CEQA's Substantive Mandate Clouded by Appellate Court

October 1978
Citation:
8
ELR 10208
Issue
10

A California state court recently interpreted the California Environmental Quality Act (CEQA),1 one of the strongest environmental statutes in the country, in a manner which apparently limits the utility of that statute as a powerful substantive tool for environmental protection.Like the National Environmental Policy Act (NEPA)2 on which it is modeled, CEQA requires that an environmental impact report (EIR) be prepared for proposed government and government-licensed projects affecting the environment. A 1976 amendment3 added a substantive component to the state act which has no parallel in the federal statute, however. As amended, CEQA now declares that state agencies should not approve proposed projects "if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects" of the projects.

In Laurel Hills Homeowners Association v. City Council of Los Angeles,4 the California Court of Appeal ruled that this provision does not prevent an agency from approving a subdivision plan despite the existence of environmentally superior alternatives so long as mitigation measures are imposed that will reduce the adverse environmental effects of the proposal to an "acceptable" level.5 With the unanimous denial by the California Supreme Court of a petition for review,6 state agencies apparently now have discretion under CEQA as amended to choose to mitigate the environmental damage from a proposed project, stopping short, however, of avoiding completely the avoidable damage by adopting the environmentally preferable alternative, a degree of discretion that was not thought to exist under prior court decisions interpreting the Act.

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