A Legacy of Experience

Addressing issues that can arise during the CEQA process

On Behalf of | Apr 5, 2022 | Real Estate |

Proposed land use and other discretionary planning projects in California can be subject to an environmental review process. This process is provided for in The California Environmental Quality Act (CEQA), which is a landmark environmental statute put in place to inform members of the public and policymakers about the potential environmental impacts of projects and to mitigate projects’ significant environmental impacts wherever feasible.

Compliance with this process is crucial and can be complicated, expensive, and time-consuming. Business owners may face certain issues as they attempt to navigate CEQA matters.

Getting approval

Unless a project is exempt under CEQA, it will be subject to an environmental review before the lead agency can approve it. This process starts with an initial assessment of the project’s impact on the environment. The initial assessment will conclude that the project is not likely to have any significant environmental impacts (a negative declaration in CEQA parlance), or that the project may have such impacts, but they can be mitigated to a level of insignificance without extensive environmental review (a mitigated negative declaration), or that the potentially significant environmental impacts of the project must be explored and analyzed, and mitigation measures, as well as project alternatives, considered and if appropriate adopted pursuant to an environmental impact report considered and approved by the lead agency after public input.

Based on the appropriate level of environmental review, the lead agency will decide whether to approve the project as proposed, approve it with mitigation measures, approve an alternate project with fewer significant environmental impacts, or deny it. CEQA does not prevent the agency from approving a project that has significant, unmitigated impacts if the agency has all of the pertinent information before it and makes appropriate findings.

The information and responses necessary to navigate this process successfully can be more complicated than parties expect.

Environmental impact reports

Issues can arise if a project requires an environmental impact report (EIR). This report will be necessary if there is the potential for significant adverse traffic, clean air, noise, greenhouse gas, water, or other environmental impacts stemming from the proposed project.

The report, prepared either by or for the lead agency, will assess the project’s environmental impacts in the planning, construction, and operation phases. It will assess both the project’s direct environmental impacts and its environmental impacts in conjunction with the impacts of existing or future projects. The latter are referred to as “cumulative impacts.”

CEQA is not concerned with a project’s social or purely economic effects. The fact that a commercial project may, for example, result in the closing of a number of existing businesses may be an appropriate consideration for the lead agency but is not an environmental impact to be considered in an EIR unless the closings are likely to result in physical deterioration to the environment.

The public will be entitled to comment on a draft of the EIR before it is submitted to the lead agency’s governing board for consideration and approval. The final EIR will contain the agency’s responses to the public comments and may differ in some respects from the draft EIR as a result of the public’s input. In some cases, a subsequent or supplemental EIR, or an addendum to an EIR, will be necessary.

Based on this information, a project may require redesigns or changes. And the report can take more time than parties expect if a project proves to be significantly impactful, complex, or controversial.

Mitigation measures

The approval of a project may come with required mitigation measures. These measures are necessary to allow the project to move forward with as little effect on the environment as possible. If approved by the lead agency, they must be implemented by the project’s developer.

In addition to making any physical changes required by an approved mitigation measure, parties may have to adopt reporting and monitoring programs and oversee their implementation.

Challenging decisions

Should parties disagree with environmental impact reports, agency decisions or other aspects of this process, they can challenge or appeal them, but the time for doing so is very short.

Whether you are the party seeking to review or block a project or your project is under scrutiny, it can be stressful to navigate the logistical and legal aspects of a dispute.

Considering how complicated this entire process can be, parties often secure legal guidance to navigate them effectively.