What does BACA do? Part V

Proposed ballot initiative to amend CEQA would sharply limit what environmental effects should be considered for mitigation for covered projects.

This is the fifth in a series of blog posts on the California Chamber of Commerce’s proposed ballot initiative amending the California Environmental Quality Act (CEQA).  The first blog post is here.  The second blog post is here.  The third blog post is here.  The fourth blog post is here.

The core of CEQA is the requirement that public agencies analyze, publicly disclose, and mitigate to the extent feasible “significant” environmental impacts.  The initiative would fundamentally change what counts as “significant” for CEQA purposes.  And more importantly, the initative would also likely eliminate most judicial review of the adequacy of CEQA analysis of, and mitigation of, significant impacts.

Under current CEQA guidelines, “significant” is defined as “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.”  14 Cal. Code Reg. §15382.

Instead of this standard, the initiative limits “significant” impacts to violations of “existing law.”  Proposed new Section 21022(a)(1):

“A public agency considering whether to approve an essential project shall identify, evaluate, determine significance, and mitigate the impacts of an essential project based on compliance with existing laws.”

As I noted in an earlier post, existing laws are defined in the initiative as “[f]ormally adopted legal requirements contained in statutes, regulations, rules, standards, or ordinances that existed and were in effect on the date an application for an essential project was submitted to a public agency.”  Proposed new Section 21028(r)(1).

Thus, CEQA is transformed from a statute with a broad reach without clear parameters (“substantial, or potentially substantial, adverse change”) to a simple check whether the project will produce violations in any other existing laws.  If that check finds a violation of another law, then the requirement of disclosure and mitigation still applies.

It’s hard to know what CEQA accomplishes if this is the case.  Perhaps, if the other law does not have a mitigation requirement, then CEQA adds a mitigation requirement.  (But if the other law does not require mitigation, the project appears then to be in “compliance with existing laws” if the project exceeds those other standards without any mitigation.)

Potentially the CEQA guidelines constitute “[f]ormally adopted legal requirements contained in . . . regulations.”  And those guidelines might add requirements that are not present in other laws besides CEQA.

The guidelines are regulations.  And the CEQA guidelines do contain some guidance on significance – such as definitions for cumulative impacts (14 California Code Reg. § 15355), greenhouse gas emissions (14 California Code Reg. §15364.5), allowing agencies to determine thresholds of significance, and setting mandatory findings of significance.

Agencies can use “thresholds of significance” to determine whether impacts to a resource are significant – this is frequently used by air quality districts to determine cumulative air quality impacts from projects, a particular issue for neighborhoods that already face significant air quality problems because of industrial sources, freeways, or ports.  (See this example from the Bay Area Air Quality Management District.)  But would those thresholds of significance actually still apply under the initiative?  Project proponents can opt into those thresholds if they choose, see proposed new Section 21022(a)(2).  They perhaps might choose to do so because they believe doing so might assist with compliance under other laws.  But they do not have to.  And it is very unclear to me whether those thresholds of significance qualify as a “legal requirement” such that they are existing laws under the initiative.  After all, those thresholds simply determined the scope of CEQA review, including when analysis must occur and when mitigation must occur.  That is different, perhaps, from a law or regulation that prohibits certain kinds of activities (such as polluting over a certain level).  Again, a broad interpretation pursuant to 21029(a) would lead to the conclusion that these thresholds of significance are not existing law.  That would mean that most of the relevant standards currently used in CEQA significance determinations no longer apply.

Similarly, the current CEQA Guidelines contain a number of mandatory findings of significance, such as whether the “project has the potential to substantially degrade the quality of the environment; substantially reduce the habitat of a fish or wildlife species; cause a fish or wildlife population to drop below self-sustaining levels; threaten to eliminate a plant or animal community; substantially reduce the number or restrict the range of an endangered, rare or threatened species; or eliminate important examples of the major periods of California history or prehistory,” or where the project will have cumulative significant impacts on a resource, or where “environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.”  14 Cal. Code of Regulations § 15065(a).  Again, it is unclear whether these standards would subsequently qualify as “existing law,” since it is unclear if they are “legal requirements.”  And again, a broad interpretation pursuant to 21029(a) would mean that these provisions would not qualify.

In addition, the regulations contain Appendix G, which is often used as guidance by agencies to determine whether they may need to prepare an environmental impact report.  Appendix G is in the regulations and it has a range of questions about different kinds of impacts, such as whether a project will “[h]ave a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service?”  The problem is that Appendix G disclaims that it provides any “threshold of significance.”  A court that follows the injunction of the initiative to interpret the initiative to facilitate approval of covered projects might well conclude that Appendix G does not constitute a “legal requirement.”

At the very least, the ambiguity about whether the CEQA Guidelines apply is substantial.  (Indeed the ability of a project proponent to opt into thresholds of significance implies that they otherwise do not apply.  On the other hand, proposed new Section 21014(h) does preserve agency ability to set thresholds of significance, “[u]nless otherwise stated herein,” though that provision says nothing about the implications of those thresholds.)  It may well be that CEQA under this initiative, for covered projects, is just a checklist about whether other laws have been complied with.  And if that is the case, it is hard to see what, if anything, CEQA review provides for these projects.

There is also an odd provision in proposed new Section 21022(b), which states that “an essential project’s compliance with this division and the State CEQA Guidelines shall be based solely upon the project’s compliance with subdivision (b) of Section 21029.”  Proposed new Section 21029(b) in turn provides that courts shall not interpret the initiative to “impose[] procedural or substantive requirements upon essential projects beyond those explicitly stated in this chapter.”  It is hard to see how a project complies with a provision that instructs how courts interpret the initiative.  I think the intent here is to make clear that courts should not be finding new requirements or procedures in the initative, and (consistent with 21029(a)) interpret the initiative as deregulatory.  But I’m not really sure.  (This is not the only example of awkward drafting in this initiative.)

Finally, understanding what counts as significant for purposes of the initiative is affected by the way that the initiative changes judicial review.  In particular, it limits any claim with respect to CEQA compliance to whether the agency’s review complies with “objective existing laws.”  Proposed new Section 21026(b)(1).

What does “objective” add here?  A whole lot, because objective “means involving no personal or subjective judgment and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the applicant and the public agency before the application was submitted.”  Proposed new Section 21026(b)(2).  To consider how narrow this standard is, let’s turn to the California Endangered Species Act (CESA), which prohibits agencies from taking actions that would “jeopardize the continued existence of any endangered species.”  Fish and Game Code 2053(a).  Does the standard “jeopardize the continued existence” of a species “involve[e] no personal or subjective judgment” and is “uniformly verifiable by reference to an external and uniform benchmark”?  Perhaps not – and of course, remember that we interpret the initiative in favor of approving projects.  Section 21029(a).  So perhaps a court can not hear a challenge that an agency’s CEQA review inadequately considered the impacts of project that would wipe out an endangered species, and did not provide feasible mitigation.

Likewise, even if the mandatory findings of significance under the current CEQA Guidelines count as existing law, their vagueness means they may well not count as “objective” under the initiative.  That in turn means that agencies and proponents could ignore those mandatory findings of significance without any litigation risk.

It is possible that there may be a separate legal route to challenge the lack of compliance with other laws (like my CESA example), perhaps through a mandamus claim against the agency based on that other law.  But that may (or may not) be the case, and that will vary greatly depending on specific statutory schemes.

Overall, CEQA litigation may well only be available where there is a quantitative standard that is laid out in preexisting law – a dramatic reduction in the scope of judicial enforcement of the law, and in CEQA’s effective application.

Plausibly, the new definition of significance plus the limitations on judicial review effectively repeal CEQA as an providing any independent value or relevance for environmental protection in California for covered projects.

abundance, CEQA, environmental review, housing, mitigation, significance