Environmental Law Series: The National Environmental Policy Act (NEPA) and The California Environmental Quality Act (CEQA)

Episode Notes

Transcript

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Alisha M. Winterswyk: CEQA and NEPA interplay closely with many other environmental laws the Endangered Species Acts, both state and federal. For example, the clean air act. The clean water act. The porter cologne clean water act. And so, because of that interaction between NEPA and CEQA and these other laws, it requires one to have at least a fundamental understanding of broader environmental law to ensure that the discussion of impacts in other areas water, species, air, toxics is all consistent with and complies with those other bodies of law.

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I have two books out titled How to Get Sued and The Sled. Well, today on Lawyer 2 Lawyer, we’re going to be continuing our series in environmental law. And in that series, we’re covering cradle to grave, treatment of chemicals and our laws on environmental biology. Today, we’re going to be talking about the biological portion of it and turning our attention to the National Environmental Policy Act, better known as NEPA, and the California Environmental Quality Act, better known as CEQA, largely because CEQA is the footprint for almost all other states’ similar programs. We’re going to be discussing the origin, the history and purpose and the impact of it, and walking you through the entire process from start to finish. And to speak more on this topic today, our guest is attorney Alisha M. Winterswyk from Best Best & Krieger LLP in Irvine, California. Alisha’s practice centers on advising public and private clients on an array of state and federal environmental laws, with a specific focus on the California Environmental Quality Act and the National Environmental Quality Act. A partner in Best Best & Krieger’s Environmental Law and Natural Resources Practice Group. Alisha regularly counsels’ clients on the substantive and procedure mandates of both CEQA and NEPA. When her clients face legal challenges to their decisions on projects, Alisha successfully and zealously defends those clients in court. And throughout her career, she’s reviewed or drafted hundreds of CEQA related documents. Welcome to the show, Alisha.

Alisha M. Winterswyk: Thank you, Craig. I’m very happy to be here.

J. Craig Williams: We are very happy to have you, especially with all this background that you have in environmental law and particularly this area. How’d you get involved with it?

Alisha M. Winterswyk: Well, it sort of happened by chance, actually. When I began my career. I started out as a city attorney. I was a deputy city attorney for a rather large Inland Empire City here in California. And in that capacity, I served as the advisor to the Planning Department, the Building and Safety Department, and the Engineering Department. And so, naturally, the question of environmental laws and environmental compliance came up regularly in my advising that particular client on those issues. And over time, I developed an expertise and a fondness toward the California Environmental Quality Act, I think partly out of necessity because of just the sheer number of matters that this particular client dealt with. It was a developing Inland Empire City with a lot of natural open space and so the questions that came up were very unique in that way, having land that and otherwise been developed previously and was otherwise in a natural state. So I spent about five years in my first law firm in that capacity, advising not only that city, but then soon thereafter several other cities, and started to develop an expertise in NEPA and CEQA that continued to grow throughout my career.

J. Craig Williams: Well, I bet, based on what you’re telling me that you’ve dealt with a kangaroo rat or two.

Alisha M. Winterswyk: I sure have. The kangaroo rat, the Delhi Sands flower-loving fly, all sorts of projects that have impacted the gnatcatcher. Gnatcatcher habitat, all different types of habitats for various species that are covered by the Endangered Species Act at both the state and the federal level.

J. Craig Williams: Let’s talk about that because that’s a really interesting part of both CEQA and NEPA to me is the protection and the considerations that are required to be given to endangered species and that’s probably a good place to start. Tell us how that works.

Alisha M. Winterswyk: Sure, so both CEQA and NEPA are environmental disclosure statutes rather than environmental protection statutes. So at their core, the goal of compliance is to ensure that —

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— decision makers in the community are informed about the myriad potential environmental impacts that would result from the decision that the local government or state or federal government is being asked to make. In that way, CEQA and NEPA interplay closely with many other environmental laws, the Endangered Species Acts, both state and federal. For example, the clean air act. The clean water act. The porter cologne clean water act and so because of that interaction between NEPA and CEQA and these other laws, it requires one to have at least a fundamental understanding of broader environmental law to ensure that the discussion of impacts in other areas water, species, air toxics is all consistent with and complies with those other bodies of law.

J. Craig Williams: So you made a really important point about both of these laws, that they’re both informational. They don’t really mandate that a particular decision one way or the other, do they?

Alisha M. Winterswyk: That is correct Craig so neither statute is aimed at stopping projects. Instead, both statutes are aimed at ensuring that the impacts of a decision can be mitigated to the maximum extent feasible and or avoided based on some alternative that might be possible for that potential action.

J. Craig Williams: And if I remember correctly, there are two sets of initials that start this whole process EIR and EIS. What do they mean and how does that process go forward?

Alisha M. Winterswyk: Fantastic question. So the EIR is an acronym for the words Environmental Impact Report, and that is a report that is prepared under the California statute. So under CEQA, the EIS is an acronym for an Environmental Impact Statement, which is an environmental disclosure document that is prepared under NEPA. The EIR and the EIS are both considered, at least in the eyes of courts in California who have examined this issue, the heart of CEQA and NEPA. So the goal of these statutes is to have an agency prepare either an EIR or an EIS that documents every potential environmental impact that the project could possibly have and then to mitigate it and examine alternatives for that project. Even though that’s the heart of CEQA and NEPA, there are many different types of compliance documents that can come about as a result of both processes.

J. Craig Williams: Right, and as part of what happens in the EIS and EIR project. This also kind of amazes me that the local agency that’s considering a development project is required to reach out to a whole bunch of government agencies and then get feedback in order to get all of this information. How does that process work?

Alisha M. Winterswyk: That’s a really fascinating process to go through, and that is because it reveals the interests and the relationship between state and federal agencies, between local and state agencies on projects that we might otherwise be unaware of, but for this process. So, as I mentioned initially, CEQA and NEPA are both concerned with disclosure. And the disclosure of impacts is important not only for the decision makers, but also for an apprehensive citizenry, as the California Supreme Court has put it. So to put interested members of the public on notice about a project’s scope and effects. Now, in order to fully vet what a project’s effects might be, the lead agency, as we call it in CEQA or the main federal agency responsible for NEPA compliance in NEPA, will reach out to sister agencies to get their input on potential impacts. Understanding that for example, the Federal Railway Agency or the Federal Highways Administration may not be experts on endangered species. So you may have FHWA or FRA reaching out to the United States Fish and Wildlife Service to consult early in the process to say, “Hey, Fish and Wildlife Service, what do you think the potential impact of this project might be of which we should be aware so we can incorporate that information into our document.

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J. Craig Williams: Well, Alisha, this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the legal Talk Network. I’m joined by Attorney Alisha M. Winterswyk from Best Best & Krieger, an environmental attorney dealing with both CEQA and NEPA and we’ve been talking about the EIR and EIS process to go through and all the agency consultations that occurs as a consequence of this. But let’s kind of back up for a moment and talk about how we get to this in the first place. There’s typically and maybe there’s, you know, in cities, I would think that you most likely and especially in the ones that you dealt with, most likely got applications from developers trying to build homes in open space. So let’s use that as an example about what the triggers are that start it and how that process — how the project can exist. I mean, there’s multiple kinds of projects but let’s talk about this one in particular.

Alisha M. Winterswyk: A great hypothetical and you’re absolutely correct Craig, that that this hypothetical comes up frequently in California. Now with this hypothetical, what will typically happen is that the developer has a concept of a project that it wants to build. For the sake of this example, let’s assume that the project is consistent with the city or the county’s general plan and zoning, it makes it a little bit easier. So the developer comes to the city and will submit an application. And this application will be for most likely a site plan review, design review, architectural review. There may be some minor tree permits that are needed in order to remove existing trees on this vacant open space lot, all to make way for development of this housing project. When the city receives that application, the city will typically ask the developer to fill out a questionnaire that talks about the specifics of the site and the surrounding area so that the city can get an understanding about the location to evaluate what a possible CEQA approach might be so. So the conversation around CEQA starts very early in the process. Like I said, usually upon submission of that initial application and then there are studies that the city will either ask the developer to submit if the developer has already prepared them or will ask the developer to financially support so that the city can go out and investigate baseline conditions to understand what is on the ground. What might be potentially impacted by this project. And that’s typically how the CEQA process begins on this type of project.

J. Craig Williams: So you run out there and the developers done a biological study and he’s found that all of a sudden, we have a gnatcatcher which is bird and a kangaroo rat but the Fish and Wildlife Service might be willing to allow something called mitigation. Can you explain how that works?

Alisha M. Winterswyk: Sure thing. So this biological resources study will identify as you say Craig, the presence of these species and their habitat. It will also identify the potential area of impact that the project might have. Because when the — the reason that this is important is because when the project develops, the actual housing development might not actually impact all of the habitat in all of critters that are on the site. And so we want to know what the area of potential effect is. Once that area of potential effect is defined, then the report will say make a recommendation about the type of mitigation that would be appropriate. Avoidance might be one type of mitigation. Hey, let’s try to avoid the coastal sage scrub which is on the eastern side of the project site–

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–and slightly redesign to push the project to the west so that we can leave intact the coastal sage scrub so that the gnatcatcher is protected and it can go on its merry way. So that might be one form of mitigation which is avoidance. Another type of mitigation might be replacement. So let’s say that the coastal sage scrub could not be avoided. It has to be impacted. Part of it needs to be removed. The report may recommend replacement of coastal sage scrub in another area that is of equivalent value to make up for the loss. So that theoretically these gnatcatchers have somewhere else to go in the nearby vicinity so that they don’t become extinct. Essentially, that’s the fundamental goal of protection of these species.

So once that report is prepared, that report then is shared with the wildlife agency. So with U.S. Fish and Wildlife Service for example for their review to see if the mitigation that is proposed meets their standards. And if it meets their standards, great, they will give blessing to that take of that species and they will issue their permit. If it does not give sufficient coverage, then there will be a negotiation that occurs between the local agency, the developer and the wildlife agencies about the extent of mitigation and what would appropriate to offset the impact that this housing project would have.

J. Craig Williams: Now, there’s another step in this whole process. It might slow it down and that’s citizen involvement and citizen lawsuits.

Alisha M. Winterswyk: So citizen involvement is critical. It is a cornerstone to both CEQA and NEPA. The goal is for both statutes to engage the public on the project and to solicit the public’s input on areas of potential effect. So while we are talking about topics that might seem to most people to be expert topics where you need a professional with a higher level degree to really opine on a potential issue, courts have said that with regard to environmental impacts, lay people have opinions that can be just as valuable and informative to the environmental review process and both statutes are founded on this principle of hearing those voices and allowing for those voices to engage in the process. So citizen input is built-in to the CEQA process whenever the agency is subject to the ACT and this actually goes for NEPA too. Whenever the agency does a CEQA doc, prepares a CEQA document other than in an exemption or an exclusion, there are points for the public to engage.

Now even though the interested member of the public may not have a formal public review period to engage in for an exclusion or an exemption, there are still public meetings that occur where those voices are invited to come forward and share thoughts. So that’s with respect to part one of your question Craig, citizen involvement is very important and many here in California know well how to engage in the process. CEQA is set up as you mention Craig to allow for citizen suits to be brought. So a citizen suit is essentially a suit that is brought by either an individual or a group of individuals who come together at the end of a process to challenge a project on CEQA or NEPA grounds and these individuals are acting as a private attorney general, basically looking over the resources of the State of California.

Their ability to bring a lawsuit on CEQA or NEPA grounds is unique because not all individuals have standing to bring lawsuits in every type of environmental law in the United States or California. So this is a very unique process where the community can engage to challenge the veracity of a determination that a lead agency makes under CEQA or NEPA.

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J. Craig Williams:  As the citizens get together and attend public hearings, the government is involved, at least the decision maker who’s considering the project. And usually in the case of the cities like that you’ve been advising, it’s a two-step process. Can you explain that? Planning commission and then the city council or Board of Supervisors.

Alisha M. Winterswyk:  Sure thing. So the number of public hearings that are involved and the boards or bodies before which a project moves depends on the entitlements or the approvals that the developer needs to build its project. So, for example, in our housing development example, let’s assume that that project needs, as I mentioned at the outset, a site plan review, a tree removal permit and architectural review in order to move forward. The city or the county’s code may specify that architectural review is done by what’s called a design review committee, which is a committee that is appointed by either the city council or the city council and the planning commission for that particular jurisdiction. So it’s an appointed body.

The site plan review may stop under the city’s code at the planning commission level, it may not go to the DRC. So you have an architectural permit that goes to the DRC, you have a site plan that goes to the planning commission. And then let’s say that the tree removal permit has to go to the city council. So in this example, we have at least three different bodies that would be looking at the project. And many jurisdictions arrange their code in a way that says when you have a mix of entitlements that require review by different bodies, that body reviews what it’s supposed to review for, but then it makes a recommendation to the ultimate decision-making body here at the city council to make the ultimate call on the entirety of the project.

So in our example, the public may have three sets of meetings to engage. Different decision makers along the way. They may have an opportunity at DRC to talk to the DRC about the architecture and to explain their concerns about the architecture and its aesthetics and how that might impact the environment. They may have an opportunity to talk to the planning commission about the site plan and its layout and the impacts to that gnatcatcher habitat and why avoidance might be more appropriate than what is led on in the plans. Then, for example, the tree removal permit going up to the city council, and the city council having the ultimate say on all of these things. The public may be able to reiterate what they’ve already shared with DRC and the planning commission. And then to explain, on top of that, why removal of the trees and loss of, let’s say, Heritage Oaks, is such a significant impact that doesn’t deserve or warrant an override by the agency. And thus, the project should either be redesigned or not pursued.

J. Craig Williams:  Well, Alisha, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams:  And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by attorney Alisha M. Winterswyk from Best Best & Krieger. We’ve been covering CEQA and NEPA. So, Alisha, as we go through this final wrap up process, in the government side of things, or at least in the legislative side of things, how does the last meeting come to be and what all happens there, and what’s considered?

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Alisha M. Winterswyk:  Well, Craig, the final meeting is almost like the birth of a child. You spend months and months and months leading up to a day that you know is going to come. It might come earlier than later, it might come later than earlier. So there’s a lot of anticipation about this meeting. And finally, it’s here. All of the prep work is done, and basically the show is hitting the road. This is the big day. So how do we know we’re ready for the big day? We know we’re ready for the big day when the EIR/EIS has gone through public review. The draft has been put out on the street. The agency has collected comments. The agency has drafted written responses to those comments, has assembled what’s called a final EIR/EIS, when all of the project entitlements have been sent through their necessary channels, whether it’s planning, engineering, building. They’re ready to go, forward for consideration, planning commissions weighed in, design review committees weighed in. And now we need the city council or the Board of Supervisors to consider all of this information and to make its decision to either vote for the project or against it or to continue it. But usually by the time that this is reaching the council, it is so fully baked in terms of just preparation. All the documents are complete, and everything is ready for the decision makers to examine and then to make an informed decision.

J. Craig Williams:  And what are the considerations here? What’s the tipping point where a city council can say, it’s too much environmental impact, we’re going to vote no, or okay, it’s just great, or they come up with this famous Neg Dec?

Alisha M. Winterswyk:  Anytime that an agency has prepared an EIR/EIS, that document has been prepared because the project has the potential for significant impacts, meaning impacts to the environment that cannot be mitigated to a less than significant level and that cannot be avoided by some project alternative. So it’s basically a statement we’re going to have a significant impact on the environment if this project moves forward. Under CEQA the only way that the project can move forward with a significant impact is if the decision maker, the city council here in our example, adopts what’s called a Statement of Overriding Considerations. And a Statement of Overriding Considerations is a written document that explains how the benefits of the project, whether those be financial, social, demographic, legal benefits of the project, outweigh the environmental impacts.

So for the housing project, let’s say we’re going to have a significant impact to air quality. Let’s say that we know during construction we’re going to have to disturb so much soil, a large quantity of export of that soil is going to occur. And we need to import soil for some reason to make the site balance. And all of that is going to result in a significant construction air quality impact. The city council has to consider whether that construction impact, which is significant, is outweighed by the benefits of the housing that will be developed if the project moves forward.

In that particular city, in our hypothetical city, if it has a need for housing identified in its housing element and this project furthers that need, that is a significant benefit that the decision makers will be weighing against this construction air quality impact that will occur to get to that nugget, to get to the housing. And so if the decision makers feel, okay, we have clear benefit from this project that outweighs that air quality impact, they’ll move forward and approve the project. It’s possible, however, that the call is much closer. Let’s say that the significant impact is one to groundwater.

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For some reason, this project is going to have an impact to groundwater and to groundwater supply in this area. If the city council examines the significant impact associated with groundwater that would result from the housing development and it says, look, we’re going to bring more people into this area and we’re impacting our groundwater supply and setting up a situation where we won’t have sufficient supplies to support the housing that we’re bringing online, that might be a much closer call where the city council might say, even though we really need this housing, it’s consistent with our housing element. We need to meet our numbers in order to house people in our jurisdiction. While we can build it, we can’t sustain them. And so that might be a closer call for them to make. And politically, they might get more pressure to deny the project in that particular situation.

J. Craig Williams:  That opens up a whole different can of worms. But we’ve just about reached the end of our program. So I’d like to give this opportunity to you to share your final thoughts and your contact information and conclude any thoughts you might have.

Alisha M. Winterswyk:  Certainly, Craig, thank you very much for having me on the show. Thank you to all of those of you who have listened. I guess my parting thought would be this, that CEQA and NEPA are both relatively new statutes having come into being in the early 1970s. The case law that develops around both of these statutes is extremely fast paced and very nuanced. And I think we are seeing in this area of law a strengthening of the quality of analysis that goes into technical reports, environmental impact reports, environmental impact statements that are being prepared nation and statewide. And I think all of that is benefiting the public generally because it makes for more informed decisions by our decision makers, and it also allows for the public to be more engaged. So I do believe that we are seeing some value come out of the disclosure that occurs in both of these areas of law, despite the fact that there are many abuses that occur that have tainted the process along the way. And Craig, that might actually be a good topic for a future podcast to discuss some of those challenges that arise from the litigation that has been born out of both of these statutes.

J. Craig Williams:  I completely agree, and I’m looking forward to that opportunity because we haven’t talked about how the court interacts with this process, and there’s just a ton more to deal with on the eminent domain side and all those considerations. So, yes, let’s get together again. But today, thanks to you for joining us today. It’s been a pleasure having you on our show.

Alisha M. Winterswyk:  Thank you very much, Craig.

J. Craig Williams:  Well, Alisha’s comments are spot on. She’s really walked us through the whole process, or at least part of the process. And I think we’re going to continue having her on as a guest for the next show that we do in this series to talk about how the courts deal with decisions by city councils that deal with environmental consequences, and on the other side, how citizens deal with this whole process by filing lawsuits. I think it’s going to be an interesting second series in this. There’s more to come.

Well, if you’ve liked what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legletalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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