No Backwards CEQA: California Appeals Court Finds CEQA Review Required for Effects of the Environment on a Project

WasteWaterThe California Court of Appeal in Orange County found late last week that agencies are not required under the California Environmental Quality Act (CEQA) to evaluate the potential impact that the present environment would have on a proposed project. If you just read that and rubbed your eyes that is because it seems a little backwards… and it is.

Down in the beautiful beachy city of Dana Point, South Orange County Wastewater Authority operates a sewage treatment plant near the shore. (Okay, so, beautiful except for that.) In 2007, a developer submitted an application to the city requesting a rezoning of the property so that it could be developed into mixed-use residential and commercial. The City’s planning commission began the environmental review process required of it under CEQA. As our loyal readers will recall, CEQA requires “state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.” After its review, the City’s planning commission determined that any environmental effects caused by the proposed project could be mitigated and it issued a mitigated negative declaration (or MND). An MND is issued when the potentially significant effects that the proposed project may have on the environment can be avoided or reduced to a level of insignificance by making revisions in the project or instituting mitigation measures.

Throughout this process, SOCWA was objecting based on the fact that noise and bad smells from plant operations and water runoff from the property would have adverse effects on the future residents of the development. So, what is REALLY going on here, you might ask? Such concern for future residents of an adjacent property don’t usually just come from the goodness of one’s own heart, do they? Well, turns out, no. The SOCWA had a recommended way of “mitigating” the bad smells (which were the primary issue in the controversy). It was a special cover for the tanks expected to cost several million dollars. The court saw through this, stating that “SOCWA wants to protect itself from nuisance complaints […] while sticking [the developer] with the bill.”

As the court pointed out in its opinion, CEQA is intended to be used to “defend the existing environment from adverse changes caused by a proposed project” rather than to “defend the proposed project (the future residences) from a purportedly adverse existing environment (smells from the sewage treatment plant).” This case is a good reminder the basics of CEQA and the reasoning behind it.