California's Second District Court of Appeal has addressed provisions of the California Environmental Quality Act (CEQA) checklist questionnaire that appear to require analysis of the effects of environmental hazards on the proposed project.  The court held that such impacts are not encompassed by CEQA.  It rejected a claim that an Environmental Impact Report (EIR) was required to evaluate the impacts of potential sea level rise on a project.

A continuing source of uncertainty in the environmental review process has been the extent to which CEQA requires analysis of impacts of the existing environment on people or structures introduced to a site by a proposed project.  Much confusion has arisen from language in the Guidelines that indicate the types of impacts that should be evaluated.  Guideline section 15126.2(a), which addresses the impacts that might result from bringing development and people into an area, states in part:  “For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision.  The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”

The confusion is exacerbated by language in Appendix G to the CEQA Guidelines.  Appendix G contains a checklist of questions most agencies use to determine not only the scope of the environmental analysis but also the significance of the environmental impacts of a project.  For example, Appendix G includes a question asking whether the project would expose people living or working in the project to potential adverse effects resulting from rupture of a known earthquake fault.

In Ballona Wetlands Land Trust v. City of Los Angeles, the court makes it abundantly clear that neither questions on the Appendix G checklist nor provisions of the CEQA Guidelines can properly be construed to require assessment of the impacts of existing environmental hazards on the project.  The opinion draws an explicit distinction between the “project’s exacerbation of environmental hazards [and] the effects on users of the project and structures in the project of preexisting environmental hazards.”  It holds that “to the extent that such questions may encompass the latter effects, the questions do not relate to environmental impacts under CEQA and cannot support an argument that the effects of the environment on the project must be analyzed in an EIR.”

The court applied its ruling to an issue regarding analysis of sea level rise.  The petitioners alleged that an EIR prepared for a mixed-use real estate development was invalid due to its failure to evaluate the impact on the project of potential sea level rise resulting from global climate change.  The court ruled that the EIR was not required to discuss the impact of sea level rise on the project.

The opinion in this case provides much-needed guidance to agencies in determining the focus and scope of the impact analysis required by CEQA.  It reduces the uncertainty created by Appendix G regarding the mandated scope of analysis and should reduce the complexity, scope, size and cost of environmental documents.

© 2011 Perkins Coie LLP