All projects (pubic and private) in California must go through environmental review to gain approval. The state law governing environmental law is called the California Environmental Quality Act, which is better known as CEQA, pronounced “see-qwa”. There is a similar federal process which is governed by the National Environmental Policy Act, which is better known as NEPA, pronounced “nee-pa”.
Overview of the environmental review process
CEQA “requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible”.
CEQA and NEPA have been around for about forty years and have a large body of case law defining their implementation. Over time, CEQA and NEPA have gone from being part of the overall approval process to really defining the process.
The first step in the environmental review process is deciding whether a full-fledged environmental review is warranted by the potential impacts of a project. If so, then very specific documents called a Environmental Impact Review (EIR) under CEQA and an Environmental Impact Statement (EIS) under NEPA must be prepared. EIR = California, EIS = Federal.
There is a whole cast of characters in an EIR process. The main players are the lead agency, the applicant, the public, the courts and lots of consultants.
- The lead agency is the one who gets to certify the EIR. They are the main project approver.
- The applicant is the government entity or private company that wants to do a project.
- The public are the ones who provide comments on the EIR about many different things that they think should be addressed. Under CEQA, the public is also explicitly in charge of making sure that the laws governing the EIR are followed. They do this by suing, or threatening to sue.
- The courts are the ones who get involved if someone sues.
- The consultants are ones who actually do the work on the EIR/EIS documents, which typically run thousands of pages.
The California High Speed Rail project has used a provision in both CEQA and NEPA called “tiering”. Tiering allows a project sponsor like the High Speed Rail Authority to do a high-level review called a Program level EIR/EIS that covers the generic aspects of the project and then use those findings in a more detailed review for each project called a Project level EIR/EIS. Tiering is not commonly used, but has been used for projects like major water projects and University of California campuswide growth programs.
The CHSRA completed a Program level EIR/EIS in 2005, for everything except the route from the Bay Area to the Central Valley, which was mired in controversy.
They then completed a program level EIR/EIS for the Bay Area to the Central Valley in 2008. This was challenged by successful litigation (the only appeal process under CEQA and NEPA) that led to the de-certification of the EIR/EIS in December 2009. A revised Draft Program EIR was issued on March 4, 2010 and will be in a public comment period until April 26, 2010. A public meeting is scheduled to be held in San Jose on April 7, 2010.
In the meantime, the CHSRA divided up the planned route, from Anaheim to San Francisco, with additional routes up to Sacramento and south to San Diego, into different segments and initiated project level EIR/EIS reviews for each of the these.
Who enforces CEQA? What role does the Resources Agency have in enforcement of CEQA?
CEQA is a self-executing statute. Public agencies are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof. While the Resources Agency is charged with the adoption of CEQA Guidelines, and may often assist public agencies in the interpretation of CEQA, it is each public agency’s duty to determine what is and is not subject to CEQA. As such, the Resources Agency does not review the facts and exercise of discretion by public agencies in individual situations. In sum, the Agency does not enforce CEQA, nor does it review for compliance with CEQA the many state and local agency actions which are subject to CEQA. [source].