Noreen Evans is an expert on the California Environmental Quality Act (CEQA), having worked extensively with land use planning issues and CEQA during her term on the Santa Rosa Planning Commission (1993-1996) and when she was in the State Legislature. The Santa Rosa law firm has handled various environmental matters over the years including litigation on behalf of major corporations and property owners. O’Brien, Watters & Davis law firm has handled litigation against ARCO in Southern California on behalf of the Marmon Group. We have handled litigation in the Federal District Court under the Resources Conservation and Recovery Act (“RCRA”) and the Clean Water Act (“CWA”). We have also represented property owners who have been sued as alleged polluters. Ms. Evans and Deirdre Taber Kingsbury handle this area of practice.
CEQA (pronounced “see kwa”)
The 60’s were a time of great turmoil and change in America. That decade saw the assassination of a U.S. President, the start of one of America’s longest foreign wars (Vietnam), the assassination of a U.S. presidential candidate and massive civil unrest throughout the country. It spawned many movements including that of the hippies, the Free Speech Movement (Berkeley) the Civil Rights Movement, the Anti-war Movement as well as the Environment Movement. The first Earth Day was in 1970.
The 60’s saw a new emphasis on the protection of the environment from mankind’s incessant depredations. In 1969, Congress enacted the National Environmental Policy Act (NEPA). 42 U.S.C. §§ 4321-4370h. A federal agency was created to enforce the federal environmental protection laws, the Environmental Protection Agency (EPA). There are also numerous federal laws protecting air quality (Clean Air Act), water quality (Clean Water Act), etc. 33 U.S.C. § 4701 and following.
In 1970, then California Governor Ronald Reagan signed into law the first environmental protection law, CEQA (“see kwa”) The California Environmental Quality Act. California Public Resources Code §§ 21000 and following. The California agency in charge is the California Natural Resources Agency.
In the Public Resources Code the California Legislature sets forth the public policy of the State of California in Public Resource Code §§ 21000 – 21006. The stated purpose of CEQA was to maintain a quality environment (PRC § 21000(a)) as well as maintain the health and safety of the people of the state (PRC § 21000(d)). The Legislature stated that every citizen has a responsibility to contribute to the preservation of the enhancement of the environment. It stated that (proper) management of natural resources and waste disposal require not only public but private efforts as well to enhance environmental quality and to control environmental pollution (PRC § 21000(f)). The Legislature provided that all agencies of the state government which regulate activities of private individuals, corporations and public agencies which are found to affect the quality of the environment, shall regulate such activities so as to prevent environmental damage while providing a decent home and satisfying living environment for every Californian (PRC § 21000(g)).
The Legislature went on to state that it was the policy of the State to develop and maintain a high-quality environment both now and in the future, and to take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state (PRC § 21001(a)). It thus directed that it is the policy of the state to take all action necessary to provide the people of the state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities as well as freedom from excessive noise (PRC § 21001(b)), to prevent the elimination of fish or wildlife species due to man’s activities, and to preserve for future generations all plant and animal communities and examples of the major periods of California history (PRC § 21001(c)) and to ensure the long-term protection of the environment shall be the main criterion in public decision making (PRC § 21001(d)). Stated policy also included requiring governmental agencies at all levels to develop standards and procedures necessary to protect the environmental quality (PRC § 21001(f)) and required governmental agencies at all levels to consider qualitative factors such as economic and technical factors, long-term benefits and costs as well as short-term benefits and costs and to consider alternatives to proposed actions affecting the environment (PRC § 21001(g)). The Legislature declared that it was the public policy of the state to have projects carried out by public agencies to be subject to the same level of review and consideration given that of private projects that require approval of public agencies (PRC § 21001.1).
The Legislature declared that it was policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects. The Legislature also found that in the event that specific economic, social or other commissions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant (environmental) effects (PRC § 21002).
One of the major purposes of CEQA was to create an open and transparent process incorporating public input into any development Project. Environmental Impact Reports (EIRs) are dealt with in PRC § 21002.1. The purpose of an EIR is to identify significant effects on the environment of a project, to identify alternatives to the project and to indicate the manner in which those significant effects can be mitigated or avoided. CEQA also applies to public Projects (PRC § 21002.1(b)). It also dealt with lead (governmental) agency responsibilities (PRC § 21002.1(d)) and directed that EIRs should focus on the potential effects on the environment of the proposed Project. A recent case has held that lead agency may not consider the impacts of the environment on the Project. See Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal. App. 4th 455. In Ballona Wetlands, the 2nd District Court of Appeals ruled CEQA did not require the lead agency to consider the effects of global warming on the Projects. Subsequent attempts to change this ruling have failed in the State Legislature.
The Legislature directed that all local agencies must integrate CEQA requirements into their planning and environmental review procedures otherwise required by law or by local practice and that such review procedures run concurrently as opposed to consecutively (PRC § 21003(a)), and it directed that databases be created to reduce unnecessary delay and duplication in the preparation of subsequent EIRs (PRC § 21003(d)). The Legislature required that all persons and public agencies involved in the Environmental Review Process be responsible for carrying out the process in the most efficient, expeditious manner in order to conserve the available financial governmental fiscal and social resources (PRC § 21003(f)).
Comments from the public and public agencies on the environmental effects of a specific project shall be made to lead agencies as soon as possible (PRC § 21003.1(a)). The Legislature wanted the agencies to identify at the earliest possible time the significant effects of a Project, alternatives and mitigation measures to be made available as soon as possible by lead agencies, other public agencies, interested persons and organizations (PRC § 21003.1(b)).
The Legislature declared that in mitigating or avoiding a significant effect of a Project on the environment, a public agency may exercise only those express or implied powers provided by law other than CEQA, but a public agency may use discretionary powers provided by such other law for the purpose of mitigating or avoiding a significant effect on the environment (PRC § 21004).
CEQA is an integral part in any public agencies’ decision-making process including the issuance of permits, licenses, certificates or other entitlements required for activities undertaken pursuant to federal statutes containing specific waivers of sovereign immunity (PRC § 21006.).
There are at least fourteen different categories that any EIR must address. The factors that are covered in EIR include, in alphabetical order, aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology and soils, greenhouse gases, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation and traffic, utilities and services systems. These are listed in Appendix G, Environmental Checklist in the CEQA Guidelines.
The lead agency must take public comment on and analyze the Project’s impacts in each of these areas. Generally, if the impacts are non-existent or insignificant, the lead agency may adopt a negative declaration (ND). If the Project’s impacts can be mitigated, the lead agency may adopt a mitigated negative declaration (MND). If the Project will have significant impacts, the lead agency must prepare an EIR and identify mitigations or adopt a statement of overriding considerations if the impacts cannot be fully mitigated.
Environmental cases are given the highest priority among civil cases within the California judicial system (California PRC § 21167.1(a)). Because the law is so complex and requires the balancing of many competing interests, the Legislature requires that the Superior Court of each county (with a population of 200,000 or more) appoint one or more judges to specialize in CEQA cases (California PRC § 21167.1(b)). Thus, environmental cases are assigned to the CEQA judges in each county and the cases are usually designated as “complex.”
CEQA is a complex and ever-changing area of the law. The rules and regulations dealing with CEQA are updated every year by the California Secretary of Resources (who heads up the California Natural Resources Agency). That agency adopts procedures pursuant to the Administrative Procedure Act (APA). See California Code of Regulations, Title 14, Div 6, Chapter 3. They include changes (amendments, additions, deletions) to the statutory scheme along with new and revised rules to guide the public agencies charged with enforcing them as well as for the general public. Regulations also attempt to include guidance based on recent court decisions.
The public agencies decide which of its activities is subject to CEQA. Public agencies are mandated to follow CEQA when the agency engages in activities referred to as “Projects” (see PRC § 21100). A Project is defined to be an activity undertaken by an agency or a private activity that must be approved by the agency which could cause a direct physical change in the environment or a reasonably foreseeable indirect change in the environment. See California Code of Regulations, Title 14, Chapter 3, Sec. 15378. Virtually every significant Project to develop real property is subject to government approval and will have to follow CEQA guidelines. There are, of course, activities that are exempt.
The public agency will usually conduct a review of the Project to look at the potential impact on the environment. Thereafter, a full EIR may be required. The agency cannot approve the project if there are feasible alternatives or measures to mitigate are available to substantially decrease the significant environmental impact of the project (PRC § 21002).
Thus, as one can well imagine, CEQA results in significant disputes including significant court battles. The enforcement of CEQA is most often done by members of the public who may band together to try to stop a development project. Numerous lawsuits are filed by plaintiffs whose case names start with “The Friends Of. . .”, “Neighbors for . . .”, “Preserve . . .”, “Protect Our . . .”, “Stop. . .” or by well-known environmental groups such as the Sierra Club and the like. California also has many boards and agencies such as the California Wildlife Conservation Board, the California Regional Water Quality Control Board, the California Regional Air Quality District and the State Water Resources Control Board. They may get in on the act as well.
After the initial adoption of CEQA, California voters adopted an initiative known as the California Coastal Act of 1976. (PRC § 30000, et seq.) The Coastal Act protects and maintains the California coastline and guarantees public access to the state’s beaches and coast. Its purpose and implementation is very similar to CEQA in that it guarantees the public’s right to participate in consideration of Projects along the coast. Sonoma County was the birthplace of the movement to preserve California’s coast after an epic environmental battle over a proposal to locate a nuclear power plant on an earthquake fault at Bodega Head.
As to who pays for attorneys fees to litigate CEQA cases, although California follows the American Rule (Code of Civ. Proc. § 1048), under Code of Civ. Proc. § 1021.5, attorneys fees may be awarded when the CEQA litigant has successfully vindicated an important statutory right. Thus, fee shifting can occur and attorneys fees may be awarded to the successful litigant dealing with environmental or land use cases. See Laurel Heights Improvement Ass’n v. Regents Univ Cal (1988) 47 Cal.3d 376. For several actual CEQA cases see San Bernardino Valley Audubon Soc’y v. County of San Bernardino (1984) 155 Cal.App.3d 778 as well as Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547.