Updated on June 16, 2020
In part one of this blog, we will discuss an overview of The California Environmental Quality Act. Specifically, “Three-Tier” analysis and discussion of related litigation.
It is nearly impossible to drive around Southern California without noticing a new construction project going up. The Academy of Motion Pictures Arts and Sciences Museum on Wilshire, the SoFi Stadium in Inglewood, the Mitsui Fudosian Tower in Downtown Los Angeles are a few high-profile examples. However, there are countless other houses, apartment complexes, and commercial buildings.
Before the contractor may break ground, there is typically an extensive project approval process that takes place behind the scenes, often for years. One of the many preliminary matters that the property owner or developer must attend to is assure that the project does not violate the California Environmental Quality Act (“CEQA”). This blog briefly discusses the basic purposes of the CEQA and then discusses the three-tier process of review for project approval. Finally, this blog offers a few examples of litigation involving the CEQA.
The CEQA was signed into law in 1970 by then-Governor Ronald Reagan and is California’s “broadest environmental law”. The four main purposes of the California Environmental Quality Act are to: (1) inform government decision makers and the public about the potential, significant environmental effects of proposed activities, (2) identify ways that environmental damage can be avoided or significantly reduced, (3) prevent significant, avoidable damage to the environment by requiring changes in project through the use of alternatives or mitigation measures when a governmental agency finds the changes are feasible, and (4) disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose. (Code of Regulations section 15002.)
Whether a project is beholden to the California Environmental Quality Act requirements is determined by a “three-tier” review process. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380.)
The first step is a jurisdictional test to determine whether the project falls within CEQA. (Id.)
Almost all projects undertaken by a public agency, for example the construction of a local agency or school district, are subject to the requirements of the CEQA. The CEQA also applies to all “discretionary projects” undertaken by a private entity. (Id.) A “discretionary project” is one that requires the deliberation of a public agency to determine whether the project will be approved; e.g. placing conditions on a conditional use permit or reviewing the design of a proposed project. (Id.) (For more on conditional use permits, visit Schorr Law’s blog on the topic here.) However, CEQA does not apply to “ministerial projects”; those that only require conformity with a fixed standard. (https://ohp.parks.ca.gov/?page_id=21723) An example of a ministerial project is when a public official only determines if a project conforms with the applicable building or zoning code. (Id.)
If the agency determines if the project is subject to the CEQA requirements, the agency must then determine whether the project is exempt from CEQA. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (supra) 41 Cal.4th at 380.)
There are two basic types of exemptions under CEQA: 1) statutory exemptions, and 2) categorical exemptions. Statutory exemptions are projects that the statute legislature specifically excludes from CEQA consideration (Id.) The statutory exemptions are codified in Public Resource Code section 21080 et seq. Two examples of statutory exemptions are emergency repairs to public service facilities necessary to maintenance services, or the development of a regional transportation improvement program. (Public Resource Code section 21080(b)(2);(b)(13).)
The second type of exemptions under the CEQA are categorical exemptions. Categorical exemptions apply to projects that have been pre-determined to not have potential impacts on the environment. (https://ohp.parks.ca.gov/?page_id=21728) For example, interior or exterior alterations related to interior partitions, or the installation of small hydroelectric generating facilities in connection with some existing dams, canals or pipelines. (California Code of Regulations sections 15301; 15328.)
Further, over the years, CEQA has expanded to include additional exemptions outside of the Public Resource Code. (Miller and Starr section 26:1, Environmental Review; purposes and objectives of the CEQA; fn. 1) If you are a private landowner planning a discretionary project and want to find out whether an exemption applies, you may want to consult with an attorney who specializes in real estate litigation.
If the agency determines that an exemption does not apply, the agency then conducts what is called the “initial study” (“Initial Study”). During the Initial Study, the agency weighs the evidence to determine whether a project will have a “significant effect on the environment”. (https://ohp.parks.ca.gov/?page_id=23622) A “significant effect on the environment” is defined as a “substantial, or potentially substantial, adverse change in the environment”. For the purposes of CEQA, “environment” is defined as “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.” (Public Resources Code section 21068.)
If the agency finds that there is no substantial evidence that the project will have a significant effect on the environment, the agency prepares a “Negative Declaration”. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (supra) 41 Cal.4th at 381.) However, if the agency does find evidence that the project will have a significant environmental impact, the project moves on to the final stage of the three-tier analysis.
Next week, we will cover the third and final step to this process.
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