Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute.  In the end, few substantive changes are made.  This year is no exception. (See June 14th post).

Many of the recurring concerns involve the unpredictability of litigation challenging EIRs.  As is illustrated by the recent appellate court opinion in North Coast Rivers Alliance v Marin Municipal Water District, that unpredictability arises not from deficiencies in CEQA’s standard for judicial review, but from the failure of some courts to apply it.

The trial court in North Coast Rivers put the EIR a water district had prepared for a desalination project under a microscope, and found its treatment of eleven separate issues “inadequate.”  By contrast, in a straightforward application of CEQA’s standard of review — which requires judicial deference to agency findings of fact and policy determinations — the court of appeal reversed the lower court judgment and upheld the EIR.

Among other things, the court of appeal’s meticulous and carefully reasoned opinion addresses:

• AB 32 standards and greenhouse gas significance thresholds
•  Significance thresholds for aesthetic impacts
•  Mitigation standards and deferred mitigation
•  Description of the affected environment
•  Use of pilot studies to assess potential impacts
•  Treatment of regulatory agency protocols for analyzing impacts
•  Analysis of inconsistencies with relevant plans
•  Triggers for recirculation of an EIR

A detailed summary of the trial and appellate courts’ contrasting rulings follows.
Continue Reading Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?