b. CEQA’s public disclosure principles would be enhanced by requiring an annual report of project compliance with required mitigation measures made electronically available to the public as part of the existing Mitigation Monitoring and Reporting Plan process. While the proposed reforms seem reasonable, these types of changes to CEQA have been perceived by the environmental community as an evisceration of the process and established environmental protections. Development agitators have also opposed such changes because these types of reforms reduce the ability for groups to abuse the CEQA process to halt or delay developments.

No Action Necessary - This paper is for informational purposes only.

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