by William W. Abbott and Robert T. Yamachika

In 1998, the Wilson Administration adopted far reaching amendments to the CEQA Guidelines which narrowed environmental review and encouraged the use of negative declarations. In Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, environmental groups filed a writ of mandate to overturn these amendments as being inconsistent with state statute and case law. The trial court in large part agreed with the plaintiffs and granted the relief sought, that being a judicial determination that specified elements of the 1998 amendments were invalid. On October 28, 2002, the Third District Court of Appeal essentially agreed with the trial court. This article highlights the Court of Appeal decision and summarizes the remaining “safe harbor” CEQA provisions governing environmental streamlining.

In a nutshell, the appellate court decision has significant consequences in two areas of CEQA practice. First, as to stand-alone environmental documents, lead agencies cannot rely solely upon development standards for impact avoidance or reduction. Additionally, project contributions to cumulative impacts remain troublesome as the de minimis exception was set aside. Alone or read together, the rejection of these two provisions does not bode well for the successful defense of negative declarations.

As far as second tier documents go, the analysis of “probable future projects” in the cumulative impact analysis remains flexible and therefore elusive. Additionally, Guidelines section 15152(f)(3)(C), which dispensed with an EIR on a second tier where the sole reason for a second EIR was the documentation of a prior documented significant unmitigated impact in the first EIR and the repetition of override findings, was held invalid.

It is important to keep in mind that the appellate decision impacts only selected CEQA Guidelines provisions. While the appellate decision takes away some important streamlining tools, many others still remain.

A. The Appellate Court Decision.

1. Thresholds of Significance. Rejected §15064(h) to the extent that locally adopted mitigation standards are used to override the “fair argument” test.

2. De Minimis Rule. The Guideline’s provisions that a de minimis contribution to cumulative impact was not a basis for EIR, was held invalid. § 15064(i)(4).

3. De Minimis Contribution. When preparing an EIR, § 15130(a)(4) was held to be invalid as the basis for finding cumulative impacts less than significant (de minimis contribution to cumulative condition).

4. Probable Future Projects. The Court rejected § 15130(b)(1)(B)(2) as it attempted to create alternative and mutually exclusive approaches to the consideration to “probable future” projects.

5. Tiered Subsequent Environmental Documents. Rejected § 15152(f)(3)(C) which departed with any requirement for a second EIR in a later tier where there were no new impacts. This Guideline section had dispensed with the need to adopt a statement of overriding considerations as part of the second tier. For many projects, this mandates a perpetual succession of EIR type documents and sequential adoption of statements of overriding considerations.

6. Non-Physical Political Changes. Invalidated § 15378(b)(5), which held that nominal political changes are not “projects.”

7. No Project Contribution to the Cumulative Impact Scenario. Upheld § 15064(i)(3) which holds that a project may not contribute to cumulative effects as long as it meets mitigation standards. However, judicial review of this determination is subject to the “fair argument” test.

8. Categorical Exception for Certain In-fill Urban Projects. Upheld § 15332 as it provides an exception for projects less than 5 acres in size served by utilities, consistent with general plans and zoning, and where the project site has no value for endangered, rare or threatened species.

9. Tiering and New Potentially Significant Cumulative Impacts. Piggybacking on its earlier analysis of § 15064(i), the appellate held § 15152(f)(2) to be invalid to the extent it relied upon § 15064(i). The net effect is to continue to focus the analysis of cumulative impacts on the synergistic effects of the incremental contribution, and not just the incremental addition by itself. This casts in doubt the use of straight percentage models on the basis that with these models, the worse the underlying (cumulative) condition, the less likely the incremental addition would register as significant. A protocol which allows the baseline to mask the contribution of the project is likely to be invalid.

B. Upheld by the Trial Court, and Not Challenged on Appeal.

1. Thresholds of Significance. Authority to adopt local thresholds. § 15064.7.

2. Nexus requirements. § 15041(a).

3. Minor clean up actions. §15330.

C. What do we do now? The status of Streamlining Techniques and Safe Harbors after the CBE decision.

First, read Gentry v. City of Murietta (1995) 36 Cal.App.3d 1359, on how to transition from one EIR to a second environmental document. Second, review the following list for various techniques for exemption, streamlining and focusing environmental documents. Those marked with an asterisk (*) represent the most advantageous and flexible tools currently in place. Of those, sections 15182 and 15183 are the two with the broadest application. The CEQA provisions addressing various exemptions relating to housing were recently recast, recodified and consolidated by SB 1925. At the time of this writing, the Guidelines have not been amended to reflect these minor changes. Substantively the Guidelines remain much the same, however, the reader should be aware that some of the Guidelines are based on provisions which have now been amended, recodified and repealed.

1. Incorporation by Reference-§ 15150.

2. Tiering-§ 15152 (but see limitations above).

3. Use of an EIR From an Earlier Project-§ 15153.

4. Subsequent EIR; Subsequent Negative Declaration-§ 15162.

5. Supplement to an EIR-§ 15163.

6. Addendum-§ 15164.

7. Program EIR-§ 15168.

8. * Focused EIRs and Small Projects (residential projects less than 100 units, commercial less than 100k square feet for EIR less than 5 years old)-§ 15179.5.

9. * Redevelopment-§ 15180.

10. * Housing and Neighborhood Commercial in Urbanized Areas-§ 15181. (Based on former Pub. Resources Code § 21080.7 repealed and recodified at §§ 21159.24, 21071, 21061.0.5.)

11. * Residential Projects Pursuant to a Specific Plan-§ 15182. See also Gov. Code § 66457.

12. * Projects Consistent with General Plan, Community Plan or Zoning-§ 15183.

13. * Housing For Agricultural Employees-§ 15279. (Based on former Pub. Resources Code § 21080.10 amended and recast at § 21159.22)

14. * Lower Income Housing Projects (less than 100 units)- § 15280. (Based on former Pub. Resources Code § 21080.14 repealed and recodified at § 21159.23)

The Aftermath of CBE v. California Resources Agency

Challenged Regulation:
15064(h)-Use of regulatory standards to determine significance.
Invalid as inconsistent with the “Fair Argument” Test. Note that the old provisions regarding compliance with water and air quality standards were subsumed into the now invalidated 15064(h) provisions. An argument can be made that they remain valid in light of the fact that previously this provision was upheld by various courts.

Challenged Regulation:
15064(i)(3)-A project may not have a “cumulatively considerable” contribution to a significant impact if it complies with the requirements of a previously approved plan or mitigation program.
Upheld only to the extent that the “Fair Argument” standard applies.

Challenged Regulation:
15064(i)(4) and 15130(a)(4)-de minimis contribution to cumulative impacts.
Invalid as the premise of the Guidelines section was that the bigger the baseline cumulative problem, the less likely that project would make a measurable contribution to the significant impact.

Challenged Regulation:
15152(f)(2)-Tiered environmental review new cumulative effect.
Invalid to the extent it relied upon 15064(i)(4).

Challenged Regulation:
15130(b)(1)(B)(2)-Defining “probable future projects.”
Invalid to the extent that the listed options operate exclusively of one another. In other words, an EIR preparer must be flexible in identifying the list of “probable future projects.”

Challenged Regulation:
15152(f)(3)(C)-Tiering: When significant environmental effects have been adequately addressed for EIR tiering purposes.
Invalid. A project involving significant unmitigated environmental impacts requires a later EIR and statement of overriding considerations.

Challenged Regulation:
15378(b)(5)-Definition of Project: Purely organizational changes or not result in physical changes in the environment.
Invalid. First, on the possible grounds of a typographical error, and purely organizational changes (e.g. school district boundary changes) can result in potentially significant impacts.

Challenged Regulation:
15322-Categorical Exemption for infill projects

The following provisions were upheld by the trial court, and not appealed:
15064.7-Thresholds of Significance; 15041-Nexus and 15330-minor clean up provisions.

In light of this decision, lead agencies and CEQA practitioners should not rely on any Guidelines which were invalidated. With respect to CEQA documents and projects which have relied on now invalid Guidelines, it would be prudent to revise them, to minimize the risk of future legal challenges.

Bill Abbott is a partner and Rob Yamachika is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.