Balancing Conservation and Development Through Environmental Impact Review

• Author: John R. Nolon
• Pages: 327-375

327

Chapter 9:

Balancing Conservation

and Development Through

Environmental Impact Review

I. Role of Environmental Impact Review: NEPA and Its

Progeny

A. The National Environmental Policy (NEPA)

e National Environmental Policy Act (NEPA) provides a context for dis-

cussing the role of Environmental Impact Review (EIR) at the local level.1

e concept of EIR was introduced in the United States when Congress

enacted NEPA in 1970.2 Prior to NEPA, most federal environmental legisla-

tion focused on reducing threats to specic natural resources. is approach

resulted in the under-representation of environmental considerations in over-

all governmental decisionmaking. In order to instill environmental values

in this process, NEPA required the preparation of a n environmental impact

statement for all federa l actions that signicantly aect the quality of the

environment. Under NEPA, federal a gencies must prepare a detailed state-

ment covering the “environmental impact of the proposed action, . . . any

adverse environmental eects, . . . alternatives to the proposed action, . . .

[and] the relationship between local short-term uses of man’s environment

and the maintenance and enhancement of long-term productivity.”3

e NEPA process was intended to promote environmental awareness and

well-informed decisionmaking. NEPA imposes no substantive requirements

on federal agencies to mitigate environmental impacts, but rather establishes

a national policy to “encourage productive a nd enjoyable harmony between

man and his environment.”4 Senator Henry Jackson, the Senate author of

NEPA, explained that the Act provided “a statutory foundation to which

administrators may refer . . . for guidance in making decisions which nd

environmental va lues in conict with other values.”5 e va lue of EIR lies

in the requirement t hat environmental considerations be a part of federal

decisionmaking processes.

328 Standing Ground

II. State Environment Policy Acts and Their Effects on

Local Governments

A. Overview of State Environmental Policy Acts

NEPA was followed by t he enactment of State Environmental Policy Acts

(SEPAs) in several states.6 SEPAs vary in the policy and procedures they

require. Environmental policy acts in 17 states are modeled after NEPA. All

require that state agencies prepare impact statements of their act ions that

might have a signicant eect on the environment. SEPAs dier from NEPA

and from each other in the procedural and substantive determinations they

require, the denition of state actions covered, whether local governmental

agencies’ actions are covered, what the standards are for determining envi-

ronmental signicance, what the contents of an environmental impact state-

ment must be, and the standards for judicial review.

is chapter reviews SEPAs that apply to local governments and other

state laws empowering localities to conduct environmental review of t heir

actions. SEPA statutes in California, New York, Washington, Minnesota,

Massachusetts, a nd Hawaii require local governments to conduct envi-

ronmental impact reviews.7 Requiring loc al governments to consider envi-

ronmental impacts aects local planning and zoning decisions, including

the adoption of zoning ordinances and amendments, the grant of zoning

variances, subdivision approvals and special use permits, and the creation

of comprehensive pla ns. If SEPA requirements apply to local government

actions and private developments that require local agency approvals, the

municipality must rst ensure that harmful environmental eects have been

identied and mitigated to some degree before development can proceed.

B. The California Environmental Quality Act

e California Environmental Quality Act (CEQA) was adopted in 1970,

shortly after the enactment of NEPA.8 Commentators note that it is “argu-

ably the most important law governing land-use planning in California.”9

More than an environmental protection act, CEQA has an impact on plan-

ning and land use regulation that “permeates the daily practice of California

local planning.”10 ough it was patterned after NEPA, it applies to both

state and local governments, includes substantive requirements, and applies

to many dierent types of actions and approval processes that have a signi-

Environmental Impact Review 329

cant eect on the environment. CEQA illustrates that state environmental

policy acts can have much broader eects t han were embodied in NEPA.

Early in CEQA’s history, controversy developed a s to whether the act

applied to local land use approval processes. In the landmark case of Friends

of Mammoth v. Board of Supervisors of Mono County, the Supreme Court of

California held that the provisions of CEQA applied to local government

approvals of private development.11 e court noted that the legislative intent

of the act demanded a broad interpretation of the types of actions that a re

subject to environmental review in California. e legislature subsequently

amended the act to clarify that “all local agencies sha ll prepare, or cause

to be prepared . . . an envi-

ronmental impact report on

any project that they intend

to carr y out or approve which

may have a signicant eect

on the environment.”12 As a

result, CEQA great ly aects

local governments, since the

majority of discretionary land

use permitting decisions occur

at the local level.

When a local government is faced with a project or action that requires

discretionary approval, the CEQA process applies. e rst step is determin-

ing whether an environmental review is required. All ministerial actions a re

exempt from environmental review. Projects “determined not to have a sig-

nicant eect on the environment” do not require an environmental review.14

If a project must undergo review, an initial study is conducted by the permit-

issuing agency to determine whether the project may have a signicant eect

on the environment. If a negative declaration is issued after t he initial study,

no further review is required. If the project might have signicant environ-

mental eects, the agency must prepare an Environmental Impact Report

(EIR). e EIR must include a description, the location, and the probable

environmental eects of the project, as well as fea sible mitigation measures.

Feasible is dened as “capable of being accomplished in a successful manner

in a rea sonable period of time, taking into account economic, environmen-

tal, social and technologica l factors.”15

Processes to dene the scope of EIRs are permitted, but not required, in

an attempt to foster early consultation with the public and among interested

agencies. e regu lations stress t hat the EIR is an informational document.

Local Agencies Required to

Conduct Environmental Im pact

Reviews in California

Under C EQA, l ocal age ncies mu st pre -

pare an environmental impact repor t on

any project that they intend to carry out

or approve that may have a signif‌ica nt

effect on the e nvironment.13