CEQA and Publicly Sponsored Projects:

Vol. 36 No. 1

By

Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP in Sacramento, California.

The California Environmental Quality Act (CEQA)1 was enacted by the California Legislature in 1970, one year after Congress enacted the National Environmental Policy Act (NEPA).2 While often referred to as a “little NEPA,” CEQA is not purely procedural like NEPA and, in fact, contains a “substantive mandate” that public agencies avoid approving projects with significant environmental impacts when there are feasible alternatives or mitigation measures that can substantially lessen or avoid such impacts.3

For over 40 years now, CEQA has provided the public with a means to interact with public agencies and decision-makers considering projects that may have significant impacts to the environment. That public interaction, however, and the procedures by which projects must be approved in California, have come as mixed blessings. Although some argue that CEQA ensures approved projects are as environmentally friendly as possible, many contend that CEQA is little more than a means to delay or halt projects, and ultimately development, altogether.

This article reviews the recent trend of using CEQA as a means of delaying publicly sponsored projects such as bans on the distribution of plastic bags, new bicycle master plans, the installation of public hiking trails, and the construction of light rail public transit.

Challenges to Plastic Bag Bans

Of the more recent and renowned cases illustrating the potential delays caused by CEQA suits is Save The Plastic Bag Coalition v. City of Manhattan Beach.4 In this case, the City of Manhattan Beach adopted an ordinance banning the use of plastic bags within city limits after adopting a negative declaration under CEQA. The ordinance was adopted in July 2008. A coalition of plastic bag manufacturers5 filed a writ petition against the City of Manhattan Beach challenging the city’s adoption of the ordinance, arguing that an Environmental Impact Report (EIR) should have been prepared given that some evidence suggested increased production of paper bags would be more detrimental to the environment than the continued use of plastic bags. The trial court issued an injunction staying the effective date of the ordinance until an EIR was prepared. The city appealed. The California Supreme Court considered two issues: (1) what are the standing requirements for a corporate entity to challenge approval of a CEQA document and (2) was the City of Manhattan Beach required to prepare an EIR to study the effects of the ordinance banning the use of plastic bags? On the issue of standing, the court held that the Coalition was beneficially interested in the suit given the impact of the ordinance on businesses within the city that were part of the Coalition. On the second and more substantive issue, the court determined that the city was not required to prepare an EIR for the ordinance, concluding that the small population and geographic size of the city demonstrated, “the increase in paper bag production following a local change from plastic to paper bags can only be described as insubstantial.”6 The court went on to state that common sense “is an important consideration at all levels of CEQA review.”7

Despite the Coalition’s ultimate loss in court, the California Supreme Court upheld the Coalition’s right to bring the CEQA challenge. Furthermore, the CEQA challenge resulted in a four-year delay of the implementation of the ordinance, which only went into effect on January 14, 2012.

Challenges to Bicycle Plans

Other groups are willing to use CEQA to challenge bicycle plans. One might see such challenges as dubious, considering bicycle plans are usually viewed as a fundamental part of sustainable development and quality of life for citizens of the jurisdiction. Nonetheless, others see bicycle lanes as a traffic hindrance.

In 2005, the San Francisco Board of Supervisors adopted the 2005 San Francisco Bicycle Plan. The city determined that the project was exempt from CEQA review on the grounds there was no possibility the plan could have a significant adverse impact on the environment. A group called the Coalition for Adequate Review and another called the Ninety-Nine Percent, along with individual petitioner Rob Anderson (collectively “petitioners”), sued San Francisco claiming there would be significant environmental impacts and urged the trial court to order that an EIR be prepared.8 Nearly two years after the CEQA suit was filed, the trial court granted the petition and issued a peremptory writ mandating that the city prepare an EIR for its Bicycle Plan and the related funding plan. The trial court also issued an injunction to prevent the city from implementing any of the bicycle improvement projects until CEQA review was complete. The city issued a notice of preparation of an EIR in June 2007, embarking on the public process required. Over the course of the following two years, the city circulated a Draft EIR and accepted and responded to comments from thousands of interested persons in the Final EIR prepared for the 2009 Bicycle Plan. Ultimately, the city certified the EIR and adopted the 2009 Bicycle Plan, among other things. A notice of determination was filed in August 2009, and the city timely filed a return to the initial writ. The petitioners promptly objected to the new plan as well as the CEQA review conducted.9 In November 2009, however, the city received partial relief from the court-imposed injunction and quickly implemented projects such as new bike lanes, on-street bike parking corrals, “sharrows” (shared-lane arrows), and fully separated and green bike lanes on Market Street, an arterial road leading downtown. In a decision issued in June 2010, the trial court denied each and every claim made by the petitioners and upheld the city’s EIR and the 2009 Bicycle Plan. The petitioners promptly filed an appeal of the trial court’s decision, which is currently pending in the First District Court of Appeal.

Will the CEQA lawsuit prove fatal to the city’s bicycle plan? Probably not. At most, the city will merely be required to expend more taxpayer dollars to study impacts under CEQA. Did the CEQA lawsuit cause delay? Initially, the lawsuit delayed the implementation of the improvements to 2009, but since the injunction was lifted, the city has proceeded with a number of improvements outlined by its plan. Furthermore, the environmental review conducted by the city arguably resulted in a greater number of citizens engaging in the public process to steer bicycle lanes to where they are most needed, and many would argue that the 2009 San Francisco Bicycle Plan is larger in scope than the initial plan. Will the newly filed appeal delay further improvements? Not without a court injunction, which is unlikely given the city’s certification of an EIR in 2009.

Challenges to Public Trails

The California Native Plant Society v. City of Santa Cruz10 case involved the city’s 2003 approval of the Arana Gulch Master Plan (“Master Plan”). Arana Gulch is an almost 70-acre open space area located in and owned by the City of Santa Cruz. The area is surrounded by residential development but contains unique natural resources such as coastal prairie, the Santa Cruz tarplant, and riparian and wetland habitats around Arana Gulch Creek. One of the main purposes of the city’s Master Plan is to enhance the tarplant habitat, both through direct habitat restoration and through enhanced public access management and education. Toward this end, the Master Plan provides for construction of a paved pedestrian and bicycle trail system to link the eastern part of the city with the western part, as well as to provide interpretive displays and outlook areas. Interestingly, one of the 10 objectives of the Master Plan is: “Implement an adaptive management program to ensure the long-term viability of the Santa Cruz tarplant within Arana Gulch.”

In May 2003, the City of Santa Cruz certified an EIR for and adopted the Master Plan. The California Native Plant Society and the Friends of Arana Gulch filed a CEQA lawsuit challenging the city’s certification of the EIR and the alternatives analysis contained therein. Both the trial court and appellate courts upheld the city’s certification of the EIR and approval of the Master Plan. Petition for review to the California Supreme Court was denied in December 2009. Still, the city waited to commence construction pending a coastal development permit from the California Coastal Commission, which was approved with conditions in December 2011. Currently, the city still has not commenced construction of the Arana Gulch Master Plan improvements but expects to begin construction in the spring of 2013.

Challenges to (Light Rail) Public Transit

With the increase in California’s population comes an increase in traffic, air and noise pollution, greenhouse gas emissions, and a whole host of other environmental concerns. In anticipation of population growth, regional transportation agencies have been planning for years to address traffic concerns. In addition, recent legislation such as The Global Warming Solutions Act of 2006 and The Sustainable Communities Strategies Law of 2008 have been enacted. As a result, many regional transportation agencies are expanding their plans to reduce the number of commuters on the roads by giving them alternative commute options such as light rail.

Although the greater Bay Area has the Bay Area Rapid Transit system, the largest metropolitan area in California—Los Angeles and surrounding areas—has a disconnected and limited public rail system and, as of a few years ago, has completed environmental review of light rail systems that are only intended to connect various outlier cities like Santa Monica to downtown Los Angeles. Groups such as Neighbors for Smart Rail, a nonprofit California corporation comprised of homeowners’ associations, community groups, and various citizens, strenuously objected to, and continue to object to, the placement of at-grade light rail transit through various West Los Angeles Neighborhoods.11 Thus, despite the overall “public good” a light rail transit system might do, those that are directly impacted feel differently, and CEQA has become a means to air their concerns and potentially delay such projects.

The case of Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth.12 illustrates such a scenario. In this case, the Expo Authority certified an EIR and approved the second phase of its light rail corridor, the Exposition Transit Corridor, which is slated to connect downtown Los Angeles with Santa Monica via 6.6 miles of light rail. The Neighbors sued the Authority on the second phase of the Corridor project and sought to have the court order the Authority to decertify the EIR and set aside the project approval on a number of CEQA grounds, including, that the Authority used the wrong baseline for studying impacts of the project on traffic, air quality, and greenhouse gas emissions, among others. Both the trial and appellate courts denied the Neighbors’ petition. The Neighbors have filed a petition for review with the California Supreme Court. Despite this legal strategy, construction on the project has commenced and will be completed in 2015. The only issues now are whether the Supreme Court will grant review of the case (which is expected, given the intra-appellate district disputes regarding baseline issues) and if it does, whether the court will require the Authority to revise one or more sections of the EIR. Then the question becomes whether the Authority will be enjoined from continuing construction pending the resolution of the CEQA lawsuit.

Conclusion

In review, CEQA resulted in the delay of publicly sponsored projects in three out of the four cases discussed above. But more importantly, the cases above reveal a true irony of CEQA: on the one hand, CEQA was adopted for the purpose of ensuring that local government agencies approving non-exempt, discretionary projects would protect the environment from impacts of proposed projects; on the other hand, CEQA has more recently been used by individuals and groups to stop or severely delay public projects that many would view as environmentally friendly.

Though recent applications of California’s CEQA, and “little NEPA’s” in other states, may be surprising, the takeaway lesson is to be prepared. Counterintuitive as it may be, thorough environmental review may be needed even when a public project is conceived with environmental goals in mind. To the extent this intensified review process adds to the regulatory burden, the added cost and delay is not a complete loss. As we’ve seen in California, it can present an opportunity to improve public engagement and the final product.

Endnotes

1. Cal. Pub. Res. Code § 21000 et seq. See also The CEQA Guidelines, developed by the Governor’s Office of Planning and Research to assist local agencies in carrying out the purpose of CEQA, which are contained in Title 14 of the Cal. Code Regs. § 15000 et seq.

2. 42 U.S.C. § 4321 et seq.

3. Cal. Pub Res. Code § 21002.

4. Save The Plastic Bag Coalition v. City of Manhattan Beach, 254 P.3d 1005 (Cal. 2011).

5. Since 2008, the Coalition has filed CEQA lawsuits against the cities of Oakland, Palo Alto, Long Beach, and San Francisco, as well as the counties of Los Angeles and Marin, to require that EIRs be prepared for ordinances banning the use of plastic bags in stores and/or restaurants.

6. Save The Plastic Bag Coalition, 254 P.3d at 1017.

7. Id.Id. at 1018 (citations omitted).

8. Coalition for Adequate Review v. City and County of San Francisco (Super. Ct. San Francisco County 2005)

9. Coalition for Adequate Review v. City and County of San Francisco (Super. Ct. San Francisco County, 2010)

10. 99 Cal. Rptr. 3d 572 (Ct. App. 2009).

11. At least three other light rail and subway projects are being considered currently throughout West Los Angeles, including the Crenshaw Line, the Purple Line, and the Regional Connector. All three of these projects have had CEQA lawsuits filed against them. Those lawsuits are pending in superior court.

12. Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth., 139 Cal. Rptr. 3d 759 (Ct. App. 2012).

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