Protecting The Environment: NEPA v. CEQA
The late 1960’s and early 1970’s were a revolutionary time for the role of government and the protection of the natural environment. For perhaps the first time in the nation’s history, the general public became aware and concerned about the effect humans were having on the environment and demanded that measures be taken to protect the delicate balance of nature. To that end, legislatures across the Country passed substantial and wide-ranging environmental protection legislation.
The federal government with the passage of the National Environmental Policy Act of 1969 adopted one of the first measures to provide for environmental protection. ("NEPA") The purpose of NEPA was to force federal agencies to engage in informed decision making by considering environmental concerns when proposing or approving projects completed by the federal government or paid for by taxpayer dollars. In response to NEPA, state legislatures across the Country began passing legislation designed to make NEPA’s goals and environmental protections state priorities and state goals.
Nine months after Congress passed; California passed a similar measure entitled the California Environmental Quality Act. ("CEQA") CEQA incorporated many of the same stated goals and provisions of NEPA. In fact, NEPA and CEQA are so similar in nature and structure that California Court Cases have held that Federal Cases interpreting the NEPA provisions are persuasive authority in interpreting the meaning of many of the provisions found in CEQA.
Even though NEPA and CEQA are similar in nature and structure, there are substantive and important differences in how the statutes work. There are also important differences in how Courts have interpreted NEPA and CEQA in the over thirty years since they became law. The purpose of this paper is to show the basic formation and history of NEPA and CEQA and highlight the relevant substantive differences between the two acts as highlighted by the Courts. This paper also suggests that CEQA is a more effective mechanism to protect the environment and forward the aspirational goals announced by NEPA that revolutionized environmental legislation over thirty years ago. In short, this paper suggests that CEQA is what Congress intended when it passed NEPA.
II. OVERVIEW OF THE NATIONAL ENVIRONMENTAL POLICY ACT
The National Environmental Policy Act of 1969 ("NEPA") was passed by Congress and signed by President Richard Nixon in response to growing concerns for protecting the environment. The statute, along with the subsequently formed Council on Environmental Quality (CEQ), comprehensively outlined the procedural methods and substantive policies for protecting the environment. NEPA was a landmark statute in that for the first time, Congress declarared that protection of the environment was a national priority. As the Court in Calvert Cliffs’ Coordinating Committee, Inc., v. U.S. Atomic Energy Commission stated:
"Congress did not establish environmental protection as an exclusive goal; rather, it desired a re-ordering of priorities, so that environmental costs and benefits will assume their proper place along with other consideration."
In passing NEPA, Congress declarared that the Federal Government must use "all practicable means and measures to protect environmental values. To that end, Congress declared in the NEPA statute itself:
The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
At the heart of the NEPA statute is its requirement that every federal agency must submit an Environmental Impact Statement ("EIS") when any proposed project or legislation will have a significant effect of the human environment. NEPA requires the EIS to be a detailed statement outlining the project or legislation to be completed and its possible effects on the environment. NEPA also requires that the EIS discuss possible alternatives and mitigation measures that can be taken to reduce environmental effects. NEPA however does not require that the lead agency take any action to implement any mitigation measures to reduce environmental damages caused by the proposed project or legislation. NEPA only requires that the lead agency show that these mitigation and alternative measures were considered.
III. OVERVIEW OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
On September 18, 1970, nine months after NEPA went into effect, the Governor of California signed into law the Environmental Quality Act of 1970. Sections 21000 and 21001 of CEQA contain declarations of policy closely reminiscent of Sections 101 and 102 of NEPA. Section 21100 of CEQA follows Section 102(2) (c) of NEPA almost verbatim. CEQA is a comprehensive scheme designed to provide long-term protection to the environment. In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. Courts have determined that legislature intended that CEQA is to be interpreted "to afford the fullest possible protection to the environment within the reasonable scope of the statutory language."
Similar to NEPA, at the heart of the CEQA statute is the Environmental Impact Report ("EIR"). The purpose of the EIR is to inform the public and its responsible officials of the environmental consequences of their decisions before the agency acts. Thus, the EIR "protects not only the environment but also informed self-government." CEQA provides that an EIR is an environmental impact informational document that every public agency must consider prior to its approval or disapproval of a projects or legislation. The statutory requirements for an impact report are similar to NEPA's, although CEQA also requires consideration of "growth-inducing" effects and energy conservation mitigation measures. As courts have noted, the impact report is an "alarm bell" and the "heart" of the environmental policy act.
CEQA requires an Environmental Impact Report ("EIR") to reflect a good faith effort at full disclosure but does not mandate perfection, nor does it require an analysis to be exhaustive. Analysis in an EIR "must be specific enough to permit informed decision making and public participation.... The need for thorough discussion and analysis is not to be construed unreasonably, however, to serve as an easy way of defeating projects. ‘Absolute perfection is not required."
CEQA mandates that the EIR contain: 1) The environmental impact of the proposed action; (2) Any adverse environmental effects which cannot be avoided if the proposal is implemented; (3) Mitigation measures proposed to minimize the impact; (4) Alternatives to the proposed action; (5) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (6) Any irreversible environmental changes which would be involved in the proposed action should it be implemented.
IV. SIGNIFICANT DIFFERENCES BETWEEN NEPA AND CEQA
While NEPA and CEQA have similar goals of environmental protection and similar statutory provisions, the Courts in the past thirty years have interpreted these statutes differently in some substantive areas. Furthermore, the Statues themselves have some important and significant inherent difference themselves.
1. While NEPA Has Been Interpreted to Be Solely a Procedural Requirement, CEQA Has Been Determined to Contain Both Procedural and Substantive Aspects.
As interpreted by Federal Courts over the past thirty years, NEPA is a procedural requirement and does not require Federal Agencies preparing an EIS to avoid or mitigate impacts even if mitigation is feasible. In short, NEPA is not a substantive obstacle to any proposed project but merely a box on a procedural checklist. NEPA itself does not mandate particular results, but simply prescribes the necessary process for federal agencies to follow when making significant decisions to ensure that environmental concerns are addressed. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Courts when reviewing whether NEPA has been followed only take a hard look to determine whether the federal agency has considered the adverse environmental effects and do not look to determine whether the agency’s determination was reasonable.
By contrast, while CEQA has similar procedural requirements as NEPA, CEQA also has substantive requirements as well. As the Court in Qual Botanical Gardens stated:
"In addition to intent to require governmental decision-makers to consider environmental implications of their decisions, legislature, in enacting California Environmental Quality Act (CEQA), also intended to provide certain substantive measures for protection of environment."
CEQA not only requires that there be a disclosure of significant environmental effects, but it also requires the lead agency to identify ways to reduce or avoid environmental damages. Furthermore, CEQA requires agencies to implement alternative or mitigation measures if they are feasible and found to substantially lessen the significant environmental effects.
The specific CEQA provision states:
The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this division are intended to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects.
In order the approve a project without these mitigation measures the lead agency must make a factual finding that specific economic, social, or other conditions make the mitigation measures infeasible. Before approving a project, the CEQA requires that the lead agency find either that the project's significant environmental effects identified in the environmental impact report (EIR) have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits.
Both NEPA and CEQA contain procedural requirements that if not complied with will halt any proposed project. However, procedure is where NEPA ends as the Federal Courts have interpreted it in the past thirty years. CEQA on the other hand has substantive requirements that agencies must be adhere to in order for a project or legislation to be approved and allowed to move forward. This is a substantive difference between NEPA and CEQA that has led many academic commentators to conclude that CEQA is a better means at achieving environmental protection.
2. The Standard For When A Cumulative Effects Analysis Is Required Is Less Stringent Under NEPA than CEPA.
CEQA requires analysis of the cumulative effect of any proposed project or series of individual projects that are going to have a significant cumulative effect on the environment. In Association For a Cleaner Environment v. Yosemite Community College District, Plaintiffs filed suit against a community college for its failure to perform an initial environmental study in connection with its decision to close and remove a campus shooting range and transfer certain classes to a range off campus. The California Fifth District Court of Appeal reversed the trial court’s denial of Plaintiff’s writ of mandamus and concluded that the whole of the community college's action constitutes a project for purposes of CEQA.
In reversing the trial court, the Court of Appeal held that CEQA requirements cannot be avoided by chopping up proposed projects into bite-size pieces which, individually considered, might be found to have no significant effect on the environment or to be only ministerial. The Court found that because the combination of each of individual projects has the potential for direct or indirect physical change in the environment, CEQA’s "project" requirement was met and therefore and EIR was mandated.
A different result occurs under NEPA. CEQ regulations define a "cumulative impact as:
[T]he impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
NEPA regulations further define what projects must be analyzed together. The regulation states:
A responsible entity must group together and evaluate as a single project all individual activities that are related on either a geographical or a functional basis, or are logical parts of a composite of contemplated actions.
NEPA’s geographical and functional basis standard is a much different standard than CEQA’s standard that projects that combined may have environmental effects must be analyzed for their cumulative effect.
3. The Threshold Standard to Trigger CEQA is Lower than the Standard to Trigger NEPA.
Under CEQA there is "a low threshold requirement for preparation of an EIR" and a "preference for resolving doubts in favor of environmental review"
An EIR must be prepared "whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact." CEQA requires state and local agencies are to prepare impact reports on "any project they intend to carry out or approve that may have a significant effect on the environment." In short, CEQA demands that an EIR must be prepared at a very early stage of the planning process.
Under NEPA, there must be "major federal action" that will significantly affect the human environment in order to require a NEPA EIS. As construed by the Courts, this standard has led to much litigation and serves as a higher threshold to require NEPA review. For example, in Kleppe v. Sierra Club, the United States Supreme Court reversed a Court of Appeals decision that a coal mining company that planned to mine coal systematically throughout a region must prepare an EIS relating to the whole region where the coal mining activities where to take place. The Supreme Court held that a region wide environmental impact statement was not required absent an existing proposal for region wide action. This was despite evidence that the company had completed numerous studies and submitted draft proposals to the lead agency showing where and how the coal company intended to proceed. Moreover, the Court held that that an EIS is not required until an agency makes a recommendation or report on a Proposal for major federal action. Most importantly, the Court held that an EIS is not required until the agency actually submits its formal recommendation or proposal.
In short, NEPA requires that EIS when the agency is ready to submit a formal proposal or recommendation. By its very nature, this requirement is much later in the planning process that what is required under CEQA.
4. The NEPA and CEQA Exclusions and Exemption Provisions Are Substantively Different.
NEPA, through CEQ regulations, allows agencies to make categorical exceptions that certain actions that the agencies take, particularly repetitive and routine actions, will never trigger NEPA’s EIR requirement. In Citizen’s Committee to Save Our Canyons v. United States Forest Service, a nonprofit environmental group brought an action alleging that the Forest Service had violated NEPA and the National Forest Management Policy Act (NFMA) in connection with two transactions relating to development of a ski resort. The Forest Service decided that the interchange of public and private lands fell within a categorical exclusion exempting land exchanges from NEPA review. The 10th Circuit Court of Appeals held as a matter of law that "once an agency establishes categorical exclusions, its decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious." Furthermore, the Court sustained the Forest Service’s analysis that the interchange of undeveloped land to a land developer for the purpose of building a ski resort was a transfer of land where the resulting land uses remain essentially the same.
The Court affirmed the agency’s determination that an EIS was not required under NEPA. This amount of deference given to an agency’s decision to create a categorical exclusion is one of the major criticisms of NEPA as interpreted and implemented in the past thirty years. One commentator argues the CEQ's authorization for agencies to rely on categorical exclusions creates opportunities for abuse and agencies such as the Forest Service have transformed categorical exclusions from a narrow procedural mechanism meant to avoid unnecessary paperwork into a gaping hole in the NEPA requirements, beckoning to agencies as a "panacea" for environmental regulatory obstacles.
CEQA like NEPA does allow for exemptions and the statute itself sets these out. However, unlike NEPA, only those projects having no significant effect on the environment are categorically exempt from CEQA review. If a project may have a significant effect on the environment, CEQA review must occur. In Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. individuals and environmental groups brought an action against timber companies to compel the state forester to set aside existing timber harvesting plans submitted without environmental impact reports under CEQA. The court applied the California CEQA Guidelines to conclude that approval of a timber harvest by the state forester was a hybrid action with both ministerial and discretionary components and decided that in cases of doubt the action should be characterized as discretionary and subject to the impact assessment requirement.
Furthermore, under CEQA, when there is no finding that there will be no significant effect on the environment, the agency is required to prepare what is known as a "negative declaration." If a negative declaration is filed, a plaintiff may challenge the propriety of the agency’s decision because an Environmental Impact Report was required. In order to defend a decision not to do an EIR, a California public agency must show that there is no substantial evidence to support a 'fair argument' that the project 'might' have a significant impact, even if there is also substantial evidence to support the decision not to do an EIR.
Under NEPA, the Federal Courts give almost unfettered deference to the administrative agencies on their conclusions that certain projects are exempt for the NEPA requirement. Furthermore, federal agencies do not have the same obligation to explain their decisions other than show that they considered possible effects. Under CEQA, the opposite is true; the Courts rule in favor of environmental protection in close cases and hold the agencies to a high standard to fit into a categorical exclusion.
V. CONCLUSION – CEQA MORE CLOSELY MIRRORS WHAT NEPA WAS MEANT TO BE
Even though NEPA was one of the first far-reaching environmental protection statutes, in the past thirty years the NEPA requirements have simply become a box on a procedural checklist. Despite Congressional History that NEPA was written as a substantive declaration of Congressional Intent, Courts have dismissed the substantive effects of NEPA. As a procedural requirement, NEPA is still important and relevant in that it still forces federal agencies to go through the motions of an environmental analysis. Chances are some of these agencies act responsibly and attempt to provide protections for the environment. However, under NEPA there is no requirement that they take any actions to protect the environment, only that they consider the effects to the environment. This renders NEPA without substantive bite and susceptible to abuse and non-compliance.
CEQA on the other hand, as the Court in San Francisco Ecology Ctr. v. City & County of San Francisco indicated, CEQA gives a higher priority to environmental values. This is despite amendments that force Courts and lead agencies to take into account economic factors to determine whether a project or activity passed CEQA scrutiny. But in the over thirty years since CEQA became law, California Courts have embraced CEQA’s goals and protected CEQA’s substantive mandate. California Courts have also narrowed the permissible exclusions from the CEQA analysis and have kept the scope of CEQA broad and wide ranging. CEQA is more than a box on a procedural checklist. It is a statute that demands analysis and reasoned decision-making. CEQA demands results that are good for the environment. In short, CEQA is what Congress intended when it passed NEPA.