Ceqa and the Public: Too Long, Didn't Read

• Publication year: 2021

CEQA AND THE PUBLIC: TOO LONG, DIDN'T READ

AUTHORS

John T. Wheat¹

Ryan W. Thomason²

INTRODUCTION

"Oh no, not another CEQA³ reform article!" This would be an understandable reaction from the reader. California Environmental Quality Act reform is a constant topic in the land use, environmental, and political communities. Harsh criticisms of CEQA from both project proponents and those who represent project proponents are nothing new. Advocates for project proponents, development, and economic growth point to CEQA as a tool for obstructionists. Conversely, advocates for other interest groups, such as environmental organizations and unions, vigorously defend the role CEQA plays in furthering the particular values important to those groups. However, both sides frame the CEQA reform argument in terms of how CEQA either aids or hinders their particular interests. The general public—the residents of California—are seemingly absent from the CEQA reform conversation.

A primary purpose of CEQA is fostering an informed public regarding projects that may affect the environment they live in. Several CEQA Guidelines, adopted early in CEQA's history, encourage environmental documents that are usable by the public. For example, one provision directs that environmental documents be written in plain language, while another provision recommends appropriate page lengths for environmental impact reports (EI Rs).⁴ However, as discussed further in sections II.A and B, following, these accessibility provisions in the CEQA Guidelines are treated as an afterthought in practice. Courts have paid little attention to these provisions, and lead agencies are not rewarded for creating CEQA documents written in plain language and that can be rapidly understood by the general public. Rather, environmental documents have grown longer and supporting materials more technical over CEQA's history in response to a growing body of CEQA jurisprudence.⁵

The expression "TL;DR" (too long; didn't read), popularized on the internet, is apt for CEQA documents. Despite the intentions of the statute, in practice, applicants and lead agencies are encouraged to include information in such a way that sidelines a critical party to the process, the general public who live and work in the affected environment.

Today, EI Rs can often exceed a thousand pages, with thousands of pages of technical appendices. As a result, CEQA arguably no longer serves its information disclosure purpose for the general public. Rather, increasingly long and complex environmental documents have limited the accessibility of CEQA to only those groups prepared to invest financially in understanding them.

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CEQA DOCUMENTS, INCLUDING EIRS, SHOULD FOSTER AN INFORMED PUBLIC

The California Legislature enacted CEQA in 1970 with the primary purposes of protecting the environment and fostering informed self-government.⁶ Early CEQA cases also emphasize the statute's focus on ensuring that information is disclosed to both decisionmakers and the public.⁷ Thus, while CEQA is generally considered an environmental statute (it's in the name), CEQA is equally a public participation and information disclosure statute.

Public participation in the CEQA process is critical for fulfilling CEQA's purpose of protecting informed self-government.⁸ To this end, the California Legislature established a policy that "[d]ocuments prepared pursuant to [CEQA] be organized and written in a manner that will be meaningful and useful to decisionmakers and to the public."⁹ It logically follows that EI Rs, described by the courts as the "heart of CEQA,"¹⁰ should then be meaningful and useful to the public. An EIR is required for proposed projects that may have a significant impact on the environment.¹¹ An EIR will include a description of the proposed project and the environmental setting (also referred to as the baseline), analyze potential adverse project impacts, and recommend mitigation measures and alternatives to reduce significant adverse impacts.¹²

An EIR is also intended to be an informational document with the general public and decision-makers as the expected audience.¹³ "Informational Document," is the title of CEQA Guidelines section 15121, which states that an EI R "will inform . . . the public generally of the significant environmental effect of a project."¹⁴ The California Supreme Court has explained that EIRs facilitate the informed self-government aspect of CEQA by disclosing to the public (and decisionmakers) the potential environmental consequences of proposed projects prior to project approval.¹⁵ As a result, an informed public will be empowered to respond to decisions of elected officials with which the public might disagree.¹⁶ In other words, the public will be better-equipped to participate in public discussion and decision-making regarding proposed projects, and better prepared at the voting booth should the public disagree with the decision-makers.

The statute itself and numerous published court cases make clear that the CEQA process is intended to inform members of the public about the decisions that affect them, in addition to informing the decisionmakers and protecting the environment. However, this intent to serve the public can only be fulfilled if EI Rs and other CEQA documents actually facilitate meaningful public participation.

THE CEQA GUIDELINES ENVISION EIRS THAT ARE ACCESSIBLE TO THE PUBLIC AND FACILITATE MEANINGFUL PUBLIC PARTICIPATION

The CEQA statute directs the California Office of Planning and Research to prepare and develop "guidelines for the implementation of" CEQA.¹⁷ These guidelines, commonly referred to as the CEQA Guidelines, are codified in the California Code of Regulations.¹⁸ Well-established jurisprudence directs courts to "afford great weight to the [CEQA] Guidelines."¹⁹ As a result, the CEQA Guidelines should be highly influential in shaping CEQA jurisprudence.

The CEQA Guidelines further emphasize the informed self-government purpose of CEQA and the role the statute should serve for the public. For example, the CEQA Guidelines explain that CEQA is intended to "[i]nform . . .the public" about the environmental impacts of proposed projects and "[d] isclose to the public" a lead agency's reasons for approving a project with significant environmental impacts.²⁰ In addition, the CEQA Guidelines clearly acknowledge that "[p]ublic participation is an essential part of the CEQA process" and encourage agencies to involve the public.²¹ For example, draft EI Rs must be circulated for public comment and review, final EI Rs must include responses to public comments on the draft EI R, and the CEQA Guidelines encourages approval of CEQA documents at a public hearing.²² As the California Supreme Court explained, "[t]he [CEQA] Guidelines . . . serve to make the CEQA process tractable for those who must administer it, those who must comply with it, and ultimately, those members of the public who must live with its consequences."²³ To this end, the CEQA Guidelines include several provisions intended to make EIRs accessible and understandable to the public.

THE CEQA GUIDELINES ENCOURAGE "PLAIN LANGUAGE" EIRS THAT CAN BE "RAPIDLY" UNDERSTOOD BY THE PUBLIC

CEQA Guidelines section 15140, published by the Natural Resources Agency in 1983,²⁴ states: "EIRs shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can rapidly understand the documents."²⁵ The phrasing "plain language" and "rapidly understand" suggests that a member of the public should be able to comprehend an EIR with reasonable effort and without any specialized knowledge, education, or practice. The regulatory history for the current version of section 15140 reflects this concept:

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Discussion of Section 15140
This section is intended to improve the clarity of EI Rs. The section is also necessary to provide an interpretation resolving the question of who is the appropriate audience for the EIR. Some EIRs have been written more like academic dissertations directed to other Ph.D.s rather than like public disclosure documents directed to busy decision-makers and the general public.²⁶

Thus, section 15140 was adopted to ensure CEQA serves the general public, not just experts or individuals with specialized knowledge. However, few courts have addressed section 15140 in any meaningful manner.²⁷

The First District Court of Appeal addressed CEQA Guidelines section 15140 in the context of a similar federal standard under the National Environmental Policy Act (NEPA). An environmental impact statement (EIS) prepared pursuant to NEPA "must be organized and written so as to be readily understandable by governmental decisionmakers and by interested non-professional laypersons."²⁸ Likewise, an EIR should "be comprehensible to . . . the public," pursuant to the standard set forth in section 15140.²⁹ The First District Court explained that, as a result, the CEQA Guidelines make it clear that an EIR "must be written and presented in such a way that its message can be understood by . . . members of the public."³⁰

The Fifth District Court of Appeal briefly acknowledged section 15140 when considering whether an EIR adequately described a proposed project. The Fifth District Court explained that EI Rs must be rapidly understandable by the public, but the court also warned against providing a curtailed description of the project.³¹

In 2003, the Third District Court of Appeal also briefly addressed section 15140 in a footnote when considering a situation where an EI R included potentially extraneous information.³² While the court acknowledged that including too much information in an EIR could confuse the reader, the petitioners in the case did not claim to be confused by the extra EI R information.³³ More recently, the Third District Court cited section 15140 in an unpublished decision where the petitioner claimed that an EI R's description of a proposed drainage system was "generic."³⁴ The court explained...