The California Environmental Quality Act (CEQA)(Pub Res C §§21000–21189.3) applies to most public agency decisions to carry out, authorize, or approve projects that could have adverse effects on the environment. Attorneys are frequently called on to work as part of an overall team handling a project undergoing CEQA review. The attorney’s role in such project teams varies widely, but there are some general ways that attorneys can minimize misunderstandings and delays, and help reduce the cost of the CEQA process.
- Set meetings. Establish regular meetings or conference calls so that all principal members of the project team understand the current status of the CEQA process, all critical issues being considered, and the expectations and deadlines for the preparation of the CEQA document and supporting studies. Each meeting should have an agenda so that topics can be covered expeditiously. If particular topics require substantial discussion among a subset of the team, it may be best to handle those in a separate meeting with a report back to the team. Document the results immediately after the meeting, including upcoming deadlines and expectations.
- Agree on the process. At the outset, confirm with all principals on the team the process’ objectives. It’s in the interest of both the lead agency and the project applicant to maintain a process that results in a complete, legally defensible, and informative CEQA document and a public review process that complies with all applicable notice and review requirements.
- Give advance thought to format of CEQA document. Before the CEQA document is drafted, discuss style and formatting issues. Many consultants prefer particular formats and styles, and it’s helpful to discuss in advance whether those will be workable for the rest of the team and whether they’ll be acceptable to the lead agency.
- Consider potential issues and legal challenges. At an early stage in the CEQA process, work with the team to anticipate and evaluate issues that may come up and the risk of legal challenges. Often, studies and strategies initiated early in the process can substantially reduce the likelihood that a litigation challenge on a particular issue will be successful.
- Request documentation of analysis. Ask all consultants preparing technical reports and sections of the CEQA document to “show their work,” i.e., to document and describe in their analyses the basis for the conclusions they reach. Their work is the substantial evidence that supports the Environmental Impact Report (EIR) and the administrative record and makes these documents understandable to a reviewing court.
- Provide clear explanations. Explain the basis for legal comments on draft documents or other work product of consultants and other team members. Make comments as constructive as possible; instead of conclusory comments that some analysis is inadequate or legally flawed, explain the risk presented by the particular approach and offer a constructive suggestion for modifying or correcting the document or analysis.
- Give examples from other projects. Provide examples of how a particular issue has been handled in a similar context. The CEQA process entails many judgment calls in which more than one approach may be appropriate. Try to recognize such judgment calls and assist the team in evaluating the pros and cons of different approaches.
- Warn about project changes during the process. Advise the project team early on about the risk and impact of changes to the proposed project during the CEQA process. Changes that arise during the CEQA review can often increase the time and cost of the CEQA process. If changes can be anticipated at the beginning of the process, the resulting delay and additional cost can often be reduced.
- Evaluate the schedule. Evaluate the project schedule early on to be sure it includes sufficient time to complete the CEQA process. For example, project schedules often include only a short amount of time to prepare responses to comments on an EIR or to consider comments on a negative declaration. But this is one of the most important parts of the CEQA process, because the attorney on the project team, in responding to those comments or considering them, can further check the CEQA document to be sure that the issues likely to be raised in any legal challenge have been fully considered and disclosed.
- Consider piecemeal review. Project proponents often seek ways to reduce the time necessary to complete the CEQA review without sacrificing the depth or breadth of the analysis. In detailed or complex projects, or projects on a tight schedule, consider suggesting that sections of the administrative draft EIR or mitigated negative declaration be provided for review as soon as they’re ready, instead of waiting for the consultants to complete the entire draft document before beginning review.
Learn more about the attorney’s role in the CEQA process in chapter 2 of CEB’s Practice Under the California Environmental Quality Act, the definitive guide on CEQA that is most often cited by the California Supreme Court. Also check out CEB’s program Hot Topics in California Environmental Quality Act Practice, available On Demand.
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