Policy
The CEQA statuteCEQA process overview
CEQA mandates actions all state and local agencies must take to advance that policy. Specifically, for any project under CEQA's jurisdiction with potentially significant environmental impacts, agencies must identify mitigation measures and alternatives by preparing an Environmental Impact Report, and must approve projects with feasible mitigation measures and the environmentally superior alternative. The California Natural Resources Agency promulgates the CEQA Guidelines, California Code of Regulations Title 14 § 15000 et seq., which detail the protocol by which state and local agencies comply with CEQA requirements. Appendix A of the CEQA Guidelines summarizes this protocol in flowchart form. CEQA originally applied to only public projects, butLead agency and responsible agencies
# Lead Agency: The lead agency is responsible for conducting the CEQA review and has final approval of the project. They are responsible for coordinating with the project applicant, public and associated agencies during the CEQA process. When more than one agency is involved in a project, the agency with primary responsibility for approving a project is the lead agency, for purposes of following the CEQA protocol. # Responsible Agency: Other agencies with discretionary approval power over the project are called "responsible agencies." The lead agency has an obligation to consult with these agencies during the CEQA process to ensure their input is accounted for. Responsible agencies often have a vested interest in a specific environmental resource that they are charged with regulating. # Trustee Agency: An agency with jurisdiction over a resource held in trust for the people. This agency has no approval power over a project.Initial study
If a project is not exempt from CEQA, a lead agency can conduct an initial study to preliminarily assess project impacts. Appendix G of the CEQA Guidelines lists types of environmental impacts to consider in checklist form. This initial study guides the lead agency to prepare either a negative declaration, mitigated negative declaration, or environmental impact report depending on the impact assessment. The initial study completion also gives the project applicant opportunity to change their project scope early in the CEQA process if the initial study indicates significant impact(s) are likely. If the lead agency determines the project clearly has significant impacts, they can skip the initial study phase and immediately conduct an Environmental Impact Report.Thresholds of significance
Under CEQA, every agency in the state "is encouraged to develop and publish thresholds of significance" against which to compare the environmental impacts of projects. Such thresholds are to be published for public review and supported by substantial evidence before their adoption. A lead agency will normally consider the environmental impacts of a project to be significant if and only if they exceed established thresholds of significance. According to a 2001 survey, however, few agencies have actually developed thresholds of significance. The survey's analysts wondered, "if most agencies are ''not'' developing thresholds and publishing them for public review, then what criteria ''are'' they using?". In absence of thresholds of significance developed independently by lead agencies, impact assessments apply the significant criteria detailed in Appendix G, Environmental Checklist, of the CEQA Statutes and Guidelines, which is produced by the California Office of Planning and Research (OPR). Lead agencies can also defer to authority agencies that publish their recommended guidelines for the resources they regulate. Examples of this include the California Department of Conservation has threshold tests for assessing impacts to agricultural resources using the LESA model, and the Bay Area Air Quality Management District has published guidelines for air quality impacts.Environmental impact analysis
The lead agency must analyze project impacts to 18 different environmental resource factors detailed in Appendix G during their CEQA review. The next section discusses background and setting for each resource factor; and how lead agencies conduct their analysis and the authority for their significance thresholds for these resources.Aesthetics
Agriculture and Forestry Resources
Air Quality
Biological Resources
Cultural Resources
EnergyGeology and Soils
Greenhouse Gas Emissions
GHG legislative history; rule making; regulatedIntroduction and setting
Analysis approach
The lead agency is the public agency which has the principal responsibility for approving a proposed project. The lead agency determines which type of environmental document will be prepared (Mitigated Negative Declaration, Environmental Impact Report, etc.) and has discretion to adopt significance criteria more conservative than those required by CEQA. §15064.4 provides a lead agency discretion to determine which type of analysis approach to utilize for a given project level GHG analysis: “(1) Use a model or methodology to quantify greenhouse gas emissions resulting from a project, and which model or methodology to use. The lead agency has discretion to select the model or methodology it considers most appropriate provided it supports its decision with substantial evidence. The lead agency should explain the limitations of the particular model or methodology selected for use; and/or (2) Rely on a qualitative analysis or performance based standards.” The lead agency is charged with making a good-faith effort to “describe, calculate, or estimate the amount of greenhouse gas emissions resulting from a project.” Lifecycle analysis of GHG includes the full aggregate quantity of GHG generated from the extraction, production, distribution and use of energy or fuel. If a lead agency had to complete a GHG lifecycle analysis under CEQA, they would have to quantify GHGs produced not only within the spatial boundary of the project site, but GHGs generated from transportation of products to the site and product supply chain production emissions. Several of these energy emissions could be produced overseas leading to difficulty by the lead agency in verification and enforcement of emission thresholds. CEQA guidance currently does not require lifecycle analysis of GHG emissions since the term is not well defined and too speculative, and the Office of Planning and Research (OPR) removed the term “Life Cycle” from CEQA guidelines in 2010. If any portion of the analysis is considered speculative by the lead agency and not supported by defensible and quantifiable scientific evidence, the impact must be eliminated pursuant to CEQA Guidelines 15145. Thresholds of significance can be determined by reference of air quality management district CEQA guidelines, although the ultimate discretion for thresholds remains with the lead agency. The Bay Area Air Quality Management District, South Coast Air Quality Management District, and San Joaquin Valley Air Pollution Control District are the only districts to date that have adopted CEQA guidelines. Below are highlights from the BAAQMD and SCAQMD:=Bay Area Air Quality Management District
= The Bay Area Air Quality Management District (BAAQMD) typically acts as the responsible agency for setting CEQA air emission thresholds within the San Francisco Bay Area=South Coast Air Quality Management District
= The South Coast Air Quality Management District has developed a tiered analysis process for determining the significance of project-related GHG emissions. If a project is not categorically or otherwise exempt, and if it cannot be shown that the GHG emissions from the project are within GHG budgets in approved regional plans, then project applicants are required to show that the project GHG emissions are below, or mitigated to less than, the applicable following significance screening level: *10,000 metric tons of e per year for industrial projects; or *3,000 metric tons of e per year for commercial or residential projects=Impact mitigation measures
= Lead agencies can implement several different mitigation measures to offset or reduce GHG emissions. The BAAQMD recommends using the following best management practices for construction activities: 15% of project's heavy equipment and transportation fleet run on alternative fuels and/or electricity, recycling or reusing 50% of demolition waste, and using 10% local of building materials. Other measures used to reduce construction emissions include limiting equipment idle time, car pooling, and purchase and retire of offsite carbon credits. BAAQMD recommends lead agencies mitigate operational emissions by adopting a qualified GHG Reduction Strategy that is consistent with AB 32. This strategy can be incorporated into the lead agency's general plan or programmatic level policy for assessing GHG emissions. The strategy involves assessing “business as usual” current and forecasted emissions to calculate a baseline for reduction. The lead agency then proposes measures to reduce those emissions to meet AB 32 expectations. BAAQMD recommends the project mitigate to the maximum extent feasible before considering offsite mitigation options, and offsite mitigation should be measurable, enforceable, and occur within the nine-county Bay Area.Hazards and Hazardous Materials
Hydrology and Water Quality
Land Use and Planning
Mineral Resources
Noise
Population and Housing
Public Services
Recreation
Transportation
Tribal Cultural Resources
Utilities and Service Systems
WildfireMandatory Findings of Significance
Level of environmental review
Projects may be exempt from CEQA if they are ministerial in nature, have been exempted by the California Legislature through a statutory exemption, or fall within any of the classes of exemption by category that CEQA recognizes that do not have a significant impact on the environment. If the lead agency determines the project could have no significant environmental impacts after completing an initial study, no EIR will be necessary, but the lead agency must still prepare a Negative Declaration (Neg Dec) that discloses the impact analysis. If the project could have significant environmental impacts, but the lead agency has incorporated mitigation measures to lower those impacts to less than significant, no EIR will be necessary, but the lead agency must prepare a Mitigated Negative Declaration that demonstrates how all identified significant impacts will be mitigated to below the level of significance. Finally, if the lead agency determines the project may have significant environmental impacts, the lead agency must prepare an EIR.Ministerial decision
CEQA applies to any action when a project requires discretionary approval by a state or local governmental body. Projects may also require ministerial permits that must comply with general plans and local ordinances such as building permits or marriage licenses. These decisions cannot be denied and provides the governmental body with no judgement as long as the proponent meets the specifications detailed in the permit or license requirements. CEQA does not apply when only ministerial approval is necessary.Statutory exemptions
The California state legislature has, on occasion, abrogated CEQA such that specific projects or types of projects could proceed without an EIR. One such abrogation occurred in October 2009, with the passage of a union-backed law exempting the proposed construction of Los Angeles Stadium from CEQA's requirements. The abrogation mooted an ongoing lawsuit, brought by eight residents of a neighboring city, challenging the validity of the developer's EIR. The developer had originally prepared an EIR for a commercial development on the site, then prepared a supplemental EIR to include a proposed 75,000 seat stadium situated within 3,000 feet of homes in that neighboring city; the plaintiffs argued that a single new EIR studying the entire project was required. State officials said the abrogation ended an abuse of CEQA by individuals seeking to obstruct the project; at the signing ceremony, GovernorCategorical exemptions
Several categorical exemptions for projects are listed under Title 14 of the California Code of Regulations, Chapter 3, Article 19. These exemptions cover projects that do pose a significant impact to the environment and fit within the description of the several categories listed under Article 19. A common categorical exemption used by agencies is 15301 for maintenance of existing facilities. Since the project is already built, the project often has no significant new impacts. Agencies do not have to file any CEQA findings for categorically exempt projects. They can be legally challenged by the public on whether the project must undergo CEQA. The lead agency can file a Notice of Exemption (NOE) to trigger a 35-day statute of limitations period for legal challenge or, if no NOE is filed, a 180-day statute of limitations applies.Negative Declaration (ND) / Mitigated Negative Declaration (MND)
After the initial study is completed, the lead agency can then determine if the project could have a significant impact on the environment. The lead agency must propose mitigation measures to reduce any impacts to less than significant "to the maximum extent feasible." The lead agency then prepares a draft Negative Declaration (ND) or Mitigated Negative Declaration (MND) and publishes the document for public review for at least 21 days. After comments are considered, the lead agency can either recirculate the ND/MND if public comments required the project scope to substantially change, or the lead agency can adopt the document. The Lead agency must file a Notice of Determination (NOD) after adopting the document with a 30-day statute of limitations for legal challenge. If the lead agency is presented with a fair argument that shows substantial evidence of the project having a significant environmental impact after mitigation measures are exhausted, the lead agency is required to prepare an Environmental Impact Report. Thus, in essence, an ND/MND may only be used to satisfy CEQA requirements for projects with no significant unmitigated adverse environmental impacts (ND) or for which all potentially significant adverse impacts have been "avoided, reduced or minimized" to below the threshold of significance (MND). If significant impacts remain, an EIR must be prepared and a Statement of Overriding Considerations are necessary.Environmental Impact Report (EIR)
According to case law, the environmental impact report (EIR) is at "the heart of CEQA". An EIR serves to inform governmental agencies and the public of a project's environmental impacts. Further, an EIR is required to propose mitigations and alternatives which may reduce or avoid any significant adverse environmental impacts; as the EIR is considered the heart of CEQA, mitigation and alternatives are considered the heart of the EIR. One alternative that a lead agency must usually consider is the no project alternative, that is, cancellation of the project, with the future instead unfolding according to existing plans (i.e., the status quo). Among all the alternatives, the EIR identifies the environmentally superior alternative; if the environmentally superior alternative is the no project alternative, the EIR identifies the environmentally superior alternative among the other alternatives. The EIR process begins with the circulation of a Notice of Preparation (NOP) which informs the public, responsible agencies, trustee agencies, and the OPR that an EIR will be prepared for a given project. The NOP must include sufficient project description details and likely environmental effects such that agencies and public citizens can provide meaningful comments on the proposed project for analysis in the EIR. The NOP comment period is no shorter than 30 days. After preparation of the draft EIR, a Notice of Completion (NOC) must be submitted to the Office of Planning and Research which includes project location, location of review copies, and public comment review period information. The lead agency must provide public notice of the draft EIR at the same time it issues the NOC. This notice must include the location of any public meetings intended to solicit comments on the draft EIR. If the draft EIR is circulated through the State Clearinghouse, then the public comment period must be 45 days minimum. The lead agency must prepare a final EIR before approving the project. The contents of a final EIR are specified in §15132 of the CEQA guidelines, but responses to draft EIR comments are the focus of the document. The lead agency then certifies the final EIR and issues its findings. Should significant and unavoidable impacts remain after mitigation, a Statement of Overriding Considerations must be prepared. Finally, the lead agency may decide whether or how to approve or carry out the project at which time a notice of determination (NOD) must be filed within five days of approval. Appeal periods and litigation avenues remain after the NOD.Comparisons to similar laws
Similar laws at the federal and state levels require environmental impact analysis before commencing major projects.National Environmental Policy Act
NEPA, a United States federal statute passed the year before CEQA, is similar to CEQA in that both statutes set forth a policy of environmental protection, and a protocol by which all agencies in their respective jurisdictions make environmental protection part of their decision making process. NEPA is narrower in scope than CEQA. NEPA applies only to projects receiving federal funding or approval by federal agencies, while CEQA applies to projects receiving any form of state or local approval, permit, or oversight. Thus, development projects in California funded only by private sources and not requiring approval by a federal agency would be exempt from NEPA, but would likely be subject to CEQA. The environmental impact statement (EIS) required under NEPA and the EIR required under CEQA are similar documents, yet have some crucial differences. For example, under NEPA, an agency can list all reasonable alternatives and their impacts, then choose their preferred project without regard to the severity of its impacts, even if it is more harmful to the environment. Under CEQA, the lead agency is required to mitigate all "significant" adverse environmental impacts to "the maximum extent feasible" and can approve a project only if the agency adopts a Statement of Overriding Considerations detailing the specific overriding economic, legal, social, technological, or other considerations that outweigh the project's significant, unavoidable impacts. If a major federal project, or project using federal funds is seeking approval in California, its lead agency must prepare both an EIS and an EIR, but both can be combined into one document (since the EIS and EIR have the same elements for the most part). Said document, however, must be processed through both the CEQA and NEPA approval steps.Laws in other states
As of 2005, fourteen states as well as the District of Columbia have CEQA-style laws requiring impacts be reported for projects. CEQA influenced many of these laws, and New York state's law used CEQA as a foundation. Connecticut's Environmental Policy Act ( CEPA) is modeled on CEQA and requires lead agencies to prepare an Environmental Impact Evaluation (EIE) that is very similar in nature to California's EIR. The various state laws are not entirely similar to CEQA, as most only apply to public projects (rather than all public actions, like CEQA) and few have as rigorous review standards.Litigation
: CEQA's broad scope and lack of clear thresholds often lead to litigation, both by groups that support development, and individuals and agencies opposing such development. CEQA plaintiffs such as community and environmental groups often challenge projects with negative declarations, on the grounds that EIRs should have been carried out. Litigation also occurs on the grounds that EIRs are too brief or overlooked possible impacts, as there are no guidelines for the length or content of the EIRs. Plaintiffs also sometimes accuse developers of a practice called piece-mealing, by which projects are analyzed incrementally by parts to make the environmental impacts appear smaller to the overseeing agency. CEQA plaintiffs succeeded on one such claim in June 2009, concerning an expansion of theSettlements
Plaintiffs in CEQA lawsuits seek various forms of redress, such as amending the EIR, preparing a new EIR, agreeing to mitigation measures, or paying money to local agencies to offset environmental impacts.Criticisms
CEQA lawsuits (and threats of CEQA lawsuits) are frequently used by groups that want to block a proposed project for reasons than its environmental impacts. Carol Galante, a professor of Affordable Housing and Urban Policy at the Terner Center for Housing Innovation at UC Berkeley, who served in the Obama Administration as the Assistant Secretary at theSee also
*References
Further reading
* Fulton, W; Shigley, P ''Guide to California Planning Third Edition'', (2005) Point Arena, CaliforniaExternal links