Wayne Dernetz | Former City Attorney
How should we respond to the draft Environmental Impact Report (EIR) on the proposed 2008 Fairgrounds Master Plan? The California Environmental Quality Act (CEQA) and CEQA Guidelines provide some direction.
CEQA mandates that public agencies should not approve a project as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen any significant impacts resulting from the project. If the mere possibility exists for significant environmental impacts from the project, a draft EIR must be prepared.
The draft EIR informs the lead agency, other public agencies and the general public about: a reasonable range of project alternatives including the “no project” alternative; significant environmental impacts likely to result from the project; mitigation measures to reduce environmental impacts below the level of significance, and any “over-riding” circumstances (legal, social, economic, etc.) resulting from the project if all impacts cannot be lessened.
Once the draft EIR is prepared, a notice of completion is given followed by a public review period, solicitation of public comments, and preparation of responses to the comments received. California courts have variously identified the purposes for the public review and comments as: “sharing expertise”; “disclosing the agency’s analysis”; “checking for accuracy”; “detecting omissions”; “discovering public concerns”; and “soliciting counterproposals.”
CEQA Guidelines include the following tips for making effective comments:
• Stick to significant environmental impacts – an adverse change in a physical condition including land, air, water, minerals, flora, fauna, ambient noise, or historic and aesthetic objects; economic, social or other impacts are not significant unless related to a physical change.
• Explain the basis for your comments; support your comments with data or references offering facts, reasonable assumptions based on facts, or expert opinions supported by facts.
• Submit all comments in writing before the posted deadline; agencies are not required to respond to comments received after that date.
• Avoid policy arguments not relevant to the EIR process; arguments about the need, desirability or cost of the project should be made elsewhere.
An evaluation and response to public comments is also essential to the review process. The responses must describe and explain the disposition of significant environmental issues raised and reasons for rejecting suggestions received or proceeding with the project despite unmitigated environmental impacts.
Lastly, all comments and responses to comments are included in the final EIR submitted to the decision makers who determine whether the final EIR is complete. Once that determination is made, the EIR process is finished unless legal challenges arise contending the agency failed to fulfill its procedural or substantive CEQA obligations. Winning such a lawsuit can be difficult and expensive.