Environmental Law Series: Part Two: NEPA & CEQA: Courts, City Councils, Environmental Consequences, & Filing Lawsuits

Episode Notes

Transcript

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Intro: There are definitely abuses of the California Environmental Quality Act that I think many practitioners in California would love to see rectified in order to focus the Act on its intended purpose, which is to be a disclosure document not to be a project killer, or to stop projects instead to make decision-makers better informed about the implications of their decisions so that they can make a robust choice based on all possible information.

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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.

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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 continue our series on environmental law where we covered cradle-to-grave treatment of chemicals and our laws on environmental biology.

And today, as it was in our last environmental law episode, we’re going to talk about some of the biological aspects of it from the National Environmental Policy Act better known as NEPA, and the California Environmental Quality Act better known as CEQA, where we explored each Act’s origins and history, purpose, and impact.

In this episode, we’re going to continue our discussion by moving into the specifics of how courts deal with decisions by city councils that deal with environmental consequences. On the other side, how citizens and developers deal with this whole process of filing lawsuits and defending them.

And to speak more on this topic, we’re joined today by our returning guest, Atty.°Alisha M. Winterswyk from Best Best & Krieger. Alicia’s practice centers on advising public and private clients on an array of state and federal environmental laws. She’s a partner in Best Best & Krieger’s environmental law and natural resources practice group. And she regularly counsel’s clients on the substantive and procedural mandates of CEQA and NEPA. Throughout her career, Alicia has reviewed and drafted hundreds of CEQA-related documents.

Welcome to the show, Alicia.

Atty. Alisha M. Winterswyk: Good morning, Craig. Thank you for having me again.

J. Craig Williams: Well, let’s continue the discussion we were having last time in our last episode of this series. How do the courts really deal with decisions by city councils that deal with environmental consequences? What are the considerations that go into those decisions?

Atty. Alisha M. Winterswyk: So Craig, when we met last time, we ended our talk with a hypothetical city council hearing at which the city council considered a development project and its attendant environmental impact report and environmental impact statement.

The way that this decision that the city council made is challenged beyond the local government stage is for a party who is opposed to the project to file suit in superior court. So, if the party is disappointed with the outcome of a decision that the city made, it actually has to start a lawsuit. That lawsuit is commenced most typically within 30 days of the filing of what’s called a Notice of Determination.

So, after the city council closed its hearing on the project that we discussed last time, it rendered its decision, then within five working days of rendering that decision, the city will file what is called a Notice of Determination. And that document puts the world on notice of the city council’s decision and informs folks that they now have a clock that’s ticking within which they need to quickly file in superior court a challenge to that decision.

J. Craig Williams: Well, the process of challenging that decision happens much sooner than that little time period after the Notice of Determination, right?

Atty. Alisha M. Winterswyk: It usually happens very quickly after the Notice of Determination is filed. So, when a Notice of Determination is filed, a challenger has 30 days from the date that that notice is filed and posted to actually submit its papers and file them with the Superior Court.

So, it’s customary for litigants to avail themselves of the process early, but they don’t always avail themselves of the process early. Sometimes we will get the lawsuit on the 30th day of the challenge period. And the lead agency expects and is looking out for that particular lawsuit if in fact the project was contentious, and many opposed it during the administrative process.

J. Craig Williams: Right and there’s a trap there for the unwary, that if they haven’t been before the city council before, what happens?

(00:05:06)

Atty. Alisha M. Winterswyk: If they haven’t been before the city council before, they haven’t raised their concerns during the administrative process, then they could waive their right to actually bring that lawsuit.

So, stated differently in order for an opponent to be able to bring a lawsuit after the City Council makes its determination, that litigant has to have exhausted its administrative remedies, meaning it has to have engaged before the city council and any subsidiary bodies where an appeal procedure was available to an aggrieved party to actually state the reasons why the litigant is opposed to the project.

J. Craig Williams: What’s the thought process behind that? Why do they have to do that?

Atty. Alisha M. Winterswyk: The thought process behind that is that the lead agency should have an opportunity to correct errors before having to invoke the authority of the courts. It is an efficiency mechanism to give the public agency an opportunity to correct a mistake if the mistake is brought to the agency’s attention.

J. Craig Williams: Now are their mistakes that are correctable before they get on appeal to a superior court? Are there ways that the city council can kind of insulate themselves and the developer from an appeal?

Atty. Alisha M. Winterswyk: Most certainly, Craig. So, when a draft DIR is released for public review, a person who is interested in a project has an opportunity to raise both substantive and procedural concerns to the city. If the city receives a written comment, or even a verbal comment about a problem with the procedure that the city followed in releasing the draft DIR or processing the project, the city can at that time evaluate the comment and decide what to do.

And in that decision tree, the city can decide that it needs to make a correction, in fact, make a correction and that correction might entail revising, and then recirculating, the draft DIR and or the project entitlements for further public review before a decision is made. That process is intended to allow for the city to get it right.

J. Craig Williams: When the city doesn’t get it right and someone appeals, what does the court do?

Atty. Alisha M. Winterswyk: So, what the court is asked to do when one of these cases is filed, is to command the public agency to do something that the law requires it to do. So, these types of lawsuits that are filed on CEQA grounds are not filed for the purpose of punishing the city for making a mistake.

So, you won’t see damages claims that are included in these filings. Instead what you will see is a request that the court command the city to go back and comply with the law, here CEQA and or NEPA. So, the claim may be that the city’s environmental impact report in our particular example from last time was inadequate in its analysis of impacts or inadequate with regard to the mitigation measures or alternatives that identified, the aggrieved party wants the court to tell the city to go back and redo that analysis in a way that complies with the law. And that affords the decision makers a full picture of the implications of the decision that they are going to make.

J. Craig Williams: Let’s take a step back for a moment and look at this from a constitutional standpoint, just from the big picture. You have one branch of government, the judiciary telling another branch of government, basically the legislature what to do. I thought there was a separation of powers here.

Atty. Alisha M. Winterswyk: There, in fact, is Craig, and that’s a really great observation. So, when the court is considering this request for a writ, this is what we call a Writ of Mandate. When the court is considering whether to command the city to go back and comply with the law. The court will not tell the city how to comply with the law, or what specifically the city needs or must find in order to comply with the law.

Instead, what the court will say is, “City I’ve examined the analysis in your environmental impact report environmental impact statement that you certified and adopted. It is deficient under the law. This is what the law requires. I am now commanding you, city, to go back and fix your document so that it complies with the law. I’m not going to tell you how to do that. But you go back and you fix it.

(00:10:07)

So, the court is really focused on identifying deficiencies in what the city previously did, and then highlighting what the law requires for the city to comply with that law when it goes back to fix the document.

J. Craig Williams: So, in other words, if the city said, “Okay, 50 acres of mitigation is enough for this project.”  You’re not going to have a court saying, “Oh, no, no, you need a hundred.” It’s not going to do that, right?

Atty. Alisha M. Winterswyk: That’s correct. You may have wildlife agencies who commented during the public review period, who said, “Oh, no, no, we need a hundred acres of mitigation, because we’re going to require two-to-one mitigation instead of one-to-one mitigation when it comes to us issuing you a permit.”

And the city during that process may have said, “No, we don’t believe that’s necessary based on substantial evidence in our documents. So, we’re adopting one to 50 acres.” The court upon reviewing that information may find that the city lacked substantial evidence, and will command the city to go back and identify substantial evidence to support its conclusion or to revise its conclusion based on additional evidence that it pulls together in re-evaluating the project’s mitigation.

J. Craig Williams: What if the city just says, “Okay, great. You know, we’re going to go one to one on the mitigation for every acre that gets destroyed, we’re going to require another acre to be replaced.” What happens in circumstances where the city says, “We don’t care. We’re going to do 50% mitigation. And here’s what I think it’s called a Statement of Overriding Considerations.”

Atty. Alisha M. Winterswyk: Yes, Craig, we touched on this very quickly at the end of our last talk together. You may recall that in situations where a lead agency has prepared an environmental impact report, and an environmental impact report shows that the project will have significant and unavoidable impacts. The only way that the city can approve that project is if it adopts this Statement of Overriding Considerations. The Statement of Overriding Considerations is a list of benefits of the project, whether they be social, economic, technological, legal, or political, that will come about as a result of the project, and that in the city’s mind outweigh the environmental harms, outweigh those significant and unavoidable impacts that were identified in the EIR.

Atty. Alisha M. Winterswyk: If the city adopts such a Statement of Overriding Considerations, then under CEQA, the statutes authorize the city to proceed with approving the project despite those significant effects.

J. Craig Williams: Alicia, thank you for that clarification. 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: Welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Atty. Alisha M. Winterswyk from Best Best & Krieger. We’ve been talking in particular about CEQA and EIRs and draft DIRs. You know, I’m going bring a question just a little bit out of left field here.

There have been a number of lawsuits filed by children against various governmental agencies for climate change. Does climate change play any part in the evaluation of an EIR? And what right would children have standing to come in and challenge these types of things based on climate change?

(00:14:55)

Atty. Alisha M. Winterswyk: Well, Craig, that’s a great question. So, with regard to Part I of your question, does climate change play a role in environmental impact reports? The answer is yes. And climate change actually plays a role in environmental impact reports. And in CEQA generally, in very broad ways, as well as very specific ways.

The broad ways in which climate change plays into CEQA analysis stem from the state’s policies regarding energy efficiency, and transit-oriented development overall.

So, the State of California, as you know, is a leader in environmental law. It has historically always been a leader in environmental law, a bellwether for other states, as well as the federal government on issues that pertain to natural resources and natural resources conservation. And California really has taken the lead on green building codes, on energy efficiency, on clean fleet standards, et cetera.

So, from a policy perspective, a very broad brush, all of those laws are going to find their way into development projects, because for example, Title 24, is a set of regulations with which all new developments must comply. And so those standards aren’t going to necessarily inform the design of projects as they are brought forward for public agencies to consider.

With respect to the more specific and how climate change factors into EIRs on a more granular level, the state CEQA guidelines have a provision in them that require analysis of greenhouse gas emissions and how greenhouse gas emissions play into the larger issue of climate change.

Now, climate change is a cumulative problem. So, no individual project EIR is going to solve the cumulative issue of climate change. However, with analysis of project-level greenhouse gas emissions impacts, many projects over the course of the last 13 to 14 years have incorporated measures that make for projects that are less impactful to the climate. Our mitigation is more thoughtful, the climate change analysis for the greenhouse gas emissions analysis really has in many instances informed to design of the project to make for better projects overall.

So, you will see a specific section in an EIR that deals with greenhouse gas emissions. You will also see concepts and other sections of an EIR in the land use section, for example, in discussing compliance with Title 24, and other green building codes how a particular development might comport with those goals and policies that are designed to address climate change in California.

Can children or do children have standing to bring challenges to CEQA documents whether it be on climate change grounds or any other grounds? And the answer to that is yes. CEQA does not differentiate between an adult and a child in terms of standing. CEQA merely says that the person who is interested in the project must have raised their concerns to the public agency in advance of bringing the lawsuit. And so to the extent that that person, even if it is a minor has raised those concerns to the public agency, that person can maintain a lawsuit after the fact if that person believes that that the public agency has failed to comply with CEQA.

J. Craig Williams: Has anyone ever done an analysis of what the cost of a draft EIR is? And the process to get it through to a final EIR? Let’s also throw in the cost to the developer or the applicant who is dealing with this process.

Atty. Alisha M. Winterswyk: Oh, they have they have. They have, Craig. It’s a significant cost. And the reason that this is a significant cost is because when an EIR

has to be prepared, there are many technical reports that must be commissioned in order to support that environmental impact report.

(00:19:58)

So, what has happened over the past 50 years as CEQA has developed, and particularly in the last 15 years, as we have become more and more entrenched in what is substantial evidence and whether a document contains substantial evidence is that technical experts need to engage in order to justify whether or not a project would have impacts in some of these resource areas. Air quality, noise, traffic, and hydrology, for example, all require some type of engineer at a minimum in order to model, will first take measurements of what the existing environment is in those particular environmental factors, and then to model what the impacts of the project would be on that existing environment if the project was approved.

So, the costs are significant and wanting to get the information right is costly. And a good EIR on a very straightforward project can cost anywhere on this day and age, you know, today’s 2023 dollars, it could cost anywhere from $125,000 to $200,000, just for the preparation of the EIR and its technical reports. That doesn’t include legal review by the applicant’s counsel, that doesn’t include legal review by the city’s council, that doesn’t include potential curveballs that might come up if unexpected situations arise when testing occurs, or when, you know, as the draft DIR is being prepared.

And developers when you know they’re coming to a city to ask for an entitlement to build a project are responsible for bearing those costs, because for their project, there’ll be no need for the expenditure of money on this particular request. So, there are significant upfront costs for applicants when they do bring projects forward for consideration.

J. Craig Williams: Right. And let’s add time to that cost.

Atty. Alisha M. Winterswyk: Yep, definitely. There’s an additional carrying cost.

J. Craig Williams: Right.

Atty. Alisha M. Winterswyk: Right.

J. Craig Williams: That’s the biggest problem for most developers is the cost to not only fund the EIR but also to continue to pay the mortgage on the property until it gets built. Alicia, 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 Atty. Alisha M. Winterswyk from Best Best & Krieger. We’ve been going into some of the nuts and bolts of EIRs, talking about the costs and the time involved. But that time gets exponentially worse when you go to court, doesn’t it?

Atty. Alisha M. Winterswyk: It sure does, Craig, because not only now has the property owner bear the carrying costs of getting through the year 18 months, 2-year process if they’re lucky enough to get their EIR done quickly. But now there’s a cloud of litigation that’s hanging over the property and additional time over which they will have to carry the costs of the property without the project being built.

Now, I’m not sure if you intended this in your question, but I think one important consideration at this juncture and in response to costs then you know, what happens when the lawsuit is filed? And does that cause the costs to increase to the applicant? The answer clearly is yes. Not only the Actual litigation costs and the carrying costs, but you know, filing fees, et cetera.

One thing that we’re often asked by our clients when a CEQA lawsuit is filed is, “Ah, do we have to stop all work on the property or is it possible for us to move forward with the project while the litigation is pending?

(00:25:01)

And the answer to that question is that unless and until a court issues a preliminary injunction enjoining the project applicant from pursuing and or the city from issuing permits to allow the applicant to pursue the project, then the applicant is free to proceed at its own risk with the understanding that if at the end of the case, the court does find that there was an error and that the city has to go back and do additional work, which could have implications for any work that the applicant has completed between the time that the case was filed and the time when judgment was entered.

Atty. Alisha M. Winterswyk: There’s one draconian case from many years ago, almost 20 years ago now, where the court did command the improvements that were built during that trial period, to actually be removed, demolished, and removed. But that is an outlier case that I haven’t seen repeated. So, in terms of advising clients, when they do wish to proceed, we always are careful to make sure that everyone understands that draconian remedy could be the one that the court issues if the project were to proceed pending litigation.

J. Craig Williams: I wonder how that plays against the Doctrine of Vesting based on the pouring of foundations.

Atty. Alisha M. Winterswyk: That was a great question, Craig. And I think that vesting definitely is an argument and an issue that comes up another one that definitely comes up and has been argued successfully, is mootness.

J. Craig Williams: Right.

Atty. Alisha M. Winterswyk: If the project is constructed during the pendency of the litigation, what’s the point?

J. Craig Williams: Right.

Atty. Alisha M. Winterswyk: Even if you can command me to tear it out.

J. Craig Williams: I’ve already done the damage.

Atty. Alisha M. Winterswyk

J. Craig Williams: Right. Which brings me to my last question. We talked an awful lot about procedures here. But what’s the substance of these lawsuits that get filed? What do you see most often? Is it endangered species challenges? Where do they lie?

Atty. Alisha M. Winterswyk: It really runs the table. If an EIR has been prepared, and an opponent finds fault with the EIR, easy targets that they will look to include noise analysis, because noise analyses are typically improperly conducted, just to say that bluntly, at least improperly conducted in the eyes of the law, maybe not from a technical standpoint, but definitely in the eyes of the law. So, that is a very easy target.

Air quality tends to be an easy target. Biological resources tend to be an easy target. Public services often will come up particularly if we’re talking about response times for public safety, fire, and police specifically. And if a project would have significant impacts on those public services, that is an easy target for folks to attack.

J. Craig Williams: Right. Well, Alicia, it looks like we’ve just about reached the end of our program. So, it’s time to get your final thoughts and your contact information. And I’d like to add one more thing to that. Where can our listeners turn to get more information on CEQA and NEPA?

Atty. Alisha M. Winterswyk: We do provide bulletins on all updates on CEQA and NEPA. So, if folks are interested in receiving those e-bulletin updates, they can go to our website, www.bbklaw.com, and subscribe to receive our updates. The California Office of Planning and Research also has a really great website on all things that touch and concern development, including CEQA. I would urge folks to check out OPR’s website as well as the State Association of Environmental Professionals. They also have a very robust website with a CEQA portal that summarizes years of CEQA

case law. It doesn’t go all the way back to the beginning, but they’re getting there.

Atty. Alisha M. Winterswyk: So those resources I think will contain sufficient information to help kickstart folks if they are looking to get into this work.

J. Craig Williams: Great and how can our listeners reach out to you if they’d like to get a hold of you?

Atty. Alisha M. Winterswyk: You can reach me at my email address, which is my first name [email protected].

J. Craig Williams: Great. Well, give us some final thoughts about CEQA and NEPA as we wrap up the program

Atty. Alisha M. Winterswyk: CEQA and NEPA is an ever-developing changing area of the law. It is changing daily, given the complexity of analyses that are conducted in order to clear environmental projects as they move forward.

(00:30:08)

There are definitely abuses of the California Environmental Quality Act that I think many practitioners in California would love to see rectified in order to focus the Act on its intended purpose, which is to be a disclosure document not to be a project killer, or to stop projects instead to make decision-makers better informed about the implications of their decisions so that they can make a robust choice based on all possible information.

I would love to see certain changes to the Act move forward in order to keep us focused on the real purpose of the Act rather than nimbyism, or abuse of the Act for beneficial interests that don’t really pertain to the environment.

J. Craig Williams: You know I’m going to offer just a quick suggestion that cities and counties start to bring in retired CEQA judges to look over their documents before they finalize them.

Atty. Alisha M. Winterswyk: There has been a lot of talk over the years about a CEQA court. And I think that there are many seasoned CEQA practitioners who would love to see a specific CEQA court that is developed, so not just designated judges in the state who, you know, have CEQA cases, among many other different types of civil cases, but instead, a court that is purely devoted to CEQA so that we could get consistency in decisions, as well as additional wisdom from the court on issues related to the implementation of the Act. So, I definitely think you’re onto something there, Craig with that suggestion.

J. Craig Williams: Well, Alicia, it has been a tremendous couple of discussions on this topic. Thank you so much for your time. It has been wonderful.

Atty. Alisha M. Winterswyk Thank you for the opportunity, Craig.

J. Craig Williams: Cheers. Well, here are a few of my thoughts about today’s topic. CEQA and NEPA are an insanely expensive and time-consuming process. And Alicia is so correct that we need to put a CEQA court in place, perhaps an experimental one. And perhaps, we suggest we do that here in Riverside County, or here in Orange°County in California, where this has become a real problem because these are two very development-intensive counties in Southern California.

Time to think about those creative types of solutions, because both for citizens and the environment and for the judiciary to spend that much time and that much money on a process that is yes, important, but also very wasteful. So, let’s do what we can do to get some of those things fixed and move forward.

Well, that’s it for today’s rant on this topic. Let me know what you think. If you like what you heard today, please rate us on Apple podcasts or your favorite podcasting app.

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I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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