On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before. This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.” (Discussion Draft, at 108-145.)
Minor Technical Improvements
- Proposed amendments to Guidelines § 15004. OPR proposes to amend this section to provide guidance to public agencies in applying the principles set forth in the Supreme Court’s decision in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 regarding “which project-related activities may occur prior to environmental review and project approval.” It would delete (as assertedly unnecessary in light of other proposed amendments) a portion of § 15004(b)(2)(A) that recognizes as a pre-approval activity that does not trigger CEQA review an agency’s “designat[ion] [of] a preferred site for CEQA review and [its] ent[ry] into land acquisition agreements when the agency has conditioned [its] future use of the site on CEQA compliance.” It would also add a new § 15004(b)(4) stating:
(4) While mere interest in, or inclination to support, a project does not constitute approval, a public agency entering into preliminary agreements regarding a project prior to approval shall not, as a practical matter, commit the agency to the project. For example, it shall not grant any vested rights prior to compliance with CEQA. Further, any such agreement should:
(A) Condition the agreement on compliance with CEQA;
(B) Not bind any party, or commit to any definite course of action prior to CEQA compliance; and
(C) Not restrict the lead agency from considering any feasible mitigation measures and alternatives, including the “no project” alternative.
(Discussion Draft, at 111.)
Analysis and Suggestions: The proposed amendments should – but currently do not – recognize that considerable CEQA case law developments have occurred in the “approval/pre-commitment” area in the years following the Supreme Court’s Save Tara decision. (E.g., Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 [city’s steps toward planning its new downtown entertainment and sports center prior to completing CEQA review, including preliminary non-binding term sheet, “favor of and advocacy for” preferred downtown site, and exercise of eminent domain to acquire site did not constitute unlawful premature commitment to project]; POET, LLC v. California Air Resources Board (2013) 218 Cal.App.4th 681 [holding CARB’s board prematurely approved Low Carbon Fuel Standards]; Neighbors For Fair Planning v. City and County of San Francisco (2013) 217 Cal.App.4th 540 [city did not prematurely approve community center/affordable housing project]; Taxpayers for Accountable School Board Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013 [school district board resolution exempting projects from city’s zoning and land use laws was not project approval as it did not commit district to definite course of action regarding any project]; Chung v. City of Monterey Park (2012) 210 Cal.App.4th 394 [voter-approved ballot measure was funding mechanism or fiscal activity, not commitment to specific project with potential environmental impacts]; Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 [City’s and RDA’s approval of detailed term sheet for 49ers stadium project was not project approval]; City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55 [siting agreement between County and CDCR requiring County to identify potential state reentry facility sites was not project approval subject to CEQA]; Parchester Village Neighborhood Council v. City of Richmond (2010) 182 Cal.App.4th 305 [Municipal Services Agreement between city and tribe contained CEQA compliance clause and was not project approval triggering CEQA review].)
Given the sheer number of post-Save Tara published opinions upholding lead agency preliminary agreements and actions as not constituting unlawful pre-commitment or pre-approval of a project under CEQA, perhaps the amendments to § 15004 should recognize this authority and provide examples of permissible agreements and actions, or at least add the above case citations to the authorities cited at the end of the section so that agency counsel can more readily locate the relevant case law. Moreover, the most recent of the above-cited cases – Saltonstall – expressly cited and relied on the very language OPR proposes to delete from § 15004(b)(2)(A) as supposedly unnecessary. In light of this, and the fact that the language OPR proposes to delete provides much more specific and concrete guidance than does the language OPR would add in new subdivision (b)(4), OPR should, in my opinion, not delete the language but, rather, leave subdivision (b)(2)(A) as it is currently written.
Further, to add clarity, OPR should amend the second sentence of its proposed new subdivision (b)(4) by adding underscored language as follows: “For example, it shall not by discretionary agreement grant any vested rights prior to compliance with CEQA.” This would ensure the new subdivision is not cited out of its proper context – that of preliminary agreements, which are inherently discretionary – and misconstrued to suggest that vested rights may never be “granted” by any means without prior CEQA compliance. Indeed, local agencies are (and always have been) free to establish ministerial schemes for granting land use permits – so long as they comply with CEQA in initially enacting such ordinances – and once such laws are in place vested rights may be obtained through reasonable reliance on ministerially granted permits without any need to further comply with CEQA prior to their issuance. (E.g., San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1 [upholding EIR for project consisting of zoning amendments to allow “by-right” boutique winery uses without further discretionary approvals].) By adding the language I suggest above, OPR could recognize and respect this concept and eliminate the risk that its guidance will be taken out of context and misconstrued in an overbroad fashion.
- Proposed amendments to Guidelines § 15051. Section 15051 sets forth criteria for identifying the “lead agency” “principally responsible for carrying out or approving the project and, hence, for preparing and conducting the required environmental review of it under CEQA. This is obviously an important and fundamental provision and part of CEQA as a whole. OPR proposes to amend § 15051(c) by adding and deleting language as follows: “(c) Where more than one public agency equally meet the criteria in subdivision (b), the agency which will act first on the project in question will normally … be the lead agency.” (deleting “shall” where ellipsis shown) The reason OPR offers for the proposed amendment is to “clarify that where more than one public agency meets the criteria in subdivision (b), the agencies may agree pursuant to subdivision (d) to designate one entity as the lead.”
Analysis and suggestions: OPR claims there is a contradiction between current subdivision(c) – which states that the agency meeting the other lead agency criteria which will act first on the project “shall” be the lead agency – and subdivision (d), which allows “two or more public agencies with a substantial claim to be the lead agency” to “by agreement designate an agency as the lead agency.” OPR is obviously correct that subdivisions (c) and (d) were intended to work together, and that (c) was not intended to contradict and preempt the agreement mechanism provided in (d). However, OPR appears to overlook the fact that – so long as it is not misconstrued as contradictory – the mandatory language in subdivision (c) actually provides for a degree of certainty and acts as a useful “tie breaker” in cases where agencies with strong competing claims to be the lead cannot reach agreement pursuant to subdivision (d). Viewed from this perspective, OPR’s proposed solution has the vice of making subdivision (c) just another factor rather than a decisive “tie breaker” when agreement among competing agencies cannot be reached.
OPR’s proposal would, rather than setting forth a clear rule and guidance, actually increase the potential for disputes regarding lead agency status and ultimately grant OPR itself the power to designate the lead agency in the event of such disputes. (See Pub. Resources Code, § 21165; 14 Cal. Code Regs., § 15053 [in event of dispute between two or more public agencies as to which should be lead, any of the disputing agencies or the project applicant may submit issue to OPR which shall then designate the lead agency within 21 days of receiving the request].) If this is the policy result desired by OPR – to grant itself more power to select the lead agency in cases of dispute – then it seems to me that it should be straightforward about it and clearly explain the consequences of and reasons for the proposed substantive amendment, rather than merely classifying it as a “minor technical” charge. If OPR wishes to retain and clarify the current substance of § 15051 and eliminate any misconstructions and unintended contradictions (as it seems to contend), then in my view it could and should simply amend subdivision (c) as follows: “(c) Where more than one public agency equally meet the criteria in subdivision (b), and absent any agreement pursuant to subdivision (d), the agency which will act first on the project in question shall be the lead agency.” This would: (1) continue to allow competing agencies the flexibility to reach a voluntary agreement regarding lead agency status; (2) provide that if such agreement cannot be reached the agency acting first on the project “shall” be the lead; and (3) consequently, decrease the number of disputes that could be submitted to OPR for resolution.
- Proposed amendments to Guidelines § 15061. In a minor technical amendment that is not controversial, OPR would amend § 15061(b)(3) to replace the phrase “general rule” with “common sense exception” to match the Supreme Court’s (and practitioners’ customary) use of the term. (See, Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 389.)
- Proposed amendments to Guidelines § 15063. In a minor and noncontroversial technical amendment, OPR would add § 15063(a)(4), as follows: “The lead agency may use any of the arrangements or combination of arrangements described in Section 15084(d) to prepare an initial study.” This would clarify that an initial study may be prepared pursuant to the same methods and arrangements – i.e., directly by or under contract to the lead agency – as are EIRs and negative declarations.
- Proposed amendments to Guidelines §§ 15072 and 15086. OPR would add a sentence to both §§ 15072(e) and 15086(a)(5) – which list the agencies and entities with which a lead agency shall or may consult in preparing an EIR – reading: “The lead agency should also consult with public transit agencies with facilities within one-half mile of the proposed project.” OPR states this clarification would improve noticing standards and ensure a project’s “environmental transportation impacts are fully considered … under CEQA.” (Discussion Draft, at 120.)
Analysis and comment: While these amendments may well be proper interpretations of CEQA and/or desirable public policy, it should be noted that it remains unclear exactly what “impacts” on public transportation services and facilities will ultimately properly be considered “environmental transportation impacts” subject to CEQA analysis and – perhaps most importantly – CEQA’s concomitant mandatory mitigation requirements. Lead agencies and project developers should remain vigilant in this regard as transit agencies may foreseeably attempt to shift operational costs and economic impacts to them as “environmental” mitigation without a proper basis for doing so.
- Proposed amendments to Guidelines §§ 15072 and 15087. In a common-sense clarification that likely coincides with most CEQA practitioners’ understanding of current law, OPR would change the term “referenced” in these sections to “incorporated by reference.” As OPR explains: “This change would make clear that a lead agency is not required to make every document that is merely cited in an EIR or a negative declaration available in its entirety for public review, and instead must only include all documents that are incorporated by reference as described in section 15150 of the Guidelines.” (Discussion Draft, at 125-126.)
- Proposed amendments to Guidelines § 15082. OPR would amend portions of § 15082(a)(1) to accurately reflect the statutory requirement of Public Resources Code § 21092.3 that a notice of preparation of an EIR (NOP) must, in addition to being sent to OPR and each responsible and trustee agency, also be filed with the county clerk of each county in which the project is located. (Discussion Draft, at 131-132.)
- Proposed amendments to Guidelines § 15107. OPR would amend § 15107 to clarify that a lead agency may extend the 180-day time limit for completion and approval of a negative declaration once, for not more than 90 days, “upon the consent of the lead agency and the applicant.” This would give the lead agency the same flexibility to extend the completion deadline as it possesses with respect to an EIR. (Discussion Draft, at 135.)
- Proposed amendments to Guidelines § 15124. OPR would amend § 15124(b) to clarify that a project description, in its required statement of objectives, also “may discuss the project benefits.” (Discussion Draft, at 136-137, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192.) (Discussion Draft, at 136.)
- Proposed amendments to Guidelines § 15222. To “encourage increased cooperation between the state and Federal agencies [in the context where joint NEPA/CEQA documents are prepared] to coordinate project requirements, timelines, and reduce duplication.” OPR would add a sentence to § 15222 stating: “The lead agency may also enter into a Memorandum of Understanding with the federal agency to ensure that both federal and state requirements are met.” (Discussion Draft, at 138.)
- Proposed amendments to Guidelines § 15269. OPR would amend § 15269(b) and (c) to clarify the emergency exemption regarding “how imminent an emergency must be to fall within [it]” and “to maintain consistency with … Cal Beach Advocates v. City of Solano Beach (2002) 103 Cal.App.4th 529, 537[.]” The new language would include within “emergency repairs” “those that require a reasonable amount of planning” and provide that the exclusion from the exemption for “long-term repairs” to prevent non-short term emergencies “does not apply (i) if the anticipated period of time to conduct an environmental review of such a long-term project would create a risk to public health, safety or welfare, or (ii) if activities (such as fire or catastrophic risk mitigation or modifications to improve facility integrity) are proposed for existing facilities in response to an emergency at a similar existing facility.” (Discussion Draft, at 141, emph. added.)
- Proposed amendments to Guidelines § 15357. OPR would amend § 15357 to try to codify relevant case law clarifying the meaning of “discretionary project,” which is a key concept because CEQA review is required only for projects that are subject to discretionary controls by the lead agency and does not apply where the lead agency exercises only ministerial authority over the approval in question. Citing a number of cases as support, OPR would add “or other fixed standards” to the end of the section’s first sentence (which describes ministerial decisions that are not discretionary) and would add as a new second sentence the following: “The key question is whether the approval process involved allows the public agency to shape the project in a way that could materially respond to any of the concerns which might be raised in an environmental impact report.” (Discussion Draft, at 142-143.)
Analysis and suggestions: While it is essentially accurate, parts of OPR’s suggested language (e.g., “the approval process involved”) are somewhat vague and imprecise, and the proposed clarifying revision could be enhanced to increase its clarity and usefulness and more fully reflect other relevant case law and Guidelines. (See, e.g., Sierra Club v. Napa County Bd. of Sup’rs (2012) 205 Cal.App.4th 162 [determining whether action is discretionary or ministerial requires careful analysis of statute or ordinance authorizing and providing legal controls over action, and local agency’s consistent treatment and classification of approval process as ministerial and exempt from CEQA is entitled to judicial deference]; 14 Cal. Code Regs., §§ 15002 (i) 15268, 15300.1, 15369.) In my opinion, a better sentence to add as the Guideline’s second would be: “The key question is whether the law governing the public agency’s approval authority and imposing controls on the activity permits the public agency to deny or require modification of the project in any way that could materially respond to any of the environmental impacts that might be revealed or disclosed by an environmental impact report.” I think this language more accurately and fully captures the “functional test” of discretionary action established by the caselaw, and avoids any ambiguity inhering in the “approval process involved” language by focusing on the law establishing the lead agency’s control and authority over the project. The Sierra Club case cited above, as well as the complete statutory authority exempting ministerial actions from CEQA (see Pub. Resources Code, § 21080(a), (b)(1)), should also be added to the “authority” section following the text of § 15357.
- Proposed amendments to Guidelines § 15370. Finally, OPR would amend § 15370 (defining “mitigation”) to codify the holding of Masonite Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230 “that off-site agricultural conservation easements constitute a potential means to mitigate for direct, in addition to cumulative or indirect, impacts to farmland.” (Discussion Draft, at 144.) As amended, § 15370(e) would read (with changes underscored): “Compensating for the impact by replacing or providing substitute resources or environments, including through permanent protection of such resources in the form of conservation easements.” (Discussion Draft, at 144.)
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This concludes my analysis and critique of the Discussion Draft, which represents OPR’s first major proposed overhaul of the CEQA Guidelines in approximately two decades. Stakeholders should continue to follow and participate in the process as OPR’s proposals evolve forward and into formal rulemaking in the coming months.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.