In November 2017, the Governor’s Office of Planning and Research (OPR) presented to the California Natural Resources Agency (CNRA) a package proposing significant changes to the California Environmental Quality Act (CEQA). Incorporating OPR’s suggestions, CNRA published their official proposal to the public to amend the CEQA Guidelines on January 26, 2018, which included only minor changes to the OPR’s initial proposal package. Publication of the proposal commenced the required minimum 45-day public comment period under the Administrative Procedure Act.
OPR’s proposed changes and updates to the CEQA Guidelines are meant to reflect recent legislative changes and holdings in recent case law, including Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 and Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439. Public hearings addressing the changes will be held in Los Angeles on March 14, 2018 and in Sacramento on March 15, 2018. Written comments may also be submitted to CNRA until 5:00 P.M. on March 15, 2018.
Any major changes made to the proposal will require a subsequent minimum 45-day public comment period. However, if a public comment period closes with no major or “substantial and sufficiently related” changes to the proposed guidelines, CNRA will publish the changes in its Updated Informative Digest, along with a final statement of reasons and the text of the regulations, closing the rulemaking record.
This legal alert is Part 3 of Kronick’s ongoing CEQA series highlighting OPR’s numerous proposed changes and their potential consequences for cities, special districts, and private developers who required CEQA compliance.
Section 15064. Determining the Significance of the Environmental Effects Caused By a Project
OPR has proposed two sets of changes to Section 15064 to make the CEQA review process more efficient. First, the changes would clarify that agencies may use “thresholds of significance” on a case-by-case basis to help determine whether an impact is significant, consistent with the Court of Appeal’s finding in Protect the Historic Amador Waterways v. Amador Water Agency, supra. “Thresholds” are a level at which an impact would normally be significant. Secondly, the change would encourage agencies to create and use environmental standards as thresholds of significance consistent with the Court of Appeal’s decision in Californians for Alternatives to Toxics v. Department of Food & Agriculture (2005) 136 Cal.App.4th 1, 16-20.
Section 15064.7. Thresholds of Significance
A proposed change to Section 15064.7 would recognize the court’s caution in Protect the Historic Amador Waterways v. Amador Water Agency, supra. that “thresholds cannot be used to determine automatically whether a given effect will or will not be significant.” Id. at 1108-09. Additional changes to the section would assist lead agencies in deciding whether a particular environmental standard might be appropriate to use as a threshold of significance.
Section 15152. Tiering
The Public Resources Code encourages agencies to tier environmental review (from general to more specific) and includes a specific procedure for doing so, while Section 15152 of the CEQA Guidelines implements those provisions. OPR has proposed an amendment to Section 15152 to clarify that tiering is only one mechanism for streamlining the environmental review process and that the legislature did not intend to override existing provisions by enacting Public Resources Code Sections 21083.3, 21157, and 21158. Therefore, where other methods have more specific provisions, those provisions shall apply.
Section 15168. Program EIR
“Program EIR” is a device originally developed by federal agencies under the National Environmental Policy Act to address macro scale and cumulative impacts of activities. OPR has proposed changes to clarify that lead agencies have discretion to determine whether a later project is within the scope of a program EIR based on the facts surrounding the later activity and the specific details in the existing program EIR. See Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598. The changes also describe certain factors that a lead agency may consider in making that determination. See Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689.
Section 15182. New Exemption for Transit-Oriented Developments
Section 15182 currently describes a Government Code exemption from further CEQA review for residential projects that are consistent with specific plans. In 2013, Senate Bill 743 was enacted to better align CEQA with other environmental goals, including the reduction of greenhouse gas emissions and promotion of infill development, adding Section 21155.4 to the Public Resources Code. Accordingly, OPR has proposed changes to extend the exemption to commercial and mixed-use projects that are located near transit.
Section 15234. New Section Regarding Remedies and Remand
OPR has proposed an entirely new section to the CEQA Guidelines to explain how CEQA litigation may affect project implementation. Section 15234 would clarify that, in certain circumstances, portions of the project approvals or the project itself may proceed while the agency conducts further review to correct errors identified by the court. See Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439. The section also addresses how an agency should proceed with additional environmental review if required by a court and clarifies that additional review is only required if the project has changed in a way resulting in new or worse environmental impacts.
Section 15301. Existing Facilities
OPR has proposed two changes to Section 15301. The first would clarify that a project that would make use of a vacant building should not be considered an expansion of use requiring additional CEQA review. See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310. The second addition would clarify that improvements within the existing public right of way that encourage multi-modal use (i.e. bicycles, pedestrians, transit, etc.) would normally not cause significant environment impacts.
Appendix G. Environmental Checklist Form
Appendix G in the CEQA Guidelines contains a sample initial study format. OPR has proposed numerous changes to the form, mainly deleting and consolidating questions and updating considerations in the checklist. The updated considerations address a broad range of issues, including air quality, biological resources and state wetlands, energy, groundwater, population growth, and wildfire.
You may obtain a copy of the proposed changes or contact any of the below attorneys if you have questions about these updates or any other CEQA-related issues.