1. WHAT IS THE CALIFORNIA ENVIRONMENTAL QUALITY ACT?

The California Environmental Quality Act, which became law in 1970, is our state’s landmark environmental law. Its purpose is to foster transparency and integrity in public decision-making, while ensuring land use decisions take the full impacts of development on our natural and human environments into account. It is one of the most powerful environmental protection laws in the nation and was modeled after the federal National Environmental Policy Act

2. WHY IS CEQA IMPORTANT?

CEQA gives the community a voice in land use decisions. It requires decision-makers to adopt alternatives or mitigation measures to reduce significant adverse environmental impacts. As such, it plays a critical role in preserving and enhancing California’s public health, safety, and the environment.

The Act was designed to ensure that a project applicant—not the public—bears the costs of providing necessary infrastructure to support a project. It also provides the public and decision-makers with “the big picture” and helps ensure that many small projects are not considered separately, only to overwhelm a community when taken as a whole.

3. HOW DOES CEQA WORK?

CEQA provides a process through which public agencies, the public, and project developers can evaluate a project, understand its environmental impacts, and develop measures to reduce these impacts. CEQA applies to projects that may result in a change in the environment; a full environmental review is only required where the project could result in a significant adverse impact.

The CEQA process requires the public agency in charge of permitting the project, known as the “lead agency,” to conduct an environmental review. This review is pulled together in one document, either a negative declaration if no adverse impact is projected, or an environmental impact report. CEQA documents include information about the project, the areas where it may cause environmental impacts, whether the proposed project complies with applicable environmental laws and plans, and how the impacts can be avoided or mitigated.

The public is involved in CEQA at many stages. Public involvement starts during the scoping process, which is used to determine what environmental impacts will be studied and what type of environmental document will be needed. Next there is a formal comment period after the initial environmental document is circulated. Finally, there are hearings, sometimes during and always after the public comment period. Ultimately, the decision remains with the agency on whether or not to permit a project; CEQA ensures that the agency understands the full impacts of the project and has mandated mitigation where feasible.

Anyone who has objected to the project and is adversely affected by the failure of an agency or project proponent to comply with CEQA can file a lawsuit challenging the approval of the project. This must be on grounds raised during the review, if there was a review and the grounds were known. Litigation has been used to require increased disclosure about environmental impacts of a project, to require agencies to adopt alternatives and mitigation measures, and to require that a public agency adopt a statement of overriding considerations explaining why it is approving a project with significant and unavoidable impacts.


4.WHO CAN USE CEQA?

CEQA is intentionally designed for broad public enforcement, and in general, anyone who has an environmental concern with a project has standing to bring a lawsuit if the legal violation they are alleging was raised during the administrative process. Citizen standing ensures that a small project that might escape the attention of the Attorney General but nevertheless severely affect a community still can be reviewed by the courts.


5. DOES EVERY PROJECT REQUIRE CEQA REVIEW?

No. CEQA only applies to projects that require discretionary permits from a state public agency. The agency must have some discretion in how the project can be conducted for CEQA to apply, and the project must be one that could result in an adverse change to the environment.

In addition to the narrow realm in which CEQA applies, numerous projects now also are exempt from CEQA. There are a number of statutory exemptions that prevent CEQA from applying to projects, even projects that will clearly have significant adverse environmental impacts. There are also a number of categorical exemptions from CEQA that exempt a project from CEQA unless there is evidence of unusual circumstances indicating that the activity might have significant adverse impacts.

6. WHAT IS AT STAKE IN THE CURRENT CONTROVERSY SURROUNDING CEQA?

A current effort is underway, led largely by business and development interests, to weaken some of the key provisions of the California Environmental Quality Act. Proponents of changes to the law have made a number of false and misleading claims about how CEQA is used and its effects on California’s economy. In truth, this law has been in place for more than 40 years and has been used effectively to protect the values that Californians hold most dear – including protection of public health and natural resources (such as clean air, clean water, and open space) – without unduly harming the economy. Our state has seen dramatic times of growth, including the recent housing boom, with this law firmly in place.

If special interests succeed in weakening CEQA, a likely outcome would be a less robust public review process, fewer environmental protections (and more damage to the environment), and more unchecked growth.


7. CAN CEQA BE ABUSED FOR NON-ENVIRONMENTAL PURPOSES?

Like all laws, CEQA is open to abuse. However, there is no evidence that CEQA is used maliciously more than any other laws, or in fact to any significant degree at all. The most thorough study on CEQA and litigation, conducted by the non-partisan Public Policy Institute of California in 2005, found that 0.3% of CEQA reviews were taken to court and that those reviews were of large and impactful projects.

As an added safety measure against CEQA abuse, the statute was amended in 2010 to provide penalties to those using the law maliciously. At this time, not a single motion has been filed under this amendment.


8. IS CEQA OUTDATED? CEQA has served Californians well for more than 40 years. The law has been updated many times over the years, most recently to address concerns and streamline the review and approval for projects that are likely to have minimal environmental impacts, such as infill development. CEQA is a process, rather than a set standard, that ensures the public remains informed of planned land use changes and how those changes might affect them.


9. DOES CEQA STUNT ECONOMIC GROWTH? There is no evidence that California’s environmental laws curb growth in California. Our state has seen robust growth – both economically and physically – since 1970. Thanks to CEQA, that growth has happened in a way that has limited impacts on our air, water, open space, and other natural resources. As cumbersome as the environmental review process may initially appear, it ensures that agencies approve land use changes with the big picture and long-term consequences in mind, which ultimately saves taxpayers money.


10. SINCE CALIFORNIA HAS SO MANY GREAT ENVIRONMENTAL LAWS, WHY DO WE NEED CEQA?

It is true that many environmental laws have been passed since the enactment of CEQA in 1970. However, these laws do not replace CEQA because they have different goals are designed to work in a system that includes the environmental reviews required by CEQA.

CEQA has different goals than most environmental standards. One of CEQA’s main purposes is to disclose potential impacts to the public and allow for public feedback. Another purpose is to avoid impacts, to the extent feasible, through mitigation measures or alternatives. While other environmental laws strive to meet certain levels of impact, they do not have the attendant benefits of involving or informing the public, nor do they require mitigation as much as feasible. CEQA also provides the important service of ensuring that project costs are internalized; that is, the project applicants can be made to pay for their share of funding for the infrastructure of their project, including roads, water lines, and other public services, not to mention putting up-front the costs of potential long-term environmental harm.

CEQA is used to inform environmental standards. CEQA allows for a review of cumulative environmental impacts in one document, pulled together by one lead agency. Because it requires a look at all of the effects of a project in a particular community, a CEQA review may conclude that specific standards are actually insufficient to protect the natural and human environment; for example, air quality standards may not be good enough in a valley community with a high number of asthmatics already dealing with pollution from other sources. In spite of all of the environmental laws that currently apply in California, there are impacts that are not currently regulated; CEQA allows all potential impacts to be examined. Additionally, CEQA review documents are frequently how agencies conclude whether or not a project does meet a substantive environmental standard. Replacing CEQA would require project proponents to go to more agencies and do more work before they knew whether or not they would be granted a permit; it would also require the public to go to each individual agency if they were interested in providing comments on the project, rather than being able to participate in the one CEQA process.

Substantive environmental standards do not address cumulative impact and are the lowest-common denominator. Environmental standards for limiting pollution are the results of compromises and are enacted in the legislature, frequently after lobbying by business interests and without much meaningful participation from the public. The standards are often adopted with the understanding that there will be negative environmental impacts in exchange for other economic or social benefits. They are not and should not be viewed as environmental goals.


11. WOULDN’T THE “STANDARDS” APPROACH THAT IS BEING PUT FORWARD IN THE LEGISLATURE ADDRESS THE SAME ISSUES WITH LESS RED TAPE?

There is no easy way to provide the same safeguards CEQA provides without protecting the robust public process required by the law. Environmental standards provide a patchwork of regulations and are not meant to look at a cumulative effect of a project. California environmental standards have also been designed to work in a system in which there is environmental review mandated by CEQA.

In fact, when environmental review is thorough and complete, the CEQA process provides more certainty than the standards approach, which would require agencies to make a judgment about whether or not the spirit and the letter of dozens of local, state, and federal laws had been met. The administrative burden might well become more cumbersome and complex for developers and public agencies under such a system. Even more importantly, the ability of communities to know about and weigh in on planned land use changes could be diminished.


12. CAN’T COMMUNITIES RELY ON LOCAL MEASURES, LIKE GENERAL PLANS, INSTEAD OF CEQA? City and county general plans are sometimes touted as potential alternatives to CEQA. While these plans provide community-specific development guidelines, many of these are very outdated and may not reflect current realities or needs in the community. CEQA provides a review process that takes into account current conditions and changing priorities.


13. CAN CEQA BE IMPROVED?

Yes. As with any law, CEQA can be improved to more effectively achieve its core purposes of environmental protection, public participation, and government agency accountability. Some examples of potential improvements include:

Technological improvements. Currently, CEQA provides for the posting of public notices with county clerks, which means that in some counties affected members of the public must travel to the county seat to look on a bulletin board for notices. Environmental review documents are sometimes placed in libraries or public agency offices, but they may be difficult to access. Instead, notices and environmental review documents should be made available electronically.

Advance core values of protecting public health. Several Court of Appeal decisions have concluded that an EIR need not consider the impact of bringing the public to a site that might expose it to safety and health risks. These decisions endanger public health and can be addressed through legislation.

Expedite CEQA litigation. One of the causes of delay in CEQA litigation and of increased costs involves preparation of the administrative record. If the documents are made available electronically during the administrative process, this would reduce the time to prepare the documents and the cost of compiling them.

Promote transparency and public confidence. Currently, project proponents may pay for the consultants who prepare the EIRs, thus asserting control over what should be an impartial analysis. To promote unbiased reviews, project proponents could pay into a fund at a public agency and the agency could then contact the environmental reviewers preparing the EIR, thus reducing public concern about undue influence. To promote transparency, there should be a mandatory waiver of confidentiality with all consultants and contractors who have performed studies for the applicant prior to this application.

Fair comment period. One of the complaints of businesses is that comments come too late, but a complaint from the public has been that there is not enough time to participate in the CEQA process. Extending the comment period on complex EIRs or Mitigated Negative Declarations with extensive supporting documents to 60 days from the current 30 or 45 days allowed for projects with regional impacts would alleviate both complaints.

Translation of notices. In light of California’s diverse population, the law should encourage if not mandate translation of notices and environmental documents (or at least an executive summary) where the impacted community has a significant segment of non- or limited English speakers. Additionally, CEQA reviews should include an environmental justice analysis.

Follow-up on mitigation. If a project is approved, there should be annual public reporting regarding the implementation of mitigation measures. The public should also have a clear cause of action for failure to perform measures required or to comply with the reporting requirements.

Cleanest baseline. Currently, public agencies have a wide range of discretion to choose a baseline for analysis of environmental impacts, and are even allowed to choose a baseline that includes the effects of actions illegally taken by the applicant. A better public policy would be to require parties that took illegal activities to restore the site to its prior condition before environmental review is conducted, or use the prior condition as the baseline.

There are undoubtedly other changes that could strengthen the law without imposing an undue burden on applicants or the public, and this list is just a start.