This post is based on content presented at the Association of Environmental Professionals’ 2018 CEQA Essentials Workshop, which took place in Oakland on November 7th.
Rachel Carson's Silent Spring and the ensuing environmental movement of the 1960s saw the enactment in 1970 of both the National Environmental Policy Act at the federal level, and the California Environmental Quality Act, the latter being the foundational guideline of environmental impact assessment in the Golden State.
CEQA is a legislative policy whose intent is to regulate activities with major considerations given to "preventing environmental damage, while providing a decent home and satisfying living environment for every Californian" (Section 21000(g), Public Resource Code). While that may sound vague, as any public policy with a broad scope may do, CEQA has been shaped by over 40 years of case law, meaning that assessment guidelines and practice have effectively evolved since its implementation.
Ultimately when talking about CEQA we're having a broader discussion on the interaction between law and practice. And while that may not sound like much, there is a lot to unpack. For instance:
● CEQA is NOT a permit to grant approval to projects;
CEQA is a means to an end: namely, the project's proponent may need to submit an Environmental Impact Report (EIR) pending approval under CEQA. Not only that, but it may need to ensure that the project is compliant with CEQA throughout its entire life-cycle: construction, operation, dismantlement, and site remediation. Alternatively a project may benefit from an exemption to an EIR under, and not from, CEQA.
● The CEQA Guidelines are contingent on the CEQA statute;
No laws are ever set in stone, and that is plainly evident with CEQA: amendments are passed on an annual basis, and case laws redefine what CEQA can or cannot require. The Guidelines are a policy instrument for environmental practitioners on how to navigate the procedural implementation of the law. That may sound cut and dry, and often it is, but sometimes all it takes is filing a Negative Declaration before submitting a Notice of Intent backed by a substantial argument which nonetheless could be easily challenged by a fair argument only to find out all along that your project qualified for at least two categorical exemptions but you lost a month before finding out so now you're drafting a Notice of Exemption etc…etc… Hence, Guidelines are useful to navigate the complexity of CEQA.
● Knowledge of settled and pending case law is essential to be on the cutting-edge of CEQA;
Because we live in a country where people amiably solve their differences by suing each other, litigation is common in challenging the status quo. According to the professionals on the CEQA panel I attended, on average a litigated project will take three years until approval; not withstanding whether a case may be appealed to the CA Supreme Court. I believe that the general recommendation is for environmental practitioners to do their homework and research legal precedents, consult attorneys when in doubt, and take a cautionary approach overall. Or, under right or wrong circumstances, be a small part of history and contribute to the scholarly field of legal CEQA interpretation.
When it comes to policy, laws, and institutions, so much of which is rooted in procedures and delays and bureaucracy and bureaucracy and bureaucracy; let's not forget what CEQA is first and foremost: a public disclosure process. Not that people are clamoring to read the intrepid tale of WaterFix's Preferred Alternative 4A Revised Environmental Impact Report, but they might care how such a project might affect their livelihood for the foreseeable future. People care about their environment, and CEQA is the expressed will of Californians to preserve an enduring quality of life for future generations.