Page 2 of 5 CEQA is likely to happen soon. Local officials carrying out the people s business should consider the following tips to help ensure CEQA c

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1 Page 1 of 5 Send to printer Close window Practical Advice for Minimizing CEQA Liability in Your City B Y S T E P H E N E. V E L Y V I S Stephen Velyvis is a partner with the law firm of Burke, Williams & Sorensen and can be reached at svelyvis@bwslaw.com. About Legal Notes This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys. The California Environmental Quality Act (CEQA) is the primary state law that requires public agencies and their decision-makers to understand and evaluate the environmental consequences of their discretionary decisions before making them. 1 Moreover, CEQA requires that public agencies not only consider but take action to mitigate or avoid significant adverse environmental impacts where feasible. 2 In other words, CEQA is a powerful law that in its 44 years of existence has undoubtedly helped shape a greener, more sustainable California. It is precisely because of its power, however, that CEQA can be controversial and may be used (or, as some believe, abused) by interested parties to delay, modify or even stop projects they consider objectionable. Yet, despite any outcry over perceived CEQA abuses and related calls for CEQA reform, the current discussions in city halls throughout the state and political debate in Sacramento are only the latest in a long-standing discussion that has resulted in sporadic and modest legislative CEQA reforms. In other words, neither a major legislative overhaul nor a decreasing focus on

2 Page 2 of 5 CEQA is likely to happen soon. Local officials carrying out the people s business should consider the following tips to help ensure CEQA compliance and limit potential liability related to development projects or other activities in their cities. Conduct a Thorough Preliminary Review in Search of Potential Exemptions Local elected officials may know from experience in serving their cities that many projects (especially small and infill projects) are truly exempt from CEQA. But if your city is going to approve a project without environmental review based on an exemption determination, make sure all the i s are dotted and the t s are crossed, because exemptions can raise red flags to ardent project opponents. The first step is to conduct a thorough preliminary review of a proposed activity to determine whether the activity is a project that is subject to CEQA and, if so, whether the project is exempt from CEQA. 3 Statutory exemptions are straightforward because they are absolute, so a project that is statutorily exempt from CEQA requires no further environmental review or consideration. In contrast, categorical exemptions are subject to exceptions. 4 When any applicable exemption is identified for a project, city staff should carefully collect and develop evidence for the record to demonstrate how and why the project falls within the language and meets all elements of the exemption(s). It is perfectly fine to assert more than one applicable exemption. However, if the city is claiming a project is categorically exempt and there is any legally adequate evidence in the record of a possible adverse impact, then more substantive environmental review may be required. And while CEQA does not require agencies to follow any specific procedure in approving CEQA-exempt projects, once it is decided that a project is exempt, it is best to ensure that the city: 1. Expressly mentions that determination and cites that exemption in any public notices or agendas issued leading up to a final decision; and 2. Files a Notice of Exemption (NOE) as soon as possible after approving the project. Doing so will ensure that the city can easily secure dismissal of any subsequent CEQA litigation brought by parties who failed to challenge the exemption before project approval and thus failed to exhaust their administrative remedies. 5 It will also trigger a strict and short 35-day statute of limitations period within which any related CEQA lawsuits must be filed or lost forever. 6 When preparing and filing an NOE for an approved project pursuant to a CEQA exemption, make sure that the city: Satisfies all the NOE content requirements, 7 most notably by: 1) including a finding that the project is exempt, with a brief statement of reasons and a citation to the statutory and/or CEQA Guideline section memorializing the exemption; and 2) identifying all project applicants/approval recipients, as CEQA requires any subsequent legal challenge to name all such parties identified in the NOE; 8 Files the NOE promptly with the county clerk after the project is approved 9 and insists the clerk: 1) post the NOE within 24 hours and for a full 30 days; 10 and 2) thereafter return the NOE with a notation of the period it was posted; and Revises and re-files the NOE if there is any doubt regarding its validity. Otherwise CEQA s 180-day statute of limitations period rather than the short 35-day limitations period may be found to apply. CEQA Prefers Environmental Impact Reports Of course, not all projects are exempt from CEQA. If a project is subject to CEQA and no exemptions apply, agencies must conduct an initial study to determine whether the project may have a significant effect on the environment and what type of CEQA document is needed. 11 Some agencies and applicants may seek to steer projects with potential adverse impacts toward preparation of a Negative Declaration or a Mitigated Negative Declaration and away from a full Environmental Impact Report (EIR) based on an aversion to the additional time and cost associated with EIRs. But it may be advisable to do just the opposite, especially when opposition is certain and litigation likely.

3 Page 3 of 5 The reason is simple. Because CEQA s policies prefer EIRs, the law effectively protects those who prepare them by applying the substantial evidence standard of judicial review to EIR challenges. Under that standard, as long as the EIR s factual conclusions are supported by substantial evidence, a reviewing court may not reweigh that evidence and may not set aside the agency s decision even if the opposite conclusion could have been reached. 12 In other words, this highly deferential substantial evidence standard applies to all of the city s factual conclusions, findings and determinations in the EIR, the scope of an EIR s analysis, the amount or type of information contained in the EIR, the methodology used to assess impacts, and the reliability or accuracy of the data supporting the EIR s conclusions. In stark contrast, the fair argument standard of review applies to court challenges to Negative Declarations and Mitigated Negative Declarations. The fair argument standard entails a strong presumption in favor of requiring full EIRs. The presumption is embodied in numerous provisions, which require that if a project is not exempt and may cause a potential adverse environmental impact, the lead agency must prepare an EIR. 13 It takes only one piece of substantial evidence showing that a project may have a significant adverse impact to require preparation of a full EIR under the fair argument standard, even if other and more voluminous contrary evidence exists. 14 Given this very low threshold, there is much less risk of losing a CEQA challenge if an EIR is prepared from the outset for big or controversial projects. In sum, EIRs typically take longer to prepare and cost more than Negative Declarations and Mitigated Negative Declarations. But EIRs are much easier to defend when challenged, and that initial expenditure of time and money for an EIR can be sound insurance against the much greater delay and cost associated with having the project approval and Negative Declaration or Mitigated Negative Declaration set aside because an interested party presented a fair argument of a possible significant adverse environmental impact. Reduce, Reuse and Recycle This familiar mantra of sustainability applies to CEQA as well specifically, the reuse of previously adopted Negative Declarations, Mitigated Negative Declarations and EIRs. As noted earlier, because CEQA favors the preparation of EIRs, it can benefit those who prepare them. In addition to applying the deferential substantial evidence standard to the key factual determinations in an EIR, CEQA applies that same standard to agency decisions to reuse a prior EIR. Indeed, CEQA provides that once an EIR has been completed and certified for a project, no additional environmental review need be completed even if the project requires a further discretionary approval, as long as the agency demonstrates that no new or more severe impacts will result. 15 Moreover, because of CEQA s policy favoring prompt resolution of challenges to agency land-use decisions and the related presumed validity of unchallenged CEQA documents, the deferential standard also applies when an agency proposes to reuse a Negative Declaration or Mitigated Negative Declaration for related subsequent discretionary approvals. Given the significant economic downturn that began in 2008, many of the projects approved around that time were understandably put on hold. Now that the economy is improving, the question of whether supplemental environmental review needs to be done is arising with increasing frequency as projects become financially feasible and are dusted off and re-envisioned. Local agencies can reuse their prior Negative Declarations, Mitigated Negative Declarations or EIRs and approve modest changes to those projects without any further environmental review as long as they demonstrate with supporting evidence that none of the triggering events listed in the CEQA Guidelines exist. 16 It is also advisable to publish any decision to rely solely on an addendum to a prior CEQA document in the notices and agendas leading up to the further project approvals and to file a Notice of Determination with the county clerk soon after project approval. Doing so will similarly trigger CEQA s exhaustion doctrine and a short 30-day statute of limitations period for any legal challenge. 17 Conclusion The CEQA compliance process can be criticized for being complex and costly, especially given the numerous decades of published and sometimes conflicting judicial opinions. As discussed here, however, it need not be. Practically speaking, if CEQA s procedural requirements are followed strictly, CEQA exemption determinations are supported and

4 Page 4 of 5 publicized fully, and full EIRs are favored for big or controversial projects, cities can achieve CEQA compliance and significantly limit their potential liability. Interested in Learning More? March Webinar Will Cover This Topic in Greater Depth Environmental/land-use attorneys Stephen Velyvis and Kristina Lawson (who also serves as mayor of Walnut Creek and vice chair of the League s Environmental Quality Policy Committee) will present a webinar on March 19 that explores the topic of this article in greater detail. Learn more about minimizing CEQA liability and take advantage of this opportunity to have your questions answered by experts. To sign up, visit Footnotes: 1 CEQA is codified at California Public Resources Code et seq. 2 Pub. Res. Code 21102, ; 14 Cal. Code of Regs. ( CEQA Guidelines ) In contrast, CEQA s federal counterpart the National Environmental Policy Act or NEPA is primarily procedural, generally requires only the disclosure of a project s potential adverse impacts and typically does not apply to projects in California unless there is a federal nexus (i.e., when a federal permit or approval is required or a federal agency provides federal financial assistance for the project. 3 CEQA Guidelines 15060, While a comprehensive list of CEQA exemptions is beyond the scope of this article, see generally CEQA Guidelines (statutory exemptions), (categorical exemptions), (specific and general exceptions to the categorical exemptions). 5 The exhaustion doctrine is codified in CEQA at Pub. Res. Code 21177, see also Tomlinson v. County of Alameda (2012) 54 Cal.4 th Pub. Res. Code 21167(d). 7 CEQA Guidelines Pub. Res. Code (d). 9 See, e.g., Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408 (NOE filed before project approval is invalid and does not trigger the running of the applicable 35-day limitations period). 10 See Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4 th 1154 (NOE must be posted for full 30 days, not counting day in which NOE is first posted or any partial day in which NOE is removed) 11 CEQA Guidelines Laurel Heights Improvement Ass n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 393, 408; Western States Petroleum Ass n v. Superior Court (1995) 9 Cal.4 th 559, 571 (high degree of deference implicit in substantial evidence

5 Page 5 of 5 standard); Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1177 (all evidentiary conflicts and any reasonable doubts must be resolved in favor of agency under substantial evidence standard). 13 See, e.g., Pub. Res. Code 21100, 21151; CEQA Guidelines 15064(a)(1), (f)(1). 14 No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, Pub. Res. Code 21166; CEQA Guidelines This is typically demonstrated by way of a modest addendum to the prior EIR demonstrating that no new or more severe impacts will result from changes to the project or the circumstances underlying the project, or as a result of new information not known when the EIR was first certified. CEQA Guidelines 15162, Id. 17 CEQA Guidelines (NOD re approval pursuant to ND or MND), (NOD re approval pursuant to EIR).