CEQA AND THE PUBLIC: TOO LONG, DIDN’T READ
AUTHORS
John T. Wheat1
Ryan W. Thomason2
INTRODUCTION
"Oh no, not another CEQA3 reform article!" This would be an understandable reaction from the reader. California Environmental Quality Act reform is a constant topic in the land use, environmental, and political communities. Harsh criticisms of CEQA from both project proponents and those who represent project proponents are nothing new. Advocates for project proponents, development, and economic growth point to CEQA as a tool for obstructionists. Conversely, advocates for other interest groups, such as environmental organizations and unions, vigorously defend the role CEQA plays in furthering the particular values important to those groups. However, both sides frame the CEQA reform argument in terms of how CEQA either aids or hinders their particular interests. The general public—the residents of California—are seemingly absent from the CEQA reform conversation.
A primary purpose of CEQA is fostering an informed public regarding projects that may affect the environment they live in. Several CEQA Guidelines, adopted early in CEQA’s history, encourage environmental documents that are usable by the public. For example, one provision directs that environmental documents be written in plain language, while another provision recommends appropriate page lengths for environmental impact reports (EI Rs).4 However, as discussed further in sections II.A and B, following, these accessibility provisions in the CEQA Guidelines are treated as an afterthought in practice. Courts have paid little attention to these provisions, and lead agencies are not rewarded for creating CEQA documents written in plain language and that can be rapidly understood by the general public. Rather, environmental documents have grown longer and supporting materials more technical over CEQA’s history in response to a growing body of CEQA jurisprudence.5
The expression "TL;DR" (too long; didn’t read), popularized on the internet, is apt for CEQA documents. Despite the intentions of the statute, in practice, applicants and lead agencies are encouraged to include information in such a way that sidelines a critical party to the process, the general public who live and work in the affected environment.
Today, EI Rs can often exceed a thousand pages, with thousands of pages of technical appendices. As a result, CEQA arguably no longer serves its information disclosure purpose for the general public. Rather, increasingly long and complex environmental documents have limited the accessibility of CEQA to only those groups prepared to invest financially in understanding them.
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CEQA DOCUMENTS, INCLUDING EIRS, SHOULD FOSTER AN INFORMED PUBLIC
The California Legislature enacted CEQA in 1970 with the primary purposes of protecting the environment and fostering informed self-government.6 Early CEQA cases also emphasize the statute’s focus on ensuring that information is disclosed to both decisionmakers and the public.7 Thus, while CEQA is generally considered an environmental statute (it’s in the name), CEQA is equally a public participation and information disclosure statute.
Public participation in the CEQA process is critical for fulfilling CEQA’s purpose of protecting informed self-government.8 To this end, the California Legislature established a policy that "[d]ocuments prepared pursuant to [CEQA] be organized and written in a manner that will be meaningful and useful to decisionmakers and to the public."9 It logically follows that EI Rs, described by the courts as the "heart of CEQA,"10 should then be meaningful and useful to the public. An EIR is required for proposed projects that may have a significant impact on the environment.11 An EIR will include a description of the proposed project and the environmental setting (also referred to as the baseline), analyze potential adverse project impacts, and recommend mitigation measures and alternatives to reduce significant adverse impacts.12
An EIR is also intended to be an informational document with the general public and decision-makers as the expected audience.13 "Informational Document," is the title of CEQA Guidelines section 15121, which states that an EI R "will inform . . . the public generally of the significant environmental effect of a project."14 The California Supreme Court has explained that EIRs facilitate the informed self-government aspect of CEQA by disclosing to the public (and decisionmakers) the potential environmental consequences of proposed projects prior to project approval.15 As a result, an informed public will be empowered to respond to decisions of elected officials with which the public might disagree.16 In other words, the public will be better-equipped to participate in public discussion and decision-making regarding proposed projects, and better prepared at the voting booth should the public disagree with the decision-makers.
The statute itself and numerous published court cases make clear that the CEQA process is intended to inform members of the public about the decisions that affect them, in addition to informing the decisionmakers and protecting the environment. However, this intent to serve the public can only be fulfilled if EI Rs and other CEQA documents actually facilitate meaningful public participation.
THE CEQA GUIDELINES ENVISION EIRS THAT ARE ACCESSIBLE TO THE PUBLIC AND FACILITATE MEANINGFUL PUBLIC PARTICIPATION
The CEQA statute directs the California Office of Planning and Research to prepare and develop "guidelines for the implementation of" CEQA.17 These guidelines, commonly referred to as the CEQA Guidelines, are codified in the California Code of Regulations.18 Well-established jurisprudence directs courts to "afford great weight to the [CEQA] Guidelines."19 As a result, the CEQA Guidelines should be highly influential in shaping CEQA jurisprudence.
The CEQA Guidelines further emphasize the informed self-government purpose of CEQA and the role the statute should serve for the public. For example, the CEQA Guidelines explain that CEQA is intended to "[i]nform . . .the public" about the environmental impacts of proposed projects and "[d] isclose to the public" a lead agency’s reasons for approving a project with significant environmental impacts.20 In addition, the CEQA Guidelines clearly acknowledge that "[p]ublic participation is an essential part of the CEQA process" and encourage agencies to involve the public.21 For example, draft EI Rs must be circulated for public comment and review, final EI Rs must include responses to public comments on the draft EI R, and the CEQA Guidelines encourages approval of CEQA documents at a public hearing.22 As the California Supreme Court explained, "[t]he [CEQA] Guidelines . . . serve to make the CEQA process tractable for those who must administer it, those who must comply with it, and ultimately, those members of the public who must live with its consequences."23 To this end, the CEQA Guidelines include several provisions intended to make EIRs accessible and understandable to the public.
THE CEQA GUIDELINES ENCOURAGE "PLAIN LANGUAGE" EIRS THAT CAN BE "RAPIDLY" UNDERSTOOD BY THE PUBLIC
CEQA Guidelines section 15140, published by the Natural Resources Agency in 1983,24 states: "EIRs shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can rapidly understand the documents."25 The phrasing "plain language" and "rapidly understand" suggests that a member of the public should be able to comprehend an EIR with reasonable effort and without any specialized knowledge, education, or practice. The regulatory history for the current version of section 15140 reflects this concept:
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Discussion of Section 15140
This section is intended to improve the clarity of EI Rs. The section is also necessary to provide an interpretation resolving the question of who is the appropriate audience for the EIR. Some EIRs have been written more like academic dissertations directed to other Ph.D.s rather than like public disclosure documents directed to busy decision-makers and the general public.26
Thus, section 15140 was adopted to ensure CEQA serves the general public, not just experts or individuals with specialized knowledge. However, few courts have addressed section 15140 in any meaningful manner.27
The First District Court of Appeal addressed CEQA Guidelines section 15140 in the context of a similar federal standard under the National Environmental Policy Act (NEPA). An environmental impact statement (EIS) prepared pursuant to NEPA "must be organized and written so as to be readily understandable by governmental decisionmakers and by interested non-professional laypersons."28 Likewise, an EIR should "be comprehensible to . . . the public," pursuant to the standard set forth in section 15140.29 The First District Court explained that, as a result, the CEQA Guidelines make it clear that an EIR "must be written and presented in such a way that its message can be understood by . . . members of the public."30
The Fifth District Court of Appeal briefly acknowledged section 15140 when considering whether an EIR adequately described a proposed project. The Fifth District Court explained that EI Rs must be rapidly understandable by the public, but the court also warned against providing a curtailed description of the project.31
In 2003, the Third District Court of Appeal also briefly addressed section 15140 in a footnote when considering a situation where an EI R included potentially extraneous information.32 While the court acknowledged that including too much information in an EIR could confuse the reader, the petitioners in the case did not claim to be confused by the extra EI R information.33 More recently, the Third District Court cited section 15140 in an unpublished decision where the petitioner claimed that an EI R’s description of a proposed drainage system was "generic."34 The court explained that an EIR need only include a general description of the project’s technical, economic, and environmental characteristics, pursuant to CEQA Guidelines section 15124.35 This general description requirement is consistent with other CEQA mandates, such as section 15140, that EIRs be user-friendly documents.36
EIRs need to be user-friendly documents for members of the general public, not just professionals, experts, or decisionmakers. However, mandates in the CEQA Guidelines, such as section 15140, that EIRs be user-friendly or reasonably accessible to the general public have largely been ignored. The consequence of these sections being ignored is that EIRs are not user-friendly documents for the general public, but instead require a certain level of subject matter expertise to sufficiently navigate and understand.
RECOMMENDED EIR LENGTHS HAVE BEEN DISREGARDED
CEQA Guidelines section 15141 provides that draft EI Rs "should normally be less than 150 pages" or less than 300 pages "for proposals of unusual scope or complexity."37 This section was adopted by the Natural Resources Agency early in CEQA’s history, in 1980.38 A thorough explanation for the need to adopt section 15141 is set forth in the regulatory history accompanying the 1983 re-write of the CEQA Guidelines:
Discussion of Section 15141
This section imposes page limits on EIRs in response to the effort by the Legislature to reduce the size of EIRs and to make the documents focus on the significant effects of the project. Prior to 1977, EI Rs were often voluminous documents where every conceivable subject was discussed. Due to an excess of caution, writers normally tried to meet every possible objection that might be raised in a legal challenge to the document’s adequacy. Although the Legislature has limited EI Rs to discussing the significant effects of projects, many EI Rs still appear to be excessively long. The page limits are necessary to reduce unneeded bulk in EIRs and to help the documents disclose the key environmental issues to the decision-makers and the public rather than concealing the issues in a mass of writing.39
The statement of reasons for adopting section 15141 includes the rather optimistic notion that EIRs would stop being "voluminous documents" after this attempt at CEQA reform. This attempt at CEQA reform failed, as section 15141 has been largely ignored by the courts since its adoption. Of the many published and unpublished CEQA cases released to date, CEQA Guidelines section 15141 is cited in only a handful of cases.
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The First and Fourth District Courts of Appeal both cited CEQA Guidelines section 15141 in separate 1995 opinions. The First District Court acknowledged the CEQA Guidelines’ recommended length for complex EIRs in a case that involved an 800-page draft EI R and a 1,200-page final EI R.40 The Fourth District Court cited section 15141 in a footnote after noting that the draft EI R at issue in the case was about 500 pages long.41 Neither case granted much weight to this section, beyond acknowledging its existence.
The First District Court of Appeal raised section 15141 in an unpublished 2013 decision when the court suggested that an EIR exceeding 2,000 pages in length could have "used some judicious editing."42 Despite this suggestion, the court had little sympathy for the petitioner’s complaint regarding the "massive" size of the draft EIR and limited time for public review. Yet, the First District Court appears to acknowledge why the recommended page limits "are frequently ignored."43 The court cited one of the leading treatises on CEQA, which explained that "EI Rs are often invalidated by the courts for including too little information but never for including too much."44 As a result, courts have disincentivized lead agencies to follow the section 15141 recommendations.
In an amicus brief filed in the Friant Ranch case, the California League of Cities, et al., referred to the EIR length suggestion in section 15141 as "distinctly quaint," noting that "EI Rs for even modest projects may run hundreds of pages, and EI Rs for major or controversial projects to thousands of pages."45 This characterization is fair. Section 15141 has been on the books for over 40 years, yet most EIRs have been exceeding the recommended lengths since the adoption of the section in 1980.46 This has resulted in EIRs that are too long and technical for the public to understand or decision-makers to read.
Section 15141 has not been afforded "great weight," or really any weight at all, in CEQA jurisprudence. As a result, there is no benefit for lead agencies to abide by this section, as courts may strike down EIRs on technicalities but do not reward EI Rs for following the CEQA Guidelines’ suggested page limits. As a consequence, modern EI Rs have become extremely expensive documents to prepare, ranging from at least $200,000 to over a million dollars.47 The question, then, is whether such costly documents, which can be hundreds or thousands of pages long and include complex technical reports, are actually serving the general public and furthering CEQA’s primary purpose of fostering informed self-government.
EIRS MUST EFFECTIVELY SERVE THE PUBLIC
CEQA Guidelines section 15006 emphasizes the requirement that EI Rs must be readily understood by the general public. For example, CEQA Guidelines section 15006 reiterates the guidance established in sections 15140 and 15141 that EI Rs be written in "plain language" and with "appropriate page limits."48 EI Rs should also be "useful to decision-makers and the public" and "analytic rather than encyclopedic."49 However, like sections 15140 and 15141, CEQA Guidelines section 15006 has had little influence in CEQA jurisprudence.
CEQA Guidelines section 15006 is rarely cited by the courts. I n fact, it appears that section 15006 is only cited in two cases. In a 1982 opinion, the Fourth District Court of Appeal cited a prior version of section 15006 for the proposition that CEQA is intended to "'[i]nform governmental decisions makers and the public about the potential, significant environmental effects of proposed activities.’"50 More recently in 2017, the California Supreme Court referenced section 15006, subdivisions (i) and (g) for the proposition that a lead agency should consult with other agencies to ensure an EIR will meet the needs of those agencies.51 Thus, no court has meaningfully analyzed the current version of section 15006’s subdivisions that emphasize the creation of EIRs that can be meaningfully understood by the public in a reasonable time. And it’s not that this CEQA Guidelines section is unknown to the courts. For example, the California Supreme Court referenced portions of CEQA Guidelines section 15006 to support its holding that an EIR requires more information regarding related regulatory regimes.52
MODERN EIRS ARE NOT REASONABLY ACCESSIBLE TO THE GENERAL PUBLIC
The CEQA Guidelines expressly provide that "[p]ublic participation is an essential part of the CEQA process."53 To this end, CEQA requires that public agencies make EI Rs publicly available.54 However, CEQA’s public participation requirement is subverted if the general public is unable to comprehend the contents of an EIR due to the length and complexity of the document.55 As pointed out in the context of public review of sports stadium projects, "EIRs are very complex, lengthy documents containing many facts and figures that are hard to understand for the average person with no scientific training."56 Further, the general public should not be expected to read a document that is hundreds or thousands of pages, with appendices that are equally
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long or longer, in order to obtain the information disclosure benefit that CEQA is intended to provide.
MODERN EIRS FAR EXCEED THE LENGTH AND COMPLEXITY ENVISIONED BY THE CEQA GUIDELINES
Modern EIRs trend towards being too lengthy and complex to be easily and quickly understood by the general public. EIRs routinely exceed several hundred pages, often accompanied by even longer appendices containing highly technical reports that can prove challenging to review even for experienced CEQA practitioners.57 The authors have first-hand experience reviewing lengthy and complex EIRs for various projects throughout the state. Two examples include EI Rs for the Austin Quarry project and the Lookout Slough Tidal Habitat Restoration and Flood Improvement ("Lookout Slough") project.
Madera County acted as lead agency and prepared an EI R for the Austin Quarry project-an approximately 348-acre hard rock quarry project.58 The final EIR for the Austin Quarry project, including appendices, is ten volumes. The body of the final revised EIR, which includes red-lined portions of the draft EIR, such as the project description, analysis of impacts and mitigation measures, and alternatives, is 837 pages long, and the final EIR’s responses to public comments are 1,512 pages long. The final EIR appendices are 8,221 pages long. This EIR, including technical appendices, exceeds 10,000 pages. When printed, this EIR fills several banker’s boxes. Considering the length of this final EI R, it is unlikely that members of the public, or even decisionmakers, read more than the 67-page executive summary.59 A critic might point out that the Austin Quarry project involved a surface mine located on previously undisturbed grazing lands, so an EIR for such a project should be extensive. However, even environmental restoration projects require long and technical EIRs.
The California Department of Water Resources acted as the lead agency and prepared an EIR for the Lookout Slough project, which would restore approximately 3,164-acres of tidal marsh and improve flood resilience within the Sacramento-San Joaquin Delta’s estuary.60 Restoration will be accomplished via breaching and degrading existing levees, which will return natural tidal influences to the area adjacent to the Liberty Island Ecological Reserve.61 The Lookout Slough project draft EIR is 460 pages long, and the final EIR is 664 pages long. Appendices for the draft and final EI Rs are 4,298 pages long. This project will fulfill court-mandated restoration intended to benefit special status fish species and result in net environmental benefits.62 However, the Lookout Slough project has been subjected to an arduous and expensive CEQA process, which ultimately reduces State resources available for other restoration projects. Unfortunately, our experience is not the exception; lengthy and expensive CEQA review has become the norm, even for environmentally beneficial restoration projects.63 In fact, the burden CEQA imposes on environmentally beneficial restoration projects was recently addressed by the state Legislature in SB 155 (2021-2022), Cal. Pub. Res. Code § 21080.56, which includes a narrow statutory CEQA exemption for habitat conservation, restoration, protection, and enhancement projects.64 The exemption expires January 1, 2025.
Numerous examples of draft EIRs released in 2021 are electronically available on the Governor’s Office of Planning and Research CEQAnet web portal.65 Illustrative examples of lengthy draft EIRs include:
- A draft EI R for an annexation and a mixed-use development that will likely be used by college students that is 575 pages, with an additional 868 pages of appendices.66
- A draft EI R for the demolition of existing improvements and the construction of 15-story mixed-use hotel and residential building that is 584 pages, with an additional 4,279 pages of appendices.67
- A draft EI R for a general plan update that is 758 pages, with an additional 1,198 pages of appendices.68
- A draft EI R for a regional transportation plan that is 1,323 pages, with an additional 1,007 pages of appendices.69
Several EIRs for renewable energy projects follow the pattern of lengthy EI Rs and technical appendices:
- A draft EI R for two photovoltaic power generating and storage facilities located in Kern County is 857 pages, with a staggering 11,017 pages of appendices.70
- A draft EI R for a photovoltaic power generating and storage facility located in Fresno County is 389 pages, with 1,901 pages of appendices.71
- A draft EI R for photovoltaic power generating and storage facilities located in Riverside County is 612 pages, with 1,092 pages of appendices.72
- A draft EI R for a photovoltaic power generating and storage facility located on Bureau of Land Management land is 500 pages.73 This project is subject to review under NEPA due to its location on federal land, so the CEQA review is limited to the project’s waste discharge permit, issued by the local Regional Water Quality Control Board.74
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The State is under several mandates to achieve renewable energy targets.75 Despite these mandates, renewable energy projects are subject to lengthy CEQA review documents that far exceed the recommended length of EI Rs for projects of "unusual scope or complexity." Exemptions intended to streamline CEQA review of renewable energy projects are too narrow to avoid long EIRs for such projects.76
On the shorter side of recent EIRs, a draft EIR for a community college district facilities master plan is 276 pages long with 586 pages of appendices.77 Also related to education facilities, a draft EIR for a high school stadium lights project is 218 pages long with 143 pages of appendices.78 However, it is questionable whether upgrades to existing educational facilities or a high school stadium lights project should be considered projects of "unusual scope or complexity" pursuant to CEQA Guidelines section 15141 such that the EI Rs warrant more than 150 pages.
THE LENGTH AND COMPLEXITY OF EIRS ARE A DIRECT RESULT OF COURTS BEING TOO EAGER TO OVERTURN EIRS
EI Rs should only be overturned by courts for prejudicial errors.79 As the Third District Court of Appeal explained in the 2012 case, Mount Shasta Bioregional Ecology Center v. County of Siskiyou,80 an error in an EIR must preclude informed public participation (or informed decision making) for that error to be prejudicial.81 Thus, omitting information from an EIR "does not per se constitute a prejudicial abuse of discretion," for example.82 Rather, the question should be whether an EIR fails as an informational document with respect to a general member of the public. Based on this, it would seem reasonable that limited errors, especially in highly technical documents that are hundreds of pages long, would not hinder the public’s overall understanding of the project and environmental concerns. However, with no bright line test for lead agencies to fall back on, it seems relatively easy for courts to find a reason to overturn an EIR.83
Jurisprudence is increasing the cost and complexity of CEQA in other ways as well. When preparing an EI R, lead agencies should be granted deference on issues of fact, including methodology and expert opinion.84 In contrast, courts review EIRs de novo for issues of law.85 However, the California Supreme Court blurred this distinction in 2018, finding that mixed questions of law and fact are generally subject to independent review.86
As another example, the Fifth District Court of Appeal concluded in a 2020 decision that CEQA does not necessarily provide for partial decertification of an EIR, even when an EIR is overturned on limited grounds.87 The Fifth District Court reached this strict interpretation despite the fact that CEQA appears to encourage tailored and narrow remedies when addressing errors in EIRs. Specifically, Public Resources Code section 21168.9 provides that court orders addressing non-compliance with CEQA "shall include only those mandates which are necessary to achieve compliance . . . and only those specific project activities in noncompliance with this division."88 Eliminating the ability of lead agencies to partially decertify an EIR, which has been a common practice,89 does not provide any informational benefit to the general public.
CEQA HAS BECOME INACCESSIBLE TO THE GENERAL PUBLIC AND IS LARGELY LIMITED TO INTERESTS WITH FINANCIAL MEANS AS A RESULT
The time commitment required to reasonably review and understand the average modern EI R is unreasonable for general members of the public. An EIR ranging from 250-500 pages, with appendices ranging from 500 to 1,000 pages, would likely take an experienced land use practitioner up to 40 hours to review. This is a reasonable estimate for an average EIR based on the experience of attorneys at Mitchell Chadwick LLP. As another example, an experienced land use practitioner claimed during a candid conversation with an author of this article that, given forty hours, he or she could find a legal error in any EIR.90 Taking that proclamation at face value, and assigning a billable rate of $425 for a reasonably experienced land use attorney,91 it would cost about $17,000 for that attorney to thoroughly review an average EIR.
Attorneys and consultants are paid for their time to review CEQA documents. Project applicants presumably benefit from spending the resources to review CEQA documents for their projects to ensure legal adequacy. Other special interest groups, such as environmental groups, may either have in-house specialists or the ability to fund CEQA litigation. $17,000 or 40 hours of review may not seem burdensome to these groups. The same is not likely true for an average resident of the State. It would cost an average resident the equivalent of a full work week in time (assuming the same rate of review as an experienced practitioner), or what is likely a significant portion of their annual budget. Thus, the time commitment or financial burden
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required to review long and complex EI Rs tends to, in the authors’ experience, limit CEQA challenges to those with financial resources, whether the challengers be individuals, organizations, or special interest groups.92 For example, the Austin Quarry project’s EIR drew a CEQA lawsuit from a direct economic competitor.93 The Lookout Slough restoration project’s EIR drew four separate CEQA lawsuits, including from two water districts, a water agency, and a city-all financed interests.94
CONCLUSION: CEQA PRACTICES SHOULD BE ADJUSTED TO SERVE THE PURPOSE OF INFORMING THE PUBLIC
CEQA was adopted to inform the public and decisionmakers of the potential consequences of land use planning actions before those actions are approved. However, the general public seems to be largely unfamiliar with the statute, its purpose, or how it functions. In the authors’ experience, if a conversation does not involve a developer, city planner, attorney, lobbyist, or other professional working regularly in the land use planning/environmental field, CEQA is a mystery. Thus, in the authors’ view, there is a substantial gap between the individuals that CEQA is actually reaching and the general public that CEQA was intended to benefit. Perhaps this is because CEQA is treated by the courts as a regulation intended to effect enforcement of environmental protection, similar to the state or federal Endangered Species Acts, federal Clean Water Act, etc. Each published case striking down an EIR adds to the potential length and complexity of future EIRs. However, CEQA is an information-sharing statute intended to benefit the public, and this primary purpose of CEQA cannot be fulfilled if CEQA documents are so long and technically complex as to preclude the general public from reviewing and understanding those documents. Ultimately, the CEQA community shouldn’t be separate from the community where projects are being implemented.
Examples from the CEQA Guidelines’ regulatory history cited herein demonstrate that the length and technical complexity of EI Rs has been a concern for decades. Yet, the current trend is increasingly longer and more complex CEQA documents. CEQA reform could help to reward EIRs that are less technical and more in line with the length recommended by the CEQA Guidelines. For example, CEQA could more clearly emphasize the discretion granted to lead agencies on disputes involving facts, expert opinions, application of scientific methodologies, etc. In addition, the statute could articulate standards of adequacy for CEQA documents and establish a presumption of correctness for documents that meet these standards. But meaningful CEQA reform to shorten EIRs faces several obstacles. CEQA provides leverage for special interest groups that have lobbying influence over the State Legislature. Complex CEQA documents are also good business for consultants and attorneys. Even a narrow statutory CEQA exemption for environmentally beneficial restoration projects, limited in duration, drew vigorous objections.95 It’s unlikely that special interest groups will let go of the leverage CEQA provides them, or that CEQA practitioners will walk away from the business that complex environmental review generates. As it stands, the general public’s relationship with EIRs will remain TL;DR, which impedes meaningful participation in the CEQA process.
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Notes:
1. John T. Wheat is an associate attorney at Mitchell Chadwick, LLP, where his practice focuses on land use and environmental law. He works on a diverse range of projects throughout California, including both development projects and environmental restoration/conservation projects. John was previously an associate attorney at Remy Moose Manley, LLP. He graduated from the University of California, Davis, School of Law-King Hall, in 2011.
2. Ryan W. Thomason is an associate attorney at Mitchell Chadwick, LLP. His practice focuses on land use and natural resources development throughout the State of California. Ryan graduated from the University of the Pacific, McGeorge School of Law, in 2018.
3. The California Environmental Quality Act (CEQA) is codified at California Public Resources Code section 21000 et seq. Generally, CEQA is a legislative scheme enacted to ensure discretionary projects are designed, approved, and constructed so as to minimize environmental impacts. (Cal. Pub. Res. Code §§ 21000, 21001, 21080.) To this end, CEQA requires that public agencies analyze the environmental impacts of projects, including feasible alternatives thereto, and determine whether any given project will create significant environmental effects and to what extent such effects can be reduced or avoided through the implementation of mitigation measures. (See Cal. Pub. Res. Code §§ 21002, 21002.1.) Public agencies are required to analyze the potential environmental impacts of discretionary projects through environmental review documents known as initial studies, negative declarations or mitigated negative declarations, and environmental impact reports ("EIRs"). (Cal. Pub. Res. Code §§ 21064.5, 21100, 21151; Cal. Code Regs. tit. 14, §§ 15063, 15064, subd. (f)(2).)
4. Cal. Code Regs. tit. 14, §§ 15140 and 15141.
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5. See, e.g., section III.A, infra; cf fn. 46.
6. Cal. Pub. Res. Code §§ 21000, 21001; Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection, 187 Cal. App. 4th 376, 395 (2010) (an informed self-government promotes accountability insofar as "’the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees.’" [Citing Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376, 392 (1988).]).
7. County of Inyo v. City of Los Angeles, 160 Cal. App. 3d 1178, 1185 (1984) ("As our prior decisions have been at pains to emphasize, CEQA compels an interactive process of assessment of environmental impacts and responsive project modification which must be genuine. It must be open to the public").
8. Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., 42 Cal. 3d 929, 935 (1986).
9. Cal. Pub. Res. Code § 21003, subd. (b), italics added.
10. No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68, 84 (1974), supplemented 13 Cal. 3d 486 (1975).
11. Cal. Pub. Res. Code § 21151.
12. Cal. Pub. Res. Code § 21100; Cal. Code Regs. tit. 14, §§ 15124, 15125, 15126.4, 15126.6.
13. Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376, 392, 394, 405 (1988); Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d 692, 712 (1990).
14. Cal. Code Regs. tit. 14, § 15121, subd. (a) (2021).
15. Citizens of Goleta Valley v. Board of Supervisors, 52 Cal. 3d 553, 564 (1990).
16. Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376, 392 (1988).
17. Cal. Pub. Res. Code § 21083.
18. California Code of Regulations, Title 14, sections 15000 et seq.
19. Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376, 391, fn. 2 (1988); Muzzy Ranch Co. v. Solano County Airport Land Use Com., 41 Cal. 4th 372, 380, fn. 2 (2007).
20. Cal. Code Regs. tit. 14, § 15002, subds. (a)(1), (4) (2021), italics added.
21. Cal. Code Regs. tit. 14, § 15201 (2021).
22. Cal. Code Regs. tit. 14, §§ 15087, 15088, 15202; Cal. Pub. Res. Code § 21091.
23. California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal. 4th 369, 384 (2015), italics added.
24. Natural Resources Agency, CEQA Guidelines Regulatory History File No. 002975.
25. Cal. Code Regs. tit. 14, § 15140 (2021). A prior version of CEQA Guidelines section 15140, subdivision (b), stated: "Each report shall contain a brief summary of the proposed action and its consequences in language sufficiently simple that the issues can be understood by the average member of the lay public." (Natural Resources Agency, CEQA Guidelines Regulatory History File No. 001437 [Register 80, No. 19-5-10-80].)
26. Natural Resources Agency, CEQA Guidelines Regulatory History File No. 001842 (Text of Adopted Amendments with Statement of Reasons, p. 87).
27. See, e.g., Whitman v. Board of Supervisors, 88 Cal. App. 3d 397, 406, fn. 3 (1979) ("As to the specifics of what must be included in an EIR, see Public Resources Code sections 21100 and 21100.1 and Guidelines section 15140 et seq."); Cleary v. County of Stanislaus, 118 Cal. App. 3d 348, 356 (1981); Twain Harte Homeowners Assn. v. County of Tuolumne, 138 Cal. App. 3d 664, 678 (1982); Association of Irritated Residents v. Kern County Bd. of Supervisors, 17 Cal. App. 5th 708, 739 (2017).
28. San Franciscans for Reasonable Growth v. City and County of San Francisco, 193 Cal. App. 3d 1544, 1549 (1987), citing Oregon Environmental Council v. Kunzman, 817 F. 2d 484, 494 (9th Cir. 1987).
29. San Franciscans for Reasonable Growth v. City and County of San Francisco, 193 Cal. App. 3d 1544, 1549 (1987).
30. Ibid.
31.. Dry Creek Citizens Coalition v. County of Tulare, 70 Cal. App. 4th 20, 28 (1999).
32. Neighbors of Cavitt Ranch v. County of Placer, 106 Cal. App. 4th 1092 (2003).
33. Id. at p. 1103 (2003).
34. Novaresi v. County of Placer, No. C086209, 2020 WL 6336632, at *9 (Cal. Ct. App., Oct. 29, 2020).
35. Ibid.
36. Ibid.
37. Cal. Code Regs. tit. 14, § 15141 (2021).
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38. The current version of CEQA Guidelines section 15141 was previously codified as CEQA Guidelines section 15140.5. Amendments to the CEQA Guidelines that added section 15140.5 were adopted on April 6, 1980. (Natural Resources Agency, CEQA Guidelines Regulatory History File No. 001437 ["15140.5. PAGE LIMITS. The text of draft environmental impact reports shall normally be less than 150 pages and for proposals of unusual scope or complexity should normally be less than 300 pages."].) Section 15140.5 was re-codified as the current section 15141 in a rewrite of the CEQA Guidelines made effective August 1, 1983, (Natural Resources Agency, CEQA Guidelines Regulatory History File No. 002975.)
39. Natural Resources Agency, CEQA Guidelines Regulatory History File No. 001842 (Text of Adopted Amendments with Statement of Reasons, p. 87).
40. City of Fremont v. San Francisco Bay Area Rapid Transit Dist., 34 Cal. App. 4th 1780, 1784 (1995) (noting that the EIR was "by any measure, a massive document" without further discussion of EIR length in published opinion).
41. River Valley Preservation Project v. Metropolitan Transit Development Bd., 37 Cal. App. 4th 154, 175, fn. 22 (1995) (noting that EIRS for complex proposals should normally be less than 300 pages without further discussion of EIR length).
42. Anderson v. City and County of San Francisco, No. A129910, 2013 WL 144915, at *8, fn. 12 (Cal. Ct. App., Jan. 14, 2013).
43. Ibid.
44. Id., citing 1 Practice Under the California Environmental Quality Act, § 11.9, p. 545 (Cont.Ed.Bar 2012).
45. Amicus Curiae Brief in Support of Real Party in Interest, League of California Cities, et al., Sierra Club v. County of Fresno, 6 Cal. 5th 502 (2018).
46. See, e.g., John Watts, Reconciling Environmental Protection with the Need for Certainty: Significance Thresholds for CEQA, 22 Ecology L.Q. 213, 317, fn. 68 (1995) ("Most EIRs exceed the page limits, with many running at hundreds to even more than one thousand pages in length").
47. See, e.g., Kolkey, Daniel, CEQA: How to mend it since you can’t end it (Feb. 13, 2019), The Orange County Register, available at: https://www.ocregister.com/2019/02/13/ceqa-how-to-mend-it-since-you-cant-end-it/.
48. Cal. Code Regs. tit. 14, § 15006, subds. (q), (n) (2021).
49. Cal. Code Regs. tit. 14, § 15006, subds. (s), (o) (2021).
50. Citizens of Lake Murray Area Assn. v. City Council, 129 Cal. App. 3d 436, 440 (1982).
51. Banning Ranch Conservancy v. City of Newport Beach, 2 Cal. 5th 918, 936 (2017).
52. Id. at pp. 936-937.
53. Cal. Code Regs. tit. 14, § 15201 (2021), underline added.
54. See ibid.; Cal. Code Regs. tit. 14, § 15203 (2021).
55. See 1 Practice Under the California Environmental Quality Act (Cont.Ed.Bar 2012) § 11.9, p. 545 (inclusion of "massive amounts of technical information . . . can [] result in a lengthy, detailed, and complex EIR that decision-makers will not read and members of the public will not understand."); 2 Practice Under the California Environmental Quality Act, § 17.7 (Cont.Ed.Bar 2020), p. 17-9 ("A requirement that decision-makers read the entire EIR would be unrealistic. EIRs are usually technical, long, and tedious, and county supervisors, city council members, and agency board members do not have the time to read the EIR for every project they consider. Instead, they often rely on the EIR’s executive summary or written reports and oral presentations by staff, which summarize the information contained in the report.")
56. Alex Porteshawver, Under Review: Stadium Construction and State Environmental Policy Acts, 21 Marq. Sports L. Rev. 339 at p. 352 (2010).
57. There is an inherent tension within CEQA, the CEQA Guidelines, and court decisions addressing the same. On one hand, CEQA requires that EIRs be user-friendly, reasonably accessible to the general public, and conform to the 300-page limitation. (See discussions in sections II.A., II.B. and II.C., supra.) However, on the other hand, public agencies and project proponents risk having a court invalidate a project approval for failing to provide a sufficiently detailed environmental analysis. (See, e.g., Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376 (1988); Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004); Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018); see also Cal. Pub. Res. Code § 21061 [defining an EIR as a "detailed statement . . ." (underline added)].)
58. Austin Quarry Project, Final Environmental Impact Report, State Clearinghouse Number 2010071036 (June 2016), available at: https://ceqanet.opr.ca.gov/Project/2010071036.
59. See, e.g., Austin Quarry Project, Final Environmental Impact Report, Executive Summary, at pp. ES-1 to ES-63.
60. Lookout Slough Tidal Habitat Restoration and Flood Improvement Project, Draft Environmental Impact Report, State Clearinghouse Number 2019039136 (Dec. 2019), available at: https://ceqanet.opr.ca.gov/Project/2019039136.
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61. Lookout Slough Tidal Habitat Restoration and Flood Improvement Project, Draft Environmental Impact Report, at pp. III-1 to III-2, III-7.
62. Lookout Slough Tidal Habitat Restoration and Flood Improvement Project, Draft Environmental Impact Report, at pp. II-1 to II-2.
63. See, e.g., Letitia Grenier, Stephanie Panlasigui, Crissy Pickett, and Gokce Sencan, Advancing Ecosystem Restoration with Smarter Permitting Case Studies from California, Public Policy Institute of California, p. 4 (August 2021), available at: https://www.ppic.org/publication/advancing-ecosystem-restoration-with-smarter-permitting-case-studies-from-california/ (permitting ecosystem restoration projects can be an expensive and inefficient process for permittees due to "a cascade of regulatory hurdles"); Lori Pottinger and Erika Lovejoy, A Faster Track for Ecosystem Restoration, Public Policy Institute of California (Aug. 24, 2020), available at: https://www.ppic.org/blog/a-faster-track-for-ecosystem-restoration/ (stating "the regulatory process for restoration is extremely complex and inefficient—which can discourage project proponents"); Lori Pottinger and Letitia Grenier, How Permitting Slows Ecosystem Recovery and Climate Resilience Projects, Public Policy Institute of California (July 13, 2020), available at: https://www.ppic.org/blog/how-permitting-slows-ecosystem-recovery-and-climate-resilience-projects/ (stating the environmental permitting process consists of "a lot of hoops to jump through—important hoops, but they do make it complex and time consuming [to permit ecosystem restoration projects]").
64. Mitchell Chadwick, LLP, attorneys Braiden Chadwick and John Wheat worked on the initial draft language for this statutory exemption.
65. Accessible at: https://ceqanet.opr.ca.gov/.
66. Yosemite Avenue-Gardner Avenue to Hatch Road Annexation Project, Draft Environmental Impact Report, State Clearinghouse Number 2016121029 (Sept. 2021), available at: https://ceqanet.opr.ca.gov/2016121029/4.
67. 8850 Sunset Boulevard Project, Draft Environmental Impact Report, State Clearinghouse Number 2019090447 (Sept. 2021), available at: https://ceqanet.opr.ca.gov/2019090447/3.
68. Rancho Cucamonga General Plan Update 2020, Draft Environmental Impact Report, State Clearinghouse Number 2021050261 (Sept. 2021), available at: https://ceqanet.opr.ca.gov/2021050261/2.
69. San Diego Forward: The 2021 Regional Plan, Draft Environmental Impact Report, State Clearinghouse Number 2010041061 (Aug. 2021), available at: https://ceqanet.opr.ca.gov/2010041061/9.
70. AVEP Solar Project, Draft Environmental Impact Report, State Clearinghouse Number 2019090215 (Jan. 2021), available at: https://ceqanet.opr.ca.gov/2019090215/3.
71. Scarlet Solar Energy Project, Draft Environmental Impact Report, State Clearinghouse Number 2018091022 (May 2021), available at: https://ceqanet.opr.ca.gov/2018091022/2.
72. Arica and Victory Pass Solar Projects, Draft Environmental Impact Report, State Clearinghouse Number 2020100076 (Aug. 2021), available at: https://ceqanet.opr.ca.gov/2020100076/3.
73. Oberon Renewable Energy Project, Draft Environmental Impact Report, State Clearinghouse Number 2021030426 (Aug. 2021), available at: https://ceqanet.opr.ca.gov/2021030426/2.
74. See ibid.
75. California Senate Bill 100 (2018) revised the Renewables Portfolio Standard to require 60% of electricity sales come from renewable sources by 2030 and 100% by 2045; see also 2021 SB 100 Joint Agency Report Summary: Achieving 100% Clean Electricity in California, California Energy Commission, Docket Number 19-SB-100 (March 15, 2021), available at: https://www.energy.ca.gov/news/2021-03/california-releases-report-charting-path-100-percent-clean-electricity
76. See, e.g., Cal. Pub. Res. Code § 21080.35 (statutory exemption for rooftop or parking lot solar energy system installation).
77. Evergreen Valley College Facilities Master Plan, Draft Environmental Impact Report, State Clearinghouse Number 2021010261 (Aug. 2021), available at: https://ceqanet.opr.ca.gov/2021010261/3.
78. Carmel High School Stadium Lights, Draft Environmental Impact Report, State Clearinghouse Number 2021050293 (Aug. 2021), available at: https://ceqanet.opr.ca.gov/2021050293/2.
79. See Cal. Pub. Res. Code § 21168.5 (an agency’s determination, finding, or decision should only be set aside where "there was a prejudicial abuse of discretion").
80. 210 Cal.App.4th 184, 202 (2012).
81. Mount Shasta Bioregional Ecology Center v. County of Siskiyou, 210 Cal. App. 4th 184, 202 (2012), citing Cal. Pub. Res Code § 21005, Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d 692, 712 (1990).
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82. Berkeley Keep Jets Over the Bay Committee v. Board of Port Com’rs, 91 Cal. App. 4th 1344, 1355 (2001); see, e.g., Clover Valley Foundation v. City of Rocklin, 197 Cal. App. 4th 200, 222 (2011) (No prejudicial error when lead agency complied with requirements not to disclose specific information regarding location and character of archeological resources).
83. See, e.g., Landwatch Monterey County v. County of Monterey, Case No. H046932, 2021 WL 1169397 at pp. *19-*24 (2021) (finding an EIR deficient for failure to adequately analyze the project’s impacts on a wildlife corridor despite the EIR’s reference to a technical report related to a nearby project that studied wildlife movement in that project’s area); Watch v. Placer County, Case No. C088130, 2021 WL 3732238 (2021) (unreported) (finding an EIR to be deficient for failure to meaningfully analyze VMT impacts on nearby Lake Tahoe, for failure to meaningfully assess-and not merely summarize-traffic impacts on Lake Tahoe and the basin’s air quality, for failure to adequately analyze traffic impacts as they relate to emergency evacuation plans, and failure to analyze and mitigate construction noise impacts]; Living Rivers Council v. County of Napa, Case Nos. A154253, A154300 and A154314, 2019 WL 4746753 at pp. *29-*30 (2019) (unreported) (finding substantial evidence did not support the EIR’s conclusion that the project would have a less-than-significant GHG emission impact largely due to insubstantial evidence proving that trees would be conserved on the property in the future)
84. See Sierra Club v. County of Napa, 121 Cal. App. 4th 1490, 1497-1498 (2004); San Franciscans Upholding the Downtown Plan v. City & County of San Francisco, 102 Cal. App. 4th 656, 675 (2002); Cal. Pub. Res. Code § 21080, subd. (e); Cal. Code Regs. tit. 14, § 15384, subd. (b) (2021).
85. Protect Niles v. City of Fremont, 25 Cal. App. 5th 1129, 1139 (2018); San Franciscans Upholding the Downtown Plan v. City & County of San Francisco, 102 Cal. App. 4th 656, 674 (2002).
86. Sierra Club v. County of Fresno, 6 Cal. 5th 502, 516 (2018).
87. Sierra Club v. County of Fresno, 57 Cal. App. 5th 979 (2020).
88. Cal. Pub. Res. Code § 21168.9, subd. (b).
89. See, e.g., Center for Biological Diversity v. Department of Fish & Wildlife, 17 Cal. App. 5th 1245 (2017) (holding California Public Resources Code section 21168.9, subd. (a) "clearly allows a court to order partial decertification of an EIR"); Michelle Ouellette and Ali Tehrani, "The Lord’s Work": An Overview of CEQA’s Judicial Remedies and Recommendations for Reform, 25 Hastings Envtl. L.J. 85, 93-94 (Winter 2019) (discussing that many courts have exercised their discretion and have partially decertified EIRs so as to ensure a portion of a project is allowed to proceed).
90. Personal communication with John Wheat, approximately May 2015.
91. See Heron Bay Homeowners Assn. v. City of San Leandro, 19 Cal. App. 5th 376, 385 (2018).
92. For example, individuals and small groups frequently contact Mitchell Chadwick, LLP, regarding potential CEQA litigation but are unable to meet the firm’s litigation retainer requirements. An article from Holland & Knight found that "Not In My Backyard" ("NIMBY") opponents comprise "by far the largest number of project opponents", and such NIMBYs are "often characterized as ‘older’ or ‘wealthier’ or ‘less ethnically diverse’ than the part of the population that would benefit from the challenged project . . .." (Jennifer Hernandez, David Friedman and Stephanie DeHerrera, In the Name of the Environment, How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities-and Proposed Reforms to Protect the Environment from CEQA Litigation Abuse, Holland & Knight LLP, at p. 27 (2015), available at: https://issuu.com/hollandknight/docs/ceqa_litigation_abuseissuu?e=16627326/14197714.) When discussing the financial means of NIMBYs, Holland & Knight’s 2015 report goes on to quote a land use expert, Mike Saint, who stated, "[t]he people who are most apt to fight things have six-figure incomes and nice houses and college and post-college degrees." (Ibid.) Importantly, the Holland & Knight 2015 report provides: "CEQA lawsuits are filed by businesses seeking to derail competitors, labor unions wanting to control the allocation of jobs, NIMBYs opposed to neighborhood-scale change even when limited to the repair of existing houses or occupancy of existing buildings, and lawyers who collect substantial, confidential monetary settlements without ever identifying their clients. Collectively, these paint a troublesome picture of undesirable, and abusive, civil lawsuits clogging California’s overburdened and underfunded judiciary." (Id. at p. 28.)
93. Shimmick Construction Company, Inc. v. County of Madera, Madera County Superior Court Case No. MCV073009 (petition filed Oct. 13, 2016).
94. City of Vallejo v. State of California State Department of Water Resources, Contra Costa County Superior Court Case No. MSN-21-0558 (multiple cases consolidated June 21, 2021).
95. See, e.g., Des Jardins, Deirdre, Natural Resources budget trailer bill would exempt habitat restoration projects from CEQA (September 6, 2021), California Water Research, available at: https://cah2oresearch.com/2021/09/06/natural-resources-budget-trailer-bill-would-exempt-habitat-restoration-projects-from-ceqa/ (recommending that legislature reject statutory exemption).
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