Growing Smart Legislative Guidebook

Chapter 12: Integrating State Environmental Policy Acts with Local Planning Endnotes

[1] The commentary and model statutes in this Chapter were written by Daniel R. Mandelker, Stamper Professor of Law at Washington University in St. Louis. The introductory commentary originally appeared in a slightly different form as "Melding State Environmental Policy Acts with Land-Use Planning and Regulations," Land Use Law & Zoning Digest 49, no. 3 (March 1997): 3-11.

[2] N.Y. Envtl. Conserv. Law 8-0105(6)(2000); Minn. Stat. Ann. 116B.02-04 and 116D.02-02 (2000).

[3] A court can reject an impact statement prepared by an applicant after an environmental review if it believes the applicant was biased in its analysis. For federal cases see Danel R. Mandelker, NEPA Law and Litigation, 2d ed.(Deerfield, Ill.: Clark Boardman Callaghan, 1993), 10.15 hereinafter cited as NEPA Law.

[4] Robert Olshansky, "The California Environmental Quality Act and Local Planning," Journal of the American Planning Association 62, No. 3 (1996): 313, 317.

[5] Final Report of the Governor's Task Force on Regulatory Reform (Olympia, Wash.: Washington State Office of Financial Management, Dec. 20, 1994), 36, 37. See also Appendix A to this Chapter listing articles criticizing SEPAs and offering some suggestions for improvements.

[6] See 42 U.S.C. 4321, 4331-4335, 4341-4347.

[7] NEPA reaches permits for development in wetlands under 404 of the Clean Water Act, 33 U.S.C. 1344. Agencies must integrate permit review under this Act with environmental review under NEPA. See Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986).

[8] See 40 C.F.R. Pt. 1500.

[9] See NEPA Law 9.03.

[10] Program statements are an administrative requirement under NEPA and may be mandatory. See NEPA Law 9.02.

[11] Friends of Mammoth v. Board of Supervisors of Mono County, 502 P.2d 1049 (Cal. 1974). The court held that CEQA applied to a conditional use permit for a development. At the time CEQA applied only to projects an agency intended to "carry out" and did not define "project." The court held the term "project" applied to projects public agencies approve as well as projects they carry out directly.

[12] See NEPA Law 12.05[1].

[13] California legislation requires agencies to consider alternatives and mitigation measures before they approve a project. Washington legislation allows agencies to deny a proposed action based on policies incorporated into "formally designated" regulations, plans, or codes. NEPA Law 12.08[2], 12.08[4].

[14] Daniel R. Mandelker, Land Use Law, 4th ed. (Charlottesville, Va.: Lexis Law Publishing, 1997), 3.12; Rodney Cobb, "Mandatory Planning: An Overview," PAS Memo (Chicago: American Planning Association, Feb. 1994)

[15] NEPA Law 12.06[2], discussing Cal. Pub. Res. Code 21064.5.

[16] For example, the regional planning statute recommended by the Legislative Guidebook authorizes regional plans to contain "a statement of the economic, demographic and related assumptions used and alternative assumptions considered and rejected in the preparation of the regional plan." Guidebook, 6-40. Authority to consider environmental assumptions could be added to this list.

[17] E.g., Cal. Gov't Code 65302(d) ("conservation element for the conservation, development, and utilization of natural resources"); Fla. Stat. Ann. 163.3177(6)(d) (conservation element).

[18] N.Y. General City Law 28-A: "A city comprehensive plan may be designed to also serve as, or be accompanied by, a generic environmental impact statement pursuant to the state environmental quality review act statute and regulations." Note that the plan can be "designed" to serve as the program impact statement. There is similar legislation for towns and villages.

[19] "No further compliance with such law is required for subsequent site specific actions that are in conformance with the conditions and thresholds established for such actions in the generic environmental impact statement and its findings." Id.

[20] The text that follows outlines, with some modifications, statutory requirements for a Master Environmental Impact Report. Cal. Pub. Res. Code 21156-21158.5. California also authorizes program statements on comprehensive plans in a different section. Id., 21083.3. The statute, generally, limits analysis of projects covered by the plan to "effects on the environment which are peculiar to the parcel or to the project and which were not addressed as significant effects in the prior environmental impact report, or which substantial new information shows will be more significant than described in the prior environmental impact report." Id., 21083.3(b). Rezonings consistent with the plan are exempt from environmental review under the SEPA. Id., 21083.3(e). For discussion of these and other statutory provisions and regulations that attempt to avoid redundant environmental reviews see M. Remy, T. Thomas, J. Moose& W. Manley, Guide to the California Environmental Quality Act (CEQA) (Point Arena, Ca.: Solano Press, 9th ed. 1996), ch. X, hereinafter cited as Guide.

[21] The California statute also requires discussion of anticipated subsequent projects in the plan, but this condition requires the inclusion of too much detail. See Guide at 318-319.

[22] See County of Santa Barbara Planning & Development, Orcutt Community Plan Update, Proposed Final Environmental Impact Report (Santa Barbara, Ca.: The Department, Dec. 1995). In addition to analyzing the environmental impacts of the plan, the impact report also analyzes the environmental impacts of 45 "key sites" in the planning area on which development is expected to occur. This more detailed environmental analysis of key sites lessens further the need for focused impact reports when development on these sites is considered.

[23] Wash. Rev. Code 43.21C.031. This provision is in the SEPA. A planned action is still subject to "environmental review and mitigation." Id., 43.21C.031(1).

[24] See City of Everett, Wash. Planning & Community Development, SW Everett/Paine Field Subarea Plan and EIS (Everett, Wash.: The Department, Dec. 1996).

[25] Wash. Rev. Code 43.21C.240(4)(b). For discussion of the Washington legislation see Richard Settle, The Washington State Environmental Policy Act : A Legal and Policy Analysis (Seattle, Wash.: Butterworth, 1986, and Supp. 1995) 501-544.

[26] A more flexible statutory approach would not specify the environmental content of plans and development regulations. Legislation could simply authorize a plan and development regulations to consider the "significant environmental impacts" of development policies without detailing what plans and regulations must contain.

[27] Wash. Rev. Code 43.21C.240(1). A municipality reviewing a project under the SEPA "may determine that the requirements for environmental analysis, protection, and mitigation measures in the county, city, or town's development regulations and comprehensive plans ..., and in other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply." See also the provisions in Wash. Rev. Code 36.70B.030(4).

[28] New York has adopted this reform. See N.Y. General City Law 32.

[29] E.g., Conn. Gen. Stat. 22a-28 to 22a-45; Fla. Stat. Ann. 403.91-403.929; Mass. Gen. Laws ch. 130, 105; ch. 131, 40; Mich. Comp. Laws Ann. 281.701-281.722; N.H. Rev. Stat. Ann. 483-B:1 to 483-B:19; and N.Y. Envtl. Conserv. Law 25-0101 to 25-0601; 71-2501 to 71-2507.

[30] See D. R. Mandelker, NEPA Law & Litigation (Deerfield, Ill.: Clark Boardman Callaghan, 2d ed. 1992 & Supp. 1997), 8.08, 12.06.

[31] 40 C.F.R. 1509(c).

[32] D. R. Mandelker, NEPA Law & Litigation (Deerfield, Ill.: Clark Boardman Callaghan, 2d ed. 1992 & Supp. 1997), 10.18, 12.09

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