The two principal authors of the 1998 revisions to the California Environmental Quality Act Guidelines say a recent appellate court decision misinterpreted the Guidelines. The case, Friends of Sierra Madre v. City of Sierra Madre, (1999) 76 Cal.App.4th 1061, has since been accepted for review by the state Supreme Court.
Last December, the Second District Court of Appeal overturned an election in which voters approved a city-sponsored ballot measure to remove 29 properties from the city's Register of Historic Landmarks. (See CP&DR Legal Digest, January 2000.) The court held that placing the measure on the ballot qualified as a project under CEQA and, therefore, was subject to environmental review. The court specifically pointed to the 1998 Guidelines as having embraced the narrow holding of Stein v. City of Santa Monica, (1980) 110 Cal.App. 3d. 458. In Stein, the court ruled that the ministerial act of placing a citizen initiative on the ballot was exempt from CEQA. The Second District said that drafters of the Guidelines chose not to codify other election-based CEQA exemptions found in subsequent court decisions, such as Lee v. City of Lompoc, (1993) 14 Cal.App.4th 1515.
But Maureen Gorsen, an attorney with Weston, Benshoof, Rochefort, Rubalcava & MacCuish and the former general counsel of the California Resources Agency, and Antero Rivasplata, an environmental planner for Jones & Stokes and former director of the Office of Planning and Research, now say the court read too much into what they did not do.
"In 1998," Gorsen and Rivasplata wrote in a letter to CP&DR, "over 120 revisions to sections and subsections of the CEQA Guidelines were proposed and adopted. During that time, there was no proposed revision to subdivision (b)(5) of §15378 pertaining to the applicability of CEQA to ballot box initiatives. That subsection was merely renumbered from (b)(4) to (b)(5) to straighten up §15378 for light housekeeping changes to that section. In 1998, it was not the style of the drafters of the Guidelines to add references to relevant cases in parenthesis. However, neither was it the drafters goal to ensure that the nearly 400 sections and countless other subdivisions were revised and updated.
"We had our hands full with the 120 or so revisions we were actually proposing to make. In fact, once the winnowing down of the sections that were to be addressed, revised and updated was determined, we never looked back at the sections that we hadn't chosen to include. First, we didn't have the time. Second, and more importantly, the Administrative Procedure Act (APA), which sets out the process for making Guidelines revisions, prohibited it. The APA simply does not permit the revision of sections or subsections that are not described and explained in the original Notice of Proposed Rulemaking and Initial Statement of Reasons. (5 Gov't. Code §11346.8(c).)
"Certainly, during the public comment period, there were many comments making suggestions to clarify or add to sections and subdivisions not included in the initial Notice. However, due to the APA's prohibition on introducing new topics to a rulemaking after the notice has been published, any such comments were treated as ‘outside the scope of the rulemaking.' That is a phrase we used over and over in responding to comments not directed at the 120 revisions proposed in the initial Notice. That is the phrase we used when commentors brought to our attention the ballot box decisions such as City of Albany and Lee v. Lompoc that we did not add to the §15378. So the court is right to ‘presume' that drafters at OPR and the state resources secretary knew about the cases.
"However, for the reasons described above, the court was wrong to presume that ignoring them meant that our intent was to codify the more narrow holding of Stein. … The renumbering of §15378 is not the cause for the Second Appellate District to abandon precedents inconvenient to its desired policy outcome."
The Supreme Court has not yet set a date for oral argument.
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