So I was on vacay last week when the Oak to Ninth CEQA lawsuit ruling was in the news, so I didn’t really have a chance to talk about it here. Sadly, looking around, it seems that there still hasn’t really been any clear or informative coverage of what actually happened. Over the next week, I hope to post some blogs about the decision and related issues.
I think that to have a clear picture of what is going on here, one really needs to have a good understanding of what CEQA is. Of course, some of my readers I’m sure know way more about CEQA than they’d probably like to, but for most people, I think that CEQA and EIR are terms that just get thrown around a lot. It can be confusing. So I’m going to start out today with a some background.
Okay, so what is it?
At the most basic level, CEQA is a law designed to ensure consideration of potential environmental impacts created by development, and to inform the public about these impacts. When California Environmental Quality Act (CEQA) was passed in 1970, it applied only to government sponsored projects, but the scope was soon expanded to consider all projects subject to approval of local regulatory agencies. So basically, all projects that the City of Oakland approves are subject to CEQA, and the agency issuing the permits (again, the City) is responsible for CEQA implementation. Originally, CEQA simply required the impacts be identified. In 1976, it was amended to require mitigation of significant impacts.
The CEQA Statue lists four goals of the legislation:
- To inform governmental decisionmakers and the public about the potential significant environmental effects of proposed activities
- To identify ways that environmental damage can be avoided or significantly reduced
- To prevent significant, avoidable damages to the environment by requiring changes when the governmental agency finds the changes to be feasible
- To ensure that a governmental agency discloses to the public the reasons why it approved a project if significant environmental effects are involved
How it works
For every proposed building project, the City conducts an initial review determining whether or not the project is subject to CEQA. The law’s definition of projects subject to CEQA is “any governmental activity that may have as its ultimate consequence a physical change in the environment.” So, pretty much everything. But not quite everything. If you were applying for, say, a building permit to build a tool shed in your backyard, and your shed was already permitted by the municipal code and required no variances, then it would be exempt for ministerial reasons, since the permit required no administrative discretion. But for the most part, everything.
The next step is the Intial Study. For most projects, it ends here. During this initial environmental review, the City has to determine whether or not the project is expected to have any “significant” environmental impacts. Three things can happen from here. The project can be determined to have no significant environmental impacts, in which case it receives a Negative Declaration. The City can determine that a project is likely to have significant environmental impacts, but that the impacts can be mitigated to a level where they are no longer significant. In this case, the City issues a Mitigated Negative Declaration. The public gets 20 days to review a Negative Declaration. Finally, if the City determines that the project is likely to have significant environmental impacts that cannot be eliminated through mitigation, the project moves on to the next step, preparing an Environmental Impact Report (EIR). The EIR process allows the City to thoroughly analyze the potential impacts of any given project.
An EIR is a significant investment of both time and money. It will generally take at least a year to complete, and can cost hundreds of thousands of dollars. The EIR process begins with the issuance of a Notice of Preparation. This will contain a short description of the proposed project and expected environmental impacts. Next, the City generally holds one or more scoping sessions. (The initial scoping session for the Emerald Views building on the site of the former Schilling Garden is tonight.) At a scoping session, the public is invited to offer their concerns about the potential impacts of a project. Their input helps determine what impacts will be studied in the EIR.
CEQA itself does not mandate exactly what environmental impacts must be considered by local governments, not does it define what makes an impact “significant” or how significance should be determined. (There are some restrictions on how you can’t determine whether an impact is significant or not, but even those aren’t terribly clear – I’ll get to that tomorrow.) For Oak to Ninth, the EIR considered impacts in the following areas: Land Use, Plans, and Policies; Transportation, Circulation, and Parking; Air Quality and Metereological Conditions; Cultural Resources; Noise; Hydrology and Water Quality; Geology, Soils, and Seismicity; Hazardous Materials; Biological Resources/Wetlands; Population, Housing, and Employment; Visual Quality and Shadow; Public Services and Recreation Facilities; Utilities and Service Systems. The significance checklist is determined by each individual city.
This lack of definition is, in some ways beneficial to local jurisdictions, since they can consider factors unique to their concerns. For example, Oakland’s stated goals of promoting better transit use and infill development often run into problems in the environmental review process due to significant potential increases in traffic congestion. The City could theoretically decide that it does not agree that traffic congestion is a good indicator of the broad environmental impact of transit-oriented development and replace that measure with one of, say, Vehicle Trip Generation instead. So in that sense, the power given to local agencies is good.
On the other hand, the amazing amount of leeway given to individual agencies results in widely inconsistent development practices on both statewide and regional levels. The local focus required in the review also means that the regional environmental impact of any project is ignored, resulting in potentially counterproductive findings of negative impacts that are in fact, beneficial on a larger scale.
For example, a dense project in an urban area is likely to have a significant negative impact on traffic congestion in its immediate vicinity. But from a regional perspective, rejection of the project on those grounds could ultimately have greater negative environmental impacts by pushing development out to suburban and exurban areas. Regional demand for housing means that units are not stopped, but simply displaced to outlying areas.
Preparing an EIR
The next step is the preparation of a Draft EIR. In a Draft EIR, the City identifies the enviromental impacts of a project, then identifies ways to mitigate those impacts. CEQA requires than an EIR consider cumulative impacts of development, so it is not only impacts of an individual project that must be identified, but also the impacts of the project in question combined with past projects, concurrent projects, and all reasonably forseeable future projects.
The Draft EIR must present analysis and evidence explaining how it reached its determinations of a project’s impacts. CEQA mandates that the City must consider the impacts not only of the proposal at hand, but also of a number of project alternatives, including a “no project” alternative. After considering these, the City then must determine what the environmentally preferable alternative is. Usually, this is “no project,” since CEQA essentially begins with the assumption that change is bad. Doing nothing will always have the fewest impacts. The City is under no obligation to select the environmentally preferable alternative, but in the event that it chooses not to, it has to issue a Statement of Overriding Considerations explaining why other benefits of the project (social and economic, perhaps) outweigh any identified negative environmental impacts.
Once the Draft EIR is prepared, it is made available to the public and a comment period of between 30 and 90 days begins. This generally involves a series of public meetings seeking comment, as well as the solicitation of written comment. Once the comment period is closed, all public comment must be evaluated and responded to before the Final EIR is issued.
The Final EIR includes a final list of impacts and mitigation measures, revised from the list presented in the Draft EIR based on input received during the Draft EIR’s comment period. The Final EIR must also include a list of all comments received on the Draft EIR, both oral and written, and responses to each and every one of the comments.
Finally, the City certifies the EIR, and environmental review is complete. Project opponents can file legal objections to the EIR within 30 days, but they are (theoretically) limited in the scope of litigation to challenges that were already raised during the comment period.
Generally, the CEQA review process does not result in any significant changes to development proposals. The focus is on disclosure. Although the intention of CEQA was to provide better information about projects, both to approving agencies and to the public, it has become primarily a tool used by NIMBYs to halt development. Because of the ever-present threat of litigation, EIRs tend to be written with the primary goal of legal defensibility, rather than the provision of information. On the one hand, this can be seen as a good thing because it ensures the most thorough review possible. On the other hand, this results in documents that are often incomprehensible, at at the very least, overwhelming, to the public they are theoretically written for.
So most people are probably incredibly bored by all this, but for those who find CEQA incredibly fascinating and wish this post was 10 times longer, I highly recommend the Public Policy Institute of California’s report on CEQA reform (PDF!), which details issues of CEQA implementation and provides a thoughtful analysis of potential imeasures to improve the process.
SPUR has reviewed CEQA from the standpoint of sound planning and environmental quality. We contend that after the law’s 30-plus years of operation, the type and pattern of developments, viewed at citywide, regional, and state scales, are environmentally worse than before.
Both are good reading. The references section of the PPIC report provides an excellent bibliography for further exploration on the subject.
UPDATE, MONTHS LATER: I never did end up getting around to writing about Oak to Ninth on the blog, but I still like this CEQA primer anyway.