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No Duh: The Continuing Evolution Of CEQA

Oct 8, 2009
Choose your analogy.

CEQA is like pi: It goes on without end, for infinity.

CEQA is like a "Friday the 13th" movie: Horrifying yet predictable, and it keeps coming back.

CEQA is like the Bill of Rights: Ingenious and adaptable for any age.

The California Environmental Quality Act became law 39 years ago, and yet reasonable people continue to argue about what the law requires of everyone participating in the system government agencies, developers and project opponents. I've written this before, but I continue to be amazed that we are still arguing about the definition of a "project." In other words, we still are not sure when CEQA applies to something.

Our most recent issue contains no fewer than three stories about recently published CEQA decisions by state appellate courts, and two of the decisions help clear up lingering questions. At least I think they do. With CEQA, you can never be sure.

In a case regarding a proposed big-box grocery store in Tracy, the Third District Court of Appeal produced the first-ever published opinion regarding energy analysis. In the past, the energy section of an EIR has mostly been a throwaway. In this age of climate change concern, people are taking the energy section far more seriously. The court's ruling essentially permits lead agencies to use the Title 24 energy efficiency standards as a threshold for determining a substantial impact. I could be wrong, but I think this means that a project could never have a significant impact on energy, because if you can't meet the Title 24 standards, you can't build anything.

In the same case, the court made two other important contributions to our understanding of CEQA. First, the court ruled that the City of Tracy did not have to require the big-box developer to mitigate significant impacts to two intersections in unincorporated San Joaquin County. Ordinarily, the city might require the developer to pay an impact fee for its fair-share of improvements to the intersections. But here, even though the county requested money from the developer, the county had no program to improve the intersections. Without a program, there was no guarantee the money would mitigate the impact; therefore, no fee was required, the court ruled.

Second, the court ruled that the city did not have to analyze a smaller big box as a project alternative. The city considered four alternatives, including no project, but none of the alternatives involved a smaller store. Because the project opponents could not prove a downsized box would reduce impacts, there was no need to consider the alternative, the court ruled.

The choice and analysis of project alternatives is one of the stickiest parts of CEQA. A different case, involving alternatives in an EIR for a Santa Cruz park and open space plan, addressed head on one of CEQA's conundrums. The law requires an analysis of feasible project alternatives. Yet it also permits the lead agency to reject infeasible project alternatives. But if the alternatives were all infeasible, then the analysis was inadequate, right?

It's a circular argument that project opponents sometimes wield, much to the frustration of agencies and developers. Thankfully, the Sixth District mad clear what CEQA lawyers Mike Zischke and Steve Kostka who wrote one of the pre-eminent books on CEQA practice have long said: Feasibility means different things at different stages. When you're considering what alternatives to study, an alternative needs to be only potentially feasible. When it comes time to certify the EIR and decide on the project, however, the agency may reject the same alternatives as actually infeasible. In other words, it's OK to decide that what seemed like a possibility at the beginning of the EIR process really is not possible.

The third recent CEQA case, involving the controversial Las Lomas project in L.A., provided no breakthroughs. The court said that if a city rejects a project, the city need not complete an EIR for the project.

Finally, a "no duh" moment in the evolution of CEQA.

Paul Shigley