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Return to Activist's Toolbox |
Reviewing Environmental
Documents: by Laurel Impett, Shute, Mihaly & Weinberger This article is reprinted with permission from the March, 2003 newsletter produced by Shute, Mihaly & Weinberger LLP, a leading law partnership practicing government, environmental natural resources, land use, and appellate law in California. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when faced with legal issues, and attorneys should perform an independent evaluation of the issues raised. A vital provision of the California Environmental Quality Act (CEQA) is the requirement that environmental documents contain an analysis of a project's incremental impacts combined with the effects of other projects. Environmental damage often occurs incrementally from a variety of small sources. It is only by analyzing the effects of these sources together that the full environmental consequences of a project become known. While the cumulative impact analysis should be a key component of environmental impact reports and negative declarations, these documents often provide no more than a cursory review of a project's cumulative environmental effects. Members of the public would be well served to review with a critical eye the cumulative impact analysis in an environmental document. Commenting on Environmental Documents: An Important OpportunityA fundamental purpose of CEQA is to inform the public about a project, its significant environmental impacts, and methods to avoid or minimize those impacts. Commenting on an environmental document, either in writing or orally at a public workshop or hearing, serves two important functions. It informs decision-makers (e.g., Planning Commission or City Council) of an alternative view of the extent or severity of environmental impacts disclosed in an environmental document. It also builds evidence for the administrative record should the public, or any affected agency, decide to file a legal challenge to the approval of a project. In fact, in many cases, a legal challenge may not be brought on a particular issue unless that issue has been raised during the administrative process. Be Specific and Submit Written Documentation Public comments on an environmental document must identify the way the flaw in the environmental document (e.g., omission of information, flawed assumptions, faulty methodology) underestimates the extent of the impact. Public comments should be factually based, specific, detailed, and, ideally, supported with documentation or data. This documentation must be submitted with the comment letter or oral testimony; it will not be in the administrative record (i.e., usable in the court proceedings) unless the actual documentation is submitted to the lead agency. What Is a Cumulative Environmental Impact? As defined by CEQA, a cumulative impact consists of an impact that is created as a result of the combination of the project evaluated in the environmental document together with other projects causing related impacts. These impacts occur when the incremental impact of the project, when combined with the effects of other past, present and reasonably foreseeable future projects, are cumulatively considerable. This typically occurs when impacts compound or increase existing environmental problems. You can learn a great deal about CEQA and its specific requirements for cumulative impact analyses by reviewing the state's CEQA website at http://ceres/ca/gov/topic/env_law/ceqa/guidelines. Approaches to Cumulative Impact Analysis CEQA provides for two very different methods of identifying a project's cumulative impacts. The environmental document may provide either: (1) a list of past, present, and probable future projects producing related or cumulative impacts, or (2) a summary of projections contained in an adopted general plan or related planning document, or in a prior environmental document that has been adopted or certified, which described or evaluated regional or area-wide conditions contributing to the cumulative impact. What Exactly Is a "Probable Future Project"? A "probable future project" is defined in the CEQA Guidelines as follows:
It should come as no surprise that lead agencies often fail to identify and include all of the projects that should be analyzed in a cumulative impact analysis. Agencies may cast their net of geographical scope too narrowly or simply not include projects that are in the pipeline. Even when agencies provide a comprehensive list of projects, they often fail to actually analyze the combined effects. In some instances, the lead agency simply lists the environmental impact, identifies it as significant but fails to provide the analysis of the severity and extent of the impact as required by CEQA. An appropriate analysis of cumulative impacts on sensitive biological species, for example, would include the following:
It is important to remember that CEQA is not enforced by any agency; it is enforced by the public. Thus, the burden falls upon the commenting public to identify those projects that should have been included in a draft EIR, and request that effects of the combined projects be included in the cumulative impact analysis of the final EIR. If the agency has missed important projects and their inclusion would result in a significant environmental impact that had not been disclosed in the draft EIR, the agency may be required to recirculate the draft EIR for public review and comment. "Summary of Projections" Approach Often agencies will rely on the summary of projections or a previous environmental document to satisfy the cumulative impact analysis requirement because it likely requires far less new analysis by the lead agency and its consultants. It is important for the commenting public to carefully consider whether these other documents result in an adequate cumulative impact analysis for the subject project. For example, the lead agency may be relying on an outdated general plan. If the agency is relying on a prior environmental document, carefully check whether that document sufficiently addresses the range of environmental impacts covered by the current project and whether it covers the same geographical area. Another Common Mistake Made by Lead Agency: The "Drop in the Bucket" Theory Agencies often conclude that a project would not have significant cumulative impacts because they assume that the project's incremental effect is not cumulatively considerable (i.e., the impacts of the project would be a drop in the bucket compared to the overall environmental problem). Using regional air pollution as an example, the agency might conclude that any emissions caused by the project contribute only nominally to the overall air pollution problem. Relying upon this faulty logic, agencies often incorrectly conclude that the more severe the existing problem, the less significant the project's impact on the cumulative condition. This approach tends to trivialize the project's impact. Under the proper approach, a project's impact would be more significant the more severe the existing environmental problem. Always keep in mind when reviewing the cumulative sections of environmental documents that the requirement for a cumulative impact analysis must be interpreted so as to afford the fullest possible protection of the environment. |
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