On December 5th, You Can Turn Back an Environmental Assault at the SLO Supervisors

by Andrew Christie, Chapter Director

In San Luis Obispo County, land use defines local politics. The land is where the money is. The Central Coast is drop-dead gorgeous, undeveloped land is increasingly scarce and valuable, and development pressure is intense. Developers are always looking to exercise as much political influence as they can and find ways to thwart their arch nemesis, the California Environmental Quality Act, the state’s premiere environmental law and the reason why California has not turned into Texas, Mississippi, and all other states where land use regulations can be summed up as “pave it all and let God sort it out.”

In that ongoing struggle, recent high-profile failures to turn Santa Margarita into a gravel quarry, and the Laetitia Vineyards into a luxury housing development -- thanks to the annoying participation of the public in the public review process -- did not go unnoticed.

So you may think December 5th is just another Tuesday, and this is just another boring and/or innocuous-looking policy item on the agenda of the County Board of Supervisors:

“42: Receive and file a report on existing California Environmental Quality Act (CEQA) practices and procedures, and consider amendments to the County of San Luis Obispo CEQA Guidelines”

…but it’s neither boring nor innocuous, and a cabal of local developers will be there, actively attempting to snare three votes for their cause.

Here’s the way things work now: The County Planning Department and an environmental consulting firm determine whether a project is likely to have significant environmental impacts that will require mitigation measures. If so, a developer’s project will require an Environmental Impact Report, the highest (and most expensive) level of review. The County and the consultant prepare the EIR. The developer must reimburse the County for the cost incurred by the EIR consultant in preparing that report. Mitigation measures can add significantly more expense.

The Administrative Draft Environmental Impact Report (ADEIR) is the first working draft prepared by the EIR consultant. The County does not circulate the ADEIR to the public or the applicant. The developers want to change that, inserting themselves between the County and the consultant, essentially sitting behind them and peering over their shoulders, megaphone in hand, during the preparation of the ADEIR.

Developers are in business to reap private profits from their projects. Paying for the public impacts of those projects: not so much. (During the fight over the Phillips 66 oil train terminal, County planners determined that the project would likely have 15 Class One significant and unmitigable impacts on the environment. The oil company argued it would only have one, and it could be easily mitigated.) Granting developers a position of undue influence from which they can exert de facto co-authorship of the environmental review of their own projects would have an obvious outcome. You don’t have to read far into the staff report on Tuesday’s Agenda Item 42 to grasp that This is Not a Good Idea, as County planners are not shy about underscoring this point:

One primary reason that the County does not circulate the ADEIR is to ensure that the document is an independent and objective analysis of the project – a mandate of the CEQA statute. In addition, the ADEIR must be accurate and meet certain requirements of CEQA and local regulations. If the County determines that the ADEIR is inadequate, it must be revised to correct the deficiencies identified in the preliminary review before it is released to the public. In addition, the focus of the review by staff is on accuracy, consistency and legal defensibility. An ADEIR may also be referred to County Counsel to review consistency with case law. If any major significant project issues arise during preparation of the environmental document by the Consultant, the County and the Consultant notify the applicant and meet with the applicant to go over the findings.

Following preparation of the ADEIR, and prior to public release, the County offers to meet with applicants to discuss any major issues that have arisen, and to discuss the alternatives section to ensure that any additional alternatives the applicant may desire are included as part of the environmental document.

For good measure, the staff report points to a recent court decision that found “the local government and the applicant can become allied in a way that allows them to share legal strategy and documents. However, this can only happen after the Final EIR is certified and the project is approved.

County Planning staff found that 93% of California jurisdictions surveyed do not circulate the ADEIR. Of the two counties that do, the fundamental inequity of doing so – and likely the #1 reason why the overwhelming majority of counties statewide to not engage in the practice – can be found in the text of the procedure for doing so: “An individual would have to make a specific request to be notified of the availability of the administrative draft document for a project.” (County of Sacramento – ADEIR Review Procedures).

That is to say: you would have to know that a particular project is coming down the pike at the earliest stage of application and review. Then you would have to ask to be placed on County Planning’s e-mail list to be notified of the availability of that Administrative Draft EIR. And as the County’s mailing list is project specific, you would have to obtain that advance knowledge and repeat that e-mail request for any and all future projects.

Per the contemplated change in the rules, none of this would be a requirement for applicants: Their access would be instant and automatic.

On December 5th, urge the board not to get into the business of fixing what ain’t broke and opening Pandora’s Box. If you are fond of the quality of life where we live, tell them to select Option #1 as offered in the staff report: “Make no change to the existing County CEQA Guidelines. The existing County CEQA Guidelines currently satisfy the requirements of CEQA to have adopted procedures for the evaluation of projects and the preparation of EIRs and Negative Declarations.”

Agenda Item 42 will be heard after the Board of Supervisors convene their afternoon session at 1:30. It would be worthwhile to schedule your day to ensure that your supervisors hear from you that: A) the process by which Administrative Draft Environmental Impact Reports are created should continue “to ensure that the document is an independent and objective analysis,” B) you know where Agenda Item 42 is coming from and what it’s about, C) any supervisor who votes for the proposed amendments will be sending a message about who he or she works for, and D) such a vote will ensure that they get a message back from the voters the next time they seek reelection.