2014 Update to the CEQA Guidelines

As discussed in an earlier article, SB 743 implemented needed CEQA reforms for "Transit Priority Projects" and directed OPR to establish new criteria for analyzing transportation impacts through amendments to the CEQA Guidelines. However, OPR is not confining its update of the CEQA Guidelines to the transportation changes covered by SB 743, but is undertaking a comprehensive update to the Guidelines in 2014. OPR has already received suggestions from over forty individuals, organizations and public agencies, and has published a list of 27 Guidelines for which revisions have been suggested (the list is available here). Among the main themes are clarifications to the definition of the proper baseline for environmental review, revisions to the analysis of greenhouse gas emissions, clarifications to procedures for supplemental review (including "tiering" and the use of a Program EIR), further guidance on the adequacy of water supply analysis, and other areas. OPR has expressly declined to add potential changes related to the potential for exposure of future residents to existing odors and pollution (so-called "CEQA in reverse") pending resolution of the Supreme Court's review of the issue in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2013) 218 Cal. App. 4th 1171.

The list of possible topics includes adding the loss of open space as an example of potential cumulative impacts to be included in the determination of project impacts (CEQA Guidelines § 15064). The list of topics also includes revising the initial study checklist in Appendix G of the Guidelines to specifically reference the loss of open space (including the loss of agricultural land) among impacts to be considered in an initial study. While many local agencies undoubtedly do this already, the list of proposed topics suggests adding these to the topics expressly covered by the Guidelines.

Also, Section 15301 (categorical exemption for existing facilities) has been suggested for inclusion among the CEQA Guidelines to be revised. At least one commenter has suggested revising this section to incorporate the holding of Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal. 4th 310, "so that the exemption cannot be used to expand the use of a facility beyond its historic use (rather than use at the time of the lead agency's determination)." However, Section 15301 currently allows only the continued operation of an existing facility with "negligible or no expansion of an existing use." (Guidelines § 15301.) Therefore, this comment raises important questions, as Communities for a Better Environment involved a negative declaration, and only mentioned Section 15301 in passing to distinguish it from the facts of the case. (28 Cal.4th at 326.) Such a revision would appear to extend that case to apply to an area (the categorical exemption for existing facilities) not within its holding. These and other comments are sure to be submitted to OPR addressing the numerous issues raised and suggesting other changes to CEQA Guidelines, as appropriate.

OPR has requested comments to be submitted by February 14, 2014, and will release a draft of the proposed changes on or before July 1, 2014.

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