CEQA Nuts and Bolts
Adam U. Lindgren
The California Environmental Quality Act (CEQA) was passed in
1970 with numerous expressed legislative intents and purposes:
(Pub. Res. Code, §§21000 et seq., 21000-21003; see also
Cal. Code Regs., tit. 14, div. 6 ch. 3 (“CEQA Guidelines”))

To inform state and local agency decision-makes of the potential
environmental consequences of proposed actions;

To identify ways to avoid or significantly reduce environmental
impacts;

To prevent significant, unavoidable environmental harm by requiring
either changes to proposed projects, and/or by requiring mitigation to
lessen the environmental impacts; and,

To demonstrate to the public that the decision-makers have
considered and analyzed the environmental implications of a
proposed action.
Procedural Devices of Environmental
Review: CEQA Documents

Initial Study

Exemptions

Negative Declarations and Mitigated Negative Declarations
 The “fair argument” standard sets a low threshold for
preparation of an environmental impact report.

Environmental Impact Reports (EIRs)
CEQA “Project”

A “project” is a discretionary activity directly undertaken by any public
agency, or an activity involving issuance of a lease, permit, license,
certificate, or other entitlement for use by one or more public agencies (14
Cal Code Regs. §15378)

The “whole of an action” includes not just specific approvals, but the
underlying activity, as well as the development or activity that could result
from the approval.
 No “piecemealing”: a single project may not be divided into smaller
pieces for individual environmental reviews that don’t account for the
projects overall impacts. Association for a Cleaner Environment v.
Yosemite Community College Dist (2004) 116 Cal.App.4th 629 as
modified, 10 CR3d 560 and citizens Ass’n for Sensible Dev. of Bishop
Area v County of Inyo (1985) 172 Cal.App.3d 151.

Annexations and other actions by LAFCOs can be “projects”. E.g., Bozung
v LAFCO (1975) 13 Cal.3d 263.
Players

Lead Agency: The “lead agency” for a project is the public agency
with the primary responsibility for carrying out or approving a project
(14 Cal Code Regs. §15367 )

Responsible Agency: Responsible agencies are public agencies
other than the lead agency that have responsibility for carrying out
or approving a project (14 Cal Code Regs. §15381)

Trustee Agency: Trustee agencies are state agencies having
jurisdiction by law over natural resources affected by a project which
are held in trust for the people of the state of California (14 Cal
Code Regs. §15386)
What is the Role of LAFCO in CEQA?



Answer: depends on the action.
LAFCO often functions as a responsible agency.
LAFCOs can be lead agency for certain types of reorganizations, such as actions
brought by landowner petitioners because LAFCO is the first agency to act on the
matter. People ex rel Younger v LAFCO (1978) 81 Cal.App.3d 464, 481(also
discussing the role of LAFCO guidelines in CEQA lead agency determination)





E.g., when LAFCO considers a public agency’s application for a boundary change or other
reorganization, the agency seeking the LAFCO action is the lead agency because it has the
general governmental authority over the area and because it took the first discretionary
action in applying to LAFCO. 14 Cal Code Regs. §15051(b).
Responsible agencies consider the CEQA document prepared by the lead agency and then
decide whether to approve the project. 14 Cal Code Regs § 15096(a).
Responsible agencies participate primarily via consultation on the type and scope of CEQA
documentation prepared by the lead agency.
Comments of consulted agencies are limited to matters within the agency’s area of expertise
or related to the potential discretionary action by the agency. Pub. Res. Code §§ 21080.4,
21104, 21153; 14 Cal Code Regs §§ 15086(c), 15096(d).
A responsible agency must make findings about mitigation and alternative for impacts related
to the part of the project it decides to carry out or approve, including adoption of a SOC
Exemptions from CEQA

Statutory Exemptions:

Based on legislative policy, not necessarily on environmental
protection.

Categorical Exemptions:
 Apply to classes of discretionary agency actions that have been
found to not result in significant environmental effects.
 Two apply to LAFCO:
1. Reorganizations that don’t change the area in which
previously established powers are exercised. 14 Cal Code
Regs. §15319(a)
2. Annexations of areas containing structures developed to
the density allowed by current zoning. 14 Cal Code Regs.
§15319(b)

Exceptions can Defeat the Exemptions.
Initial Study
 Generally:
 Purpose: To determine if the project may have a significant effect on
the environment.
 Results in decision to prepare negative declaration, mitigated negative
declaration, or environmental impact report.
 Contents of Initial Study:

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
Project Description
Environmental Setting
Identify Previous CEQA Reviews
Appendices G, H of the CEQA Guidelines provide a recommended
checklist and sample environmental information form.
Negative Declaration

The lead agency may prepare a negative declaration if the lead
agency determines that a project “would not have a significant
impact on the environment.” (Pub. Res. Code, § 21080, subd. (c).)

A mitigated negative declaration is prepared for a project when the
initial study has identified potentially significant effects on the
environment, but
 Revisions/mitigations are made to the project before the
proposed negative declaration and initial study are released for
public review that would avoid the effects or mitigate the effects
to a level of insignificance.
 The project, with the mitigation measures, would not have a
significant effect on the environment.
Standard of Review:
Fair Argument Standard

If there is “substantial evidence” in the record
supporting a “fair argument” that significant impacts
may occur, even though other substantial evidence
supports a different conclusion, the lead agency must
prepare an EIR. (No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68, 75; Friends of “B” Street v. City of
Hayward (1980) 106 Cal.App.3d 988, 1000-1003.)

“Fair Argument” creates a “low threshold” for requiring
preparation of an EIR.
Public Review of Negative
Declarations

Before approving a draft negative declaration or “MND,” the lead
agency must provide a notice of intent to adopt the negative
declaration or MND to the public, responsible agencies, and the
county clerk of the county in which the project is located.

The notice of intent to adopt must allow for a minimum 20-day public
review period; 30-days if submitted to State Clearinghouse.

Unlike EIR, no requirement to respond to comments in writing in
final document, but lead agency is required to “consider” comments.
Adoption of a Negative
Declaration

Prior to approving project lead agency must consider negative
declaration and any comments received.

Lead agency can adopt the negative declaration if it makes findings
that, based on substantial evidence in light of the whole record, the
project will not have any significant impact on the environment (or in
the case of an MND, that the project as mitigated will have no
significant impact on the environment).

If adopting an MND, lead agency must also adopt a mitigation
monitoring and reporting program.

Must adopt ND before approving project.
(14 Cal Code Regs. § 15074.)
Environmental Impact Reports
Checklist for Critical Required
Contents of an EIR

Summary. An EIR must briefly summarize the proposed project and
its consequences in clear, simple, practical language (Pub. Res.
Code §21061)

List of agencies, individuals, and organizations consulted during the
preparation of the draft EIR (14 Cal Code Regs. §15129)

Project description. The project description must be accurate and
consistent, and it must contain sufficient specific information about
the project to allow the public and the reviewing agencies to
evaluate and comment on its environmental impacts (14 Cal Code
Regs. §15124)
Checklist for Required
Contents of an EIR

Environmental setting. An EIR must include a description of the existing environment in the
vicinity of the project from both a local and a regional perspective (14 Cal Code Regs.
§15125)

Plan inconsistencies. An EIR must evaluate any inconsistencies between the proposed
project and applicable general or regional plans (14 Cal Code Regs §15125(d))

Significant environmental impacts. An EIR must identify and describe the project’s
significant environmental impacts, including direct, indirect, and long-term impacts (Pub.
Res. Code §21100(b)(1))

Cumulative impacts. An EIR must include an analysis of significant cumulative impacts.
The cumulative impact analysis may be based on a list of projects that includes the
proposed project and existing or anticipated projects that produce related impacts, or on a
summary of projections that is based on a planning document that anticipates regional or
area-wide conditions (14 Cal Code Regs. §15130)
Checklist for Required
Contents of an EIR

Growth-inducing impacts. An EIR must examine whether a project will lead to
economic or population growth, or will encourage development or other activities that
could affect the environment (14 Cal. Code Regs. §15126(f))

Unavoidable environmental impacts. An EIR must explain potentially significant
impacts that cannot be mitigated. If the impacts cannot be alleviated without imposing
an alternative project design, the EIR should describe the implications of the impacts
and the reasons the project is being proposed despite the impacts (14 Cal Code
Regs. §§15126(b), 15126.2.(b))

Mitigation measures. An EIR must identify and describe measures which could
reduce or avoid each significant environmental impact of the project (14 Cal. Code
Regs. §15126(b)(3))

Alternatives. An EIR must describe a reasonable range of alternatives to the project,
or to its location, that could feasibly attain most of the projects basic objectives and
reduce or avoid the significant environmental impacts of the project (14 Cal. Code
Regs. §§15126, 15126.6)
Mitigation Measures

For any significant impact, the EIR must
propose and describe feasible mitigation
measures that could avoid or substantially
lessen the significant environmental effects of
the project. Pub. Res. C §§ 21002.1 21100; 14
Cal Code Regs.§ 15126.4.


Only significant impacts need to be mitigated.
Infeasible mitigation measures generally do not
need to be discussed.
Deferred Mitigation

In general, agencies are not permitted to rely
on speculative mitigation measures. It may
be permissible, however, to defer some
amount of mitigation in appropriate
circumstances.

For example, it is permissible if the mitigation
measure commits the agency to a realistic
performance standard or criterion, and disallows
the adverse environmental impact until the
performance standard can be shown to be
satisfied.
EIR Process
 Prepare Administrative Draft EIR
 Prepare Draft EIR
 Circulate Draft EIR for public review (generally at
least 45 days)
 Hearing on Draft EIR is optional
 Prepare responses to comments on Draft EIR
 Send draft response to agency commentors
 Determine if Draft EIR must be recirculated
Certifying the EIR

Lead agency must certify that:

The EIR complies with CEQA
 The EIR was presented to, reviewed and considered by the
lead agency prior to project approval
 The EIR reflects the lead agency’s independent judgment and
analysis.



Lead agency must also adopt a mitigation monitoring
and reporting program (MMRP).
If project will have significant unmitigated impacts, it
must adopt findings regarding alternatives and a
statement of overriding considerations (SOC).
File Notice of Determination.
Adequacy Standard

CEQA Guidelines Section 15151 provides the following
standard for a lead agency preparing an EIR:
“An EIR should be prepared with a sufficient degree of analysis to
provide decision makers with information which enables them to
make a decision which intelligently takes account of
environmental consequences. An evaluation of the environmental
effects of a proposed project need not be exhaustive, but the
sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible. Disagreement among experts does not make
an EIR inadequate, but the EIR should summarize the main points
of disagreement among the experts. The courts have looked not
for perfection but for adequacy, completeness, and a good faith
effort at full disclosure.”
Adequacy Standard

“A court may not set aside an agency's approval of an EIR on
the ground that an opposite conclusion would have been
equally or more reasonable. A court's task is not to weigh
conflicting evidence and determine who has the better argument
when the dispute is whether adverse effects have been mitigated
or could be better mitigated. We have neither the resources nor
scientific expertise to engage in such analysis, even if the
statutorily prescribed standard of review permitted us to do so. Our
limited function is consistent with the principle that ‘The purpose of
CEQA is not to generate paper, but to compel government at all
levels to make decisions with environmental consequences in
mind. CEQA does not, indeed cannot, guarantee that these
decisions will always be those which favor environmental
considerations.’” (Ibid, internal quotation marks and citations
omitted.) Laurel Heights Improvement Assn. v. Regents of the
University of California (1988) 47 Cal.3d 376, 392
Subsequent and Supplemental
EIRs

May be prepared when, after certification of an EIR, changes
to a project or new information necessitate further
environmental review (Pub. Resources Code, § 21166; 14
Cal Code Regs. §§15162, 15163)