Laurence Wiener is an attorney with Richards, Watson & Gershon and can be reached at LWiener@rwglaw.com.
The California Environmental Quality Act (CEQA) was conceived in the 1970s to promote the goal of ensuring that local government decision-makers understand the environmental impacts of their decisions. To implement this goal, the Governor's Office of Planning and Research developed CEQA implementation guidelines, which stated that Environmental Impact Reports (EIRs) should be no more than 150 pages and written in plain language that can be readily understood by decision-makers and the public.
However, people familiar with modern EIRs have become painfully aware that most of them stray far from these ideals. Today, EIRs commonly exceed 500 or even thousands of pages, and their language has become overly complicated. Terms unfamiliar to some readers, such as "the threshold of significance" and "traffic level of service," are used liberally.
Unfortunately, as EIRs become more bur densome to read, they appear intended for lawyers and consultants rather than local decision-makers and the public. Cities sometimes treat EIRs as hurdles to be overcome rather than tools to help make better decisions.
However, city council members and commissioners do not need to abandon EIRs to their consultants and attorneys. With a little helpful background, every local official can learn to read an EIR critically and focus on the information that is most important to making good policy decisions for their community.
This article provides four tips to help you exert local control over the EIR process, read EIRs more effectively and become a more effective decision-maker for your city.
1. Read With Your Objectives in Mind. Modern EIRs contain too much information to read without focusing on the information that you will ultimately need to do your job as a city council member or commissioner.
Has the EIR identified each of the project's significant environmental impacts?
If so, has each significant impact been reduced or avoided?
Are there feasible alternatives to the proposed project that would meet its objectives with fewer environmental impacts?
If the proposed project will have a significant impact on the environment, does it benefit the community despite these impacts?
The purpose of the EIR process is to help you, as a decision-maker, answer these questions. As you read an EIR, focus on the information that helps you do that.
2. Impose Local Values on the EIR Process. Every EIR contains a great deal of technical information. As a result, readers may be reluctant to question its assumptions and recommendations. However, to make an EIR work most effectively, you must ensure that it reflects your community's values.
For example, each EIR contains "thresholds of significance." These are the standards by which the EIR measures whether a project has a significant impact on the environment. In other words, if an impact exceeds a threshold of significance, the impact is considered significant. If the impact is below the threshold, it is considered insignificant.
Therefore, setting the thresholds can be the most critical factor in determining whether an impact is significant. However, in many cities, the thresholds are not consciously established by the city, but instead are established by the EIR's author. While the author may have a great deal of expertise in environmental science, setting thresholds of significance is not a simple matter of science; it also involves policy and value judgments that vary from community to community.
To fully understand the environmental impacts set forth in an EIR, the reader should review the thresholds of significance and understand the choices made in establishing these thresholds. If the thresholds are not explained precisely in the EIR, then the reader should ask for them to be made explicit.
Furthermore, decision-makers should also provide input concerning the choice of thresholds for their community. CEQA encourages every community to develop its own thresholds. Tailoring thresholds to your city or county has the advantage of making EIRs better reflect local values. Establishing such thresholds should also make each EIR process run more smoothly, as decision-makers will be comfortable that the thresholds being used in each EIR are consistent and appropriate.
Mitigation measures are a second area where decision-makers should ensure that the EIR reflects local values.
If an EIR identifies a significant envi ronmental impact, then it is required to recommend mitigation measures that will reduce or avoid that impact. CEQA requires that if these mitigation measures are feasible, they must be incorporated into the project or imposed on the project as conditions.
It is certainly natural to assume that every measure that will reduce an environmental impact should be accepted as beneficial to your community and adopted. Thus, many EIR readers do not read mitigation measures with a critical eye. However, each mitigation measure should be evaluated to determine whether it is appropri ate for your community.
For example, an EIR for a project in a downtown retail district may recommend widening a street and reducing the width of the sidewalk to mitigate a traffic im pact. While this certainly would mitigate the traffic impact, the measure may also be detrimental to the pedestrian character of the city's retail shopping area and could adversely affect nearby merchants. Is the reduction in traffic delay on that street worth the impact on pedestrians and merchants? This is a decision for the planning commission or city council, not the EIR. While the EIR must recom mend measures to reduce environmental impacts, it cannot make the decision re garding whether the measure is ultimately beneficial for your community.
Fortunately, CEQA allows a decision- maker to reject a mitigation measure if social, economic or other considerations make the measure infeasible. Thus, as with thresholds of significance, decision-makers should review the recommended mitigation measures to ensure that they are appropriate for your jurisdiction's unique circumstances.
3. Don't Forget to Examine the "No Project" Alternative. Each EIR must not only evaluate the environmental impacts of the proposed project, but must also evaluate the environmental impacts that would reasonably be expected to occur if the project were not approved. This analysis is typically referred to as the "no project alternative" in the EIR.
This "no project alternative" is different than the analysis in the EIR's main body, which answers the question of how the proposed project will affect the condition of the environment as it exists today.
This allows the decision-maker and the public to compare the current environment against the proposed impacts of the project.
However, this comparison does not always reflect the true choice facing a city or county. Often, denying a proposed project will not result in preserving the environment in its current condition.
Thus, the "no project alternative" may present the decision-maker with the true choice facing the community. This alternative may explain the environmental impacts of denying the proposed project and therefore may contain information critical to the ultimate decision about whether to approve a project.
4. Don't Expect to Find All the Answers in an EIR. The most important decision concerning any project is whether to approve it. Many considerations influence that decision, and not all of them are addressed in an EIR; it cannot tell you what is best for your community nor whether a project's benefits outweigh its environmental impacts. Those are policy decisions. Nevertheless, the EIR contains much valuable information and, if read critically, can be a tool for better decision-making.