Law Offices of Stuart M. Flashman

Environmental Law

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Smart Growth vs. Wisely Planned Communities
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The California Environmental Quality Act

Stuart Flashman's environmental law practice is focused on the California Environmental Quality Act ("CEQA").  CEQA is one of California premier environmental statutes.  Originally enacted in 1970 and patterned after the federal National Environmental Policy Act ("NEPA"), it has become perhaps both the most powerful and most controversial of California's many environmental laws.
Like NEPA, CEQA requires that any project requiring a discretionary government approval must analyze and disclose the project's potential environmental impacts, and discuss how any significant impacts might be avoided or mitigated.  Unlike NEPA, however, CEQA is not purely an informational statute.  If a project's impacts can be feasibly avoided or reduced, CEQA requires that the approving agency modify the project to do so. 
Further, only if there are specific overriding factors is the agency allowed to have the project go forward in spite of its significant adverse impacts.  When doing so, the agency is required to approve a "statement of overriding considerations" that tells the public why it approved an environmentally damaging project.
CEQA's purpose is three-fold.  First, by requiring analysis and disclosure of a project's potential environmental damage, it allows the agency's decision makers to consider whether it's appropriate to approve a damaging project.  Second, the environmental review process under CEQA allows the public to learn about and comment on the project's impacts.  The public input can lead to changes in the project that reduce its impacts.  Third, and potentially most importantly, CEQA makes the agency's decision makers politically accountable for their effects on the environment.  By forcing government to "own up to" projects' environmental consequences, CEQA can give aware and aroused citizens the political tools they need to remove leaders who ignore environmental consequences. 
At the center of CEQA is the Environmental Impact Report ("EIR").  An EIR is a report prepared by or for the agency that looks at the project and its potential impacts.  It also must consider alternatives to the project, especially alternatives that would be less environmentally damaging, and measures that could be taken to reduce or mitigate the project's significant impacts.  An EIR's failure to adequately disclose and discuss the project's impacts, project alternatives, or feasible ways to mitigate project impacts, is a sufficient basis for a court to reject the EIR and the agency's approval of the project.  The court then orders the agency to correct the EIR's defects before again considering whether to approve the project.
The links below describe some of the cases Stuart Flashman has litigated under CEQA.

The Environmental Review Process
The CEQA process starts with the agency's decision about whether the proposed agency decision is a project under CEQA.  Only discretionary governmental approvals require CEQA review.  If the agency is measuring a proposal against a set of standards and must approve it if it meets those standards, the approval is considered ministerial and no CEQA review is required.
There are also ranges of project that have been determined, either by the legislature or the Resources Secretary, to be exempt from CEQA review.  Legislative exemption is rare, and is based on policy and political factors.  For example, the legislature has given partial CEQA exemption to some types of low income housing projects.  Administrative exemptions (categorical exemptions), by contrast, are based on identifying categories of projects unlikely to have significant impacts.  Even so, there are exceptions to the exemptions if specific project circumstances make significant impacts (including cumulative impacts) reasonably possible.  In approving a project under a CEQA exemption, the agency will usually prepare and file a notice of exemption.  Once the notice is filed, any legal challenge to the decision to exempt the project from CEQA review must be filed within 30 days.  Otherwise, the approval is open to challenge for six months, or potentially even longer.
If the approval is discretionary and the project is not exempt, the next step is to prepare and initial study.  The initial study considers the full range of potential project impacts on the environment -- everything from visual to seismic to traffic to land use (e.g., dividing a community in two).  For each potential impact, the initial study has to consider 1) if there's a potential for a significant impact and 2) whether the impact can clearly be mitigated to the point where it's no longer significant.  If the analysis indicates that there's no evidence to support a claim of the project having a significant impact, a negative declaration can be prepared.  If even one potentially significant impact isn't clearly mitigatable, an EIR must be prepared.  The middle ground is if there are potentially significant impacts, but they can all clearly be reduced to a level of insignificance.  In that case, a mitigated negative declaration is prepared.
Even for a negative declaration or mitigated negative declaration, public review is required.  The draft document is open for public comment for at least 20 days.  Unlike an EIR, there's no requirement that the agency respond to each public comment.  However, if a comment provides enough evidence to support a fair argument that the project, even with mitigation, could still have a significant impact, approval under the negative declaration is improper.  In that case, the proper course is for the agency to withdraw the negative declaration and proceed to prepare an EIR.  If it fails to do so, a legal challenge is appropriate.

click for CEQA flow diagram

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Law Offices of
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
(510) 652-5373 (voice & fax)
last updated:  November 17, 2008