In the alphabet soup of municipal law, four letters are likely to appear together again and again: CEQA, the California Environmental Quality Act. Join us and our public agency and CEQA consultant co-panelists at the League of California Cities 2018 Annual Conference & Expo, where we will discuss changes to CEQA and how they will impact the entitlement and CEQA processes for future projects. Meanwhile, here is a sneak peek at those changes.
Fundamentals of CEQA CEQA is intended to protect the environment while furthering public disclosure. The law requires that state and local agencies identify the significant environmental impacts of their actions and mitigate those impacts whenever possible. When conducting CEQA review, agencies can start by asking these three questions: 1. Is it a “project”? A project is a discretionary approval by a California public agency that may result in direct or reasonably foreseeable indirect environmental impacts. If the action doesn’t qualify as a project, then the action is not subject to CEQA. 2. Is it exempt? Exemptions can be statutory, such as those granted by the Legislature, or categorical (classes of projects that have been determined not to have effects on the environment). Projects can also fall within the commonsense exemption, when it can be seen with certainty that no possibility of a significant impact on the environment exists. 3. What level of CEQA review is needed? There are many options depending on a project’s circumstances. The most common routes are: • A negative declaration — when there is no substantial evidence supporting a fair argument that the project will have significant environmental impacts;
• A mitigated negative declaration — when the potential impacts can be mitigated to a level of less than significant; or • An environmental impact report (EIR) — when there is substantial evidence supporting a fair argument that a project will have significant impacts. Subsequent and supplemental EIRs, addenda, subsequent mitigated negative declarations and other options may also be appropriate.
The Overhaul: CEQA 2.0 The Governor’s Office of Planning and Research (OPR) released a proposed, comprehensive update to the CEQA Guidelines in November 2017. According to OPR, the proposed changes to CEQA “consist of refinements and clarifications of existing requirements.” Several of the proposed changes focus on efforts to account for and reduce greenhouse gas emissions in response to SB 743 (2013), which required a CEQA update to address transportation impacts. While not yet adopted, these changes are moving through the formal rule-making process and will likely become law later this year. (For the status of the updates, visit http://opr.ca.gov/ceqa.) With that in mind, agencies should take note of the proposed guidelines and what these changes may mean in terms of future CEQA compliance. Although the proposed guidelines include too many changes to list here, the following major changes may interest municipalities and private developers alike. 1. Thresholds of Significance: Changes to CEQA Guidelines Sections 15064(b)(2) and 15064.7(d) would increase the emphasis placed on thresholds of significance. Agencies would be encouraged to explain, with substantial evidence, why a threshold was selected and how compliance with that set threshold means a project’s impacts are less than significant. continued
Charity Schiller is a partner in the law firm of Best Best & Krieger and can be reached at charity.schiller@bbklaw.com. This article is adapted from an earlier feature that appeared in the PublicCEO newsletter. www.westerncity.com
Western City, August 2018
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