A fresh look at CEQA?
By Jim Reed
Lara Kirkner’s article in last week’s The Sheet on Mono County’s part in the enactment of the California Environmental Quality Act (CEQA) forty years ago was spot-on and timely. As she previously reported, the Board of Supervisors last month approved a proposal by Ormat Technologies to replace an aging geothermal power plant near Mammoth with a new, technologically superior plant that has the capability of producing more electrical power from the same amount of the geothermal resource and with fewer emissions. (All geothermal plants have non-toxic emissions simply because pipe connections, flanges, and the like cannot be made perfectly airtight. The regional air board reviewed the project.) The older plant will be demolished and the site reclaimed; it has operated for 28 years without environmental impacts of any consequence.
Geothermal development furthers the objectives of a California program that requires utilities to increase the procurement of viable electricity from clean and renewable resources and of policies meant to reduce carbon-based emissions to 1990 levels by 2020. It also furthers federal objectives establishing the development of non-hydropower renewable energy sources as a priority in order to reduce reliance on imported oil and combat global warming.
CEQA, as it was amended after the 1972 California Supreme Court case called Friends of Mammoth v. Mono County Board of Supervisors, requires state and local agencies to prepare an environmental impact report (EIR) on projects that may have significant adverse effects on the physical environment. If there will be no significant impacts or the impacts may be reduced by the imposition mitigation measures, then a mitigated negative declaration (MND) can be prepared. The express purpose of CEQA is to inform decision-makers and the public of the environmental consequences of a proposed project.
As Supervisor Johnston pointed out during the hearings on the replacement plant, under ordinary circumstances the project would have been reviewed by an MND because its environmental effects will be largely beneficial as compared to the older plant. However, in an abundance of caution the County ordered the preparation of an EIR. The EIR was prepared by outside consultants selected by and under contract to the County. Ormat is responsible for the costs.
Two coalitions of labor unions (by no means representing labor generally) purporting to represent their local membership (no Mono County members were identified) attacked the EIR with hundreds of pages of critical letters from their attorneys and reports from their hired “experts.” The County thereupon ordered the preparation of not one but two additional EIR’s to respond to the unions’ continuing criticism. It then prepared a Final EIR. Thus, this comparatively minor replacement project was reviewed in four environmental documents at enormous potential cost to the electrical rate-paying public. That still did not satisfy the unions.
Citizens, including labor unions, are entitled to seek enforcement of the state’s laws, including CEQA. The attorneys who appeared at the Board fairly presented the unions’ arguments, as was their right. However, the Board, following the recommendations of the Planning Commission and exercising a prerogative of legislative bodies, chose to rely on the work of outside environmental experts in approving the project.
Supervisors, Planning Commissioners, and local citizens wondered why labor unions would attack a project that will, according to a third-party economic report, require $46.1 million of new investment in materials, equipment, and services. It will employ up to 80 workers during construction, use local contractors wherever feasible, and contribute $9.9 million to the County’s economy during the construction phase alone. The new investment will also yield higher property tax revenues.
Articles in the Los Angeles Times and Sacramento Bee opined that these unions are using CEQA and the threat of litigation as bargaining tools as they seek concessions from alternative energy developers. Litigation can result in years of delay and unrelenting expense. The popular term is “green-mail.” Projects elsewhere in the state have been under like pressure. Whether the unions will now sue the County remains to be seen.
Thus, implicit in Kirkner’s articles is the question whether Mono County might once again- 40 years later- be involved in a fresh look at CEQA by the Legislature. That may happen, because this use of the act appears at odds with its central purpose of informing the public on environmental issues. By its very terms CEQA was not meant to be used as a bargaining ploy or for purposes unrelated to the environment. There is substantial public concern that this use of the statute will undermine one of California’s finest laws, one that has become a model for environmental protection laws nation-wide.
[Full disclosure: The writer’s firm represents and advises Ormat Technologies on environmental matters. This is written, however, as a private citizen who was present and participated when the Legislature wrote the environmental law discussed here. It is based on public records of Mono County.]
There have been two egregious “judicial amendments” to CEQA by the Courts that have really undermined its effectiveness.
First is the need to apply it to every decision, no matter how minor or environmentally beneficial.
Second, and often overlooked, is the equation of volume and verbosity with substance. The reality is that if the courts would allow these reports to be concisely written, and if engineers and consultants would write clearly and concisely, you could wind up with 10-20 page EIRs and some specific appendices containing technical analysis that do the job better than the 1000+ page monstrosities out there today.
But that would require two things: acknowledging the real issues after the draft analysis and comments stage and allowing the Final EIR to focus on those, and getting the engineering and consulting firms away from the C-Y-A paper-generating approach preached by the lawyers, which enriches all of them at our expense (to review it all) and the expense of the project proponent.
You could still define the real issues using “thresholds of significance.” Fine. This is what the impact is going to be based on the technical analysis in Appendix __. Apply the thresholds. They are met or they aren’t. Done.