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CEQA is the California analog of NEPA, a federal statute.
The main focus of both laws is to require government agencies who undertake
or approve projects that will have adverse environmental consequences
to thoroughly evaluate and consider those environmental consequences.
NEPA is a federal law that applies to agencies of the federal government;
CEQA is a California state law that applies to state and local agencies.
How Activists Can Use NEPA &
CEQA
There are several ways that activists can use these statutes.
- Force the agency to prepare an EIS/EIR: Project developers
usually do not want to suffer the delay and expense of an EIS or EIR,
so they try to find that the project will have no significant impact
(NEPA "Finding of No Significant Impact" or CEQA "Negative
Declaration"), or that the impact can be mitigated into insignificance
(CEQA "Mitigated Negative Declaration"). This helps them obtain
project entitlements because it indicates that the project will be environmentally
benign. Activists may contest these rulings either directly with the
agency making the finding, or by suing the agency.
- Improve the EIS/EIR: Activist involvement can push
agencies to consider other alternatives to the project, to re-do portions
of the document that are poorly researched or considered, and to consider
environmental factors (e.g. global warming) that have been omitted.
- Improve the project: when an EIR or EIS is inadequate,
and the activist has brought up the inadequacy during the formulation
and approval process, the activist, if she has standing, may sue the
agency. This usually results in a significant delay of the project,
for the duration of the litigation. If the activist wins the lawsuit,
a revised EIS/EIR may be required, and parts of the approval process
may be repeated, furthe delaying the project. It is very rare for this
to result in a denial of entitlements for the project, however. In many
cases, activists settle the suit in exchange for environmental concessions
from the project developer. When settling, they frequently negotiate
that their attorney's fees for the lawsuit will be paid by the developer,
but there is no guarantee that this will happen, so activists must have
sufficient funding to pay their lawyers through the trial, and perhaps
through an appeal.
- Stop the project: As mentioned above, NEPA and CEQA
do not provide a mechanism to halt projects that are environmentally
detrimental. However, the delays resulting from a lawsuit alleging defects
in the EIS/EIR can harm developers financially by increasing interest
and carrying costs for the project, by making their investors impatient,
and by increasing their exposure to changes in the housing market. The
delay caused by a NEPA or CEQA lawsuit may also give activists time
to muster political and grassroots opposition to the project. Though
a lawsuit by itself will seldom stop a project, it can serve as an important
element of a larger campaign to do so.
All of the above require activist involvement in the EIS/EIR process.
In order to have standing to sue, the activist must raise the issue to
be litigated during the approval process, and the activist's claims must
be adequately documented in the administrative record. In addition, the
activist must be injured by the lack or inadequacy of the EIS/EIR, but
the activist's use of affected areas will often be sufficient.
NEPA
The National Environmental Policy Act (NEPA, 42
USC 4321-4370c), was enacted by Congress in 1969 to ensure that environmental
factors are taken into account by federal agencies making decisions. This
is done by requiring agencies to prepare Environmental Impact Statements
(EISs) for projects with significant environmental impacts that aren't
subject to an exclusion. The act requires that public involvement be allowed
in the preparation of an EIS, at several stages
NEPA will be implicated when federal agency
action is required. The requirement for an EIS is clearest for large federal
projects such as constructing a dam or designating a powerline transmission
corridor. In general, development on private property will not require
federal action or permission. But when, for example, a private development
project requires a take permit under the Endangered Species Act, or an
NPDES permit under the Clean Water Act, this federal permitting action
may force an EIS.
NEPA is administered by the Council on
Environmental Quality and enforced by the EPA.
Sources
Christopher L. Bell et al., Environmental Law Handbook ch. 10
(Thomas F. P. Sullivan, ed., 18th ed., Government Institutes, 2005)
William H. Rodgers, Jr., Environmental Law
ch. 9 (2nd ed., West, 1994)
NEPA Statute: 42
USC 4321-4370c
CEQ Regulations: 40
C.F.R. § 1500 - 1508.28
NEPA Web site at EPA: http://www.epa.gov/compliance/nepa
Council on Environmental Quality Web site: http://www.whitehouse.gov/ceq/
NEPANet: http://ceq.eh.doe.gov/nepa/nepanet.htm
CEQA
The project developer may be a public entity (e.g.
when a city is building a hospital) or a private one (e.g. when a housing
developer plans to construct a large residential project). A public agency
will be The project developer may be a public entity (e.g. when a city
is building a hospital) or a private one (e.g. when a housing developer
plans to construct a large residential project). A public agency will
be
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