LOTUS V. CALTRANS A PRACTITIONER’S VIEWPOINT P R E S E N T E D B Y : C U R T I S E . A L L I N G , A I C P A S C E N T E N V I R O N M E N T A L , I N C .

O C T O B E R 2 0 1 4

2014 LSI CEQA Conference – Santa Monica

KEY PRACTITIONER’S WORRY

Does Lotus mean the end, as we know it, of “self-mitigating” strategies and good environmental planning of projects before CEQA review?

PRACTITIONER’S OBSERVATIONS ABOUT THE LOTUS DECISION

A WORLD-CLASS, SENSITIVE ENVIRONMENT

A LONG-RUNNING ENVIRONMENTAL DEBATE

A CLEAR SHORTCOMING IN THE IMPACT ANALYSIS OF THIS VERY SENSITIVE RESOURCE

u  Title of key section: “The EIR fails to comply with CEQA insofar as it fails to evaluate the significance of the project’s impacts on the root systems of old growth redwood trees adjacent to the roadway.”

u  Primary flaw: omitting thresholds of significance for root zone impacts and an analysis of impact significance

u  Facts about physical changes and concepts to define significance criteria existed in the record, so analysis of impact significance could have occurred

SHORTCOMINGS POINTED OUT TO CALTRANS, BUT FINAL EIR DID NOT RESOLVE THEM u  California State Parks comment letter

raised the lack of analysis of significance

u  “Lack of sufficient data to evaluate the propose project”

u  Final EIR did not provide significance criteria or new data, so there was no change in the significance determination (which, if done, would have required recirculation)

AND THEN, …THE “COMPOUNDING” ISSUE u  Caltrans “compounds” its omission, by reliance on

environmental protection measures to conclude less than significance for actions that should have been mitigation measures offered in response to the significant effect.

u  Example measures: §  Special pavement to reduce roadbed depth

§  Hand excavation in root zone (pick axes and shovels) §  Habitat restoration of formerly paved areas

§  Invasive plant removal elsewhere to offset road impacts §  Arborist monitoring of construction

OUTCOME: “SHORT-CUTTING OF CEQA REQUIREMENTS” IS NOT ALLOWED

u  Approach precluded identification of potential environmental consequences and thoughtful analysis of sufficiency of measures to mitigate those consequences

u  Simply stating that there will be no significant impacts because the project incorporates special construction techniques is not adequate

CAN A FOOTNOTE BE A SAVING GRACE? u  Footnote 8: the distinction between

elements of a project and mitigation measures may not always be clear

u  “Cement Treated Permeable Base” pavement “might well be considered to define the project”

u  But…restorative planting, invasive plant removal elsewhere, and arborist monitoring are “plainly mitigation measures”

PRACTICE POINTERS IN LIGHT OF THE LOTUS DECISION

ARE ENVIRONMENTAL PROTECTION FEATURES LEGIT AS PART OF THE PROJECT? u  Is the feature on the project site?

u  Is it a physical element of the project to be constructed, as in the lightweight pavement?

u  Can it be depicted in site plans, or engineering or architectural design documents?

u  Based on Footnote 8, these features could be included in the project description

OR, IS THE ENVIRONMENTALLY PROTECTIVE ACTION COMPENSATORY OR OFFSETTING? u  Is the measure an action rather than a

physical feature of the project?

u  Is the action off the project site? Does it matter?

u  Does it compensate for an impact, or provide an in lieu action to rectify or offset an impact?

u  The Lotus court would likely call these “plainly mitigation measures”

SO,…WHAT DOES IT ALL MEAN?

FOR THE PRACTITIONERS OUT THERE

“Self-mitigating” strategies and good environmental planning of projects before CEQA review are still alive, but with conditions…

LOTUS DEALT WITH A SPECIFIC FACT SET

u  An infrastructure project in a highly sensitive setting

u  A project EIR

u  Measures applied specifically to this rather unusual project impact circumstance (redwood root zone)

u  Would the outcome be the same for different types of CEQA “projects”?

WHAT ABOUT….? u  Standardized construction measures dictated

by enforceable regulatory approvals, like storm water control and water quality BMPs?

WHAT ABOUT….? u  A program EIR with self-mitigating,

programmatic standard practices for a series of related actions (rather than a singular project situation)?

WHAT ABOUT….? u  Environmentally sensitive policies intended

to avoid significant effects included in a General Plan?

WHAT IF THE EIR INCLUDES ADEQUATE IMPACT ANALYSIS? u  How about a similar project circumstance,

but in an EIR that provides: §  clear significance criteria and §  explanations, supported by substantial

evidence, about how project description features avoid significant effects and what would occur without the features?

u  After all, the Lotus court found absence of significance criteria and adequate impact analysis to be the primary, fatal flaw.

PRACTITIONER’S RECOMMENDATIONS u  If an environmental protection feature modifies

a physical element of a project, depicted in a plan or design, it can likely be in the project description

u  If an action is not depicted in a project plan or design, and it otherwise fits the definition of mitigation, it likely is mitigation (quacks like a duck).

u  Regardless of decisions about “mitigation” or “project description,” don’t overlook significance criteria and good-faith analyses of significance.

THANK YOU! C U R T I S E . A L L I N G ( 9 1 6 . 9 3 0 . 3 1 8 1 ) C U R T I S . A L L I N G @ A S C E N T E N V I R O N M E N T A L . C O M W W W . A S C E N T E N V I R O N M E N T A L . C O M W W W . F A C E B O O K . C O M / A S C E N T E N V I R O N M E N T A L