Reforming CEQA Part 5

Creating greater clarity for thresholds of signficance, and default methodologies and mitigation measures

This is the fifth in a series of blog posts on reforming the California Environmental Quality Act (CEQA).  The first post, discussing different paradigms for CEQA, is here.  The second post, discussing the conceptual framework for reform, is here.  The third post, discussing designating a state agency to set binding, clear standards for CEQA implementation, and setting stricter limits on alternatives analysis, is here.  The fourth post, discussing the creation of an exclusive list of the type of impacts to be considered under CEQA, is here.  In this post, I will discuss creating mandatory, standardized thresholds of significance, and default methodologies and mitigation measures.

Thresholds of significance

A core part of CEQA is the standard of significance – the level of an impact to a resource above which an agency is required to analyze the impacts through an EIR and conduct feasible mitigation.  The current Guidelines emphasize flexibility in setting standards of significance on a case-by-case basis.  The Guidelines do not require agencies to develop thresholds of significance, which are pre-specifications of significance levels that can facilitate determinations of significance, but simply encourages them to do so.  Appendix G of the Guidelines provides guidance on findings of significance, but it is only an advisory document.  The upshot is that even where there are relevant thresholds of significance, there may be many relevant ones developed by different agencies in different contexts, allowing project opponents to contest which threshold should be selected.   As discussed earlier, even the Guidelines provisions outlining mandatory thresholds of significance have significant amounts of vagueness in their meaning and application.  Again, the uncertainty as to significance levels can be leveraged to produce delay and litigation.

To provide greater predictability as to significance levels, the designated agency would adopt mandatory thresholds of significance for all resource categories.  Those standards would be exclusive – if a project does not cross a threshold, then the project must be found to be non-significant for that particular aspect of that resource.  Standards need not be quantitative or objective, though they should provide clear guidance to agencies and the public as to what impacts are significant.  For instance, the current mandatory finding of significance for projects that “substantially reduce the habitat of a fish or wildlife species” is not quantatitive, and perhaps is not objective, but is sufficiently clear to provide guidance to agencies and the public.  (Providing more quantitative guidance in this context would be challenging given the wide variation in habitat needs and biology for fish and wildlife species.)  Standards might also vary across contexts or locations – for instance, they may be more stringent in areas with more severe pollution problems, or in protected or wilderness areas.

Thresholds would include, where relevant, cumulative effects thresholds for the relevant resource category.  At the very least, cumulative effects thresholds must apply for air quality, biological resources, and water quality.

To initially set these thresholds of significance, the designated agency would set any quantitative standards at least as stringent as the least stringent quantitative standard currently adopted by a state or regional agency for any of the existing effect categories – though the designated agency could set higher standards if it believed that is appropriate.  For greenhouse gases, the designated agency would set quantitative standards for emissions related to specific areas such as industrial output, land-use changes for forests/wildlands/working landscapes, traffic, and new construction.  Other than any quantitative standards set by the designated agency, there would not be thresholds of significance for greenhouse gas impacts from projects.

Default methodologies and mitigation measures:

 The designated agency could identify methodologies for analysis of specific effects – such as air quality impacts from traffic based on specific models – that it concludes are reliable.  Lead agencies could rely on those methodologies, and they would be presumed to be appropriate for any required analyses.  Agencies could deviate from those methodologies, but would have to justify any such deviation, and would have to compare the results from their alternative methodology with the results from the methodology identified by the designated agency.

Likewise, the designated agency could identify default mitigation measures that would be generally deemed sufficient for standard effects.  For instance, a range of standard mitigation measures are already used for cultural resources, tribal cultural resources, and paleontological resources.  Once adopted by the designated agency, lead agencies could rely on those mitigation measures, and the burden would be on those who challenge reliance on those measures to demonstrate why they are inadequate for the particular project.

For both designated methodologies and mitigation measures, the designated agency should identify criteria that establish when they are reliable and effective, and thus when they can be relied upon by lead agencies.

CEQA, environmental review, permitting reform