A BRIEF(?) OVERVIEW OF CEQA – Part 1
The California Environmental Quality Act (CEQA) was adopted in 1970 in response to the National Environmental Protection Act (NEPA) and growing public concern over environmental damage caused by major civil infrastructure projects such as highways and dams. Over the years, the kind of “projects” which trigger this review have expanded beyond the big engineering projects to now include Community Plans, housing projects, and tree replacement programs. The basic purpose of CEQA is to:
Inform governmental decision makers, such as City Councils, and the public about the potential significant environmental effects of proposed activities,
Find ways that environmental damage can be avoided or significantly reduced,
Require project changes to reduce environmental impacts by adopting alternatives or ways to reduce the impact(s) when possible, and
To make known to the public the reasons why a project was approved if significant environmental effects are involved.
The “Environment”
While the term environmental protection may bring to mind the thought of just protecting trees, waterways, and animal habitat, CEQA is much more comprehensive in scope. CEQA requires a project to assess the potential impacts on the environment with respect to air quality, natural resources, cultural and historic resources, visual aesthetics, and much more. As we develop more insight into the ways our environment can be impacted, CEQA assessment guidelines are routinely revised and updated to reflect these new insights.
Roles Affecting CEQA
A “lead agency” is the public agency with principal responsibility of conducting the process of approving (or mitigating) a project subject to CEQA. In the City of Los Angeles, the Department of City Planning (DCP) is the lead agency for projects involving land use and historic buildings. A “responsible agency” is a public agency with discretionary approval authority over a part of the project. The responsible agency may serve in an advisory role to the lead agency.
The lead agency decides which environmental document(s) apply, and they oversee their preparation. Common CEQA documents include an Initial Study (IS) followed by a Negative Declaration (ND), a Mitigated Negative Declaration (MND), or Environmental Impact Report (both Draft (DEIR) and Final (FEIR)). An EIR requires the most extensive level of analysis, an ND the least. CEQA regulations also allow limited scope EIRs that depend on the specifics of the proposed project.
The CEQA Process
A CEQA flow chart from the Los Angeles Department of City Planning (DCP) is presented below. The shaded part (lower center and right) will not be discussed today. Today’s topic addresses the initial questions that decide if an Initial Study is needed. The Initial Study precedes the preparation of an EIR. Future topics will include this part of the EIR process. Screening questions include:
Is the action a project as defined by CEQA?
Does the project qualify for a Statutory Exemption from CEQA?
Does the project qualify for a Categorical Exemption from CEQA?
A “CEQA project” applies to projects performed by a public agency, funded by a public agency, or requires a permit issued by a public agency. A "project" means the whole of an action that has a potential to physically change the environment and it may require the same agency to make an informed decision or judgement about the project (i.e., discretionary approval). A project in Los Angeles often may include construction activities, clearing or grading of land, improvements to existing structures, and activities or equipment involving the issuance of a permit.
Conditions for Exemption
When an applicant submits their project to the lead agency for approval, a decision is made as to how the CEQA regulations apply, including any exemptions. Three conditions allow for exemption. A project is exempt from CEQA if:
By statute (CEQA specifically exempts the project),
The project is ministerial or categorical,
It can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (also known as the general rule exemption).
Statutory exemptions tend to be specific. Examples include ongoing projects that pre-date the adoption of CEQA, the adoption of Coastal Plans and Programs, projects that are due to an emergency response, and specific mass transit projects. A list of the twenty-three statutory exemptions can be found in the CEQA Handbook, Article 18, Sections 15260 through 15285.
When a project qualifies for statutory exemption, the lead agency will prepare a Notice of Exemption (NOE) and file it with the County Clerk. A recent addition to the CEQA process is the inclusion of Transit Priority Projects (TPP). A TPP is a new class of project created by The Sustainable Communities and Climate Protection Act of 2008 (SB 375). This law restricts the scope of CEQA analysis to promote more transit-oriented projects.
Projects are ministerial when the approving agency does not have to decide as to project approval. One example is when a company applies for a building permit for which the rules are well defined. Issuing the permit is a simple matter for the public official to confirm that the permit application follows the rules. In contrast, when a project requires both ministerial and discretionary action, the project is defined as discretionary and is subject to CEQA.
Categorical Exemptions
A categorical exemption is based on a finding by the California Secretary for Resources that the class of project does not have a significant effect on the environment. The list of categorical projects (CEQA Guidelines, Article 19, Sections 15200 through 15333) includes 33 classes with many specific qualifiers. Information about five categorical exemptions that most often apply to urban renewal projects may be found in Attachment.
The five classes of interest include:
Class 1 - Existing Facilities
Class 2 - Replacement or Reconstruction
Class 3 - New Construction or Conversion of Small Structures
Class 31 - Historical Resource Restoration/Rehabilitation
Class 32 - In-Fill Development
When a project qualifies for categorical exemption, the lead agency will prepare a Notice of Exemption (NOE) and file it with the County Clerk. The NOE provides the basis on which the exemption is granted. Out of the thirty-three categorical classes, Class 31 and Class 32 have the most importance in relation to urban development and the Hollywood community.
Class 31 Historical Resource Restoration/Rehabilitation
The Class 31 exemption specifically applies to historical buildings. Restoration and rehabilitation projects are exempt from CEQA provided all project work conforms with the Secretary of the Interior’s Standards for the Treatment of Historic Properties. A categorical exemption shall not apply to a project that may cause substantial adverse changes in the significance of a historic resource. This exemption implies that all work done on a historic resource must comply with the Secretary of Interior standards or be subject to CEQA.
Class 32 In-Fill Development
The CEQA exemption with the most potential impact to the Hollywood community is Class 32, in-fill development. The term “in-fill development” applies to projects that look to build upon unused or underutilized land within an urban area. Instead of building on vacant land outside the urban core (i.e., sprawl), in-fill development builds on land inside the urban core that may now be occupied by parking lots, old commercial buildings, or low-density housing.
For a project to qualify for a Class 32 exemption, it must be consistent with the Community Plan and all applicable plan policies, zoning designations, and regulations. The proposed project must be within city limits on a project site of no more than five acres. In addition, the project site must have no value as habitat for endangered, rare, or threatened species. The project must not result in any significant effects relating to traffic, noise, air quality, or water quality and the site can be adequately served by all required utilities and public services.
When filing for a Class 32 exemption, the project applicant must provide City Planning with the following items, reports, or documents to ensure compliance:
Environmental Assessment Form (EAF), including required exhibits.
Traffic Study, if required, for projects that exceed the Traffic Study Exemption Thresholds set by the Department of Transportation.
Air Quality Study, if required, for projects that exceed interim air quality screening criteria. Projects of less than 80 residential units, less than 75,000 square feet of non-residential use, and less than 20,000 cubic yards of soil export are not likely to exceed the thresholds set by the South Coast Air Quality Management District (SCAQMD).
Other studies may include Noise, Environmental Site Assessment, Historic Resource Assessment, and Biological Survey and Impact Assessment.
The Class 32 exemption is often misused as a “bypass” for public environmental review. It can be especially damaging for historic resources affected by projects because Los Angeles allows the developer to hire the consultant tasked with preparing the historic resource assessment. This results in some developers shopping around for a consultant who is willing to “reassess” the importance of the historic building, resulting in an easier path towards demolition.
Currently, the Class 32 exemption most often applies to small to medium size residential and commercial projects. This is an assumption; actual data is lacking. A concern I have is that the exemption will soon be applied to large and mega scale projects, thereby bypassing all public review as required by CEQA. In the past, these projects did not qualify for exemption because they exceeded the allowable density set by local zoning. This hurdle will soon be reduced or eliminated due to the substantial upzoning proposed within the pending Hollywood Community Plan Update.
I think that’s enough material to cover for today. The next part of this series will investigate the CEQA process associated with the preparation and issuance of a traditional EIR.
This post originally appeared on the Hollywood Heritage Preservation Resource Center website on 18 Sept 2023. I am indebted to members of the Hollywood Heritage Preservation Committee for their review and support and to Carlyle Coach for assistance with the graphics.
The information presented in this blog is for informational purposes only and no claim is made as to the legal accuracy of the information provided. CEQA regulations are complex and subject to change. Readers seeking additional information should consult the 2023 CEQA Statues & Guidelines handbook issued by the Association of Environmental Professions.
Correct. CEQA does not stop development. CEQA works to make development projects environmentally responsible and democratic, so that people have a say in what happens in their community. But big development has been working hard to strip CEQA from us, which is why 99% of projects are now exempted from review under CEQA and real estate investors can now clear cut a treed lot next to your single family home in LA and build 8 rental units there without any consideration or review of the potential adverse impacts to you or your neighbors.
CEQA is California’s bedrock environmental law to protect the environment from development but not anymore because building projects are now categorically exempted from CEQA 99% of the time, thanks to corrupt politicians that prioritize the interests of big real estate over the environment.