LOTUS V. CALTRANS A PRACTITIONER'S VIEWPOINT - 2014 LSI CEQA Conference - Santa Monica

2014 LSI CEQA Conference – Santa Monica

                           LOTUS V. CALTRANS
                           A PRACTITIONER’S VIEWPOINT
                           PRESENTED BY:
                           CURTIS E. ALLING, AICP
                           ASCENT ENVIRONMENTAL, INC.
                           OCTOBER 2014

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!
CURTIS E. ALLING (916.930.3181)
CURTIS.ALLING@ASCENTENVIRONMENTAL.COM
WWW.ASCENTENVIRONMENTAL.COM
WWW.FACEBOOK.COM/ASCENTENVIRONMENTAL