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Sunday, August 3, 2008

An Update on the California Environmental Quality Act, by the PCL Foundation

July 2008


Keeping with our proud tradition of defending and improving the California Environmental Quality Act (CEQA), our state's most important tool to protect public health and the environment, PCL is once again partnering with Senator Kuehl to pass legislation to make important clarifications to the CEQA process.

This new legislation, SB 68 (Kuehl), makes clear which parties must be included and named in CEQA litigation.

Under current law, the parties that must be named in a lawsuit are all of the "recipients of approval" - those given approval for a particular project. However, it's often very unclear who those parties actually are. For example, in some cases the developers appoint project managers, who are not necessarily recipients of approval, to represent them in the CEQA process. If a party should have been named but was not, the entire CEQA case is thrown out of court. To ensure an important case is not thrown out, local residents must cast a wide net and include all the parties they believe could potentially be recipients of approval.

SB 68 makes clear that the recipients of approval are those entities listed in the official Notice of Determination or Notice of Exemption.

This simple and modest policy change helps ensure that important CEQA cases can be heard by our courts and that the entire CEQA process is fair and just. This important measure passed both houses of the Legislature earlier this month and is currently awaiting the Governor's signature.

CEQA Q&A Forum

We recently began the CEQA Q&A Forum to provide a mechanism for your questions about the environmental review process to be answered. In some cases, we've needed to revise the question or make it hypothetical to avoid a potential conflict of interest with the law firms assisting with this Forum.

To submit a question, please contact Justin Saydell at We expect to be setting up this Q&A Forum on our website so that you will have all of this available at your fingertips.

Question: I just found out that the City filed a Categorical Exemption without sending me a copy. I saw my request and self-addressed, stamped envelope still in the file. Is there any remedy for failure to provide requested notice?

Answer: In general, courts take the notice requirements of CEQA seriously. Section 21092.2 contains limiting language that failure to send notice is not a CEQA violation if the agency has achieved "substantial compliance" with the requirements of the section. There are no cases that address the notice requirements of Section 21092.2, so there is no definitive answer to the question.

From the language of Section 21092.2, it seems that if an agency receives numerous written requests, and responds to most of them properly, then failure to provide notice to one or two parties would not be a violation. If, on the other hand, the agency fails to provide notice to a large number of parties who requested it, the agency has violated CEQA.

The answer likely depends on how many people requested notice, and of that total, to how many (or perhaps to what percentage) did the agency properly provide notice.

Answer provided by: Arthur Pugsley of Chatten-Brown and Carstens

Question: What do you do when the agency checks "no impact" when there actually would be?

Answer: Although the duty of investigation is on the lead agency responsible for deciding whether to approve the project, the public does have a role to play in making sure the lead agency has accurately assessed all the potentially significant environmental effects of a proposed project.

CEQA's "fair argument standard" puts squarely the burden of environmental investigation on the lead agency. If there is any evidence in the record that the proposed project MAY have a significant adverse effect on the environment, the lead agency must first incorporate changes in the project that will either avoid or reduce the project's significant adverse effect on the environment, or prepare and certify an environmental impact report before approving the project.

Despite the duty placed on the lead agency, if the lead agency's initial study has a check in the "no impact" box on one of the categories within the biological resources section, for example, of Appendix G of the CEQA Guidelines, which is normally the form used to develop the initial study, you now have a duty to put forth substantial evidence in the record that demonstrates that the project MAY have a significant adverse effect on the environment.

What is substantial evidence? Substantial evidence includes facts, reasonable assumptions based on facts, and expert opinion supported by facts. So don't send a letter to the lead agency that says: "I think there is an endangered kit fox den on the project." Or, worse, "I think this project stinks and is just going to ruin the environment." Instead, provide facts. If the affected property has magnificent views, or some rare or protected plant species take pictures and submit them with your description of what unique resources are out there. If there is a local biologist who will confirm the existence of a kit fox den, then document this individual's expertise and have him or her describe the location of the kit fox den.

If you provide the factual information and get it into the record by commenting on the lead agency's initial study, you have done your job and now CEQA will work for you.

Answer provided by: Bill Yeates of Kenyon-Yeates LLP

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