The Davis administration has come and gone with little to show in the way of changes to the California Environmental Quality Act (CEQA) Guidelines, a document that carries the force of law and dictates how public agencies are supposed to implement CEQA.
About 30 minor guideline changes were issued in September, but those changes could be put on hold or cancelled by the new Schwarzenegger administration. The revisions included about 30 minor changes that outgoing Resources Agency General Counsel Margret Kim described as "very neutral," favoring neither developers nor environmentalists.
Maureen Gorsen, the incoming deputy secretary of the California Environmental Protection Agency who oversaw the last major revision of the CEQA Guidelines as Resources Agency general counsel under Governor Pete Wilson, offered an explanation for the Davis administration’s slow pace on the guidelines. "It’s not very rewarding work," she said. "You just don’t win friends and influence people by doing this kind of work."
Gorsen said her predecessors from earlier administrations had warned her not to focus on CEQA Guidelines, telling her, "It’s not worth your time. You’ll only get headaches."
Davis was known for his centrist, non-controversial approach to governing. Making decisions on CEQA Guidelines usually upsets someone, either environmentalists or developers. Gorsen also noted that the general counsel’s position in the Resources Agency was empty for two years after she left the post in 1999.
Davis administration officials conducted at least two brainstorming sessions on the guidelines with such groups as the American Planning Association, the Sierra Club, and business groups, according to Terry Rivasplata, a senior environmental planner at Jones & Stokes in Sacramento. A number of potential guideline amendments were discussed at those meetings, but none of those proposals turned up in the new guidelines, said Rivasplata, who headed the Office of Planning and Research’s State Clearinghouse under Wilson.
But at least two revisions proposed by Davis — to §§ 15065 and 15152 — are expected to streamline the CEQA process for builders and developers.
"Governor Schwarzenegger may see it as something important for business purposes," Rivasplata said.
That view was shared by Sacramento Attorney Jim Moose, who often represents agencies and developers. He called the Davis revisions "modest and moderate changes."
Section 15065, which deals with mandatory findings of significance, has only a few wording changes. But those changes allow preparation of mitigated negative declarations rather than EIRs — a result could save development interests time and money. Under the proposed changes, an EIR would be required when "there is substantial evidence, in light of the whole record," that various events might occur.
"The proposed changes are intended to clarify that when effective mitigation measures will be required as part of the project, Section 15065 will allow the adoption of a [mitigated negative declaration]," Rivasplata said.
Added Gorsen: "You really have to be having an impact on a species or habitat" to be forced into preparing an EIR.
The new guidelines also make changes to tiering, which is covered in § 15152. Tiering involves using the analysis of general matters in a broad, master EIR — such as an EIR prepared for a general plan — in EIRs for subsequent projects. Under the proposed revisions to § 15152, the lead agency will generally not need to examine environmental effects of a new project if the lead agency determines that the master EIR adequately analyzed those effects. Moose said this amendment provides a lead agency an incentive to adopt tight general plan standards as a way of avoiding expensive environmental reviews later.
"The requirements … would give cities and counties an incentive to have stringent environmentally-protective general plan policies which would function as performance standards," he said. "Because if they had such performance standards under that language, they would then be able to say that by implementing those standards at the project level, they would have adequately addressed the impact and would not have to revisit that impact. That would make for a more streamlined project level analysis, and in some instances, might make the difference between [having to prepare] an EIR and a negative declaration."
Other changes to the guidelines include § 15088, which would require a lead agency to respond 10 days before certifying an EIR with written response to a public agency’s comments on a draft EIR. Environmental attorney Susan Brandt-Hawley suggested that this section be amended to give 10 days notice of all other responses to all other commenters.
"Sometimes the Final EIR is available only hours before its certification, which defeats the whole point of the written comment responses and prejudices not only the interested public but also the lead agency decisionmakers that have inadequate time for review," Brandt-Hawley wrote in comments to the Resources Agency.
Gorsen said she does not expect that the Schwarzenegger administration to tackle CEQA Guidelines. "There’s so many more sexy, glamorous things to do," Gorsen said.
Rivasplata said the state’s lack of money and perpetual short staffing of Resources Agency attorneys could influence the new administration’s priorities. Under the law, the governor is supposed to issue new CEQA guideline changes every two years.
The 30 guideline revisions issued by the Davis administration were open for public comment until late October. The Resources Agency has until mid- to late 2004 to complete its comments, make changes and then turn over the amendments to the Office of Administrative Law for final review.
In August, the Davis administration did finalize changes to Wilson administration guidelines that had been the subject of a court challenge in Communities for a Better Environment v. California Resources Agency, 103 Cal. App 4th 98 (2002). In that case, the court invalidated six substantial changes addressing cumulative impacts, thresholds of significance, tiering and probable future projects (see CP&DR Legal Digest, January 2003). Those CEQA Guideline changes, which involved striking out portions to comply with the court ruling, were not subject to public comment and the usual adoption process.
In the CBE case, the court had upheld § 15332, which provides an exemption for infill projects of five acres or less if the project would not impact, traffic, noise, air or water quality. In the latest guideline revisions, § 15333 adds a 33rd categorical exemption for habitat restoration projects of five acres or less.
Jim Moose, Remy, Thomas & Moose, (916) 443-9017.
Terry Rivasplata, Jones & Stokes, (916) 737-3000.
Maureen Gorsen, Resources Agency, (916) 653-5656.
Susan Brandt-Hawley, (707) 938-3908.