EPA-600/3-76-040
April 1976
Ecological Research Series
SELF-REGULATION OF ENVIRONMENTAL QUALITY:
Impact Analysis in
California Local Government
Environmental Research Laboratory
Office of Research and Development
U.S. Environmental Protection Agency
Corvallis, Oregon 97330
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RESEARCH REPORTING SERIES
Research reports of the Office of Research and Development, U.S. Environmental
Protection Agency, have been grouped.into five series. These five broad
categories were established to facilitate further development and application of
environmental technology. Elimination of traditional grouping was consciously
planned to foster technology transfer and a maximum interface in related fields.
The five series are:
1. Environmental Health Effects Research
2. Environmental Protection Technology
3. Ecological Research
4. Environmental Monitoring
5. Socioeconomic Environmental Studies
This report has been assigned to the ECOLOGICAL RESEARCH series. This series
describes research on the effects of pollution on humans, plant and animal
species, and materials. Problems are assessed for their long- and short-term
influences. Investigations include formation, transport, and pathway studies to
determine the fate of pollutants and their effects. This work provides the technical
basis for setting standards to minimize undesirable changes in living organisms
in the aquatic, terrestrial, and atmospheric environments.
This document is available to the public through the National Technical Informa-
tion Service, Springfield, Virginia 22161.
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EPA-600/3-76-040
April 1976
SELF-REGULATION OF ENVIRONMENTAL QUALITY:
IMPACT ANALYSIS IN CALIFORNIA LOCAL GOVERNMENT
by
Arthur W. Jokela
Center for California Public Affairs
Claremont, California 91711
Contract No. 68 01 2963
Project Officer
Harold V. Kibby
Assessment and Criteria Development Division
Corvallis Environmental Research Laboratory
Corvallis, Oregon 97330
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF RESEARCH AND DEVELOPMENT
CORVALLIS ENVIRONMENTAL RESEARCH LABORATORY
CORVALLIS, OREGON 97330
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DISCLAIMER
This report has been reviewed by the Office of Research and
Development, EPA, and approved for publication. Approval does
not signify that the contents necessarily reflect the views and
policies of the Environmental Protection Agency, nor does mention
of trade names or commercial products constitute endorsement or
recommendation for use.
ii
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FOREWORD
The widespread use of environmental impact analysis as a means of
achieving Federal agency decisionmaking responsive to environmental
concerns was initiated by the passage of the National Environmental
Policy Act of 1969. The Act required that Federal agencies prepare
statements assessing the environmental impact of their major actions
significantly affecting the human environment.
In subsequent years, Federal agencies developed procedures for the
preparation of environmental impact statements, often requiring
similar analyses and statements from local governments and the
private sector as a requirement for the award of Federal permits or
grants. In addition, some States adopted environmental impact state-
ment requirements.
Recent revisions of guidelines for the preparation of Federal impact
statements, issued by the Council on Environmental Quality, have
defined clear requirements as to what can be expected in impact
statements from Federal agencies. However, such uniformity of
procedure and approach has not been extended below the Federal
level on either Federal agency requirements or individual State
requirements. Further, while the guidelines may specify what is
desired in Federal impact statements, technical approaches to meet-
ing these objectives may not always be available and universally
acceptable.
As a part of its series of Socioeconomic Environmental Studies, the
Environmental Protection Agency, Office of Research and Development,
is conducting research whose objectives are to:
—Improve the technical quality of environmental impact analyses
in the areas of Agency responsibility;
—Improve the ability of the Agency to provide substantive tech-
nical review of environmental impact statements prepared by
other agencies; and
—Improve the effectiveness of the use of environmental impact
analysis in influencing decisionmaking at all governmental
levels.
This publication is the fourth in a series of reports on environmental
impact analysis requirements several State governments have instituted.
The first two reports analyzed requirements of the various States.
The third report provided a more detailed analysis of the environ-
mental impact reporting program instituted in California, the most
extensive of the State programs.! The present report describes imple-
mentation of the California law at the local level of government.
iii
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This series of studies is being conducted by Thaddeus C. Trzyna and
Arthur W. Jokela and their associates at the Center for California
Public Affairs (an affiliate of The Claremont Colleges, 226 West
Foothill Boulevard, Claremont, California 91711) under contract to
the Washington Environmental Research Center.
IV
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CONTENTS
Section
Page
I Introduction 1
II Conclusions 4
III Recommendations 6
IV CEQA as an Experiment in Governmental Reform 8
V A Changing Regulatory Environment 23
VI An Adaptive Tool for Management 35
T;il Role of the EIR in a Self-Regulating System 50
VIII The Future of the EIR 62
IX The Role of EPA in Local Projects 77
X References 97
XI Appendices 108
A. California Environmental Quality Act : 109
Policy Statement
B. National Environmental Policy Act: 111
Policy Statement
C. Selected Public Hearing Reports, Governor's 113
Task Force on Local Government Reform
D. Draft Code of Ethical Practice, Association 120
of Environmental Professionals
E. State Environmental Impact Statement 122
Requirements
F. Section 201, Public Law 92-500 131
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ACKNOWLEDGMENT S
Facilities for this project were provided by the Center for California Public
Affairs, where the author is Director of Research. Editorial assistance of
Thaddeus C. Trzyna, President of the Center, is acknowledged. Comments on
the manuscript draft were provided by Trzyna, Robert L. Small of Environmen-
tal Analysis Systems, Inc., Ronald Smothers of Owen Menard and Associates,
and Don Benninghoven of the League of California Cities.
Special thanks are due David Nielsen of the County of San Diego and Richard
Hall of the County of Santa Clara, who on several occasions provided in-
sights into works in progress in their areas. Neil Orloff of the Council on
Environmental Quality staff generously provided an advance copy of his update
on impact requirements in the states. Dennis A. O'Leary of Lowry and Asso-
ciates kindly facilitated the study of wastewater planning processes.
The bulk of data base for the project was provided by respondents and patient
interviewees in local government agencies. The discussion contained herein
evolved by accretion and refinement over an extended period of time, beginning
in 1970 during the author's collaboration with Robert L. Small in undertaking
an exploratory environmental analysis program in San Diego County government.
Dr. Lawrence J. Fogel of Decision Science, Inc., provided a stimulus by call-
ing attention to Professor Beer's paper soon after its presentation. Numer-
ous friends, colleagues, observers, and bystanders have wittingly and unwit-
tingly shared in the subsequent process; specific sources are acknowledged
where possible.
Occasions for presentation and discussion of portions of the work have been
afforded in conferences sponsored by the Council on Environmental Quality,
the University of California Extension at Berkeley, the University of Wisconsin
at Madison, and the University of Southern California, and by several graduate
classes at the School of Environmental Design, California State Polytechnic
University, Pomona.
A "benchmark" discussion of the subject, specifically organized by the Center
for the purpose, took place in Sacramento on July 9, 1974. Grateful acknowledg-
ment for their participation is accorded to Arthur Bauer of the Senate Office
of Research; Ray Belknap (private environmental planning consultant); Vivian
Brown of the Association of Bay Area Governments; Charles Frank of the County
of Sacramento; Richard Gutting of the Environmental Defense Fund; Richard Hall;
Norman Hill of the Office of the Secretary for Resources; Stephen Hogg of the
County of Fresno; William Kaiser of the League of California Cities; Harold
Kibby and Edwin Royce of the EPA Washington Environmental Research Center;
Arthur Letter of the San Diego County Comprehensive Planning Organization;
Larry Moss of the Sierra Club (now Deputy Secretary for Resources, State of
California); Neil Orloff; Deputy Attorney General Louise Rerme; Fred Silva
of the State Office of Planning and Research; Robert L. Small; Thaddeus Trzyna;
Paul Smith of Amfac Mortgage Company; Eugene Varanini and Thomas Willoughby of
the State Assembly staff; and John Wise of EPA Region IX.
The support of the Environmental Protection Agency, and the assistance given
by Harold V. Kibby and Edwin B. Royce of EPA's Office of Research and Develop-
ment, is gratefully appreciated. All errors of fact, faults of judgment, and
omissions are the responsibility of the author.
vi
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SECTION I
INTRODUCTION
The purpose of this report is to discuss the diverse management ap-
proaches local agencies have taken in response to the California
Environmental Quality Act of 1970 (CEQA), and to comment on the
implications of this program for the implementation of other State-
and Federally-mandated environmental programs, particularly the Clean
Water Grants Program of Public Law 92-500.
CEQA requires State and local agencies to prepare an environmental
impact report (EIR) on any project "which may have a significant ef-
fect on the environment." It is patterned after the National Environ-
mental Policy Act of 1969 (NEPA) , which applies only to Federal
actions.
The early stages of evolution of governmental responses to CEQA have
been described in the preceding report, which was concerned primarily
with the legislative and administrative history of the Act. Of partic-
ular significance was the famous Friends of Mammoth decision of the
State Supreme Court in September 1972, which ruled that the Act applied
to the permit-granting activities of agencies of local government.
Prior to that time State and local agencies, for the most part, avoided
compliance with the Act, or minimized their response to it. After
Mammoth, a rapid shift in public attitude toward the Act occurred; and
throughout California, local government moved to comply with the new
interpretation of the law—developing procedures for EIR preparation and
processing, and designating or hiring technical staff to do the work.
While local governments moved to implement Mammoth, a major legislative
effort was undertaken in Sacramento which culminated in the passage of
Assembly Bill 889 (AB889) in December 1972. This bill passed as an
emergency measure and became law immediately, though it provided a
120-day moratorium for full implementation by local agencies. AB889
clarified and strengthened the Act, reaffirming its applicability to the
granting of permits by local government.
The Mammoth case, the concurrent general election campaign (involving
Proposition 20, the State Coastal Initiative^) and State and local efforts
to respond all generated a great deal of public visibility for environ-
mental laws, and considerable interest in the local impact analysis
concept.
Activist managers, politicians, and citizens—some of whom may previously
have been aware of CEQA's possibilities—now had a mandate to press their
local government agencies to take the act seriously. Some agencies moved
rapidly to integrate the EIR process into management activies. The
broad majority took what amount to protective steps, trying the avoid
potential litigation under the act. In some localities, there was
active antagonism toward the act, which was regarded as an effort by
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"outside" environmentalists to stop local development. The result of
these and other differences among local communities is a wide range of
roles for the act in local government, and a number of divergent ap-
proaches to EIR management, described in the earlier report.4
Because of the very active administration of the act in many localities,
and the uniform requirement in all local government to make environ-
mental considerations "the guiding criterion in public decisions,"5
California goes well beyond other states in the pervasiveness of its
impact program at the local level of government. Twenty-one other
States have adopted some form of environmental impact assessment re-
quirement; most are restricted to specialized purposes, such as roads
or utilities, or are restricted in application to state agencies only.
The programs in other states are described in the first and second re-
ports in this series;" they are summarized and updated in Appendix E.
Through- its application to permit-granting on private projects, CEQA
particularly infuses land use control activies, a principal concern of
local governments (and the major program area in which local agencies
affect their environments). The effect of CEQA is to make "private"
land uses more public.
Land use provides the basis for other forms of pollution, and it has
therefore been a principal target of state and national environmental
legislation in recent years. Unlike most companion land use laws im-
posed on local government, CEQA entails little external control, either
in the form of specified management process or in the form of direct
regulation by State or Federal agencies. It does, however, encourage
monitoring of agency actions by other local agencies and by the public,
through procedures of notification and review.
As a consequence, the EIR process in local government in California is
evolving as a medium for local self-regulation of environmental impacts,
particularly where it is most actively supported locally.
CEQA provides interesting and potentially important illustrations of an
approach to local self-implementation of State policy and regulatory
programs.
The present report will discuss conditions that have affected, and have
been affected by the EIR process during the evolution of CEQA. Emphasis
will be placed on the milieu of activities surrounding CEQA; on the
structural and political processes relating to its implementation; and
on the indirect effects, costs, and benefits that result from the forms
of its use. Emphasis furthermore is upon the more positive aspects of
the EIR experience in California. Comparatively little attention is given
to the direct effect of the EIR upon individual project decisions, to
the "police action" needed to require performance by resistant agencies,
or to the technical performance of local government in response to CEQA.
California is in many ways a model, on a more intensive scale, of the U.S.
as a whole. Diversity in local attitudes toward development is extreme;
and there is wide variation in physical environment and resources,
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economic conditions, administrative traditions, and general political
culture.' In general, the pattern of pollution controls and land use
measures here has preceded the nation as a whole through State legis-
lation. Particularly in air and water quality regulation, California
has served as a large scale "laboratory" for national measures.
Experience here will be of use to other states in their further de-
velopment of processes of local environmental management.
This report is based on interviews and correspondence with State,
Federal and local officials, citizen environmentalists, consultants,
attorneys, and development interests throughout California; review of
published material; review of certain administrative and legislative
files and documents; and participation in several conferences. The
project was completed in April 1975, and revised with additions in
June 1975.
A study parallel to this one is being carried out by the California
State Legislature, through a task force and consultant team reporting
to the Assembly Committee on Local Government. Emphasis in the Assembly
study is upon the technical effectiveness of the EIR process in its
various forms, as compared to the emphasis here upon the more indirect
management process roles of the EIR. The legislative study is scheduled
to report in September 1975; it is intended to provide a basis for hear-
ings and a general legislative review of CEQA.°
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SECTION II
CONCLUSIONS
1. The California Environmental Quality Act (CEQA) is not simply a
project review requirement; it was designed to be, and has evolved as
a program of governmental reform and of process change. By expanding
the scope of every local government agency to include quality of life
considerations, the Legislature in effect issued a "mandate for inno-
vation." Considerable change has occurred, and agencies now have an
improved basis for mutual cooperation.
2. The environmental impact report (EIR) program serves as a monitor-
ing framework through which the public is enabled to stimulate concern
among public agencies for the policy intent of the law; and Interpreta-
tion and enforcement of policy are provided by the. courts,
3. The EIR has provided an educational medium for citizens, elected
officials and developers—but particularly for governmental staff and
consultants; two years of intensive, mutual training of natural
scientists and public administrators directly involved in the EIR pro-
cess has provided the State with a cadre of environmentally-oriented
professionals, who now form a network of mutual contacts within govern-
ment, private industry, and citizen-based organizations.
4. Widespread change is now taking place in the EIR process—and more
broadly in the environmental control and planning processes of local
government—as a result of accumulating information and experience.
5. Localities are highly diverse in their management processes, and in
the rates of change of those processes; where there is active political
support, administrators may be aggressive in modeling the EIR program to
fit into a locally-adapted system of regulatory controls; elsewhere it
may serve as little more than a pro forma "add-on" to the traditional
general plan and zoning requirements imposed by the State.
6. The future of the EIR depends substantially on the future of State
policy toward growth control, land use management, and State-level plan-
ning; it also depends to a strong degree on whether solutions can be
found to several institutional and technical problems that have led to
repetitive analyses of similar projects, and to "paper overkill."
1. Cost of the process is substantial, though still small in relation-
ship to the total cost of professional and governmental services for
average development projects; direct cost should decrease with time,
with better understanding, and with more data. Projects are increasingly
designed to avoid environmental damage in order to bypass the controls;
and the EIR is converging in diverse ways with traditional planning and
regulation.
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8. EPA's Clean Water Grants program also suffers from a "paper over-
kill" problem due to administrators requesting, for institutional
reasons, more documentation than may be required for public dialogue
about the issues; in this case the problem is compounded by excessive
centralization of administrative review within the State and Federal
agencies themselves.
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SECTION III
RECOMMENDATIONS
1. The State and Federal governments should recognize that leadership
toward development of integrated forms of environmental management
(including land use control) is now evolving, on a case-by-case basis,
from the local level of government. Localities are diverse; therefore
local systems of self-regulation may be the best (and perhaps the only)
means of competent management—subject to policy overview by citizens,
and process management oversight by State and Federal agencies.
2. Progressive localities should be regarded by the State as experi-
ments, in the same sense that California serves the nation as a labor-
atory for environmental control. There are excellent local examples
available of public as well as private initiative in environmental
planning; these should be observed and commended by the State, and
advertised to other localities.
3. Greater conscious effort should be made to encourage and utilize the
competence of citizen-based organizations in overseeing agency uses of
environmental law. Interlinking of such groups now forms a fast-acting,
statewide, unofficial communications network that could be of more direct
use to government in responding to environmental issues. Consideration
should be given, for example, to further "professionalizing" the review
of plans, programs, and impact statements by public non-governmental
organizations as well as by public agencies, passing through the review
costs to the originating agency or the applicant.
4. Particular attention should be given in EPA's Clean Water Grants
Program to increased involvement of non-specialists in local agency
staff work and local program review. The public role is now "sanitized"
in a public hearing format, as it was for local land use issues in
California prior to CEQA. Dialogue about real needs of local communities
is lacking, as is ongoing attention to the policies and goals of P.L.
92-500. These could be improved by stimulating and supporting competent
non-governmental public organizations; the result could be a lessening
of the load of program review paperwork in EPA's Regional Offices.
5. Specific examples of local practice under CEQA should be studied by
EPA and the State for further clues to the means of consolidating the
many forms of Federal and State review, and of delegating such reviews
to the local level. The particular case of Santa Clara County is in-
structive; self-analysis subject to public review and central agency
(County) review is now being asked of local public agencies (cities) as
well as of private enterprise (developers). And it appears to be work-
ing.
6. Local agencies need time to operate under CEQA, and under the many
other environmental and planning requirements of State and Federal
government. Homogenizing the requirements, or imposing structure in
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arbitrary ways could be counterproductive; so could rigid enforcement,
since there is "more than enough law" for any individual locality to
deal with completely at the present time. Attention should instead be
given to encouraging the best, monitoring the rest, and "bringing up
the rear"—seeing to it that every locality is doing something to get
its environmental house in order, and is gaining needed experience in
planning for and managing environmental quality.
7. Minor specific changes in CEQA may be useful to overcome some of
the "legalistic" constraints that add unnecessarily to procedures and
to documentation requirements. Two suggestions offered are the inclu-
sion of a policy statement in CEQA favoring minimization of require-
ments where possible; and a change to allow the "pass-through" of the
costs for procedures leading to a "Negative Declaration," and not only
for those that require a full EIR.
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SECTION IV
CEQA AS AN EXPERIMENT IN GOVERNMENTAL REFORM
Discussion in California today about the future of CEQA focuses pre-
dominantly on the environmental impact report (EIR) and its effective-
ness (or lack of effectiveness) in influencing decisions on specific
projects.
This emphasis tends to overlook a broadef intent of the Legislature in
enacting CEQA — the intent to improve governmental management processes;
and it reflects a similar situation observed by the Council on Environ-
mental Quality (CEQ) in an analysis in 1972 entitled "NEPA: Reform in
Government Decisionmaking":
Although much of the public discussion of NEPA has
revolved around the environmental impact statement
procedure of section 102(2) (C), NEPA's substantive
thrust cannot be overlooked. The primary purpose
of Congress in enacting NEPA was to establish a
Federal policy in favor of protecting and restoring
the environment . 10
The environmental impact statement (EIS) requirement was almost an
afterthought in the enactment of NEPA.H It was added as an "action-
forcing" procedure whose purpose was to direct all Federal agencies
"to interpret and administer their authorities in concert with the new
.environmental policy, 12 thus assuring that the policy statement would
be more than a hollow utterance. The overall effect of Section 102
and other provisions of the Act together was to
tell the agencies to add a new criterion—effect on
the environment — to those against which they have
traditionally tested their actions . The far-reaching
result is that agencies whose statutory mandates pre-
viously did not call for attention to the environmental
effects of their actions are now required to take those
effects into account. And agencies whose mandates pre-
viously directed their attention only to certain facets
of the environment now have a responsibility as broad as
the environmental policy declared in NEPA. 13
According to the CEQ analysis there is implicit in the Act a Congres-
sional "mandate for innovation," informing Federal agencies of an
"affirmative responsibility of the Government to anticipate environ-
mental problems and to devise ways of solving
The California Act similarly contains an implied mandate for change.
A great deal of innovation in government has occurred that may be
ascribed to this stimulus.
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IMPACT OF NEPA AND CEQA ON GOVERNMENT PROCESSES
The California Legislature followed the NEPA model very closely in enact-
ing CEQA in its original form in 1970.16 The two laws hold in common a
number of features in their subsequent histories. A most important dif-
ference in the two histories is that CEQA was substantially refined and
strengthened late in 1972, as a consequence of the famous Friends of
Mammoth decision of the State Supreme Court.17 NEPA has remained un-
changed since it was signed on January 1, 1970.
Because of the similarities between NEPA and CEQA, and because of the
comparative lack of analysis of CEQA from a policy point of view, it is
convenient to review the Federal experience with NEPA's role as a policy
instrument and a management tool as a basis for understanding CEQA's over-
all performance.
A general overview of indirect governmental reform benefits to be derived
from CEQA can be found in CEQ's conclusions about the reform role per-
formed by NEPA, an analysis worthy of extensive quotation here, because
of its direct analogy to the "unsung virtues" of CEQA today.
In the two and a half years since its enactment, NEPA has
gone far toward fulfilling its promise as one of the
major pieces of governmental reform legislation in de-
cades. It has had at least five clearly beneficial ef-
fects on the Federal Government.
First, it is a major step in bringing national policies
in line with modern concerns for the quality of life. For
the first time, maintaining environmental quality is ac-
knowledged to be "the continuing responsibility of the
Federal Government." Each agency has had its horizon
broadened to include not only its own parochial concerns
but also the need to "assure for all Americans safe,
healthful, productive, and esthetically and culturally
pleasing surroundings."
Second, the 102 process provides a systematic way for the
Government to deal with complex problems that cut across
the responsibilities of several agencies. Many of the
modern problems faced by the Government are inherently
complex and are beyond the responsibility of a single
agency. In the past, different agencies have often
responded to these problems in a piecemeal, uncoordinated
fashion, largely because of the lack of a mechanism for
shaping comprehensive policy. By forcing interagency
consultation and attention to a broad range of effects
and alternatives, section 102 fosters more sophisticated
Government decisionmaking. The 102 process uncovers the
need for more comprehensive policies and programs in areas
such as energy and transportation. Thus it is a catalyst
for more sensible policy formulation and program develop-
ment.
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Third, the 102 process has opened a broad range of
Federal Government activities to public scrutiny and
participation for the first time. Although many
agency procedures were formerly closed, the agencies
are now required to explain their decisions when
significant environmental values are concerned. A
written study of environmental effects, including an
analysis of available alternatives, must be made.avail-
able to the President, the Congress, and the public
before an agency acts. The public in turn has an oppor-
tunity to evaluate and comment on the agency's analysis.
This new element of public participation should contribute
to more careful and conscientious decisionmaking.
Fourth, agencies whose personnel have reflected a narrow
focus of concerns are being required now to supplement
their staffs with persons of different backgrounds rele-
vant to environmental issues. NEPA's required "inter-
disciplinary approach" means that personnel must be
hired who bring not only new skills but a fresh view-
point into the agencies. Over time, this influx should
lead to sharper questioning of traditional assumptions
within the agencies. Out of it should emerge an insti-
tutional viewpoint that is more sympathetic to environ-
mental values.
Fifth, NEPA's initiatives are enforceable in Federal
court by citizen suit. This keeps each of these require-
ments from being an empty exhortation. What NEPA re-
quires of the agencies is often difficult and uncomfort-
able. It is only natural that agencies are sometimes
reluctant to question accepted goals and to do the work
demanded by the 102 process. The willingness of citizens
to sue to vindicate NEPA and the vigilance of the courts
in enforcing the Act help to ensure that the agencies
take their new tasks seriously.18
In general, California's experience with CEQA repeats these points, as
further discussion in this report will indicate. A general statement
from a subjective point of view, similar to the following, may also be
made with regard to CEQA:
NEPA has had a positive effect on Government decisions,
although it is difficult to assess accurately the size
of this impact. The examples already listed of projects
and programs improved by NEPA provide little feel for
NEPA's effect on the thousands of other decisions that
make up the agencies' daily workload. The substantial
number of impact statements filed with the Council is a
sign that many agencies are responding to the Act. But
the best indication available at this juncture is prob-
ably the subjective impressions of those who work with
the agencies on environmental matters on a close, daily
basis—the Congressional committees that oversee the Act,
10
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the environmental groups, the Council on Environmental
Quality, and the Environmental Protection Agency. For
its part, the Council's sustained contact with agency
actions under NEPA leads it to believe that desirable
changes are in fact underway in the Federal bureaucracy.
There is still much room for improvement. Not all
agencies are successfully identifying actions subject
to 102 statements. Statements are sometimes prepared
too late to have a real role in decisionmaking. View-
points and practices are changing more quickly in some
agencies than others. But the Federal Government, at
the deliberate pace characteristic of large institutions,
is falling into step with the Nation's new environmental
consciousness expressed in NEPA.-'-'
Viewpoints and practices are changing rapidly in California today. A
full evaluation of CEQA, like the Council's evaluation of NEPA, should
take these changes into account—particularly in view of the signifi-
cant part played by policy in the enactment of both laws, and in view
of the continuing importance of policy statements in the interpretation
of both Acts by the courts.
IMPORTANCE OF CEQA'S POLICY STATEMENTS
An important feature of the effectiveness of CEQA is that the policy
declarations themselves are enforceable, and hence have become emplaced
into the activities of government officers in deciding individual issues
and in designing governmental processes. The linkage between the policy
statements and the details of government operation occurs primarily
through CEQA case law.
An unusual feature of CEQA is that, like NEPA but unlike the usual admin-
istrative statute, interpretation of its intent has emerged predominantly
from court cases rather than from analysis by administrators. Guidelines
for CEQA have been forthcoming from the State Administration, but they
have been based substantially on case law and on solicited comments,
rather than on administrative analysis. Reliance by the State Adminis-
tration on such "outside" sources has been even greater than by the
Federal administration operating under NEPA, since there is no State
analog of the Council on Environmental Quality. Instead, a fraction of
the time of one individual in the Office of the Secretary for Resources,
Norman Hill, has been devoted to the combined tasks of guideline
maintenance and publication of the EIR Monitor.
The case law of CEQA has emerged substantially from citizen suits, a high
proportion of which have been initiated by individuals and organizations
intent on protecting or enhancing the environment—sympathies that are
articulated in the policy sections of CEQA.
Courts have shown a willingness to look closely at the policy statements
of the Act as a guide to interpreting CEQA's legislative intent—and in
determining whether local administrators have shown "good faith" in
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observing that intent in their procedures and documentation. This is
an important continuing theme of litigation under CEQA as well as NEPA.
The Friends of Mammoth decision contains an often-quoted statement
(paraphrasing a leading Federal case):
The duty of the judiciary ... is to assure that
important environmental purposes, heralded in legis-
lative halls, are not lost or misdirected in the vast
hallways of administrative bureaucracy.21
Elsewhere the same opinion states:
It is undisputed that the Legislature intended that
environmental considerations play a significant role
in governmental decision-making (see sections 21000,
21001) and that such an intent was not to be effected
by vague or illusory assurances by state and local
entities that the effect of a project on the environ-
ment had been "taken into consideration."22
The policy statements were significantly strengthened in the passage of
AB 889. The wording was clarified and made more definite; this is im-
portant in that the revised declarations are even more capable of
interpretation and enforcement by the courts. Thus, where NEPA enjoins
the government to "use all practicable means and measures ... in a man-
ner calculated to foster and promote the general welfare," the State
Legislature declares the policy of the State to "take all action neces-
sary to protect, rehabilitate, and enhance the environmental quality of
the State." Where NEPA says "fulfill the responsibilities of each gen-
eration as trustee of the environment for succeeding generations," CEQA
says "Prevent the elimination of fish or wildlife species due to man's
activities, ... and preserve for future generations representations of
all plant and animal communities and examples of the major periods of
California history."
For reference, the policy declarations of both acts are reproduced in
Appendices A and B.
STRONGER THAN NEPA
As a result of these changes, CEQA is a significantly stronger environ-
mental law than NEPA. The California State Attorney General has argued
in the case of Burger v. Mendocino County that CEQA, contrary to Federal
law under NEPA, now imposes a duty upon decisionmakers to decide issues
in favor of the environment, based on findings of the EIR.23 in Bozung
v. LAFCO, an important post-AB 889 case cited by the Attorney General,
the court held that "... the purpose of CEQA is not to generate paper
but to compel government at all levels to make decisions with environ-
mental consequences in mind." (emphasis supplied by the Attorney
General.24 )
The issue of duty was not resolved in Burger. A later case indicates
that CEQA "...requires decision makers to assign greater priorities to
environmental values than to economic needs."25
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Litigation, or the threat of litigation, continues to be a considera-
tion to local decisionmakers and administrators in regard to the EIR
process. Perhaps more important in the day-to-day operations of gov-
ernment, however, is the simple awareness that the cases are to be
taken seriously as a guide to agency activities, particularly if there
is an activist public at hand to maintain an active, ongoing awareness
of the law. The operational effect of the law is likely to be indirect,
taking the form, for example, of advice of legal counsel to developers
or local agency officials regarding the means of avoiding CEQA litiga-
tion.
The importance of CEQA's policy declarations is thus, in a sense,
"hidden" in the case law. It is not likely to be found in the EIR
documents themselves, and it may not be apparent to policymakers, ad-
ministrators, or interested citizens, who all may be inclined to assume
the policies represent only "motherhood" statements of the Legislature's
good wishes.
Because of the case law and the available threat of litigation, CEQA in
essence offers citizens a monitoring framework, which can require each
individual action, plan, and program of local government to test itself
(directly or indirectly) against the policy declarations or risk having
a court perform the same test.
A danger that derives from this situation, on the other hand, is that
cases can be (and many are) decided on the basis of technicalities.
These may include irregularities such as the neglect of certain (possibly
irrelevant) points in the EIR; improper conditions of public notice, or
failure to file official notice of completion of the EIR. Emphasis on
such points contributes significantly to problems of "creeping rigidity"
of the process, and to a growing feeling among developers of an "overkill"
of requirements for individual projects; there is now a common impression
throughout the State that too much paper is generated by the process.
The City of Irvine is at present defendant in a citizens suit that charges
the City gave inadequate consideration to housing needs of workers in a
proposed industrial development. A consequence of the suit has been
insistence by the City Attorney upon "legally adequate EIRs" in matters
that earlier may have been spared full analysis.26 Similar problems occur
in other jurisdictions due to excessively close reading of cases by legal
counsel, or of State Guidelines by administrators.
NEED FOR A BALANCING "INFRASTRUCTURE"
While confrontation, often in court, has been a major means of resolving
conflict under CEQA, there is also a great deal of dialogue, and consid-
erable movement to establish citizen-based organizations capable of
carrying on sustained action in quality-of-life issues.
Gunnar Myrdal observed in 1962 that the lack of such a "balancing infra-
structure" of citizen-oriented institutions has in the past been a major
shortcoming of American society:
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... a great deal of what in some other advanced
countries can be safely delegated to the organs of
local self-government, and be a matter of co-
operation and bargaining between the various
organizations in a well-balanced institutional
infrastructure, will in America have to be effected
by the direct control of central and state govern-
ments and their agencies.
Meanwhile, whatever can be done to strengthen popu-
lar participation and organizational activity at
these lower levels should be considered a matter of
urgency.
On the positive side, Myrdal points also to
the prevalence, on the other hand, of a much more
intensive participation than elsewhere in the
Western world of a few, and to the fact that rela-
tively much of this participation is unselfish and
idealistic to an extent that is also more or less
unique.^/
The active few in California society have been having their "day in
court" on environmental matters in recent years. However, if the
public desire for a high-quality environment—as reflected in the
CEQA policy statements—is genuine," and if the "overkill" problem is
of serious concern to the Legislature in the further implementation of
CEQA, then Myrdal's analysis suggests the problem of CEQA reform at
present is not so much "what to do with the EIR" as it is how to
develop better and more widespread dialogue in pursuit of the policy
intent of the Act.
FAILURE OF LOCAL DIALOGUE: SOME EXAMPLES
In places where dialogue is lacking—and where there is also an ab-
sence of its substitute of threat and confrontation*—the Act and its
implementing device, the EIR, are likely to be ineffective and redun-
dant.
In some localities there is simply no environmentalist constituency
present. In the City of Industry, which has a very large tax base but
a population of under a thousand, and a City staff of only three persons,
the EIR process is managed for the City by a private engineering firm.
The firm also serves as the City Engineer and as the City's EIR con-
sultant. A staff member of the firm stated after one-half year of
operation that the process had not been particularly useful in making
decisions; on the other hand, they had not had any problems with it be-
cause "nobody has ever shown up at one of our hearings."2°
In a similar vein there are situations where the environmentalists may
be well organized and effective, but are very limited in their capacity
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to operate in comparison to government and the development industry.
Their attentions tend to focus on issues where the impacts are most
immediate and most obvious.
In Orange County, a major sewer project involving 24,000 feet of pipe
of up to 81 inches in diameter was found by EPA to have no significant
impact on the environment; a "negative declaration" was filed after
circulation and review of an "Environmental Appraisal" document similar
in content to a formal impact analysis. Government agencies gave little
review response, and there was no evidence of public participation. The
Environmental Coalition of Orange County, a coordinating coalition of
26 environmental and civic organizations, is overwhelmed by a very large
number of development project proposals. They have established criteria
for critically evaluating a project, including:
whether or not the nature of the project is such that it
involves a precedent setting issue;
whether or not the project will generate a regionwide
impact.
The sewer project apparently was judged by this group to be a routine
measure, or a fait accompli, and no response was given to the environ-
mental document.^y
In a similar situation in the East Bay Municipal Utility District
(EBMUD), an environmental assessment was prepared as a routine "add-on"
in a consulting engineer's report on a proposed improvement of a large
sewage treatment plant. No public hearings were held, and government
agencies gave little review response. Despite the high level of environ-
mental awareness in the area, no citizen request was filed with EPA that
an EIS be prepared. The State Air Resources Board and the Association
of Bay Area Governments both noted the project had implications on a
large scale for land use and air quality. Yet no significant alternatives
were considered, despite the major commitment involved of upgrading an
85 million gallon per day primary treatment plant to secondary treatment
for an average projected daily flow of 120 million gallons. A Negative
Declaration was filed by EPA.30
In San Diego County, a voluminous EIR document was prepared by the
County Water Authority analyzing alternative approaches to filtering the
water of the San Diego Aqueduct and distributing the treated water.-*
The project has major implications for the future cost of water, and for
the future economic feasibility of certain types of agriculture and other
major consumptive uses. Yet the City of San Diego was the only govern-
ment agency to respond to the EIR; no citizens groups responded, although
the area is comparatively sophisticated and well organized for this pur-
pose. One influential environmentalist commented the report and the
project were simply "too much to cope with in relation to all the other
priorities."32 The impression given the Water Authority by the lack of
response, however, was that the EIR must have done a good job of explain-
ing the project plan.33
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In some circumstances, dialogue can be forestalled because public
participation is viewed with suspicion by government. One city offi-
cial noted that "in some instances (the EIR) has been used as a delay
tactic by those who opposed a particular project which was considered
desirable by the planning staff, site designers, planning commission,
and city Council."34 This is not an unusual sympathy; it may at times
be justified. Opposition to development may sometimes simply express
anti-growth sympathies, or it may be for private reasons under the
guise of "environmentalism."
The Planning Director of a large county in central California noted
(at an early stage of implementing CEQA) that opportunities to work
with private developers on ways to improve their designs or their
approaches to site utilization had definitely improved as a result of
the Act, but "as a planning agency only. The political arm is still
somewhat concerned that Big Brother is taking over local government.
Which is happening." As a tool for decisionmakers, however, "it has
been a detriment. Actually is a hindrance ... because of overzealous
so-called 'environmentalists' which are in fact 'no growthers'."35
He further commented: "Developers generally believe [the EIR] will
eventually blow away, or that if they criticize the staff enough,
political pressure will solve the problem."
In the absence of active local dialogue about environmental quality and
about specific issues addressed in EIRs, the role of the documents them-
selves can be limited, contributing to a commonly-felt impression that
they are useless. Planners of two other rural counties have commented:
"Decision making officials tend to resent [the] EIR
process since it interferes with their freedom."
"Commissioners do not read reports, are all for
development."
POSITIVE-ROLES FOR ADMINISTRATORS AND CITIZENS
In Section VI, several comparatively positive examples of local use of
the EIR process are discussed. Richard Hall, the manager of a particu-
larly effective one in Santa Clara County, has noted the especially
important role of a responsive community:
The heart of it is, you have to react to the local
community... We can do things in Santa Clara County
that'you can't expect the people in Mono County to
accomplish, or Del Norte. We have a lot of people,
a lot of money, and a fairly interested constituency.
I can recall an EIR that was challenged by the Loma
Prieta Chapter of the Sierra Club in a 50-page rebuttal,
single-spaced. They had more information in it than the
initial EIR.
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Not every community can expect to field that level of activity; but the
existence of this kind of support has enabled this particular county
government to innovate well beyond the average, developing approaches
that may be of use to other jurisdictions.3"
A detailed case analysis of a California city, reported in a wide-
ranging EPA study entitled Environmental Management and Local Government,
draws a related conclusion:
Inglewood's Environmental Impact Statement process has
proven successful—not so much because it has killed
environmentally damaging projects, but because it has
introduced environmental considerations into the deci-
sion making process of both private developers as well
as governmental decision makers. Its most serious
problem may be the inability to accurately assess the
environmental impact of a project, given the current
state of available knowledge. Other criticisms of the
process—e.g., its cost, or the delay involved—are
minor, when compared to the benefits that can be gained
if a project that is potentially harmful to the environ-
ment is blocked. But the technique requires dedicated
administrators and vigilant citizen participation; the
process can quite easily become a pro forma exercise
without these. [Emphasis supplied]-3/
Many planning officials have responded positively to the new environ-
mental mandates. The Director of Planning of a small San Francisco Bay
Area city states:
I believe the most important effect of the EIR require-
ments is to force our staff to prepare more comprehensive
and meaningful reports. I have noticed that over the
years I have stopped considering certain factors in
evaluating projects because of lack of interest on the
part of the decision makers. Now they are required to
look at environmental factors. We are back to preparing
better reports.
A planner in a small Los Angeles area city noted the EIR is
becoming more helpful on almost a project by project
basis...We see almost daily improvement in the co-
ordination with other agencies and, more importantly,
it has made us aware of coordinating opportunities that
were neglected or undiscovered prior to now.
A TRANSIENT PHENOMENON?
A major contributor to the problem of paper overkill in the EIR process
is the tendency for procedures to become institutionalized, with the
result that reports on related or similar projects may fail to adapt
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and improve as the facts and conditions of the general case become well
understood.38 This kind of situation fails to recognize that the EIR
process is—unlike many regulatory procedures—by nature a transient
phenomenon. Its intent is to produce an "informational document"; this
can have no more obvious effect than for information to accumulate, and
—if there is active local discussion-—for learning to take place.
Processes that fail to change as they learn are very likely to suffer
the strains of dissatisfaction.
Change in the local process with time is therefore widespread among
agencies where there is significant local support, and particularly,
where there is local dialogue about local informational needs and about
the role and character of the EIR process itself.
The City and the County of San Diego provide two examples of jurisdictions
that have experienced distinct evolution of the EIR process, and of the
role of that process in government.
Immediately after the Mammoth decision, the City placed a temporary mora-
torium on development approvals and began to put together an EIR staff.
Twelve individuals—some of whom had little directly applicable prior
experience—were rapidly selected from the various City departments and
assembled as a centralized staff to prepare and review EIRs. This staff
was subsequently designated as the Environmental Quality Department of
the City, reporting directly to the City Manager. In that position, the
role of the EIR staff was to serve as environmental advocate and advisor
to the City Council and executive staff, operating in parallel with the
Planning Department and Planning Commission. In February 1975, after a
drawn-out controversy over the appropriate role and position of the unit,
it was formally incorporated into the Planning Department (assurances
having been given on all sides that it would maintain an independent
voice on environmental matters). The principal reason given for the
change was that the process-development benefits deriving from the
presence of the environmental unit are now most needed in the land use
planning process itself.39
While the City was getting organized after Mammoth, the County of San
Diego was already mobilized and prepared to act on EIRs. Nevertheless,
the County has similarly undergone very substantial change and adapta-
tion of its process with time. A major change is now underway that will
divide the EIR program into two sections: "project level" EIRs, closely
tied to functions of building inspection and project level planning, and
"systems level" EIRs that are combined into a central Integrated Planning
Organization including non-land use types of planning. "
IMPLEMENTING THE PROCESS: A SEQUENCE OF EVENTS
Emplacement of the impact analysis process in local government has been
uneven in timing and in character, depending on many circumstances of
local politics, economy, administrative traditions, personalities, and
physical environment. Part of the effect of CEQA has been to test ways
emplacement may occur by simply requiring local agencies to develop
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procedures, without giving detailed guidance. Local agencies have been
at liberty to experiment with their own management structures and pro-
cesses, accommodating environmental quality considerations to the extent
that appears necessary or desirable.
An analogous unevenness of performance in Federal agencies has been ob-
served in the implementation of NEPA. The Fifth Annual Report of CEQ
contains a further analysis of NEPA, in which a generalized evolution of
agency response is described. Three phases are indicated, which can
generally describe similar events in local government in California:
(1) Development of Awareness — 1969-70: ...most
agencies adopted the position that NEPA did not
apply to them at all—at least not to most of their
programs—or, if it did apply, an impact statement
could be prepared by their administrative staff as
a finishing touch when the project went forward for
final agency approval...
(2) The Transition Period — 1970-73; During this
period agencies came to grips with the fact that
NEPA had to become a regular part of their activi-
ties. At first, many agencies attempted to comply
with the Act on an ad hoc basis. Frequently, an
agency would decide to prepare an impact statement
only when challenged by the public for its failure
to do so. The period was marked with uncertainty
and, in some cases, disruption...
(3) Integration of NEPA into Agency Operations: The
third stage of NEPA development began for many
agencies with the promulgation of CEQ's guidelines
in August 1973. With the early uncertainties about
NEPA clarified, the task was to weave the policies
and procedural requirements of NEPA into each agency's
programs. For many agencies, this stage is not yet
complete. ^-"-
EFFECTS OF AGENCY ATTITUDES AJND STRUCTURES
By way of illustration, comparisons are drawn in the CEQ report between
the Atomic Energy Commission (AEC, now the Nuclear Regulatory Commis-
sion) and the U.S. Forest Service, in regard to performance of each
agency, and to the management structures evolved in responding to NEPA.
These illustrate a contrast in agency attitudes that may similarly be
observed in California.
The AEC had originally defined its responsbilities narrowly, restrict-
ing its reviews to radiological impacts until the famour Calvert Cliffs
court decision of July 1971, which ruled that a complete, independent
review was required of all major AEC decisions. Within four months
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after the decision, the agency had developed a strong centralized en-
vironmental review effort, involving a staff of about 200 people drawn
together from a variety of Agency programs.^
The U.S. Forest Service, by contrast with the AEG, interpreted NEPA at
the outset as "supportive of the Service's conservation ethic and fully
consistent with its existing responsibilities..." It also "perceived
procedural similarities to existing practices." These included multiple
use surveys and impact surveys on actions such as major timber harvesting
contracts.
Because of these similarities, some officials of the
Forest Service were tempted to view NEPA as not af-
fecting their agency. This view did not prevail.
Instead, the decision was made to implement fully the
new law.
The result is a highly decentralized program in which most of the responsi-
bility for impact statements is delegated to Forest Service offices,
where a large number of people are involved in the process. Public in-
volvement is actively solicited, and is far more important to the Service
now than it was before NEPA. Minor actions not requiring a formal EIS
are accompanied by analysis and review covering the same points as an
EIS.43
The responses differ radically: For the AEC, the environmental program
was proportionally a very small part of the overall effort of the agency,
and somewhat separate from its major business. It was convenient to iso-
late the new program in an interdisciplinary team. For the Forest Service,
on the other hand, the program had some bearing on virtually the entire
staff effort of the agency. Appropriate skills and interests were avail-
able, in place, throughout the agency structure, and a great deal of
effort could be mobilized to implement the act with little more than a
management policy declaration.
The statewide management structure of CEQA bears some similarity to the
decentralized Forest Service model. However, although State officials
may wish it were so, the State government in California has far less
budgetary, personnel, and policy authority over local agencies than the
Forest Service has over its local offices. Rather than responding to
policy directives from the central authority, local government managers
are more likely to take state law and policy as a guide, but to look to
their local constituencies for "marching orders." Thus some agencies of
local government embraced CEQA after the passage of AB 889 as a means of
carrying forward long-standing policies and plans, while others regarded
the EIR requirement as a nuisance and an interference with their processes.
Still others felt they didn't need to take any action.
There are divergent reasons for non-action. In the City of Brawley, the
Director of Planning and Building reports "We have had no opportunity
to test [CEQA]> as development has been at a near standstill for some
time."44 in Palo Alto, by contrast, "there is practically no undeveloped
land left in the city."45 CEQA has hence had little effect in Palo Alto,
aside from requiring a few EIRs on redevelopment efforts. In both these
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instances, there is apparently little role for the strong policy state-
ments of the Act. But in Palo Alto it is because pro-environmental
policy is initiated locally.46 With regard to the potential influence
of the EIR on design improvements there, a city official states "Review
by [the] newly-established Architectural Review Board is a greater:
incentive."47
SUMMARY
It appears that the effectiveness and the roles of the EIR process are
highly variable, and are changing with time as the process adapts to new
information; in each locality the "quality" of the process (and of the
individual EIR documents) depends significantly on the quality and
amount of interest on the part of the public and their elected repre-
sentatives, and on the quality of local dialogue that proceeds regarding
individual issues. Effectiveness of the process may also depend on
whether there is ongoing local dialogue about the nature of the EIR
process itself, and whether changes are needed in it.
In a general way, the conclusion of CEQ about NEPA's effects on govern-
mental process are reflected in California:
The experiment in governmental reform begun by NEPA's
passage is having steadily more wide-ranging ramifica-
tions. The Act's accomplishments to date are impres-
sive. And there is every indication that its usefulness
will increase in the coming years.^
As this section has emphasized, the governmental reform of CEQA is largely
invisible—it has begun to make consciousness of environmental quality a
consideration in the everyday activities of government. CEQA is not the
sole cause of this change. As the next section will emphasize, there is
a great deal of other change going on in local government due to a variety
of active forces. Environmental considerations have been of concern in
some of those other influences; CEQA has served as a vehicle and a focus
for many energies that were accumulating for other reasons. Because of
its flexibility, it has had a role in the management of change; this is a
role that may be of particular importance for further, more widespread
development in California local government. The Lost Angeles County
Division of the League of California Cities has recognized a need of a
management vehicle for this purpose:
The primary goal of California cities should be con-
cerned with how to manage change in the field of
environment and how to balance environmental decisions
with employment, adequate housing, and economic sta-
bility. " (Emphasis added)
In part because of CEQA, many local agencies have already been induced
to look- beyond the traditional constraints of local self-interest in
making decisions—particularly beyond the time-honored tradition of
seeking as a high priority to protect or expand the tax base of the
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agency itself. The quality of life has become a general subject of con-
cern in local decisions—at least the potentiality is present for the
subject to be raised in a substantive way, if there is adequate local
interest.
In reviewing and evaluating CEQA, the basic issue for consideration
appears to be not the evaluation of the impact analysis procedure per se.
The question is whether the State Legislature wishes to continue to have
an environmental quality policy, and how it should be enforced. The
impact analysis procedure has so far proved to be in many instances an
effective means of maintaining a consciousness of the present policy; if
the EIR is to be continued, there are a number of technical issues relat-
ing to its management and use. These may be capable of resolution apart
from the policy questions; they may at least be identified for monitor-
ing and for improvement at an appropriate time.
A general conclusion of the present study, to be discussed further in
following sections, is that the EIR process at the local level in
California is in need of assistance and improvement in its technical
details. Its potential usefulness in general seems to be demonstrated,
provided problems such as that of excessive paper can be solved. From
the standpoint of its potential contributions to the planning process,
and its potential benefits to governmental process adaptation and reform,
the EIR process has not yet been allotted adequate time to operate in
most localities. And in many localities where it is successful, drastic
change at present could be disrupting to effective programs.
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SECTION V
A CHANGING REGULATORY ENVIRONMENT
In order to understand the role of the EIR process, the ways it has
been used, and its future possibilities, attention needs to be given
to the broader, statewide milieu of its implementation.
Reforms and changes discussed in the preceding section would be appro-
priate and useful if CEQA were simply a new factor introducing change
into a reasonably stable regulatory environment. But that is a
grossly over-simplifying assumption. The actual situation in local
government in California today entails a broad range of new programs
and influences, many of which are individually in a state of rapid
flux, and all of which contribute to the present reshaping of local
government in the State.
Change is endemic in California. And to the extent that CEQA serves
as a management tool—particularly for adaptation to externally-driven
change, it is more important and potentially more useful than has been
implied so far.
Thus, in assessing CEQA's management role, attention must be paid to
the overall assemblage of statewide programs and activities that affect
the local manager of planning and environmental quality programs.
The present section discusses several factors of "ambient" change in
California; it concludes with a brief discussion showing the growing
importance of adaptability in the planning process as further variable
factors are taken into account in local decisions.
LOCAL DIFFERENCES
Planning and decisionmaking practice for land use ranges widely in charac-
ter and scope in the State, although many of the institutional forms are
held in common (Planning Commission, City Council, City Attorney, Local
Agency Formation Commission, etc.). Divergence of local practice may be
due to many factors of local economics and politics, and due to diverse
personalities of individuals involved. Furthermore, there exists a wide
divergence in local attitudes toward governmental programs and structures—
in particular toward land use control programs. Local and regional dif-
ferences are reflected in the report of hearings held in 1973 by the
Governor's Task Force on Local Government Reform,->0 parts of which are
reproduced in Appendix C. Also reflected is a very strong emphasis on
the continuation of traditional "home rule" in land use and environmental
control.
Because the local land use control units differ substantially from one
another to start with, and because the political environments are divergent,
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the processes of land use control may move in divergent directions in
response to some of the changes described here. If local citizens
challenge a regulatory practice, for example, some managers will stif-
fen their backs and resist the intervention, while others will welcome
the opportunity for publicly-supported reform. These are factors of
response that are very difficult for state officials to accommodate.
A law or administrative regulation intended to equalize local practice
can, in fact, have the opposite effect.
LEGISLATION
A great amount of law has come forward in recent years in response to
citizen interest in environmental quality and land use control. At the
national level this includes the Clean Air Act of 1970, the Clean Water
Amendments of 1972, the Noise Control Act of 1972, and the Marine Pro-
tection, Research, and Sanctuaries Act of 1972.
In California, these laws are backed up by unusually strong State legis-
lation for air quality, water quality, coastal zone protection, and
energy resources management, together with extraordinary measures for
local land use planning and regulation. Donald Ragman, a leading
authority on land use law, has commented:
... at the same time the California Legislature was pass-
ing CEQA, it was also passing the strongest planning-
regulation consistency laws in the country. In recent
years, in unprecedented steps, the California legisla-
ture has required that every city and county, including
chartered cities must adopt a general plan. Several ele-
ments of these mandatory plans must be completed by a
certain date, the date setting also being unprecedented.
Subdivision maps can be approved only if consistent with
applicable general or specific plans. Zoning ordinances
must be consistent with a general plan by a certain date.
Such legislation is absolutely unrealistic. If all the
planners' in America were enticed to California, good plans
could not be produced as the legislature has directed.51
There is now more law available in California than many municipalities
can implement, and probably more than the State can enforce. For many
local managers, a major problem is the need for coordination of a wide
variety of new programs to form a locally-suitable management system;
meanwhile they may be obliged to rush from one mandatory requirement
to another, emphasizing—as a matter of necessity—those programs and
requirements that seem most responsive to local needs and demands.
Managers have handled this situation very differently from one an-
other; differences depend largely on attitudes, resources available,
and the degree of local political support for environmental management
programs.
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EMERGING ROLE OF THE PUBLIC
A major factor of change for local government is that the public itself
has become a principal actor in policy formation and in decisionmaking;
much past experience in local government is made obsolete as a result.
Don Benninghoven, Executive Director of the League of California Cities,
described the situation in local government in an address before an an-
nual convention of the Planning and Conservation League in November
1973:
What has really happened in the last three or four years
is, the public has really taken control of the planning,
whether you believe it or not. The thing is, you don't
know how to do it; and the reason you don't know how to
do it is because public officials, the developers, the
industry—they don't know how to deal with that yet.
They liked it when you didn't show up; now that you are
showing up, they don't know how to give you the informa-
tion in a way in which you can make intelligent decisions.
That information is real power. The power is understanding.
Despite its seemingly innocuous status as an "informational document,"
the EIR plays a key role in the process of change because it serves, or
can serve, as a medium for information and understanding. And it is set
up in such a way as to provide the opportunity for the public to demand
the information to be adequate and intelligible. Where that demand is
made clear enough, public agency staff may be encouraged by policymakers
to try to find ways of accommodating the public's informational needs
and interests. This can lead to new forms of interface between the pub-
lic agency and its constituency; moreover, it can serve to build a special,
responsive segment of the public that is particularly interested in the
activities of the environmental programs of local government. Ms. C. F.
Ridenour, former Assistant Director of the Department of Environmental
Quality of the City of San Diego, has commented that EIR analysts in the
Department often have had the feeling they were "doing staff work for the
public," as opposed to merely "working for the City."52 Jack Green,
manager of the environmental quality program of the City of Los Angeles,
has in a similar vein described his department's evolving role as a
bridge between the more traditional City government structures and the
evolving citizen interest groups; his intention is to utilize the EIR
program as a means of smoothing the transition from old ways of doing
business to new ways that are better able to accommodate the expressed
interests of citizen groups.
Existence of this kind of awareness, and opportunity for more direct con-
tact with administrators is important, and to a significant extent is
strictly attributable to CEQA. Meanwhile, the environmental impact units
in government have opened new categories of job possibility, many of
which are filled by "activist" citizens, or by individuals who would not
otherwise have had an opportunity to work in government, or on environ-
mental problems. This situation provides an even more intimate contact
of '-'outsiders" with_ "the system."
25
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LITIGATION
Public desire for involvement has been reinforced by new legal tools
and administrative policies encouraging public participation. Of
particular importance has been the recognition by courts of broad pub-
lic standing to sue in environmental matters.
The importance of standing has been significantly amplified by the evo-
lution of public interest law organizations, which develop and carry a
high proportion of the most important, precedent-setting legal cases.
At the present time in California there exists a network of several
such groups, including the Environmental Defense Fund, the Center for
Law in the Public Interest, The Natural Resources Defense Council, and
the Sierra Club Legal Defense Fund. These groups often operate in paral-
lel with or in collaboration with the Environmental Unit of the State
Attorney General's Office; together they represent a very influential
network of professional legal staff operating in support of environmental
goals.
From the viewpoint of the average local government administrator or
politician, the legal authority and the threat of litigation posed by
such groups and by the citizens' organizations they may represent, is
uniquely a phenomenon of the 1970s; it has brought a major change in the
rules of operation of local government. Because of the new milieu of
environmental law activities, public law officers (staff of city attorneys
and county counsel) have been obliged to become informed about environ-
mental law. Consequently self-education and mutual education at the same
time puts them in position to advise their client elected officials about
potential positive environmental actions on behalf of the municipality—
for example, in challenging a neighbor jurisdiction on a potentially
damaging project proposal.
A further related development is the evolution of "private interest"
law organizations set up specifically to counteract the programs of the
"public interest" groups. A major group of this type, the Pacific Law
Foundation, was established in 1973 by commercial, real estate, and in-
dustrial interests.*4
As a sidelight on litigation and on the general public willingness to
challenge governmental administrators, it is noteworthy here that in-
creased interest in and understanding of local government has proceeded
simultaneously during the past two years with the "Watergate" era in
national government—which provided an extraordinary increase in popularly-
available insights into the workings of the Executive, Legislative, and
Judicial branches of the Federal government, and into potential inter-
actions among the three branches. Citizen challenges to local government
(sometimes of almost a "sporting" quality), and a widespread interest in
"opening up" the local system, may have gone hand-in-glove with televised
Congressional hearings on one hand and nightly news reports of court
actions on the other.
Challenging administrators, in any event, is now a far more "normal"
activity than it was just a few years ago; and going to court for the
purpose is probably less frightful than it was. Such changes, once again,
are most likely not reversible—at least not to the extent of re-estab-
lishing prior conditions. Thus the parameters of design of a regulatory
26
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system for land use management must be different today than two years or
five years ago. In some localities it may be realistic for developers
to hope the EIR and the public role will simply "blow away" so that
easier times can be restored; but that is probably not realistic on a
statewide basis. Removing CEQA from the present system would make it
less convenient for citizens to monitor and challenge local government;
it is not likely to remove their interest in doing so.
CITIZENS ORGANIZATIONS
An important factor encouraging attention to land use in California—and
adding to complexity—is a diverse array of citizens groups, and a small
but active, well-established leadership cadre in conservationist and
planning organizations. Some leading individuals and organizations have
operated for decades with considerable success and with well-established
credibility. The oldest such group, the Sierra Club, traces its roots
in public activism back to a famous turn-of-the-century losing battle
with, the City of San Francisco over the construction of the Hetch Hetchy
Dam in Yosemite National Park. They have been joined in recent years by
a number of energetic and politically influential groups such as Cali-
fornia Tomorrow (which advocates statewide planning), the Planning and
Conservation League (which specializes in lobbying and in the development
of State legislation through normal legislative channels), and the Peo-
ples' Lobby (which focuses on the initiative process of legislation).
Numerous other groups at the areawide and local scale combine with the
larger statewide bodies in a variety of ways to form an institutional net-
work in dealing with issues of greater-than-local interest. In California
today such issues are not legislatively defined (as they are in some
other states); they are operationally defined by who is involved—the
individuals and groups, their reputations, and the roles taken in the
given issue.
POLITICAL ROLE OF CITIZEN GROUPS
The political role of the citizens environmental movement came to a
climax in the fall of 1972. With the passage in quick succession of the
Coastal Zone Initiative and AB 889, citizen activists found a new level
of influence. Environmental groups—encompassing by now a broadly-based,
politically-experienced, and in many ways technically competent, state-
wide constituency—emerged from this climactic episode as virtual "owners"
of two highly significant pieces of environmental legislation. And
through continual action they have maintained that proprietary interest
during the succeeding two years.
Citizens now had more direct access to local legislation through the
EIR. In the coastal zone, they had a second level of authority available
through a possible veto of local decisions by a regional commission; the
strong wording of the initiative in essence required the denial of appli-
cations if environmental damage was shown to occur. Thus, for a particu-
larly sensitive and important portion of the state, the coastal zone, CEQA
in effect had "teeth."
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Public groups found a number of sympathetic public officials to deal
with. Many individuals came to office on environmental platforms in
the November 1972 election; many others already in office responded
to the newly visible constituency. At the same time, many planning
professionals within government agencies were found to be "ready-made"
allies for advocacy groups; they had in many cases been advocating
the same purposes within government for years, with limited success.
The public had previously been involved in decisionmaking processes
in a consultative capacity; now they were entering—substantially at
their own initiative—a more directly participatory role in decision-
making. And the new role was not restricted to "environmentalist"
groups. A broader, developing basis of community political participa-
tion is described in the recent State survey of California local
government, which noted
a growing trend towards the establishment of community
organizations, and the coalition of these organizations
within a city or county, as a means of citizen communi-
cation with local government.
Some of these are compulsory neighborhood associations
formed by developers of planned unit developments and
subsequently turned over to homeowners to operate.
Others are voluntary homeowner or neighborhood asso-
ciations. A third category involves the municipal
advisory councils authorized by section 31010 of the
Government Code in unincorporated areas. ...
Local governments vary in their response to these organi-
zations from tight control over what they are authorized
to review or even discouragement of their establishment
to strong support and even implicit delegation of policy
making authority to them...
Community organizations serve as effective mechanisms
for the development of local leadership. To some ex-
tent , therefore, they are viewed nervously by elected
policymakers as potential competition at the next
election...
Citizen groups often view themselves in an adversary
relationship with local government and as "ombudsmen"
for their constituencies. This was apparent even where
the city or county had an active program of citizen in-
volvement.^^
For groups such as these, as well as for environmentalists, the EIR
process provided a focus for energies that departed drastically from
the usual experience of participating in planning. An EIR may have
an immediate payoff, in contrast to a community plan, which may com-
monly involve citizen participation, but which can require years of
earnest meetings, and still be ignored in the final analysis.
28
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By the end of 1973, further political gains at the local level had
added to the environmental activists' aura of success. On December
14, the Los Angeles Times ran a front page feature story entitled
"Environmental Movement Firm at Grass Roots." It tallied the status
of the movement thus:
While environmentalists watch their work unravel at
the federal level, they are consoled to find their
strength increasing at the city and county level.
They once looked on local government as the hand-
maiden of developers, but now in many cases local
officials are environmentalists.
Low-echelon staff members tend to be young and trained
to take the environment into account. At the top are
a growing number of elected officials who won office
by championing environmental causes.
Political leaders in California who have achieved
national recognition, such as Los Angeles Mayor Tom
Bradley and Mayor Pete Wilson of San Diego tend to
be those who are best able to articulate environmental
tradeoffs to the public.
STRUCTURAL CHANGE: THE "QUIET REVOLUTION" AND THE "COUNTERREVOLUTION"
One factor of change of particular interest to local politicians, but
also of major interest to administrators, is the change—and prospects
of further change—in the balance of authority between local, State,
and Federal officials.
The past decade has witnessed a general trend toward centralization of
environmental quality control in State and Federal agencies accompanied
by a great deal of controversy over the merits of the resulting pro-
grams. In the field of land use control, the trend is often referred
to as the "Quiet Revolution," in reference to a 1971 report by Fred
Bosselman and David Callies written for the Council on Environmental
Quality (CEQ).56 This report describes the development through State
legislation, beginning in the early 1960s, of a number of Statewide
and areawide institutions for land use control, including the San
Francisco Bay Conservation and Development Commission (BCDC, the
progenitor of the present Coastal Zone Commissions), and analogous
programs in Hawaii, Vermont, and other states.
The principal rationale for the "Revolution" was the inadequacy of
local control:
The ancient regime being overthrown is the feudal
system under which the entire pattern of land
development has been controlled by thousands of
individual local governments, each seeking to
29
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maximize its tax base and minimize its social
problems, and caring less what happens to all
the others.-^
The original purpose of traditional controls, a local zoning ordi-
nance and comprehensive plan, was "to maximize land values,"58 and not
to address and protect the resource values of the land.
It has become increasingly apparent that the local
zoning ordinance, virtually the sole means of land
use control in the United States for over half a
century, has proved woefully inadequate to combat
a host of problems of statewide significance, social
problems as well as problems involving environmental
pollution and destruction of vital ecological systems,
which threaten our very existence.59
Analogous rationale has been used in the development and promulgation
of State and Federal controls in related fields, notably air quality
and water quality. The net effect has been a diminution of "home
rule," and growth of central institutions for environmental control.
The contrary effort and desire on the part of municipal government
officials to restore traditional "home rule" in land use matters to
the local level—in which CEQA plays a role—could be characterized
as a "quiet counterrevolution" in land use control. It remains for
the local level of government to demonstrate competence in managing
land use in a way that could accommodate State and Federal needs and
criteria.
At the present time, the structure of Federal/State, State/local, and
Federal/local relationships in environmental quality control is highly
complex, and is rapidly changing. Of particular importance to the
present discussion is the convergence of air quality and water quality
planning with the general subject of land use controls. It is unclear
what pattern of institutions and authorities will emerge. The Council
on Environmental Quality has illustrated some apparently systematic
problems with the relationship among environmental control programs
affecting land use, and it has drawn the following conclusion:
In summary, it is clear that the Clean Air Act and
the Federal Water Pollution Control Act have po-
tentially significant land use impacts. It is not
yet clear how serious these will be, or even what
direction they may take. Much more analysis is re-
quired. But this brief review of the incentives
established under the laws suggests that in some
cases the impacts may not only conflict with other
social and environmental goals but may also be per-
verse in terms of the attainment of the pollution
control goals of the Act from which they derive.
EPA recognizes many of these problems and calls for
integrated and comprehensive planning in its
30
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guidelines and policy statements. However, analyz-
ing all the potential land use effects, developing
complementary guidelines, and overseeing the re-
sponsibility for preparing integrated plans which
balance off the various environmental, economic,
and social objectives is an extremely complex under-
taking .60
David Morell, a political scientist who served in 1974 as Acting
Director of a newly-established EPA Office of Transportation and Land
Use Policy, has pointed out an urgent need for "vertical integration
of Federal, State, areawide, and local programs in planning and land
use regulation. He places the burden of initiative at the local
level, challenging local officials to respond positively to Federal
controls in their own self-interest. He believes that the best ap-
proach is to incorporate State and Federal standards into local deci-
sionmaking:
If local governments across the country prove unable
to devise mechanisms and procedures to effect such
vertical integration, taking account of state and
national environmental standards in their land use
decisions, one can predict an inexorable movement
toward greater external control over land use, both
the "quiet revolution" in state land use control
described in the CEQ report of that title and increas-
ing federal intervention through such means as specific
EPA pre-construction review requirements for new fa-
cilities: indirect source review, parking management,
air quality maintenance plans, regulations to prevent
significant deterioration, 208 wastewater plans, waste
discharge permits, airport noise regulations and all
the rest. This shift up the vertical ladder need not
occur, but it can be avoided only if local governments
can meet the challenge of environmental quality/land
use effectively. In a real sense, this is a political
choice which local officials and their constituents
must make: do they organize themselves to meet their
new responsibilities in the Environmental Age, or do
they abdicate this responsibility to higher levels of
government? 61
Morell expresses concern that "the bureaucratic and programmatic com-
plexity affecting land use and environmental policy almost defies
description; and it seems to be expanding exponentially." Despite
the highly strained institutional capacity of local government,
Morell concludes that the most important point of focus in the current
land use scene is the local decisionmaker. Real progress will depend
on integration of planning into local political decisionmaking, to the
extent that "the mayor must become the land use planner."
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CENTRALIZATION VS DECENTRALIZATION OF REGULATORY CONTROL
In concluding this section, it may be stated that the diverse factors
mentioned, and the diverse ways they aggregate in any given locality,
can be confusing to the local manager;—who has to put together a pro-
gram that can continue to process land use applications in the midst
of a situation that is highly complex, and that is rapidly changing
in complex ways. Clearly it would be difficult if not impossible for
a central State or Federal agency to assume responsibility for manage-
ment of such a complex situation—there would simply not be enough
time and information available for a local administrator to gather
and document all details about what is happening, transmit them to a
"higher" level, and wait for instructions on how to proceed.
Similarly, it would not necessarily be advantageous to the local agency
(or to the central agencies) for parts of the present regulatory system
to be arbitrarily cut away in order to make the system simpler to man-
age from above. In the present smorgasbord of available law, that
would simply limit the possibilities for local innovation. In any
case, it should be clear that local needs and interests differ sub-
stantially; in order for regulatory programs to be effective, it may
be necessary for them to be tailored in some ways to the local situa-
tion. Local officials are the most likely candidates to know how to
do that. In a number of localities in California, local managers have
made a virtue of adversity; they have gone somewhat beyond the minimum
level of implementation indicated by the Legislature and by the imple-
menting State and Federal regulations, assembling programs that are
adaptable to the changing local scene. These localities are becoming
in a sense "self-regulating;" they ate in some instances developing
linkages between program areas that are far ahead of the present level
of advancement of integration of overall State and Federal land use
policy and program. Present complexity at higher levels has resulted
in de facto delegation to the local level of the integration of func-
tional programs with one another. Although this was not a conscious
policy intent, the resulting administrative structure may make sense,
and may be deserving of further development.
Stafford Beer, a distinguished British cyberneticist, has pointed out
that the consideration of environmental quality in public policy intro-
duces an entirely new order of complexity into planning and decision-
making. And because change is endemic and complexity is unavoidable,
he states that government now is confronted with an unprecedented prob-
lem of organization. There is a great deal of confusion about what to
do next. Beer identifies the key problem: that governmental structures
tend to be rigid, and were designed to handle different kinds of prob-
lems than those they now face. There are a number of specific threats
of ecological and societal crises to be dealt with; more important now
is the larger threat of breakdown of the machinery of management.
Beer states an essential principle to keep in mind in developing fur-
ther systems of environmental management: "PLANNING IS HOMOLOGOUS
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WITH ORGANIZATION."
It sounds trivial; it is certainly obvious. How can
you have plans that are not couched in terms of the
organization which must implement them? But just
think carefully about the converse proposition. If
the organization is no longer well-adapted to the
environment, how then can the plans be relevant to
existing threats? It is just not possible. We have
totally failed to grasp this point, despite over-
whelming evidence that our plans do not work very well,
and that the threats are not being competently met.
Nonetheless, there is indeed an abiding sense of un-
ease. So what do we do? We throw into the situation
all the resources we have, resources of money, time
and skill. This is done in the cause of efficiency:
do it better, do it faster, do it cheaper. That will
stave off the threat. The point is: do what? Ob-
viously, implement the plans. But we have already
shown as a lemma that the plans cannot possibly be
rightly structured. Thus it is that we expend our
resources in the ever more efficient implementation
of irrelevant plans.
There is a second massive difficulty that is illumi-
nated by these considerations. If planning is homolo-
gous with organization, then plans - which of their
very nature ought to be syntheses of parts into a
greater whole - become instead ever more detailed and
localized sets of unrelated minor decisions. That is
because, in deference to one of the major discoveries
of the social sciences, we are trying to hold the
level of decision at the lowest possible echelon as a
matter of policy. I have no quarrel with participative
management; in fact I urge it forward. But this ought
to mean that small decisions, made in the appropriate
locale, are sucked upward, and reformulated into a
master plan expressed metalinguistically. Instead it
means that the making of decisions is a task pushed
down, and implicitly condemned to a stereotyped out-
come. 6 2
Beer's conclusion bears a relationship to some of the current proposals
for the future structure of State planning—an important subject of
discussion and debate in California State government at the present
time. The League of California Cities is the most prominent advocate
of the type of strategy indicated by Professor Beer. In its "Action
Plan for Environmental Control and Land Use Authority," a section en-
titled "Environmental Quality Planning Process" states:
The role of the cities would be basic to the entire
State planning process. The plans of the cities
33
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would be the building blocks. The city plans
would be coordinated at the area level by plan-
ning councils, as a part of the comprehensive
planning process and in conjunction with area-
wide planning. Environmental impact reports
should indicate the effect on the environment of
the city, area and state plans when implemented.
Specific development would then be judged on the
basis of its consistency to the general EIR,
with only additional specificity included as
necessary for the individual project EIR.63
The Region IX Office of EPA is in the process of developing a similar
strategy for the future relationship of local plans to State and
Federal policies and programs.64
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SECTION VI
AN ADAPTIVE TOOL FOR MANAGEMENT
In some localities, the EIR process has been used as a flexible
management tool, filling locally-perceived gaps in administrative
process, and adapting to specific local needs and to changes in
needs. Significant innovation has occurred and continues to occur
in a number of localities.
The following descriptions of CEQA implementation in several cities
and counties are reprinted from our previous report. They describe
several examples of different approaches to local management of the
EIR process.°5
The act and the guidelines specify numerous pro-
cedures, but give little indication of the profes-
sional skills or management structures to be used
in executing them. The result has been a wide
variety of administrative approaches adapted to
local conditions.
In some cases, this adaptation has involved a con-
siderable degree of enterprise and creativity on
the part of local officials in relating the EIR to
ongoing governmental processes and other new legal
requirements. Little of this innovation could have
been prescribed in the law, or was foreseen in the
guidelines.
Although CEQA was widely ignored by local govern-
ment before the Friends of Mammoth decision, some
cities and counties moved ahead on their own initia-
tive. The City of Claremont, for example, estab-
lished an Environmental Resources Task Force in
October 1970 — immediately after enactment of CEQA.
This group, composed largely of college faculty, did
a carefully-documented study of the community's
physical environment, and helped to enact a local
ordinance setting up an EIR management process that
included — some nine months before Mammoth — a re-
quirement for analysis of private projects.
The County of San Diego had similarly enacted in
June 1970 (when NEPA was law but CEQA was still in
the Legislature) an ordinance to establish an
"Environmental Development Agency." A program of
environmental studies begun at that time, together
with innovative steps toward new forms of management
process, later led to funding by the Ford Foundation
of an ambitious program there, the "Integrated
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Regional Environmental Management" project (IREM) .
Stated intentions of this project were to use the
EIR process as a means of changing relationships
among agencies, of breaking down internal barriers
among governmental units, and of incorporating
citizens in the new activities. The project began
in April 1971, two years before statewide implementa-
tion of AB 889. Its annual budget of over $400,000
was three times that of the State Office of Planning
and Research, though it was still far smaller than
the planning budgets of the County, the City of San
Diego, or the Comprehensive Planning Organization
(San Diego County's regional council of governments),
which together totaled about $5 million for the year
1971-72.
The EIR management process adopted by San Diego
County and developed through the IREM project is
similar in structure to the approach now used by the
majority of California's cities and counties. How-
ever, it involves considerably more staff effort,
and a higher degree of technical content, than is
usual. It also involves more steps. The EIR pro-
cedures adopted by most local governments can be des-
cribed as streamlined versions of the San Diego County
process.
The EIR process for private projects in the County of
San Diego is illustrated by Figure 1. The "Processing .
Agency" is the County Office of Environmental Manage-
ment, a successor to the functions of the IREM staff.
It is organized as "a unit of the Environmental Develop-
ment Agency, which is also the parent agency of the
County Planning Department. The Environmental Review
Board (ERB) is composed of staff representatives of
OEM and the Departments of Planning, Public Health, and
County Engineer.
The fee for initial screening to determine whether a
project would have a "significant effect" is $70. If
an EIR is required, it is prepared in draft form,
generally by a private consultant on behalf of the
applicant. Typical costs to the developer on an average
project of a few acreas to a few tens of acres would
range from $5,000 to $10,000. Processing fees charged
by the County for review and preparation of the final
EIR range from $150 to $900, depending on the type of
application. The final EIR, prepared by the OEM staff,
consists of:
1. The draft EIR as amended by the ERB;
2. A section containing the comments received through
the consultation process, either verbatim or in
summary;
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to
ENVIRONMENTAL
REVIEW BOARD
Fine screening
environmental
assessment to
determine if
complete and
significant
I Time. 10 days I
E.R.B.
Accepts draft
environmental
impact reports
i i Time. 1 day i
• I '_•
E.R.B.
o Public notification
o Agency notification
o Public review
o Review comments
o Review draft E.I.R.
o Write final E.I.R.
o Prepare findings
o E.R.B. approval
AVERAGE PROCESSING TIME FROM
RECEIPT OF DRAFT E.I.R..
_45 DAYS
PROCESSING TIME FOR NEGATIVE
DECLARATIONS
.10 DAYS
PROCESSING
AGENCY
o Accumulate
other reports
o Prepare
planning
commission
report
| Time. 25-55 days
I concurrent with other j
j required processes
Figure 1. EIR process for private projects, County of San Diego.
-------
3. The response of the ERB to the significant envi-
ronmental points raised in the review and con-
sultation process.
The Environmental Impact Analysis Division of OEM was
budgeted in 1973-74 for 14 full-time staff positions,
including 11 professional analysts. The number of
EIRs processed during 1973 was 192, including 172 on
private projects. The total number of environmental
assessments processed was 2,378, of which 2,258 were
for private projects (94.9%).
A few other examples of how local governments have
implemented CEQA will be cited to show alternative
approaches to EIR management taken in other parts of
the State.
In Santa Clara County (pop. 1,000,000), at the south
end of San Francisco Bay, an active effort is made by
the County's EIR staff to press developers into active
participation in the EIR process. Here, unlike San
Diego County, the EIR system is an integral element
of the planning function of the County. EIRs are
handled within the Planning Department by a Senior
Planner -Environmental Specialist, Richard Hall, who
is aided on an "as needed" basis by four other planners.
Much less staff effort is available for EIR management
than in San Diego. For reasons of efficiency as well
as utility, emphasis is given to early consultation
and review of development plans — at the idea stage,
if possible. In this context, CEQA provides the basis
for a broad-ranging negotiation with a developer. Con-
sideration is given to improvement of design concept
as well as to avoidance of technical impacts.
Admittedly, the "horse-trading" aspect of this process
can open the way to abuses, if the public is not at-
tentive to the results. For the approach to be
effective, much reliance must be placed on the motiva-
tions, knowledge, and design skills of staff involved
in the preliminary negotiations. On the other hand,
this reliance is much to the liking of the professional
planners involved; for them, CEQA is providing in this
context an extraordinary opportunity for bridging be-
tween two major traditional roles of planners: that of
making plans, and that of struggling against development
proposals that violate the plans. The newly-established
"middle ground" can allow the planner to design around
environmental problems, or to invoke appropriate miti-
gating measures. The incentive for the developer is
that a negative declaration on the project may reasonably
be granted, or that the conditions imposed might allow
his project to pass EIR review. In some cases, projects
and sites that are likely to have severe adverse effects
38
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can be identified before the developer has made
major commitments of time, money, or professional
pride.
Credibility of the EIR process itself is essential
to the viability of planner-developer negotiations.
In the case of Santa Clara County, most projects
are screened out or altered before they reach the
stage of formal EIR processing. The EIR itself
becomes almost an "appeals" process by which the
developer attempts to show that his project is not
damaging. Few projects that reach this stage are
able to pass through it. On the average, only about
one project per month is making the attempt.
According to Mr. Hall, "developers don't try to push
bad projects any more; they need better odds going
in, and the ante is too high when an EIR costs
$3,000 to $5,000. It's a different game from the
days when a subdivider could get a draftsman friend
to crank out a tentative map, file it with a $25
fee, and turn a fast profit." Hall also reports
that banks and savings and loan associations in
Santa Clara County are requiring, in an increasing
number of cases, an analysis of environmental conse-
quences as part of the preliminary feasibility ap-
praisal of development projects proposed for financing.
To the extent that capable design professionals and
environmental analysts are hired by development com-
panies , the Santa Clara County approach tends to be-
come self-regulating; it may minimize the EIR workload
on the planning staff, and maximize their opportunity
to engage in "environmental planning."
The City of Irvine offers another unusual approach to
EIR management. Irvine (pop. 20,000) is in Orange
County at the southern reaches of the suburbs of Los
Angeles. It lies entirely within the boundaries of
the privately-owned Irvine Ranch, a hugh area that
is gradually being transformed into a "new town."
At the end of the AB 889 moratorium, early in 1973,
several major EIRs for development projects within the
City were already half-completed, entirely at the ini-
tiative of the developers, who were hoping to minimize
the delay on the approvals of their projects. City
planning staff did not feel prepared to review these
EIRs in-house, and they proceeded to set up a process
in which a consultant was hired by the City (in addi-
tion to the consultant which had prepared the draft
report for the developer), at the applicant's expense,
to review the draft and prepare a final EIR. This
process seems to have worked well, though it was ex-
pensive for the applicant. Fees for the second consultant
ranged from $1,500 to $7,500 for review of the EIR.
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This process is now changing to a management model
in which the City will be the client for the con-
sultant on the initial EIR draft. The City's
planning staff wishes to develop a system in which
it serves as a "general contractor," hiring its own
subcontractors to carry out aspects of the EIR analysis
and management process.
The approach of the local government serving as client
for the private EIR consultant is now practiced in a
number of jurisdictions; it seems to be especially
popular in the San Francisco Bay Area. An example is
the City of Sausalito (pop. 6,000), just across the
Golden Gate from San Francisco. Here, a request for
proposals (RFP) is circulated among a select group
of consultants judged qualified by the City. The
developer is allowed to choose three candidates from
a list of ten. Only those three are given the RFP, and
the City makes the final selection. In every case to
date, the nod has gone to the firm with the lowest
cost estimate, though according to City officials, this
is not considered a major basis for judging consultant
proposals. The City tries to specify closely the
specific kinds of information most needed and desired
in the immediate decisionmaking process. In Sausalito,
these tend to be traffic congestion, social, and economic
impacts. These items are perhaps somewhat out of line
with the original purpose of CEQA, but they are permitted
under the law and the guidelines.
Two full-time planners constitute the entire planning
and EIR management staff for Sausalito. However, this
small City has a burden of pending development proposals
of about $100 million, and the town is politically di-
vided on development issues. The EIRs have played an
important role here in evaluating such proposals. A
major saving grace of CEQA in Sausalito is the provision
(added by AB 889) that explicitly allows public agencies
to charge for the costs of preparing and reviewing EIRs,
thus greatly increasing the City's capability to fund
needed studies of development proposals. The planning
staff spends a large portion of its time servicing EIRs
in its role as contract officer and project monitor for
the City. The developers deposit funds with the City
to cover EIR costs. They participate in the process
only by supplying information, and by discussing miti-
gation measures and alternative project concepts as
these possibilities emerge.
Like Sausalito, the City of Del Mar is a small and very
attractively situated community with considerable de-
velopment pressure. Del Mar (pop. 4,500) is located on
the coast immediately north of the City of San Diego.
Here, as in Sausalito, a planning director and one
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assistant handle both planning and EIR management.
EIR preparation is done by a consultant under the
direction of the planning director. But in this
case, a "sole source" contractor is used. The
consultant is available as needed, but he is not
given a retainer or formal contract until a specific
EIR is required. The planning director has worked
with this firm to help determine how its skills might
be improved for his EIR needs.
CONTINUOUS CHANGE AND ADAPTATION
Since completion a year ago of the prior report, significant further
adaptation and change has occurred in the jurisdictions described.
COUNTY OF SAN DIEGO
Several problems were observed to emerge in San Diego County after
the EIR process stabilized and began to accumulate information and
experience.
1. "Data Saturation": Reports became geared to provid-
ing information for the County bureaucracy, and had
inadequate policy sensitivity; most of the information
provided decisionmakers appeared to them to be useless
and distracting. An effort was made to overcome this
problem with a one-page "Executive Summary," presented
in a more free-flowing, interpretive, plain-English
style.
2. The "Raindance Effect": Too many reports came out
sounding the same; decisionmakers became bored (as did
the EIR staff), feeling that a performance was being
repeated primarily for institutional reasons. Planners,
meanwhile, learned to predict what the EIR would say—
on a series of six subdivisions in the Fallbrook area,
for example—and suggested the process could be rou-
tinized with ordinances.
3. "Over-expectations": At the same time, too much re-
liance was often placed on the EIR in project review,
especially by citizens; project denial, however, was
not felt by EIR staff to have much effect upon the on-
going planning processes of the County.
4. The "Missing" Mid-Range of Scale: Like the planning
process itself, the EIR failed generally to address a
gap from development project review range to the 1995
General Plan range of scale.
5, "Post-hoc" Evaluation: Little or no effort went into
monitoring the effects of the EIR after decisions were
made.
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These problems, plus a generally stimulating effect of the "EIR pres-
ence" in the County, have helped to bring about a major re-evaluation
and redesign of the County's overall planning system. "Strategic"
long-range planning has been formally distinguished as a separate
activity, and placed in a new "Integrated Planning Office" (IPO),
which is beginning to be implemented in Spring 1975. This office
combines environmental planning with long range planning for land use,
for transportation, and for capital facilities into a single activity
reporting directly to the County's Chief Administrative Officer. Large
scale "systems-level" environmental analysis programs will be included
in the work of this office. EIRs on the County General Plan, on its
various plan elements, and on smaller scale Community Plans, are ex-
pected to evolve into a general purpose data base and policy framework,
taking the form of a "Master EIR" (MEIR) for each subregional area.
Emphasis will be placed on development of priorities, standards, and
criteria for decisions, and on developing an ongoing inventory of data
and activities. "Ivory Tower" purity is intended to be sacrificed in
favor of focus upon governmental decisionmaking tradeoffs.
Impact analysis at the project review level will be combined into
a new "Community Services Agency" that brings together project-level
review and implementing activities from a number of sources, including
the County Engineer and the County Departments of Airports, Planning,
Sanitation and Flood Control, and Agriculture. Traditional regulatory
planning programs, including zoning administration, subdivision regu-
lation, and special use permits, are combined with Building Inspection
into a new "Department of Land Use and Environmental Regulation" under
the new Agency. The project-level impact analysis program is organ-
ized as a free-standing division reporting directly to the Agency
Administrator.
Environmental analysis at this level is intended to utilize the data
base and policy framework of the "systems level" analysis program
within IPO; its role will be to "close the feedback loop" in environ-
mental planning by providing ongoing monitoring of activities on a
day-to-day basis. By relating the project-level EIR to a larger-
scale program, the intent is to cut down on the need for documentation
on individual projects, removing the burden of regional and subregional
matters from the report, except when the broad-scale criteria are not
satisfied by the project and an environmental "variance" is needed.
It is too soon to guess how well this organizational structure will
work; but it represents a major departure from the traditional patterns
of management of planning and environmental regulation in local govern-
ment, and will bear further close examination, particularly in any
further consideration by the State of statutory change in the organi-
zational requirements for local planning.
SAUSALITO
The City of Sausalito has maintained the same process as before; no
major approvals have emerged from its EIR process. One project has
been denied on environmental grounds; one zoning proposal has been
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denied; one project has been withdrawn by the applicant; and one
major project is still pending. According to the Planning Director,
Herb Case, the EIR has introduced significant delays in the approval
process, though it has not been the sole basis for delays, which may
have been sustained under the old planning approval procedures, par-
ticularly in view of the high amount of public interest and resis-
tance that have been present. An indication of the political interest
in the City's development pressures (and in the forces aligned on
both sides) has been the appearance of two full page articles on
Sausalito and its planning issues in the San Francisco Chronicle, a
major Bay Area daily paper. These appeared in February 1975, and very
probably influenced the course of the project reviews, as well as City
Council campaigns that were underway at the time. A Council majority
opposed to the planned developments was elected in March. The EIRs
on the projects contributed to the debate by providing information
about the implications of the projects for the future of the City.
The net effect of the EIR in this jurisdiction has been to support
a change in the criteria for plan selection and review; change in
public attitude, only partly attributable to the EIR process, has
in effect resulted in filtering out the old pending proposals, though
it has not yet laid the ground for an acceptable pattern of alterna-
tives for the undeveloped lands of the City.
DEL MAR
The City of Del Mar has also maintained essentially the same status
as outlined in the earlier report; no use of the EIR process has been
made in the past year because of a building moratorium pending the
completion of a General Plan revision. The plan has been adopted and
the moratorium will end on July 18. It is expected that a number of
proposals and EIR requirements will come forward soon thereafter.
One significant change in Del Mar's process is that the "sole source"
feature has been given up in favor of an approach similar to that of
Sausalito. This change was made for two reasons: an additional quali-
fied consultant has been identified by the City, and the list may ex-
pand to three prior to the July 18 date; a further consideration is
that a choice of consultants was considered more equitable to the
applicant.
The City's intention is to require that a draft "environmental assess-
ment" be prepared by the applicant, which will contain quantitative
information about the site (i.e., data base), while excluding quali-
tative judgmental consideration of the information. This will ac-
company a definite project proposal, with somewhat detailed site
utilization plans included by the developer. The City will assume
responsibility for preparation of alternatives and mitigation measures,
and these will figure as the principal emphasis of the EIR consultant's
work. Selection of the consultant is expected to be on the basis of
cost estimates for the work, rather than on a technical proposal for
service to be provided.
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Advance consideration of environmental factors in the developer's
planning is to be taken into account through an "environmental recon-
naissance," which involves meetings with staff, with environmental
groups, and with civic and neighborhood groups to determine critical
concerns prior to the development of a project plan.
SANTA CLARA
In Santa Clara County, the status of the system for private develop-
ment projects has remained the same. Building activity was slow for
most of the past year due to economic conditions of the industry.
During recent months it has begun to pick up again, but the management
of the environmental review process, as before, is largely in the
hands of the private development and financial interests themselves.
Approximately one EIR per month is now being processed, and these are
almost entirely "non-negotiable" projects, such as gravel pits, or
other extractive operations, which in any case require environmental
analysis, according to County criteria. Richard Hall, the program
manager for the County, feels that better-designed projects are now
coming forward from applicants; this results substantially from the
influence exerted by the financial community, which is reluctant to
get involved in any projects that appear to have potential problems.
Banks carry out some reconnaissance on their own initiative, in addi-
tion to requesting it of construction loan applicants.
Staff of the EIR program has been increased to four persons in the
past year, primarily to service a broader "master EIR" program for
the cities within the County, a program that is now under development,
and is about to be implemented. The basic authority for this program
is Bozung v. LAFCO. a State Supreme Court case, decided in January
1975. This ruling requires that "Local Agency Formation Commissions"
(LAFCOs) prepare EIRs on changes in boundaries of cities or other
local agencies, which they are responsible for monitoring and regulat-
ing. The County Planning Department formally serves as staff to LAFCO
for environmental purposes. Because the effects of boundary changes
are large in scale generally, and tend to have only indirect effects,
the EIR program developed for this purpose by Hall and his staff has
focused on growth-inducing effects and "spillover" effects, such as
the need for housing in surrounding municipalities to serve the needs
of, for example, a proposed industrial park.
As in its approach to private development projects, the County has
undertaken to delegate the EIR work to the operating agents, which
are the cities in the case of the MEIR. Three such analyses have
been prepared so far. In one case, a preliminary analysis of the
total housing impact of all planned industrial areas in the City of
San Jose shows that total build-out would result in an overall popu-
lation growth of San Jose and the surrounding area of one million
persons. The analysis showed that this growth would "export bedrooms"
all over the region. According to Hall, the City of San Jose itself
was surprised at its own conclusions, and has now undertaken studies
of possible alternative plans for industrial development.
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This particular example indicates that creative use of CEQA and the
EIR process can help to make pre-planning studies more relevant and
useful. It also suggests, together with other aspects of Santa Clara
County's EIR program, that criticisms representing the EIR process
as simply "after-the-fact" analysis and "wrong end of the telescope"
thinking may be somewhat premature.
The environmental data base for the MEIRs now being implemented in
Santa Clara County will be the urban service area of each city in the
County, part of which in each case includes unincorporated area. The
information is divided into two types of "accounts": physical resources
accounts and service system accounts. The former include categoriza-
tion of each part of the service area with regard to whether it is
developed or undeveloped, whether it includes factors of development
constraint (flood potential, steep slopes, etc.), whether it has defi-
cient services, and whether it has policy constraints (e.g., agri-
cultural lands). "Service System Accounts" include the presence or
absence of adequate water and sewer services, traffic and circulation
access, schools, and flood control/drainage access.
IRVINE
In the City of Irvine, a professional services procedure has been
developed that provides for a Request for Proposals (RFP) to be circu-
lated to firms considered by the City to be qualified to prepare a
given EIR. Selection of the consultant and management of the EIR
project is carried out as a team effort involving the applicant, the
Planning Department of the City, and the Public Works Department.
Preliminary discussions are held to determine the scope of the EIR
and the impacts to be addressed. After circulation of the RFP, a
meeting is held in which the Planning Department makes a presentation
on the EIR requirements of the proposed project to representatives of
(usually) four or five responding consultants. Proposals are returned
by the consultants in two or three weeks; they are given to the appli-
cant and the Public Works Department for review and comments; final
selection of the consultant is made by the Planning Director.
Efforts are made to begin the EIR very early in the project planning
process, if possible yielding a preliminary EIR draft before detailed
project planning is undertaken. Close contact is maintained between
the management team and the consultant, and plan changes and mitiga-
tions are worked into the planning process as it proceeds in parallel
with environmental analysis.
The Irvine Company, owner of the Irvine Ranch, has reorganized its
own planning programs in parallel with the structure of the City's
planning/EIR program. In this case, the private development sector
(represented by the Irvine Company) is taking the initiative in pro-
posing an "MEIR-type" system to allow for simplifying the EIR process
and the documentation on specific projects. The Company controls 85%
of the land within the City, and thus is the applicant in the vast
majority of cases. It has offered to assist in the City's EIR process
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and to review the work of the City's consultants, since the Company
often has detailed knowledge of the land on a given site, and can
catch technical errors. The next step, now under discussion, is to
systematize the data bases on different scales, so that the same in-
formation will not have to be entirely repeated two to five times at
different steps of the planning and review process (village plan,
conceptual urban site design, tentative map, detailed site design,
building permit). If all details were included at each step, it would
require a geometric progression of increased paperwork, since the size
of the area considered in the EIR would decrease, and more "projects"
would be involved at later stages. The Company is presently offering
to assist in reforming the process, pointing out that the management
program now used was invented locally, and can just as well be adapted
again to fit new needs and workloads. The City is somewhat reluctant,
since it "doesn't have the staff," and is too busy implementing the
present program. In effect the City does, however, have access to
the much greater planning staff resources of the Company, if a
mutually advantageous arrangement can be made. A series of meetings
is planned in summer 1975 to work out a new data management program;
this may strengthen the collaboration between public and private
planning in the City.
A further note of related interest in the Irvine Company's EIR pro-
gram is an experiment underway in the adjacent city of Newport Beach.
There, the Company's land holdings are in much smaller and more
scattered parcels. The approach to development planning for these
parcels is to proceed with data base preparations prior to any plan-
ning (which brings to mind Del Mar's new requirement). The collected
environmental information is given to a design consultant hired by the
Company. After the design is completed, "phase two" of the environ-
mental program begins: an EIR consultant is hired to analyze how well
the design responds to the data of "phase one." The details of how
this program will interface with the City's environmental review are
now being worked out jointly with the City.
It is incidentally of interest here that the Irvine Company's innova-
tive efforts in environmental quality management are by no means
philanthropic. The product they advertise for sale is a high quality
living and working environment, and their clientele has proved to be
well-informed on the subject. The local public, both on and off the
Ranch, are aggressive on environmental subjects; there are localities
nearby where confrontation is "out of hand" from the industry's point
of view, with developers and city government in opposite corners, and
with the cities standing up for a perceived demand by the local
electorate for them to flatly oppose growth and development.
The role of the private sector in self-regulation, and the specific
case of the Irvine Company, are considered again in Section IX.
SACRAMENTO COUNTY
An important further type of EIR management approach not discussed
in the prior report is the case where the process is substantially or
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entirely internalized in the local government, and EIRs are prepared
and processed as an inhouse staff activity. The County of Sacramento
provides a good illustration. This jurisdiction, like San Diego
County, was well prepared for the Friends of Mammoth decision due to
the establishment a year earlier of an "Environmental Task Force"
made up of staff professionals from various County departments. The
purpose of this group was to study the planning process and find
means of including the consideration of physical environment, economic,
and social factors in planning and ongoing decisionmaking. (A second
purpose was to explore the potential uses of computer mapping in the
process.)
According to Charles Frank, who was a Task Force participant and later
became the County's Environmental Coordinator, the group effort was
valuable as a training exercise and as an intra-governmental communi-
cations program. And it accomplished its "process planning" task. In
the spring of 1973, several environmental specialists were hired (chiefly
recent graduates of physical and biological science programs) to carry
out the EIR program. Once the program was underway, an economist was
added to the staff to analyse the impact of projects on the employment
base of the County. Part of the intent of this step was to eventually
expand into broader fiscal impact studies (in accord with the Task
Force concepts); this is now being pursued through a $40,000 State
grant to the County for a study of methodologies for the analysis of
the fiscal impact of projects on public services. It is anticipated
a third phase of expansion into social impact analysis will be pursued
next.
One ongoing characteristic of Sacramento County's EIR process has been
an emphasis on brief reports that build upon past studies, and that
focus on the specific issues and data that are of concern to the pro-
posed project. The staff consciously tries to avoid redundancy and
repetitiousness of reports, for purposes of process efficiency as well
as for brevity and usefulness of individual reports. The program has
thus, in an operational sense, been somewhat like a "Master EIR" ap-
proach from the beginning. Much of the judgment of what is important
and what is redundant has been a matter of staff discretion. Appli-
cants generally have had little to do with the process.
Frank has noted, in describing the original staff effort that set up
the EIR system, that a great deal can be accomplished for the local
environment by an intra-governmental team—even without specific envi-
ronmental expertise—if it is well-balanced, and is reasonably free
to invent suitable approaches. He states, "most local agencies don't
know what power they have on their staff." The total cost to the
County of the year-long Task Force effort was $50,000. A similar
amount was spent by the County of San Diego in its year of preliminary
work in 1970-71, though the emphasis in the latter case (and the
budget) went more heavily to joint efforts with the local academic and
professional community.
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AN OVERVIEW OF LOCAL DIVERSITY
A conclusion to be drawn from this discussion is that some localities
are aggressively pursuing their own innovative programs, assembling
environmental quality control systems in the absence of State or
Federal support or intervention. Innovations are based in part on
the EIR program, in various combinations with the traditional land
use planning apparatus; although not discussed here, there are also
diverse relationships with the more directly functional programs of
environmental control. In San Diego County, for example, the County
participates in intergovernmental team efforts in solid waste planning
and in long term air quality maintenance, among others ; one intent
of the County's new approach to EIR management is to put the review
into close contact with operational programs in these related subject
areas.
Areawide "Councils of Government" are a further feature of diversity
in environmental planning not discussed here; in San Diego and in
the Bay Area they have taken active roles in reviewing EIRs and in
offering assistance with (and coordination among) local EIR manage-
ment programs. More usually such "COG" agencies have a passive role
of pro forma review, or of merely forwarding documents sent to them.
The various factors of present difference among local government pro-
cesses (together with differences in perceived needs and in local
willingness to respond) suggest it would be difficult for the State
to impose an effective, homogeneous program at present unless the
purpose of the control is to thwart adaptive response of government
at the local level.
A potentially productive view of local differences is to regard local
programs as diversified experiments, each seeking ways of organizing
State and Federal regulatory programs in useful ways—and adding on
some appropriate local elements. The more aggressive cases, including
those described here, may serve the State as laboratories in the same
sense that California serves national program development. The others
are interesting and important, but the key problem for legislators
and central administrators is to foresee and help shape the future, and
the future is happening in some places faster than others.
Among the examples discussed here, the County of Santa Clara and the
Irvine Company represent two rather different sources of initiative
both leading to an emphasis on developer-centered, environmentally-
based planning and design. In Newport Beach, the Company is assuming,
at its own initiative, the role that Santa Clara County tends to re-
quire of developers in dealing with individual sites. In its relation-
ship with the City of Irvine, on the other hand, the Company is offer-
ing its own data base and staff services to help initiate a larger
scale "master EIR" approach analogous to the system Santa Clara County
is working out in dealing with cities within the County.
Entirely different styles of operation and directions of evolution are
represented by the Counties of San Diego and Sacramento. Both have
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government-centered programs which are actively engaged (in somewhat
different ways) in using the EIR system to attack broader adminis-
trative problems involving a full spectrum of environmental, social,
and economic concerns. In Sacramento County, the emphasis is on
evolving the technology of the process; the target is a general
"impact analysis," as opposed to "environmental impact" analysis.
In San Diego County, on the other hand, the emphasis is on full-scale
reform of government; the target is integrated planning, and inte-
grated project review; and the EIR program now follows that organiza-
tional split.
In the cities of Sausalito, Del Mar, and Irvine, on the other hand,
government resources are limited, but the scale of projects is large
enough to impact the total landscape of the municipality. In each of
these cases, the EIR system is formally segregated as a unit of the
planning program, but in fact is comparatively well integrated with
planning and with the full government system. A full range of social
and economic considerations is incorporated into each EIR, and thus
into government (on an ad hoc basis) for each project.
Diverse programs such as these could be identified and adopted by the
State as intentional experiments deserving of observation, commenda-
tion, and advertising to other localities that may be attempting to
deal with similar organizational or technical problems. Use of such
models has been practiced widely by State and Federal government in
the past, but too often through means of merely supplying funds for
local "demonstration" programs; such funds can turn out to be an un-
necessary form of intervention.°7 While some judicious extra support
may be useful, as in Sacramento County, the jurisdictions named here
are generally doing rather well with their own resources; they could
perhaps benefit from public notice, however, and from improved con-
tact and communication with other governmental agencies.
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SECTION VII
ROLE OF THE EIR IN A SELF-REGULATING SYSTEM
TOWARD A "QUIET COUNTERREVOLUTION"
The "Quiet Revolution" in land use control that gained momentum dur-
ing the 1960s was foreshadowed by a shortage of local dialogue—by a
lack of balancing institutions, and an inadequate consideration of
broader public needs in land use decisions. Dialogue and balancing
were thus carried up to the areawide or State level instead. In
California, the San Francisco Bay Conservation and Development Com-
mission—a case study discussed in the original Quiet Revolution
document—was a product of citizen intervention. Its apparent success
has now been propagated statewide through the Coastal Zone Conserva-
tion Commissions—which are further products of citizen intervention,
and are very active forums themselves for public dialogue about land
use.
Meanwhile, dialogue has become important, and even dominant in the
processes of local land use decisionmaking in California. New kinds
of citizen groups have come forward. Their presence, together with
new planning and regulatory tools, provide entirely new kinds of
opportunities to reestablish local responsibility for, and local con-
trol over the regulatory process.
Without fanfare, some localities have begun to put together processes
that may be deserving of accreditation by State and Federal agencies,
and deserving of the confidence of their own communities. While
these are not necessarily conscious efforts to regain the "upper hand,"
they represent a reversal of the quiet revolution momentum toward
centralization of, decisionmaking authority.
This section discusses the role the EIR has played, or can play, in
the development of locally-centered responsibility for self-regulation
of environmental quality. Since the present report emphasizes the
value of dialogue, this section is organized to present the subject
from the points of view of four different participants in the local
dialogue:
(1) the environmental manager;
(2) the decisionmaker;
(3) the developer; and
(4) the citizen activist.
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THE ENVIRONMENTAL MANAGER'S VIEWPOINT
Activist administrators of CEQA might take as their motto the follow-
ing paraphrase of a familiar slogan:68 "Process is our Most Important
Product." CEQA provides little in the way of new authority (and it
has been severely criticized for that reason). It has generated a
great deal of process, however. The process has expanded upon local
administrators' capability to utilize and manage existing authority.
CEQA can offer the opportunity, from the public official's view, of a
flexible management tool for reshaping the decisionmaking process, and
more broadly for dealing with other fragmentary programs of the land
use control apparatus.
Whereas CEQA seemed at the outset of its use to be simply one more
complicating factor, it may after all contribute significantly to
local government's ability to cope with the "double bind" of pressure
from the public, and regulatory demands from State and Federal govern-
ment.
Impact analysis and review of the many superimposed plans of various
local agencies provides the opportunity not only for public review,
cross-comparison, and challenge of plans; it offers agencies them-
selves the opportunity to participate in each other's planning as part
of a responding public.
Furthermore, in some localities the use of the EIR has spawned a
healthy competition among subunits of a single local government. This
competition may emerge from the establishment of the EIR management
process as an advocate for the environment:
"The premise behind this organizational form is that
the relationship between orderly development and
environment quality can best be understood and dealt
with by building into the government system a strong
proponent for conservation and another for develop-
ment. Then the elected public officials can take
from both of their strategies to mold the best public
policy bearing on that relationship. This adversary
technique, of course, has been the central rationale
and means for obtaining justice in our court system."69
In the City of San Francisco, it was decided early in implementing
CEQA that the Department of Public Works would not be the lead agency
for its own EIRs. The Board of Supervisors decided the DPW would be
self-serving in preparing its own statements. The Planning Department
was instead given the responsibility. According to the former Plan-
ning Director, Allan Jacobs, the Department has received "incredible
help" from other agencies, and in turn it has "given them a hard
time." Jacobs reports that the Public Works Director at one point
said: "Allan, you can stop anything I want to do; so let's get to-
gether and start to do something on the positive side."70
A variety of interests and purposes are represented within a munici-
pal government. An advocate form of EIR may help provide even
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elected officials with access to alternatives, or to differences of
opinion within staff that may otherwise be submerged by the executive
or resolved on arbitrary grounds.
Unlike most other tasks and planning or control requirements, the EIR
is not (so far) burdened by tradition or by specified structural
mechanisms; and most important to budget-squeezed administrators, the
process does not necessarily have to be carried out by existing staff.
The EIR process brings its own source of revenue in providing a "pass-
through" to the applicant of the agency's costs for preparation and/or
processing of an EIR.
Applicants may be taxed a "reasonable fee;" administrators have con-
sequently been able to hire new staff or consultants as needed. To
the extent the EIR process contributes to overall land use management
effectiveness of the agency, it can thus be a net relief to the organi-
zation.
Provided one's credibility with politicians and public constituents
can be maintained, a manager can be somewhat selective in determining
what is analyzed in an EIR, and hence, what role it plays more broadly
in local land use controls. That is, one may be somewhat entre-
preneurial in assembling the EIR into a package of controls appro-
priate to local circumstances. Such specialized local shaping may be
understood in the name of responding to public demands; and it may be
pursued in principle from a variety of positions—by elected officials,
by administrative officers, or by public activists—through focusing
personal energies or political pressure.
In the City of Sausalito, the EIR has provided the principal means
of funding needed planning studies. Major thorough investigations
of traffic flow and other features of City planning were undertaken
at developers' expense under the authority of CEQA. The State Plan-
ning Act provides the same authority to "require any needed informa-
tion" prior to approval of development proposals. However, the prece-
dent and public support for broadly-based analyses was uncommon under
the Planning.Act authority in Sausalito or anywhere else. Under CEQA,
they are not unusual at all. Public attention to the EIR thus enables
implementation of an authority that in fact may have existed previously.
In Santa Clara County, the mere existence of the EIR requirement has
affected the planning activities of developers themselves. And in
the same jurisdiction, an interface is developing between the County
and the cities within it, through LAFCO and the Master EIR process,
which in effect is causing the cities to re-evaluate their own plan-
ning.
To the extent local agencies such as these have succeeded in develop-
ing modes of operation that internally link land use control programs,
they have independently gone beyond the Legislature and the State
administration in moving toward integrated systems of land use control.
Since the passage of AB 889, the Legislature has enacted a law estab-
lishing an energy commission for the State, but has otherwise remained
comparatively inactive in the field of land use and environmental control.
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Leadership in these fields is thus emerging at present from the
local, and not from the areawide or state level of government in
California. This is partly due to local initiative, and partly a
practical matter of local administrators being forced to do many
things at once; they alone are obliged on a day-to-day basis to
assign resources to manage a variety of shifting land use manage-
ment and planning requirements, while also applying those some re-
quirements to the handling of specific project proposals coming in
the door of the agency.
THE DECISION MAKER'S VIEWPOINT
The environmental impact report itself can be of use to decision-
makers , but chances are that little of the detail will be read by
the majority of elected officials. This has been a source of frus-
tration, since the reports are ostensibly prepared for their use in
evaluating tradeoffs and alternatives. As may be expected, only
controversial documents draw real attention at the decisionmaking
level; the rest tend to be ignored.
Criticism by elected officials and others of the "excessive and re-
dundant paperwork" entailed in the EIR process may, however, overlook
the point that much of the documentation is little more than an ad-
ministrative record of often-complex proceedings to which the elected
official may or may not have been a party. The record is elaborate
in part because elected officials are less likely than under the old
system to personally participate in negotiations with the applicant;
far more regulations and other factors of consideration are involved
than was formerly the case; more actors are party to the process;
and if litigation is known to be a possibility, administrators may
want to have a fully-documented record for their own protection.
The EIR on specific local issues has permitted much resolution of
conflict in local land use issues to be delegated to an administra-
tive process, wherein a significant proportion of controversy (much
of which is technical in character) can be resolved through adminis-
trative hearings, reviews of documents, negotiations, and altering
of proposals. The results emerge in the form of technical documents
and an administrative record of the review process, which together
constitute the Environmental Impact Report. Access to the process is
provided throughout, and appeal of the result is available to all at
the end of the process.
Resolving conflict requires that there be parties to an issue, and
if possible, that positions be well-framed on both (or all) sides.
By providing a focus for participation, the EIR process has become
a medium for articulating a public or "environmentalist" position.
The existence of better-framed issues, and better articulated public
positions is a major new factor that increasingly allows municipal
officials to
manage change in the field of environment and...to
balance environmental decisions with employment,
adequate housing, and economic stability.71
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Lacking an appropriate process and a balancing infrastructure, land
use controls in some localities previously bore the possibility of
stagnation through endless, contentious public hearings, or series
of such public hearings. On such occasions, the panel of decision-
making officials were required to listen to conflicting, redundant,
and often irrelevant testimony, while mentally attempting to frame
the issues and evaluate tradeoffs implied by the decision. At the
end of the hearing they were asked to vote.
The difference between that process and the more focused process that
is now possible may be compared to a civil court action, first with-
out legal counsel, and then with it. The role of counsel is to ques-
tion testimony, cross examine witnesses, ask for supporting facts,
and generally frame the issues and positions for the plaintiff as
well as for the defense. The EIR now performs some of these roles
for political decisions—or rather, it organizes a process that can
provide these roles. And with it, decisionmakers are granted an im-
proved likelihood of following a somewhat structured debate. More-
over, they have available the option of delegating the hearing of
much of the testimony to professional administrators. As a conse-
quence, many technical matters can be resolved ahead of time without
their participation; and there is a potentiality that the policy-
makers may be allowed to direct more of their attention than before
to the policy content of the decisions. Their functions as legis-
lators may be enhanced; their personal involvement in technical issues
and in negotiations with applicants is optional.
The EIR process enhances the decisionmakers participation in long
range planning. Peter Drucker has stated that "long rang planning
does not deal with future decisions. It deals with the futurity of
present decisions" ^original emphasis). In this light, analysis of
present decisions as undertaken by the EIR process may be viewed by
decisionmakers as providing information in support of an ongoing
planning process;
Decisions exist only in the present. The question
that faces the long-range planner is not what we
should do tomorrow. It is: what do we have to do
today to be ready for an uncertain tomorrow? The
question is not what will happen in the future. It
is: what futurity do we have to factor into our
present thinking and doing, what time-spans do we
have to consider, and how do we converge them to a
simultaneous decision in the present?
Decision making is essentially a time machine which
synchronizes into one present a great number of
divergent time-spans. This is, I think, something
which we are only learning now. Our approach today
still tends toward the making of plans for something
we will decide to do in the future. This may be a
very entertaining exercise, but it is a futile one.
Again, long-range planning is necessary because we
can make decisions only in the present; the rest are
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pious intentions. And yet we cannot make deci-
sions for the present alone; the most expedient,
most opportunist decision—let alone the deci-
sion not to decide—may commit us on a long-
range basis, if not permanently and irrevocably.
A directly comparable view from a local policymaker is given by former
City Councilman (now County Supervisor) Jim Bates of San Diego:
The EIR is invaluable. It gives you a long range
view that you can hang something on. It's good
for blocking at times—gives time to develop an
opinion, instead of the old 'gut reaction.' There
are too many reports. We need a system of flag-
ging important ones ahead of time, so councilmen
themselves can take the initiative to appeal them
and bring in the people. The EIR is the planning
process in the City of San Diego.?3~
Having a long range view of a given decision, and a basis for stopping
the project, one may have at hand a strong basis for linking decisions
to policies—a connection that has been difficult to achieve under
the land use control system that relies on zoning and the general
plan. A principal reason for the effectiveness of this linkage (where
it occurs) is that possible denial of an application on policy grounds-
or the possible conditioning of decisions on such grounds—provides
the applicant with a strong incentive to try to understand and accom-
modate applicable policies into his or her own planning, in order to
forestall later problems. This reverses the logic of the traditional
general plan approach to land use control.
The EIR process can force the detailed consideration of tradeoffs in-
to the political arena, where it may properly belong. Some decision-
makers may be unwilling or unready to accept the responsibility of
deciding issues based on a full public knowledge of the facts and the
tradeoffs; others are anxious to take the responsibility seriously,
and may actively use the EIR process to try to marshall competent
arguments on both sides of issues.
One peculiar (and not unusual) form of criticism'^ of the EIR as a
decisionmaking document is that it may fail to go far enough, even
for some elected officials, in indicating what decision should be
made. Granted the exposure that the EIR and public participation can
give to the decision process, many elected officials may prefer to
point to the EIR as the responsible agent in controversial decisions.
The State Attorney General's position on "duty to perform" would sup-
port this attitude. However, this imposes the responsibility, to-
gether with potential legal liability in some instances, on staff
and consultants—burdens they may wish to avoid, and which can add
to the already over-cautious procedures and requirements observed by
many agencies.
Before the EIR could ever be accepted and utilized on a broad, uni-
form basis Statewide, it appears it would have to await the gradual
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processes of electoral politics and/or the gradual change and adapta-
tion of individual decisionmakers—as well as planning staff, legal
counsel, and local developers—to new modes of operation in conduct-
ing public business. Meanwhile, there will be a wide spectrum of
reasons for resistance to the process, many of which may be addressed
and solved in explicit technical detail without removing a more basic
political problem of unfamiliarity with the idea of conducting public
business in an open forum with full information available to all par-
ticipants and observers.
THE DEVELOPER'S VIEWPOINT
A key difference among the alternative approaches described in the
previous section is in the degree of participation in the EIR process
allowed or asked of the developer. In Sacramento County's program,
developers have comparatively little opportunity to participant in
the EIR process, since it is an inhouse activity in the government.
Charles Frank stated a year after implementation of AB 889 that de-
velopers from Los Angeles and San Francisco were having an easier
time than local developers in satisfying the County's environmental
criteria—presumably because they had been more directly involved in
the process elsewhere, and had learned what is required from the
standpoint of information as well as design.
If the rules of development are definitely changed by CEQA (and many
other new influences) then it clearly is in the developer's interest
to learn what the new rules are, and how they may be satisfied. At
the same time, it is in the government's (and the public's) interest
to have environmentally sensitive designs coming in the door of the
local agency to begin with, rather than seeking to change or mitigate
them after time, money, and a hard-to-define factor of professional
commitment are already invested. The participation of the developer
in the EIR process may be useful to the governmental agency for its
preventative, rather than its curative values.
From the developer's standpoint, Del Mar, Sausalito, and Irvine are
not formally very different from Sacramento County in their concern
for maintaining close control over the process, which tends to exclude
participation. The main apparent difference is that these cities are
small and can't afford to keep a balanced environmental staff on hand,
waiting for projects to analyze. In each of these three cities, en-
vironmental protection is politically important. Developers have
tended to respond by hiring their own environmental design profes-
sionals, and thus are able to argue—and market—their proposals on
grounds of their environmental sensitivity. In Irvine, the industry
itself (by virtue of its uniquely unified organization there) is ahead
of the regulators in seeking better ways of organizing and managing
the processes of planning and regulation.
In Santa Clara County, on the other hand, the processes are closely
controlled, but their use is minimized. That is done by explicitly
encouraging applicants to satisfy the policy intent of the law at
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their own initiative. This differs from most of the others in that
the "raindance effect" of going through pro forma analysis of well-
understood or environmentally-satisfactory project proposals is
consciously avoided; environmental sensitivity in the conceptual
design and planning phases of a project can pay off particularly
well for a developer in this kind of system, because he can avoid
some of the (real or perceived) uncertainty introduced by exposure
to the formal EIR process. Some time may be saved, and the expense
of private analysis is not re-duplicated after-the-fact in a second
analysis by the agency.
Deputy Attorney General Nicholas Yost has observed?^ that private
entrepreneurs in the development business have two basic desires in
facing the governmental regulatory system with a development proposal:
(1) flexibility; and (2) certainty. It is important to be able to
keep details open to change, in order to meet changing sales and
financial markets. At the same time, it is important to minimize
the risk of "arbitrary" change of a project due to changing govern-
mental regulations. The EIR process tends to serve both needs by
getting away from prescriptive planning and regulatory controls, while
getting toward focusing on the merits of the project itself as a
specific , here-and-now means of implementing public policy toward
land use.
Developers are basically willing to do whatever is needed to satisfy
the rules; but they need to know what the rules are, and that has
been a shifting ground in the past few years. William Matuszeski
of the Council on Environmental Quality staff has noted' that the
environmental analysis processes are in this sense a definite value
to developers, because they remove a degree of arbitrariness that
had entered the approval process through the introduction of a wide
variety of new regulatory controls. He states, "getting away from
the old rules was a setback for 'predictability.1 The environmental
impact statement gives him something back in." If the real intent
of the law is to improve the quality of the human environment, there
are many ways to address that criterion and to argue that it has been
addressed in a specific project. And efforts to move in this direc-
tion are by no means incompatible with the developer's business at
hand—which is to generate marketable environments, and to make a
profit at it.
The philosophy of delegation illustrated by Santa Clara County prag-
matically recognizes that land use planning in our system of owner-
ship and entrepreneurship in fact resides largely in the hands of
individuals and organizations who can initiate an action by putting
together a piece of property, a proposed use, a financial package,
and a set of required approvals. They may be private individuals,
business corporations, or government agencies. Under the old rules,
it was advantageous for such "developers" to understand the system
in order to get around it. Project planning tended to work directly
against public general planning, in order to satisfy narrowly-drawn
economic criteria. In using land, the greatest advantage was found
in minimizing the cost of the land. Thus, public roads went through
public parks and low-rent districts; and private development projects
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went wherever economic gains could be maximized through a plan
change, a zoning change, or a zoning variance. The formal public
planning and zoning system had the effect of announcing where the
maximum unearned profits could be made, while excluding those who
lacked the political or economic power needed to change the plans.
Under the new rules, there is a degree of correspondence between
developers' interests and the general public interest. A further
reason for this is that "new towns" and other large scale projects
have become quantitatively important in recent years. Because of
this, and for other reasons having to do with the internal workings
of the banking system, financial institutions have increasingly joined
large projects at the outset (or initiated them) as equity partici-
pants and as long-term sources of venture capital. At the same time,
the perspective of the "developer" is increasingly that of a corporate
officer or employee protecting a long term interest, rather than a
private entrepreneur seeking a short term profit. These various
factors all affect the overall points of view of development within
the housing and home finance industries, and may affect the condi-
tions of operation of individual entrepreneurs as well.
Oakley Hunter, Chairman and President of the Federal National Mort-
gage Association ("Fannie Mae"), has indicated that the entire
private sector involved in the development process may be in for
some intentional reorientation to increase its general sensitivity
to long term public needs—and to the protection of long term finan-
cial investments. He recently stated, during an FNMA-sponsored
national conference on urban environmental needs, that
Fannie Mae is trying to develop policies that will
encourage local banks to take a more active role
in shaping the future of the total community. We
recognize that our policies and decisions in the
secondary mortgage market have an important influ-
ence on the lending practices of banks, and there-
fore on the development practices of private
entrepreneurs. We are now looking for ways to
utilize our role in a more positive sense.77
According to Hunter, FNMA is thinking in terms of specific criteria
for the acceptability of mortgages; these could include features of
technical design, and of social or physical environment impact.
"The indirect controlling effects of policies and regulations through
another medium, legal counsel, is reflected in the comment of an
attorney who is active in representing developers before one of the
State Coastal Zone Conservation Commissions: "I've turned down more
developments in my office than the Commission has voted down."78
More broadly, the stabilizing effects of the "new rules" upon the
development process are reflected in the statement at the time of the
Friends of Mammoth decision of "a vice president of Kaufman & Broad,
one of the State's largest homebuilders, who pointed out that the
decision would be beneficial in the long run, since it would tend to
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penalize only the 'fast-buck* operators who were able to undersell
responsible housing producers under the old rules; under the Mammoth
ruling, all builders would be in the same position.79
THE CITIZEN ACTIVIST'S VIEWPOINT
The EIR process has significantly simplified the public role in envi-
ronmental issues (at least from the activist's point of view) through
the procedures of notice and review. There are several ways in which
the EIR serves as a tool for monitoring and intervening in issues:
by providing public notice at predictable points of
project proposal development;
by providing the public with an informative and responsive
informational medium to deal with, rather than simply
soliciting open ended comments;
by making questions, and the responses to them, mutually
available to participants in the EIR review process;
by thus greatly reducing the need for time-consuming
testimony in public hearing, and hence making it more
possible for skilled and busy citizens to take part;
by revealing costs and effects in detail for public
judgment;
by minimizing the professional "mystique" that commonly
has in the past clothed public presentation of plans for
land use as well as for engineering projects; and
by providing a reviewable record through which the courts
may be enabled to make a finding of abuse of discretion.
The EIR has a consistent form and character over a span of highly vari-
able issues. The subject of its analysis and discussion may range from
flood channels to recreational vehicle parks to community plans to
components of sewage treatment facilities. In each case, the EIR is
a finite report of somewhat consistent format. And it is governed by
a consistent pattern of case law—precedents for which are established
almost entirely by citizen actions.
From the viewpoint of participating citizens, each issue or planning
program for which an EIR is prepared follows a more or less standard
pattern. This is important, because items that are equivalent for
EIR purposes may be highly variable in character from a "planning" or
engineering perspective; different types of items (subdivisions,
roads, mosquito abatement programs) were previously handled by various
means that suited the convenience of local administrators. With the
EIR as a framing device, there now are characteristic times for
analysis, times for lobbying, and times for intervention. Some of the
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characteristic steps may be present or absent in specific project or
plan histories, depending on how "open" the planning process is; in
each case the process evolves toward a point of acceptance of the
final EIR (often preceded by recycling of the planning/analysis rou-
tine) ; this is followed by a discussion of the merits of the plan or
project before the responsible decision-making body. At such hear-
ings, individual citizens and their organizations often hold a strong
position:
they have extensive knowledge of local history,
project history, and existing conditions;
they may be backed up by such professional experts
on the subject as may be available locally;
they are probably local voters.
At any point along the way the process may be aborted, in which case
it dissolves, for public activist purposes, back into the milieu of
pending activities. Meanwhile there are plenty of other matters for
citizen activists to attend to, and the EIR process may now be
counted on to alert them when the issue or plan surfaces again.
If a decision on a given issue is important enough, and if the deci-
sion goes against the perceived "public interest," the courts are
available. The schedule of steps to adjudication is well known, or
can be readily found out. There are many potential sources of legal
aid, including public counsel of other affected jurisdictions, the
State Attorney General's office,^0 several "public interest law"
organizations, and private attorneys, who are increasingly interested
in taking up cases since the establishment of the legal principle that
"private attorneys general" are entitled to recover fees in successful
cases on behalf of the public.81
The entire spectrum of program steps, documents, and resources re-
lated to the EIR now constitutes in California a very substantial
and well-defined tool available to any aggrieved individual. The
overall shape of the EIR tool and its potential uses are known and
remain constant with time, except that it is refined and improved
with use. Its application is broad, encompassing virtually any pub-
lic or private action of environmental significance. Its applica-
bility to any given situation is in essence proportional to the public's
interest in the case. This is measured by:
the number and qualifications of individuals willing
to study documents, prepare testimony, and be heard;
the willingness of project planners, bureaucrats, and
decisionmakers to listen and adapt their actions; and
the willingness of attorneys and courts to go along
with or challenge the outcome.
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Broader areawide or State (and sometimes national) interests are
represented by the participation of adjacent communities, regional
bodies, and groups such as the Environmental Defense Fund, the
Sierra Club, and the Attorney General's Environment Unit. In
extraordinary cases, the State Legislature or the Governor's Office
may take an interest; in the final analysis, direct appeal to the
voters is possible through California's initiative process. In es-
sence, the whole public is potentially party to an EIR process.
Participation on a given initiative depends on who is involved, and
what interests they may represent. An important factor is the number
of new participants who aspire to represent a general public interest,
including a number of public interest professional organizations.
The EIR provides documentation of a decision in such a way that citi-
zens can later draw attention to the decision record if arbitrariness
creeps into its implementation. One may expect to be notified if
the decision is to be significantly altered; under the old system it
was much easier for officials to make a decision in public hearing
and later alter it by administrative action.
Melvin B. Mogulof, in a discussion of the closely-related "citizen
advocacy" role before the Coastal Commissions, has pointed out that
the needs and interests of Commissioners and advocates are comple-
mentary; advocates should hence be valued, and encouraged in the
role they play:
California's experience with coastal advocacy suggests
a number of things to states which may wish to emulate
it. One, begin with legislation whose bias is clear—
even environmentalists find it more fun to labor in a
winning cause; two, establish procedures which incorporate
advocates into the decision process. Give them "standing"
— prize the spark and contest they give to the proceed-
ings of the land use agency. Recognize that they frame
the issue, and in so doing permit the commission members
to occupy the middle—a much desired position by those in
public life; and three, give them victories—the knowledge
that the commission is listening, or votes as if it is
listening, has a very salutary effect on the practice of
advocacy.82
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SECTION VIII
THE FUTURE OF THE EIR
SOLVING THE "PAPER POLLUTION" PROBLEM
A most urgent problem affecting the future of the EIR, and one that
is widely recognized, is that of excessive and redundant documenta-
tion. There is no a priori reason why the process needs to generate
excessive paper; this is confirmed by counterexamples such as Santa
Clara County and Sacramento County, where the problem has been over-
come, or is being actively worked on.
There are several sources of surplus paper, many of which are trace-
able to political or institutional problems, to the statute, or to
the dynamics of the local implementation process. In general, things
are happening too fast, and it is easy to ask for too much informa-
tion, or for the same data more than once.
Legalistic, overly-cautious reading of the statute, the guidelines,
and the case law is a major, general source of excessive local re-
quirements, and of redundancy in the resulting documentation. One
effect mentioned earlier is the "raindance" of repetitive analysis
on similar projects. This may be overcome to a degree by larger
scale "Master EIR" approaches, or through negotiation, ordinance,
or traditional regulatory planning procedures for specific cases,
once the general case is well enough understood. However, a linger-
ing problem in a number of agencies that may wish to experiment
along these lines is the definition of a "legally adequate EIR."
Mention was made of the presumption of many public agency attorneys
that every detail should be analyzed on each project in order to be
completely "safe" in satisfying the law.
RECOMMENDATION: USE THE COURTS
There is no legal basis at present for direct attack on the problem
of redundancy in specific cases. The prudent course for a City
Attorney or County Counsel on the basis of the statute and existing
case law is to ask for extra documentation when in doubt, as a means
of protecting his or her client from citizen suit. EIR program man-
agers may have little recourse in opposing this opinion before their
policymakers or chief executives, and may end up asking for the docu-
ments despite their own judgment that part or all may be unnecessary.
One possible approach to countering this particular obstacle would
be to foster a counterbalancing pattern of case law for the agency
attorney to take into account in judging the need for the paperwork.
The Federal Water Pollution Control Act, as amended in 1972 (P.L.
92-500, Section 101(F)), includes the following statement:
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It is the national policy that to the maximum ex-
tent possible the procedures utilized for imple-
menting this Act shall encourage the drastic
minimization of paperwork and interagency decision
procedures, and the best use of available manpower
and funds, so as to prevent needless duplication
and unnecessary delays at all levels of government.
Had such a policy statement existed in CEQA, it is reasonable to assume
that it (like other policy statements in CEQA) would by now be enforce-
able through an established pattern of case law, as discussed in
Section IV. In this instance, litigation would most likely have been
initiated by the development industry.
Granted appropriate cases to point to and discuss, developers (or
EIR administrators, or elected officials) would by now be better
equipped to stand behind a claim that specific analyses or documents
are demonstrably unnecessary in specific situations. And agency
attorneys might be better able to take both sides of the question into
account in rendering a legal opinion.
There is little public opinion expressed anywhere in the State in favor
of increased paperwork or procedures in the EIR process. Thus, it may
be politically straightforward to test this particular approach; addi-
tion to CEQA of a policy statement such as the one quoted above would
be less controversial than many other changes in the Act that are
likely to be considered in the coming session of the State Legislature.
A somewhat reversed situation exists in the implementation of P.L.
92-500 itself. There is also a severe "paper pollution" problem under
that act, as noted in later discussion in Section IX. In that instance,
however, there is no "balancing infrastructure" at the local level.
Since there is no constituency calling attention to the policy content
of the law (unlike CEQA's situation), some of the policy purposes of
P.L. 92-500 are overlooked, including the clause quoted.
PAYING FOR NON-EIR APPROACHES
In moving from rigid EIR requirements to more flexible uses of other
approaches, including existing regulatory measures in the planning
system, consideration should be given to a related "legalistic" point
that constrains experimentation in some jurisdictions at the present
time. Section 21089 of CEQA states:
A public agency may charge and collect a reasonable
fee from any person proposing a project subject to
the provisions of this division in order to recover
the estimated costs incurred by the public agency
in preparing an environmental impact report for such
project (emphasis added).
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The statement implies that costs may not be "passed through" to the
developer if the process undertaken does not lead to the preparation
of a formal EIR. Thus agencies that rely upon this funding method
to support environmental program staff are not encouraged to do any-
thing but prepare formal EIR documents. Changing the underlined
phrase to "environmental documents" could be a step in the direction
of flexibility, since it would include the preparation of a "Negative
Declaration," which is required in any case that does not need an EIR.
TECHNICAL FACTORS
There are factors having to do with the content of the report itself,
any of which can divert the EIR process in specific instances and
contribute extra paper. These may include efforts of applicants, of
staff, or of consultants:
to obfuscate, burying important facts or issues in a
mass of irrelevant material;
to try to give decisionmakers and the public an im-
pression of technical thoroughness, although much of
the material used may be merely recycled "boilerplate"
information copied from other reports;
to satisfy a whim or special interest of a policy-
maker, administrator, or influential outside reviewer.
Such effects may be countered to a degree by the legal "minimization"
approach mentioned above. They may also be susceptible of solution
or mitigation through dialogue and bargaining among local participants
in the EIR process. It may require the combined efforts of developers,
citizen groups, and government administrators to overcome the momentum
of detailed, pro forma requirements. The simple accumulation of paper
will force some points into confrontation and change; as noted in
Section IV, "learning" should be a natural consequence of the accumu-
lation of data, and local processes are likely to be unsettled if they
fail to adapt and change as the information piles up. Granted a lit-
tle assistance and guidance, many specific problems will work them-
selves out in time.
DIALOGUE
Dialogue among citizens groups, developers, and governmental agencies
may be of considerable value in overcoming institutional sources of
excessive paper—particularly if the participants are on similar
footing in a "balanced institutional infrastructure." An example is
the 'case of doubt over whether an EIR should be required. If a deci-
sion in this situation can be made unilaterally by legal counsel on
the (not unusual) grounds of avoiding a citizen lawsuit, then it may
be to everyone's advantage for the EIR administrator (or City Attorney)
to be able to contact directly the likely litigants and settle out of
court—possibly without unnecessary analysis and documentation.
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The basis for dialogue—and thus for the solution of some forms of
technical and institutional problems—is the gradual evolution of an
organized public and professional constituency capable of serving as
a responsible and responsive balancing element in the local infra-
structure of institutions, representing and defending environmental
quality considerations in local issues. Public education and profes-
sional education are needed in the development of a competent local
environmental constituency. The EIR process itself has been a principal
medium for that education—and for educating developers, planners,
executive staff, and elected officials as well.
There may be less need for the EIR process as it now stands when it
has served its educational purpose, and has infused other activities
with an awareness of environmental needs and constraints. From the
standpoint of another State or locality considering introducing an EIR
process, it may be worth noting that the process has served a possibly
irreplaceable role in California as a fast-acting, transient medium
for education and for process change. Much past, present, and future
change of the EIR process, and more broadly of the planning and deci-
sionmaking processes, is simply reflective of the accumulation of
information and of understanding on the part of all participants. The
same changes may have happened without the EIR, but they certainly
would not have happened as rapidly.
In evaluating the EIR process for their own use, other states should
consider their own local needs, interests, and opportunities, and
judge whether the EIR process may be useful as an interim measure
while other, possibly more stable, processes are developed and
evolved or emplaced into local government.
AN ENVIRONMENTAL AND GOVERNMENTAL EDUCATION PROGRAM
At the outset of the EIR program in California, there had been little
prior experience of large scale programs in the State that spanned
governmental and physical environment concerns; thus there were few
experienced individuals available with broadly applicable training.
These tended to be persons with experience in preparing NEPA state-
ments (generally on large public works projects, however, not subdivi-
sions) , or the minority of professional planners with strong background
in the physical sciences. Most EIR staff members newly hired into
government jobs or private EIR firms after AB 889 brought to their work
a knowledge of government or of the physical environment, but generally
not of both. During the ensuing months and years, these individuals
have engaged in intensive, full-time, mutual education; at the same
time, their principal assigned task has been to educate government
officials and the public about the environmental quality implications
of pending local decisions. In order to do their work, they had to
find out for themselves (with the help of decisionmakers, developers,
the public, and staff of related governmental agencies) what the impli-
cations and impacts would be.
A high proportion of the total cost of California's EIR program has
thus gone into professional salaries for individuals who were initially
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unprepared for their jobs. Over the past two years these individuals
have become far more sophisticated in understanding the interrela-
tionship between public policy, administrative actions of government,
and environmental quality. The costs have been substantial, though
rather small compared to the total cost of professional services for
development activities in the State.
COSTS
In the City of San Diego, for example, a staff of twelve analysts in
the Environmental unit monitored a total volume of $245 million in
new construction in the City last year. The County of San Diego,
meanwhile, had a staff of nine analysts; the total governmental staff
for the City, the County government, and the twelve smaller cities
within the county (including Del Mar) is at present probably in the
range of 30 to 35 "full time equivalent" (FTE) analysts. Total con-
struction volume last year in the entire area was $661 million, 11%
of the State's total of $6 billion.83
It is difficult to estimate the number of consultants involved in the
process; many are part time, or do consulting in addition to regular
employment. The FTE number of EIR consultants is probably greater
than the number of government analysts (in this area staff input to
EIRs is fairly high by statewide standards) in the area, but not
likely to be twice as great. Thus, the total number of FTE staff plus
consultants involved in EIR preparation and processing is probably
in the range of 60 to 100 for the San Diego area. That compares to
approximately 800 civil engineers, 400 architects, and 40 landscape
architects in the area—counting only fully-qualified professionals,
many of whom in addition employ less-qualified staff.
The total number of environmental analysis professionals within San
Diego County is thus probably in the range of 5% of the total number
of design professionals in the area (not including planners, most of
whom are government-employed). Relative "shares" of total construction
costs are not likely to differ very much from this proportion overall,
though they certainly differ for individual projects. (A. calculation
of EIR costs as a proportion of total professional service costs paid
by developers should also include accountants, lawyers and realtors
£there are 6700 licensed real estate brokers in San Diego County, and
23,500 real estate sales licensees, though many are inactive]. In
proportion to the total service costs, the EIR share is a rather small
increment on the average.)
Translating these figures into percentages of total construction cost
yields a range of 0.25% to 0.5%; design fees commonly range from f^ye
to ten percent of individual project costs for sewage plants, roads,
and individually-designed buildings (but less for standardized housing
units). The Chamber of Commerce rule of thumb of $100 per housing unit
for environmental analysis costs (quoted in Section VI) would by com-
,parison add 0.25% to the cost of a $40,000 home. Comparing other cost
estimates, this amount (0.25%) is the same as an informal estimate
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given by a large private developer of budget allocated for the EIR
on an average project, allowing closer to 0.5% for controversial
projects. A study of 700 NEPA statements on the East Coast8^ con-
cluded the cost of an EIS on federal projects generally falls in the
range of 0.1% to 0.4%.
Cross-checking the total San Diego County costs, the estimated range
of 0.25% to 0.5% of total construction would yield $1.65 million to
$3.3 million total cost for the EIR program in that area; assuming
an arbitrary figure of 75 FTE professionals, this would allow $22,000
to $44,000 per individual for salaries, benefits and overhead. This
is a reasonable range, noting that many are young and inexperienced,
and salaries are not high by professional standards. The County Inte-
grated Planning Organization budget of $2.18 million for 103 total
staff averages $21,100 for salaries, benefits, services, and supplies.
The City Environmental Quality Department budget of $250,000 for 12
analysts and three clerical staff averages $21,000 per analyst.
COST DECLINE
Several factors of change tend to decrease the direct cost of the EIR
program with. time. At the outset, the cost of delay of projects often
was more damaging than the immediate cost of EIR preparation and pro-
cessing. However, after two years the unpredictability of the process
is largely ironed out; calculations and commitments are no longer
made (or at least needn't be) in ignorance of environmental review
consequences. The principal delay cost anymore is thus likely to be
the cost of holding land while preliminary environmental analysis and
review are undertaken.
A second factor is that the amount of impact analysis activity directly
attributable to projects is decreasing. The program is "working its
way back" into the planning process; in the County of San Diego, for
example, the staff of nine analysts has been nearly evenly split in
the division of the EIR program into "systems" level and "project"
level analysis. The Integrated Planning Office now has five analysts
working on plans, while the Community Services Agency has four people
analyzing projects.
A third factor is the accumulation of skills and data bases. Two
sources of cost and of frustration that are likely to be overcome with
time are (1) the hesitancy of EIR administrators to commit themselves
in identifying what they feel to be significant factors in individual
projects; and (2) failure of staff to collect and synthesize informa-
tion from past documents.
WHO PAYS?
The environmental program is in theory self-supporting by a tax on
projects that formerly were damaging to the environment. Only "envi-
ronmentally significant" projects are to be analyzed; the costs are
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paid by the developer, and passed on to purchasers of the finished
projects. As fewer damaging projects come forward, there will pre-
sumably be less cost. Meanwhile, the cost to the ultimate purchaser
may be a reasonably good bargain. The cost is absorbed into total
project cost; it may thus appear as a small increment in bonded in-
debtedness for a community project, or be amortized with the mortgage
for a householder. In the latter case, if the incremental cost is
$100 for a $40,000 home, it will increase the house payment by about
one dollar above the base level cost of approximately $400 per month.
If the home is better located on its site because of environmental
analysis, if traffic circulation is improved, scenic values are pre-
served, noise is buffered, or any number of other benefits are derived,
the cost may be well justified in proportion to the total monthly cost.
The cost may even be repaid in cash, if ten miles driving is saved
during the month because of a natural amenity near at hand, for ex-
ample, or if heating and cooling costs are lowered even slightly
through better orientation of the house.
STATEWIDE COSTS, INDIRECT BENEFITS
The above considerations tend to suggest together that the costs of
the EIR program in the State, while substantial, may be reasonable
costs, and they are being paid for by a reasonably painless tax. Much
of the present program is likely to dissolve in the natural course of
events as information and experience accumulate. Much of the cost
until now has gone for training and "higher education," carried out in
the halls of local government bureaucracies. If short-term costs
have been incurred to support cross-disciplinary training of a pro-
fessional cadre that now understands both government and environment,
that may be accountable as a reasonable public investment, since there
was'apparently a public demand and need for that kind of specialist.
If the San Diego costs are representative of the State, statewide costs
of the EIR program have fallen somewhere in the range of $15 million
to $30 million per year. This compares reasonably to a CEQ estimate
for the Federal EIS program: "costs may run as high as $65 million a
year when NEPA is fully underway. However, much larger amounts can
be wasted on any one ill-advised Federal project... "°5
Setting aside any major "one-shot" savings that may have occurred due
to CEQA, and setting aside the direct benefits to individual projects,
the remaining indirect benefits of CEQA and the EIR process may be
considered to fall in three major categories: (1) public and profes-
sional education; (2) governmental reform and institutional development;
and (3) improvement in the practice of project design. Each of these
categories represents a substantial benefit to the State; all three
are transient (and probably irreversible) phenomena; all three are
difficult or impossible to evaluate in monetary terms. Many hundreds
of experienced specialists are now engaged in EIR practice in Cali-
fornia; those who have been intimately involved in analyzing issues
and environmental problems of local government for short periods number
in the thousands because of high rate of turnover in the early phases
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of the EIR program. The City of San Diego is now in its third genera-
tion of analysts. The original group of twelve noted in Section IV
returned to their departments in the City government. The second
generation followed them, with many becoming environmental specialists
in other City departments after a year or so of training in the Envi-
ronmental Quality Department.86 If the Statewide environmental
analysis system were now disbanded, many localities would keep their
local EIR implementing ordinances in force; in others, the staff
would disperse to private industry, to other types of governmental
jobs, and to other public institutions and activist organizations.
If the EIR system is kept as a formal State requirement, on the other
hand, it will undoubtedly continue to change in form and content.
The new cadre of environmental policy professionals will continue to
change jobs, and to change the roles of their current positions. An
informal network of like-minded professionals in this field will con-
tinue to evolve, encompassing individuals in government and in private
consulting practice. For those specifically involved in the EIR pro-
cess, the network is being formalized to a degree through the formation
of an "Association of Environmental Professionals," whose principal
purposes are to improve the practice internally, and to monitor or
advocate changes in legislation and other external conditions that
affect it. The AEP proposed Code of Professional Ethics is reproduced
in Appendix D.
Perhaps more important than the structure of the EIR network itself is
the role it plays as a bridging mechanism to non-governmental insti-
tutions, particularly to the network of citizens groups and public
interest organizations noted in Section V.
It would not be possible to place a value on either the "public" net-
work or the "public interest" network; both were unplanned in the
legislation; both are to a significant degree byproducts of the legis-
lation. They are accomplished facts. Having specialized knowledge of
the environment and the ways of government, these two complementary
networks would now—in the absence of CEQA—very likely proceed to
implement some of the other underutilized environmental laws mentioned
in Section V.
Other States and individual local governments contemplating the develop-
ment of environmental management programs at the local level should
take into account the value and the drawbacks of indirect effects of
the EIR upon government process and organization, and upon education.
The present report especially recommends that notice be taken of com-
munication benefits, together with the development of balancing insti-
tutional structures; these are key benefits in California, filling
roles that were substantially lacking before the EIR program was imple-
mented. Other States may have other needs and interests; "formula"
solutions are not likely to be valid elsewhere any more than they ap-
pear to be in local government in California.
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RELATIONSHIP TO PLANNING
A major variable at the present time which promises to change signifi-
cantly in coming years within the State as well as among the States
is the role of local planning and of State planning. Because of the
close relationship between the purpose of the EIR and the purpose of
planning, and because of the growing intimacy between the two programs
in many localities, the future of the EIR is closely linked to changes
in planning.
THE STATUS OF LOCAL PLANNING
An editorial in the January 1972 issue of the Journal of the American
Institute of Planners made an appeal for open debate on the future
"shape and form" of planning. The statement was noteworthy in show-
ing that professional planners have become somewhat ambivalent about
the viability of traditional "end-state" comprehensive plans. Even
for a limited local jurisdiction, the complexities are so great as to
make adequate predictions unreasonably difficult. There is a felt
need in the profession for some better means of addressing long range
considerations in the planning process:
...The tidy good logic of being 'comprehensive' and
'long range' seems to be only a nostalgic notion —•
honored today primarily in the hollow bureaucratese
of federal regulations.
At the beginning of 1972 the planning profession is
in disarray. Yesterday's themes were consensus,
comprehensiveness, rationality, order; today the
dominant themses are diversity, conflict, division
and tension — reflecting many of the rifts in the
larger society. Planning's pluralism is the nation's
pluralism.
This is not a situation of despair; a time of diver-
sity, stress, and conflict can also be one of great
promise. Now it is much easier to see the plurality
of values which has always existed but which the
urban planner formerly hid from his community (and
from himself) by means of a sanitized, orderly land
use map and a 'philosopher king' self-image... As
a result planning is emerging as more honest and
less paternal; more open and substantially less naive;
more varied while also more relevant...
Similarly, the urbanization process has proven more
difficult to understand than any mathematical model-
builder ever dreamed. Having leaned heavily on the
economist as the source of both understanding and
methodological inspiration, we are beginning to under-
stand that all approaches to the study of man and
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society are essential to our planning tasks.
[emphasis added].
The EIR program under CEQA came forward at that time and into that
context of thinking. It responds as follows:
The EIR system carries planning further in the
direction of dealing with pluralism, diversity,
and conflict; it very clearly contributes strongly
to an openness of process; it is pragmatic in
focussing on manageable, more nearly understand-
able problems instead of mind-boggling total
systems. It introduces a broad array of new pro-
fessionals and academic specialists into planning.
It serves as an educational medium for professionals,
developers, policymakers, and citizens.
It helps build a political constituency that can
advocate and support broad-based, farsighted
policies and decisions.
In California local government, the EIR program has introduced an
operational, case-by-case approach to land use control. It may be
inadequate to the total systemic needs of planning; it may be a
temporary palliative while a better system is worked out. But in many
localities, it is effective as a technical control mechanism; Perhaps
even more important, as the present report stresses, the EIR system
has in some hands been an effective agent in helping to manage rapid
change in local land use control.
DIVERSITY
A chief reason for the present diversity among EIR processes in the
State is that Planning Directors have divergent views of their own
roles, and the EIR impacts those roles in different ways. Some
Directors may have spent their entire careers as zoning administrators,
perhaps filing adverse comments on proposals only on rare occasions.
The EIR threatens that kind of role in its purposeful intent to find
and display adverse information. The individual required to present
such comments to his Planning Commission cannot be expected readily
to change his habits overnight.
Other Planning Directors may face an entirely different situation,
previously exerting great efforts to teach and persuade their Commissions
and elected board of the merits and demerits of projects, based on
planning principles and economic arguments. They may have found it
hard to justify strong recommendations before; the level of "reality"
of the arguments available was not high enough for the average elected
official. CEQA, by contrast, emphasizes a physical reality that is
readily understandable. And in response to the request of boards for
counterarguments, this type of planner is provided a desirable opening
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for strong economic and social arguments, on an equal footing with
the environmental points. The entire level of discussion of planning
thus may be elevated as a side-benefit of the process. This is by
no means a uniform situation; change takes time, and it may require
extensive work in a wide variety of jurisdictions and situations be-
fore planning practice is made significantly more uniform. But the
present change seems to be moving in a convergent direction, by ad-<-
dressing a uniform set of policy statements regarding the desired
quality of life and of the physical environment.88
With regard to the planner's role in influencing projects through the
EIR, two quotes are of interest« Ned Rogoway, the Planning Director-
Environmental Coordinator of San Luis Obispo County, notes that his
planning agency's ability to advise developers about design and loca-
tion has definitely improved since AB 889:
This is where I think the most benefit has come. Of
course, this is what it is all about! If used proper-
ly the EIR can be of great benefit for good design
justification... Mitigation measures give broader
perspective to set project conditions. Alternatives
give leverage to change design.
Robert L. Wall, Planning Director of Tulare County, similarly notes:
Better designs and mitigation factors have arrived.
He observes that developers definitely are preparing better site utili-
zation plans as a result of the environmental analysis requirements,
"and some are not proceeding to develop where fragile systems will be
destroyed."89
DATA BASE
A long term objective, widely felt in California today, is the need to
integrate planning and environmental analysis on a technical level.
It is not yet clear what form that integration should take, nor whether
it should be uniform from one jurisdiction to another. In integrating
the two, changes may be needed in the traditional system of planning,
zoning, and project review. This is made difficult in some regards
by explicit statutory requirements of the planning process. The
obligation to establish a "planning commission," for example (Sec.
65100, Gov. Code), gives statutory standing to a body that might other-
wise in some localities be abolished or changed to suit new conditions.
Many localities are at present particularly concerned about ways of
relating their EIR needs to their requirement under State law of pre-
paring and maintaining nine different elements of their general plans.
Several of the elements deal specifically with physical environment
factors. A logical conjunction would involve aggregating EIR informa-
tion by some means into the plan elements, using the plan elements
themselves in turn as a "master" data base for further EIR analyses.
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Planning processes and the handling of planning data vary widely
among local jurisdictions, however. No single formula for doing
this is likely to work everywhere. A wide range of experiments are
now proceeding in trying to converge the two informational programs.
For any given jurisdiction, the total amount of physical environment
information available at present is probably not excessive; the prob-
lem is a multiplicity of data formats, including various approaches
to EIR data management, and various approaches to compilation of data
for General Plan elements. There is now no apparently superior
format for a unified system, locally or statewide; nor would it
likely be cost-effective to change all local data to some arbitrary
statewide standard. If further accumulation of data is to be en-
couraged it may be advantageous for the State to offer a program of
incentives and assistance that would encourage local government to
proceed with integration of planning and the EIR. Perhaps this could
be accompanied by disincentives to work against the further produc-
tion or recycling of information for purely formal reasons.
STATE PLANNING
Further development of the planning processes, and thus of the EIR,
may be dependent in part upon changes in State planning. There are
a variety of approaches to Statewide change now, and they would offer
very different roles to the local level—ranging from local dominance
of the system to local subservience under State-level or areawide
planning programs. The State Coastal Plan, which is now undergoing
active public discussion, will provide a key point of focus for fur-
ther State planning purposes. It will be submitted to the Legislature
at the end of 1975, and is to be considered for adoption by the next
Legislature beginning in January 1976. Included in the Plan will be
a proposed institutional framework for implementing the Plan. Dis-
cussion of the Plan and framework will most likely run parallel with
and integrate into discussion of the future of local planning and the
EIR process.
The structure and content of the proposed State Coastal Plan document
is important to a discussion of the future of the EIR. The Plan
contains 183 statements of proposed State policy, many of which are
highly detailed. Statements, related findings, and regional amplifi-
cations occupy 261 pages of the 385 page draft document. The remainder
is introductory and descriptive, including discussions of implementa-
tion and of a set of 24 appended maps.
Many of the policies are not specific to the coast, including energy
conservation measures and water resource management; these have now
become necessary considerations in any comprehensive plan. Aesthetic
quality, recreation, transportation, and development control are all
subjects of major emphasis in the plan, as they might be in a general
State Plan. The document reads somewhat like a catalog of policies
that coastal communities or even inland communities might consider,
if they wished to develop a policy-oriented general plan. With the
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addition of specific discussion of particular areas of a community,
however, a resulting policy manual for local planning and project
review could become very voluminous. The role of impact analysis
in the presence of such a policy manual could include the detailed
consideration of project compatibility with policy statements, and
the analysis of trade offs involved in overriding various specific
policies.
CONSIDERATIONS FOR OTHER STATES
Part of the future of California's local EIR requirement is its
potential application elsewhere. States considering such an environ-
mental impact requirement are urged to study California's experience,
and particularly to note the role the EIR has had in aiding the
adaptation of local processes to rapid changes in the external condi-
tions under which decisions are made. The EIR focuses on today's
decisions, discussing their costs and future ramifications. Changes
in related law, and dramatic effects such as the recent increases in
costs of energy and other resources may be immediately taken into
account in local decisions through the EIR. By contrast, changes in
overall general plans may be slow and politically complex. Such plans
therefore tend to reflect prior conditions and values rather than
immediate needs and interests of decisionmakers.
States (and foreign nations) that lack well-developed local planning
may find the EIR to be a reasonable substitute, or a useful interim
measure while systems for planning are under development—at any scale
of government. The present report would caution, however, that simple
formulas for local environmental management may be unrealistic, par-
ticularly in states that have widely variable conditions of local
management, economy, degree of urbanization, and attitudes toward
development.
RECOMMENDED: A "DARWINIAN" APPROACH TO STATE LAND USE .CONTROL
It is not clear at present what form planning and decisionmaking pro-
cesses will eventually take in California as a result of changes now
underway. No particular management model appears to be superior.
What works in one locality may be inadequate somewhere else. And
upon a change of local administration or of elected officials, pro-
cesses may appropriately change to fit a new set of interests and modes
of participation.
The general ferment of organizational change in California local gov-
ernment may be compared to the apparently chaotic structure of a
rapidly-evolving "ecological" system. Each locality is undergoing
locally-adaptive evolution. "Mutant species" of management systems
are developing, some of which may be of broader applicability. Cross-
fertilization of these strains may at some point be appropriate for
purposes of selecting out and cultivating those traits that appear to
be most generally useful. Until now, the evolution has been natural,
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or "Darwinian," with the "fittest species" of management system sur-
viving and spreading by local selection, with little or no imposed
structure. In San Diego County, for example, conditions have changed
sufficiently to stimulate major innovative change away from the more-
or-less "standard" model of organization that the County had helped
to found in 1971-1973. Meanwhile, the Cities of Irvine and Del Mar
have both converged from different directions toward a Sausalito-type
model.
Further change may be expectable in all these examples, though they
may tend to stabilize with time. At present, it would be difficult
for the State to confidently impose specific models of local practice;
it appears unlikely that one standard system could serve usefully in
all the many different conditions and stages of evolution now present
in the State. Perhaps more important, the future of the EIR program
is intimately tied to the future of local planning, and the planning
system is now unsettled.
There is much discussion in the State of how to develop effective State-
wide land use controls. But a major problem in inventing appropriate
controls is that the State does not have a policy or program for the
control and distribution of growth and development; and that is a funda-
mental issue in reform of the planning system. The problem is not the
total amount of available control for land use in the State, so much
as it is a question of the distribution of existing controls. Some
places are locally controlled to the extent there is no development;
other localities go through the motions of planning and regulation,
but will bend the rules to encourage development.
If the State's policy is to encourage development where it is wanted
locally, and to discourage it where it is not wanted, then the present
system of controls may be adequate to the purpose (it may in fact be
better than a system designed from scratch for the purpose). On the
other hand, if the State's policy is to equalize development, forcing
resistant localities to accept their "fair share" of new construction
and new residents, then a system to implement that type of policy
would be due for consideration. Or means may be sought of adapting
the present system for that purpose.
In view of the numerous laws and requirements that local government
must now try to satisfy (as noted in Section V), and in view of a lack
of strong policy direction for further imposition of structural changes,
it may be advantageous to local practice for the State to allow and
even encourage local diversity in management approaches. That is, a
continuation of the present "Darwinian" strategy of management may be
appropriate.
The State may be able to encourage usefully adaptive changes. In
order to do so, it may be advantageous for the State Administration
to try to relate to local agencies (and to non-governmental organiza-
tions) on a service basis wherever possible, reserving its role as
policeman for resistant or exceptional cases. Service can take the
form of responding to inquiries, conducting workshops, publishing
illustrative information about existing alternative approaches (to the
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integration of the EIR into planning, for example), and actively
seeking out instances of failure of the EIR process and assisting
those localities to find some means of accommodating CEQA into their
current practices. While pursuing such activities the Administra-
tion can become more authoritative on current problems of local
administrative practice in local environmental planning and regulation.
It will thus be better able to address long range administrative prob-
lems in its recommendations for further legislation. Such an aware-
ness was significantly constrained in the previous State Administra-
tion because virtually no staff personnel were directly allocated to
the management and servicing of the local EIR process.
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SECTION IX
THE ROLE OF EPA IN LOCAL PROJECTS
An extensive EPA-sponsored survey of local land use controls concludes
that
Local government is currently the weak link in the
intergovernmental environmental policy framework
mainly because it lacks technical capacity and is
underutilized by higher levels of government. How-
ever, ... local governments do have a strong sense
of responsibility and would respond positively to
further encouragement of greater participation in
environmental planning.
Preceding discussion in the present report indicates that CEQA has
significantly augmented the technical capacity of many local govern-
ment agencies in California. Agencies are empowered by CEQA to hire
virtually whatever services they feel are necessary to analyse and
review development proposals, passing the costs along to the applicant.
A number of local agencies have responded very positively to this en-
couragement, and have taken steps to develop their own approaches to
environmental planning.
EPA and other Federal and State agencies are now provided the oppor-
tunity in California of working with more sophisticated local partners;
it remains to be seen whether this new resource in local government
will be fully utilized by the central government organizations.
In examining California's experience with CEQA, it is of interest to
consider how new kinds of Federal relationships with the local level
of government may be developed. A related question to ask is: What
lessons can be learned from the overall management model that has been
followed in implementing CEQA?
The State's management approach to CEQA has been thoroughly decentral-
ized, with little administrative direction from the State. Guidance
on interpretation of the Act has been provided to a significant degree
by the courts. Litigation is ongoing; much of the emphasis of active
litigants is upon precedent-setting cases. As a consequence, many
non-lawyers engaged in environmental planning in California try to
keep informed about developments in case law. Key cases such as
Bozung, and Burger v. Mendocino County are followed particularly
closely (as was the watershed litigation in Friends of Mammoth) because
of their significance in local practice. New developments in case law
form an important basis for periodic updating of the State's adminis-
trative guidelines. Meanwhile, local agencies, consultants, and de-
velopers utilize their own interpretations of the law, the guidelines,
and the cases in the ongoing process of evolving local management
models. To a significant extent, impact analyses are written and
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interpreted with an eye to how they would be viewed by the courts .
This is a healthy situation in some regards. Localities can go as far
as they wish in trying to follow the intent of the law. Knowledge of
how the legal system operates is widespread (and becoming more wide-
spread in California); the system may be assumed to be unbiased and to
be concerned primarily with keeping the law—by contrast with the ob-
servation of Thomas Lowi that administrative agencies have a natural
tendency to experience a secular decline in their concern for the law
itself.
As a further point, it can be argued that "ecological diversity" of
management structures in local government is itself healthy, providing
a dynamics of change that can allow continuous experimentation with
better ways of carrying out local management tasks. This point is
perhaps not apparent in considering single categories of functional
tasks such as water pollution or air pollution control; it is easier
to see in the context of the total aggregation of State and Federal
programs that are imposed on local government. The possible ways of
interrelating these programs are infinite and generally are unspecified.
They consequently should not be expected to be handled uniformly in dif-
ferent jurisdictions.
CONTRAST: EPA
The Federal management approach exhibited in EPA's programs is, by
contrast with CEQA, centralized and highly structured. Guidance for
local practice tends to be more strictly based on administrative
interpretations of the law by the Federal and State agencies .
From the point of view of a central administrative agency, it is most
convenient and straightforward to try to handle functional programs in
as uniform a manner as possible. A difficult task in general for such
agencies is to write a set of administrative guidelines to make that
possible. Guidelines will of necessity tend to be addressed to the
"average" situation or jurisdiction, and hence may tend to neglect
"best" as well as "worst" cases, and overlook special circumstances.
A specific example, EPA's Clean Water Grants program under Section 201
of Public Law 92-500 (the 1972 Federal Water Pollution Control Act
Amendments) , will be singled out for discussion and comparison with
the CEQA experience.
Section 201 is a principal program of EPA, making the Agency responsible
for disbursement of billions of dollars in construction grants for
sewage treatment facilities. Management of the program is signifi-
cantly centralized in the agency itself, and in the State agencies
that serve as conduits of the funds and monitors and administrators
of the program within each State. In California, the responsible
agency is the State Water Resources Control Board (SWRCB) , backed up
by nine Regional Water Quality Control Boards (RWQCBs) . These Boards
have existed under progressively increasing authority since their estab-
lishment in the late 1940s.
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Administrative interpretation of Section 201 is set down in a set of
binding administrative regulations, plus a highly detailed guidance
manual"^—which doesn't have the force of law, but which is a major
interpretative medium for administration by the state agencies. In
California, the State Board publishes its own version of the manual,^2
which is then a key document for local agencies in planning and imple-
menting individual projects.
The documentation step of essential importance to the local agency un-
der Section 201 is the preparation of a "facilities plan report,"
which is in many ways analogous to an EIR. Instructions are given in
the Guidance on procedures to be followed in preparation of a set of
alternative plans; these are to be analyzed and reviewed through a
series of program steps leading to a final selection of a specific
"facilities plan." A Federal EIS is also prepared, pursuant to simi-
lar procedures outlined in a separate manual.^3 The number of facilities
plans and impact statements prepared nationwide is now increasing rapidly,
and EPA is in the process of delegating EIS preparation increasingly to
the local applicant, consolidating the preparation process into the
planning process rather than doing it after-the-fact by a separate pro-
cedure. It thus may be anticipated that facilities planning activities
and documentation will increasingly move in the direction of the pro-
cesses and documents required by impact analysis itself.'^
For purposes of present discussion, comparison will be drawn between
the EIR procedures under CEQA and the facilities plan procedures under
Section 201.
Two differences of major significance exist between the management
program prescribed for facilities planning and that followed for the
California EIR process:
(1) The management structure for facilities planning is centralized
and hierarchical; local applicants and their engineering consultants
respond primarily in a "vertical" sense to administrative staff of the
State Board and the EPA Regional Office. Personnel involved at each
level tend to be specialists. In the absence of the EIS requirement,
virtually all staff involved may be civil or sanitary engineers. This
contrasts sharply with the decentralized, non-hierarchical arrangement
of the EIR process, in which there is little communication with State
and Federal government. Information flow in the EIR process, and re-
view of the process and documentation is predominantly "horizontal,"
involving a wide variety of agencies and professional specialists at
the local level, as well as an active participatory role on the part
of the public and its organizations.
(2) CEQA and its state administrative program prescribe little specific
information content for EIRs beyond the seven basic topical items
(adverse impacts, mitigation measures, etc.) plus the requirements imr
posed by relevant case law. The facilities plan guidance, by contrast,
provides a highly detailed report outline. For "complex cases" (which
category includes virtually all significant or controversial situations),
the step-by-step outline occupies 20 pages in the October 1974 edition
of the EPA "Guidance for Facilities Planning."^5 The State version is
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even more elaborate. This level of detail reinforces the impression
of local agency staff that a key concern in planning must be to satisfy
the detailed demands of project monitors at the State Board and the
EPA Regional Office. Applicants may feel constrained to follow a pre-
scribed pattern of thought and activity in order to fulfill the antici-
pated requirements. Actual needs of the local community may take a
back seat; innovative approaches to satisfying the needs may be easily
overlooked in this situation, contrary to the purpose and intent of the
law, as stated in Section 201 (see Appendix F).
EXAMPLE: THE METRO SEWER PLAN
The City of San Diego Department of Water Utilities is currently con-
ducting a Section 201 facilities planning study in its role as manager
of the San Diego Metropolitan Sewer System. The System was founded as
a result of a massive, year-long consultant study conducted in 1951-52
by the County government at the request of the (then-entitled) Regional
Water Pollution Control Board. The study followed reasonably closely
the procedures and documentation required of a present-day Section 201
Facilities Plan. It analysed the natural environment, and the social
and economic conditions, and it made population projections (which
incidentally were very accurate); several alternatives were considered
and analysed, including a wastewater reclamation option. A bound volume
of 515 pages, resulted,"6 which has remained the "bible" of sewer planning
in the County since its publication.
The preferred alternative plan in the study was eventually constructed
(though nearly a decade later because of the failure of voter approval
of bonds). Other studies have been carried out over the years to update
and refine the original "facilities plan." Extensive supplementary
studies are available regarding the natural environment, offshore and
onshore water quality, and planning alternatives for land use. Further-
more, the City of San Diego enjoys a reputation of being a progressive
leader in the fields of water and sewer planning and management.
Nevertheless, despite the favorable circumstances and the prior work,
and despite legal authority to avoid duplication, the engineering con-
sultant on the plan felt "overburdened by EPA's requirements," and
exerted very great staff efforts to produce a draft facilities plan
report that deals in detail with all the specified requirements in the
Guidance. The final document will very probably exceed 2000 pages, of
which approximately one-third will be the environmental impact state-
ment . 97
Costs of the planning study of $236,000 are enormous by EIR standards,
though small compared to other 201 planning programs in the State.
They are miniscule compared to the millions that may be spent for engi-
neering costs on the final project, which will probably be close to 10%
of the ultimate project cost of $80 million to $300 million. On several
grounds it seems in this instance that the guidance given by the State
and by EPA may have been overly restrictive, and that all parties con-
cerned could have benefited from a freer rein that would have allowed
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the City and the consultant to determine the procedures to be fol-
lowed and the documentation to be provided. That is, a prime oppor-
tunity may have been lost for an experiment in "self-regulation" of
the type described in this report. Such experiments have begun to
emerge in San Diego and in other California local governments in the
field of environmental planning; they could be useful to EPA in de-
veloping further refinements in facilities planning, and in developing
alternative processes.""
The overly restrictive situation described is not unusual, except that
it occurred in such a well-tested local agency. An editorial in the
April 1974 issue of Water and Wastes Engineering claims
The nation's Clean Water Program has been and is being
emasculated by an almost unbelievable proliferation of
administrative red tape—a fantastic maze of baffling
guidelines, burgeoning regulations, bewildering paper-
work, and ever-changing directives have brought the
program to a virtual halt.
Draft after draft, pre-application conferences, final
upon final administrative regulations, imperfect guide-
lines, overly-rigorous application of stringent require-
ments, cost benefit tests of EIS, super documentation;
these are some of the ways engineers and wastewater
officials are being sandbagged.99
In a similar vein, John D. Parkhurst, President of the Water Pollution
Control Federation, has criticized the Grants Program, stating:
One of the serious failures of the federal government
has been its inability or unwillingness to recognize the
many unique circumstances in each locality. Its continu-
ing tendency to treat all circumstances alike has caused
serious and difficult problems.
It would probably be inappropriate to single out either
Congress or EPA for the problems with PL 92-500. Al-
though the goals and objectives seem to be more idealistic
than practical, they certainly reflect a common desire
for a better environment and the enhancement of water
quality. The simple fact, however, is that in concen-
trating the responsibility for water pollution control at
the highest level of government, Congress has assumed that
state and local agencies are incapable of conducting this
program without federal control. In so doing many other-
wise avoidable problems have been created. Excessive
paperwork is often cited; although the law specifically
refers to its minimization, it has increased so drastically
that as much as 50 percent of staff time at all levels may
be required to process paper work.^^
An essential point, however, is that EPA is not simply in the business
of doling out money for sewer construction; it has a broad mandate to
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protect the environment, all of which may have bearing on planning
for sewers and sewage treatment works. Criteria for plan selection
and funding changed significantly in the passage of the 1972 Amend-
ments to include a wide range of new considerations . The law itself
is clear on its environmentally-oriented purposes, as is the choice
of EPA as the grants administrator. Local agencies for their part,
however, generally continue to pursue a policy of "business as usual"
in sewage planning; and local governments are the applicants (i.e.,
the developers) in the Section 201 grants program.
Despite recent concerns with growth and urban sprawl, for example,
engineers and local public officials continue to grossly oversize
interceptor sewers. A recent CEQ study of 52 EPA-funded interceptor
sewer projects states that, in general, half the land to be served
by proposed sewers is vacant, and would be likely to remain vacant
without the sewers. In effect, the Federal government is subsidizing
"urban sprawl" through its sewer grants program.
Several case studies analysed by the report illustrate the political
forces at work in local planning and development, showing how diffi-
cult it is for the present system, even with tight Federal control,
to slow or stop the continuance of sprawl. Design periods for utili-
zation of ultimate capacity are generally far longer than necessary,
and the capacity assumed to be needed is excessive, the study con-
cluded. Public participation and the consideration of environmental
impact were both found to be commonly inadequate.101
A related problem of designing for excessive capacity (particularly
in treatment plants), or of designing to excessive standards, is the
resulting increased demand for pumps and other equipment at a time of
equipment shortages. Pump manufacturers are now waiting up to 22
months for delivery of pump castings; other materials have even
longer delivery times.
Regarding public participation, an EPA-sponsored companion study to
the present one, which analysed on a nationwide basis the role of the
EIS in facilities planning, concluded that there is a characteristic
attitude on the part of engineering staff that discourages a meaning-
ful public role. EPA guidance requires that a hearing be held; but if
public testimony is heard at all, it is likely to come too late in the
decisionmaking process to be useful. The study found that
In the absence of effective contravailing forces,
environmental factors tend to weigh less heavily than
technical and cost considerations in the evaluation
of alternative waste treatment system approaches.
One reason for the observed tendency to exclude the
public from early decision making may be that it is
considered more convenient to assess project alterna-
tives on the basis of purely technological and economic
factors without the complicating intrusion of "extraneous"
environmental issues. In addition, it has been implied
that citizen participation in the planning processes
is discouraged because the public does not understand
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the engineering considerations involved; in reality,
however, many public environmentalist groups include
or retain individuals with high levels of technical
expertise in the requisite disciplines. ->
The same study concluded that state agencies, on a nationwide basis,
are not particularly active in project review.
The State water pollution control agency which is
responsible for review of the grant application does
not, in most instances, tend to be overly critical,
nor does it wish to present obstacles to project
approval and execution. (The agency would not have
prioritized the project in the first place if it had
not considered it necessary.) As a rule, the State
restricts its participation in the grant application
process to compliance with the formal requirements
that it certify the priority of the project and con-
firm its compatibility with any existing regional
waste-water management plans. For example, few State
agencies reject an applicant's environmental assess-
ment on the grounds of inadequacy or superficiality
of treatment.1Q4
Despite the State agencies' casual attitudes,
many EPA officials feel that the States should per-
form a preliminary screening function in behalf of
the Regional Offices (of EPA) both because the State
agencies are more likely to be familiar with local
conditions in project areas and because such screen-
ing would, to a degree, lessen the workload imposed
on often overburdened regional personnel. At present,
consideration is being given to the delegation of
broader review responsibility to State agencies.
DEMANDS UPON THE EPA
The task appears to be generally left to EPA at present to provide not
only project review and monitoring, .but also an oversight of the rela-
tionship of the project to other environmental program areas.
In view of the glut of new projects, the Agency appears to be suffer-
ing from "informational overload." It is selective in the projects
it chooses to review thoroughly:
EPA's decisions with respect to EIS preparation
and issuance are as strongly influenced by the
amount and intensity of public controversy associated
with a proposed project as by its prospective envi-
ronmental impact. This suggests that the scope and
depth of environmental reviews performed by Regional
Offices are more extensive in regard to projects
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known to be foci of public concern than might
otherwise be the case. For example, a non-
controversial project of low immediate environ-
mental impact which could, nevertheless, be
significant in terms of its implications for
future growth with related secondary effects,
might not be considered by the EPA Regional Office
to warrant preparation of an
The Agency's basic criterion for "significant impact" requiring prepara-
tion of
or more.
tion of an EIS is that total eligible costs of the project are $20 million
107
An important effect of the overload problem is that certain features of
the policy and purpose declarations in the 1972 Amendments have tended
to be submerged—in spite of the very large amounts of money available
that presumably would permit those factors to be considered if the
managerial program were capable of handling them. Section 201 itself
places emphasis on consideration of diversified uses of treated waste-
water, including specific mention of recycling and reclamation for
agriculture and aquaculture; integration with facilities for treatment
of solid wasteland thermal effluents; consideration of related "open
space" and recreational opportunities; and accommodation of future tech-
nology that would provide for recycling and reclamation. (Section 201
is reproduced in Appendix F.) Although these considerations are of
concern to many citizens, they tend to get short shift in the rush to
get projects underway. Consideration of such diversified opportunities
would cost far more staff time at all levels than a more straightforward
.emphasis on concentrated, large scale secondary treatment facilities.
At the local level, agency staff and their consulting engineers are not
inclined to entertain unconventional proposals because they are virtually
certain to be more complex and probably more controversial than a
straightforward secondary treatment plant and related interceptor sewer
system. Furthermore, the increased amount of work involved in planning
and in design engineering is probably not compensated by a similar in-
crease in available funds. Grant-eligible costs may, in fact, be de-
creased through some of these schemes, and there is little incentive
for cost savings when EPA is providing 75% of the funding and the State
Board is funding half the remainder. From a practical political point
of view, the local contribution is a small subsidy that can bring in
a large amount of "new" construction funds, together with their multi-
plier effect on the local economy.
There is essentially no constituency organized to pursue the "uncon-
ventional" purposes of Section 201, in the absence of serious pressure
from EPA, and in the absence of a competent public demanding that con-
sideration be given to these factors. Lacking that kind of support,
the Agency has substantially retreated from the 1985 goal of "no dis-
charge" in favor of the 1983 goal of "fishable, swimable" water. The
Agency's Water Quality Strategy Paper contains the following statement:
The Act also contains the goal of no discharge of
pollutants for 1985. This goal cannot be implemented
under the authority of the existing Act. Furthermore,
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EPA foresees that universal achievement of "no
discharge" by 1985 may not be either feasible or
environmentally desirable. Indeed, for the 1983
ambient water quality goal as well, the present
interpretation of the legislative caveat "where
attainable" recognizes that naturally occurring
conditions, or uncontrollable non-point source
pollution, could result in a failure to meet the
1983 goal everywhere. However it is not intended
that point source pollution, whether individual
or aggregate, be the prevailing reason for its
non-achievement. [Emphasis added]-*-^^
There are mitigating reasons for abandoning the "no discharge" goal
for the nation as a whole; however, some individual municipalities
may be capable of achieving that goal on a local basis if simply
permitted to do so by the Agency. This is particularly true if the
diversity of points emphasized in Section 201 (particularly recycling
and reclamation) are required (or at least encouraged) to be taken
more seriously in the next step of construction.
The County of Sonoma, at the head of San Francisco Bay, is in the
process of developing a plan (with EPA support) to preserve green
space from urban sprawl, while also keeping alive a local dairy in-
dustry by spreading reclaimed water on pasture lands. The plan is
to apply a portion of ongoing sewer service fees to the purchase of
the open space. Over the long term, this plan essentially will remove
Sonoma County from the metropolitan region, from the standpoint of
eventual sewage discharge. This option may have been forestalled,
however, if a plan had been adopted that exported untreated sewage
out of the area to a regional treatment system, for example.109
A similar choice is now available in San Diego. If the present system
is simply expanded and upgraded to secondary treatment, the "sunk
costs" in the facility will probably stop major future investment in
any large-scale reclamation scheme, particularly if grant funds are
no longer available. A duplicate set of pipes to carry treated sewage
back onto the land is virtually out of the question because of initial
capital costs as well as ongoing operating costs for pumping and
maintenance. The present planning program has not found an economic
technology that would allow major reclamation at the outset of a long
term plan, and so present thinking is tending toward a compromise of
one or two large scale plants within reasonable pumping distance of
future reclamation areas.
In both of the above examples, consideration of reclamation was a
matter of local initiative and public support—resisted initially by
the State and EPA. In Sonoma County, a key individual in initiating
the plan was County Supervisor Bill Kortum. In San Diego, impetus
came from the City Water Utilities Director, Richard King, drawing
further interest from the public committee and the consulting engineer-
ing staff.
A third example, which did not succeed in becoming an official plan,
was a proposal by the City of Morro Bay for a reclamation facility,
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on the Bay. In this instance there was considerable public support
and backing of local officials. However, according to City Manager
Murray Warden, the plan was resisted too strongly by State and Federal
agencies and was abandoned.HO
PL 92-500 TODAY AND CEQA BEFORE MAMMOTH: AN ANALOGY
At the present time in California, the status of Public Law 92-500 as
an object of public interest and activity is somewhat analogous to the
status of CEQA prior to the Friends of Mammoth decision. P.L. 92-500
represents a distinct policy departure from prior related law, but it
is being implemented within the context of the pre-existing system.
Its regulatory requirements are being followed in a pro forma manner;
its planning implications are significantly ignored or thwarted. If
the full intent of the law were to be implemented, a substantial de-
parture from "business as usual" would be required. There has been
little reason for local government administrators or politicians to
risk undertaking such change on their own and, with a few noteworthy
exceptions, there has been little departure from the "average" approach
to the law. Public groups are generally disinterested; the responsible
State and Federal agencies do not have adequate authority or staff to
turn around the entire system into new modes of operation.
Throughout CEQA's first two years the chief advocate of a reversal in
that Act's interpretation was a State agency, the Attorney General's
Office.HI in a similar vein, there are now not one but three State
agencies that are undertaking non-traditional views of the long range
management of water resources. They may have a significant influence
on the future direction of the Grants Program, and more generally on
the relationship of wastewater management to land use control and
planning.
(1) The State Coastal Zone Commission has incorporated in its
Draft Coastal Plan a policyH2 that would stress (and give funding
priority, to) projects incorporating reclamation of waste water in
preference to coastal discharge of treated sewage. This policy al-
ready has influenced some facilities plans, including San Die-go*s. Tvf>
other policies relate water management to planning and comprehensive
watershed management, stressing conservation and reclamation of water
together with recharge of groundwaters, and stating that the State
Department of Water Resources should be funded and empowered to pursue
and proclaim the benefits of reclaimed water.
(2) The Department of Water Resources, under the leadership
of its new Director, Ronald Robie, has in part reversed its traditional
course as a developer and purveyor of aqueduct water, and has declared
its intention to revise the State Water Plan during the next two years
to take account of opportunities to "stretch the water budget" through
conservation and reclamation.H4
(3) The State Water Resources Control Board recently signaled
an increased interest in water reclamation at a symposium it sponsored
in April 1975 in conjunction with University of California Extension.
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In addition to these sources, an increased public level of interest in
reclamation and conservation of water is emerging as a consequence of
increasing energy costs plus a concern for the future of food produc-
tion in the State. This interest is likely to be stimulated as the
above three agencies become more active in the subject.
SECTION 208
A significant new program that will force increasing confrontation be-
tween land use management and water management considerations is the
development of Areawide Planning programs under Section 208 of P.L.
92-500. The intent of this section is to develop large scale, long
range plans and to address problems of indirect sources of water pol-
lution, particularly runoff. This intention implies that increasing
use may be made of water quality criteria as tools for land use con-
trol; conversely, it implies that land use factors will increasingly
shape decisions on wastewater treatment. The State Board is now in the
process of identifying Section 208 planning areas; unexpectedly, the
Board has found (in the Spring of 1975) considerable resistance being
expressed by local governments, who generally appear to view Section
208 as another Federal effort to undercut their land use control
authority.-^
As with the grants program, the 208 planning program is being set up
along traditional lines—in this case the Board's general idea was
to place the 208 planning grants in the established regional planning
agencies. However, these agencies have traditionally been viewed with
some suspicion by local government; local governments appear to be
resisting an implied increase in the regional agencies' decisionmaking
and operating authority.
REGION IX INITIATION
One apparent need for change in EPA's management strategies is to find
better ways of stimulating local government to take a more active role
themselves in trying to satisfy the intent of P.L. 92-500 and other
environmental laws, rather than passing the buck to the State and
Federal government. This need is noted in the earlier comment of
David Morell. It is also recognized and is being acted upon by the
Administrator of EPA Region IX. (San Francisco) and his staff,1^6
In collaboration with the League of California cities, Region IX staff
is evolving a strategy that would tie funding and project authoriza-
tions, for any given community, to decisionmaking criteria that would
include consideration of planning requirements and regulatory powers
(including those of State and Federal agencies). The general intent
of the delegation would be somewhat analogous to the theory behind the
Housing and Community Development Act of 1974:^17 put the burden of
proof on the local agency to show that the intent of the law is satis-
fied. Planners of the present strategy go a step further. In their
view, regulatory authorities such as the State Air Resources Board
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could be utilized by the local agency as part of its own police
powers. They could expect the Board to stand behind local zoning
and permit decisions, for example. The local governments, for their
part, would be obliged to include State air quality criteria, and
consideration of State air quality plans, in their own planning and
decisionmaking. Thus with regard to highways and mass transit, the
objective of the Region IX strategy would be to meet transportation
needs and conform to the law. This will require the collaboration of
all levels of government. The same holds true for sewers, and for
community development.
EPA staff hopes that these purposes can be achieved largely through
stimulating and encouraging local governments themselves to undertake
analysis of the legislative requirement, and to incorporate laws such
as the Clean Air Act into their normal operations. Self-analysis of
environmental legislation by local communities will have an important
side benefit for EPA's purposes, in the view of Region IX staff: It
can overcome some of the secondary effects of projects that are other-
wise unknown to local agencies prior to preparation of an impact
analysis. Thus the number of statements under NEPA may be reduced,
and the statements themselves may become focused more directly on
the factual matters of the situation, rather than the secondary effects.
A COMPARISON: SANTA CLARA COUNTY
A strategy similar to the one evolving in the EPA Region IX office
is now being implemented successfully on a smaller scale in Santa
Clara County (as described earlier). What the Regional Office seems
to aspire to do is to place itself in a type of managerial relation-
ship with smaller units such as is now occupied by Richard Hall and
his staff. The County's operational responsibilities for actually
executing and processing impact analyses have been drastically dimin-
ished by inducing applicants themselves to work within the same policy
framework in preparing plans in which the County operates in reviewing
them. The EIR per se is, as a result, becoming a redundant part of
normal operations, and in essence reserved for use in exceptional
cases, or as an appeals process for the applicant or his opposition.
The County's delegation of analysis activities is twofold: First,
to cities for most public services; as in the case of service exten-
sion for San Jose's proposed industrial parks, self-analysis far in
advance of plan execution can show unexpected results that are re-
flected in a change of the entire planning process. The role of the
County is primarily that of providing a service to each City's EIR
program, helping to develop and maintain data files, assisting with
communication and coordination, and so forth.
Second, delegation of the EIR in effect goes to the construction in-
dustry and the financial community for private projects. Applicants
undertake primary responsibility for site analysis, avoiding consider-
ation of potentially damaging projects, and designing in mitigating
measures prior to the formal involvement of the government. County
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staff meanwhile is available in a service capacity to help with de-
sign and analysis, to give advice and data about important site
characteristics, and to assist in the identification of alternatives
and mitigation measures.
All this is done informally, and with far less staff proportionally
than San Diego County, for example, which offers some of the same in-
formal service, but which also has found it necessary to perform the
"raindance" of formal analysis on projects where it seemed unnecessary
to staff and decisionmakers to do so.
DELEGATION: POLITICAL ROLE OF THE PUBLIC
The essence of the contemplated EPA Region IX League of Cities strategy
is delegation: Let the cities take over the burdensome tasks of policy
and program coordination. This implies a willingness and interest on
the part of the local governments, however; earlier discussion in the
present report would suggest that performance of the indicated type
of role may depend on local political support. The more successful
instances of aggressive and entrepreneurial use of CEQA seem to occur
in localities where there is active political support and interest,
making it advantageous to the local manager to venture innovations.
Delegation alone is thus not enough. There needs to be a local basis
of political motivation to take the legislative intent seriously. There
is considerable emphasis in the EPA Sewer Grants Program, for example,
on delegation and on local responsibility.118 The actual preparation
of plans and documents clearly is in the hands of local authorities
in EPA's present approach to the grants program. However, what this
has tended to mean is, in Professor Beer's words, "that the making of
decisions is a task pushed down, and implicitly condemned to a stereo-
typed outcome. "H9
Beer provides a broader basis of theory for guidance on how such dele-
gation can successfully occur. To begin with, it is necessary that
participants view the structure not as a system of hierarchical authority,
but as a "metasystem" wjoere (as observed in Santa Clara County) the
traditional managerial role is replaced by a service function:
In fact, the corporation and the state, like the
father, should be cybernetically regarded as servants
of the subsidiary companies, the departments and the
children. The realities of life are found at the oper-
ational level. If my brain sets out to kill my body
by holding its breath for good, the autonomic nervous
system will soon thwart that merry design. Equally
the children and the subsidiary organizations will
thwart authoritarian behaviour at exactly the point
when the metasystem is apparently acting from authority
rather than from superior information and higher-order
logic. This revolt is easily brought about, because
the metasystem does not deploy sufficient variety to
hold the lower systems down. If it wishes to turn itself
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into a genuine supra-authority rather than a meta-
system, that is easily done as well - by destroying
variety in the subservient system. In this way my
brain can kill my body by throwing it over a cliff,
fathers and company presidents may become despotic,
and the state may become totalitarian.120
To make the desired structure responsive to complex demands, the second
urgent need is a set of "metacontrols." That is, a monitoring and
communication medium whose role it is to see that planning is homologous
with organization, and not simply fragmented throughout the structure.
Beer deduces that the sought-after metasystem may be characterized in
theory as a disseminated network of fast-acting real-time regulators,
in which action derives from information, and not from authority.
He states that competent information is free to act, and implies that
the problem of the system of metacontrols is to find out how to pro-
vide competent information on an ongoing basis to the disseminated
points of decision. One possible way to do this, he suggests, is
through a system of linked computers with disseminated terminals.
An alternative, suggested by the operation of CEQA in the State of
California, is that monitoring and communication (i.e., metacontrol)
be provided by the public itself, backed up by the coordinative network
represented by the State's system of public interest organizations and
citizens' groups. It has been noted that Don Benninghoven, addressing
the Planning and Conservation League, stated "the public has really
taken control of the planning;" the trouble is, the governmental
authorities "don't know how to give you the information in a way in
which you can make intelligent decisions. That information is real
power. The power is understanding."121
Rather than a technical elite providing input to decisionmakers through
a traditional planning system, or through a futuristic computer system,
the body politic itself in California has begun to evolve into a system
of metacontrols. Environmental impact reports have provided a system
(not always adequate or comprehensible) of "real-time data" at the
point of decision, from which the information content has been dis-
tilled through an elaborate management process involving many parties.
This can involve a solicitation of information from other governmental
agencies through formal comments on the document. More likely in
California, an informal process of discussion and consultation will
take place, particularly on decisions of greater than local interest.
Activist citizens' and officials' personal knowledge of broader issues
can be brought to bear, as may a loosely-linked array of public inter-
est organizations and citizens groups, which form ad hoc coalitions on
specific issues.
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APPLICATION TO SECTION 201
The present system of interconnected citizen groups has not yet
played a significant role in the Section 201 grants program, because
of the reliance of the local applicant on EPA and the State for
policy guidance, and because of the technical "mystique" surrounding
the subject. Isolation of sewage treatment planning and management
is almost intentionally maintained by technical practitioners, as
noted earlier, in order to avoid public interference. Citizens'
organizations may be expected to take a more active interest, how-
ever, during the coming development of the Section 208 planning
program; this will presumably open questions about specific projects
which heretofore have been overlooked as being routine.
EPA should be fully aware of the managerial role that potentially
can be played by the structure of citizens organizations in California.
The Agency should look beyond the mere solicitation of hearing com-
ments that now represents the key (and perhaps only) role expected
of citizens in local EPA-funded projects. The need is for overall
coordination that relates to the overall policy intent of the various
environmental laws. CEQA has significantly shown how citizen in-
quiries, participation, and lawsuits can be important in maintaining
an ongoing concern for the law itself in government and in individual
decisions. Several types of action are possible:
(1) One option available to EPA is to develop strong Federal
criteria to get State legislation on who has standing to sue, and on
the conditions for citizen recovery of legal costs of litigation.
This could make the threat of legal tests by citizens become an active
supplement to the direct intervention of EPA in individual issues.
The comparable effects on land use issues under CEQA have been salu-
tary in keeping the law alive.
(2) The Agency may consider direct stimulus, including finan-
cial incentives, to induce private individuals and citizens groups
to participate in EPA-funded programs. At present, despite the po-
tential importance of their contributions, and despite the possibility
of millions of dollars being spent on wrong projects, it is exceedingly
difficult or impossible for non-specialists to be remunerated for work
on a sewer project plan. The EIR process has broadened the professional
skills involved in such projects to a degree; but individuals repre-
senting a broader public interest are still on the outside. Such
individuals and groups may in fact be capable of carrying out some
of -the policy overview and monitoring tasks that eventually fall to
EPA in the Regional Office under the present pattern of organization—
and which overload the Agency with project work. They may thus help
enable the Agency, at very low comparative cost, to more adequately
analyse and consider many projects, rather than a select few. And they
may be of assistance in implementing the strategy of delegation dis-
cussed earlier, now under development by EPA Region IX staff.
(3) EPA should develop new criteria for the determination of
competent citizen participation in its local projects; these should go
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well beyond limited provisions such as the mere hearing of public
testimony, as required by the present administrative regulations for
the sewer grants program. Application of such criteria may involve
the Agency increasingly in the monitoring and review of local manage-
ment process, and decreasingly in the burdensome and demanding de-
tailed review of project plans per se.
(4) In addressing its "paper overkill" problem under P.L.
92-500, EPA may wish to call public attention to its own mandate
under the law to minimize its load of paperwork and procedures.
Responses could take the form of a diversified, localized effort,
challenging and encouraging local agencies, consulting engineers,
and citizens organizations to find better alternatives to the present
procedures. The focus of such an effort should be to address the
policy intent of the law—and simultaneously of other environmental
laws—while also proceeding with the substantive work of planning for
needed facilities.
Local agency staff and consulting engineers may react very negatively
to the above suggestions. But if Professor Beer's analysis is appro-
priate, such participation may be a "missing link" in overcoming
some of the problems of policy and procedure now resulting from the
constraint of EPA being pre-eminently responsible for policy-level
review of projects. It could be in the engineering profession's long
term interest to try to bring a more active form of ongoing, policy-
oriented review into the local process, so that engineers may direct
their energies more purposefully to the needs of the local client,
rather than the Federal client. Such review could also serve engi-
neers' short-term interests if it could help to overcome some of the
problems of "super-documentation."
For example, in the case of the San Diego Metropolitan Sewer System
facilities plan, non-specialist citizens were active participants
in the procedure of alternative plan development and selection—fol-
lowing, and going somewhat beyond the recommendations of the EPA
"Guidance." However, the local public and its citizens organizations
were not asked how much documentation they would like to have, or of
what kind. These are "managerial" process issues, which were assumed
on all sides to be the responsibility of the EPA and its agent, the
State Board. The lack of dialogue on this aspect of the program may
have helped lead to the preparation of 2000 pages of documentation—
which will probably be read by very few citizens or government
officials.
PRIVATE PARTICIPATION IN ENVIRONMENTAL MANAGEMENT
One further note of interest may be derived from California's CEQA
experience, once again relating to the specific example of Santa Clara
County. It was mentioned that financial institutions in the County
have begun to take an active interest in the assessment of environ-
mental impacts. Lending institutions are in a particularly strong
position to "call the tune" for the development industry. That has
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been their traditional role, contributing significantly to the "tunnel
vision" of developers—focused on financing. EPA and the State could
make better use of a collaborative relationship with the financial
industry, and also with trade organizations of the building industry,
in calling attention to their mutual interest in long term environmental
objectives, and in stimulating their direct participation in efforts
toward self-regulation. In Section VII, mention was made of the will-
ingness of the Federal National Mortgage Association!22 to exert policy
influence on development through its major influence in the secondary
mortgage market. This opportunity represents for EPA a national analogue
of the indirect control exerted by Santa Clara County. Other related
types of opportunity for EPA, as well as State and local governments, to
collaborate with the private sector could be a significant forthcoming
development in environmental quality control. In some regards, the
large scale financial, commercial, and industrial organizations—like
the citizens organizations discussed earlier—represent important quasi-
governmental assets for management purposes. Trade organizations may
be capable of contributing to improve self-discipline among their own
membership; the same may be true to a degree of the statewide and area-
wide citizens organizations—if they saw that to be advantageous.
The planning and management resources of industry are substantial, and
could be of value to governmental agencies in managing their local
environments—if their purposes ran in parallel, and if the private
interests found it was profitable (or necessary) to satisfy public
policy intentions in the process of doing business.
The special case of the City of Irvine and the Irvine Company is note-
worthy because it is simplified and somewhat idealized. The private
sector is well-organized in this instance, and is better able to estab-
lish a somewhat collaborative position with government. Both the City
and the Company maintain an active supervisory role in each project.
The Company has far more managerial and planning staff than the City,
and has greater discretionary control over its own finances and over
the utilization of its staff. The City, on the other hand, has con-
siderable authority. The relationship appears to be more formal and
correct than a strong mutual interest would suggest; environmentalists
are politically strong in the City, and City staff avoid the appearance
of "selling out." Nevertheless, the resources and power of the Company
are available to implement policies and programs that are in the mutual
interest of both the regulator and the regulated.
This particular situation, and the more general case, illustrate a new
approach to the concept of delegation of governmental authority- Peter
Drucker has advocated such a change, based on his extensive studies of
corporate management:
There is good reason today why soldiers, civil servants,
and hospital administrators look to business management
for concepts, principles, and practices. For business,
during the last thirty years, has had to face, on a much
smaller scale, the problem which modern government now
faces: the incompatability between "governing" and
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"doing." Business management learned that the two have
to be separated, and that the top organ, the decision
maker, has to be detached from "doing." Otherwise he
does not make decisions, and the "doing" does not get
done either.
In business this goes by the name of "decentralization."
The term is misleading. It implies a weakening of the
central organ, the top management of a business. The
purpose of decentralization as a principle of structure
and constitutional order is, however, to make the center,
the top management of a business, strong and capable of
performing the central, the top-management, task. The
purpose is to make it possible for top management to con-
centrate on decision making and direction by sloughing
off the "doing" to operating managements, each with its
own mission and goals, and with its own sphere of action
and autonomy.
If this lesson were applied to government, the other
institutions of society would then rightly become the
"doers." "Decentralization" applied to government would
not be just another form of "federalism" in which local
rather than central government discharges the "doing"
tasks. It would rather be a systematic policy of using
the other, the nongovernmental institutions of the society
of organizations, for the actual "doing," i.e., for per-
formance, operations, execution.
123
Such a policy might be called "reprivatization."
This statement has a great deal in common with Professor Beer's deduction
that planning should be homologous with organization, and not merely
fragmented over the structure.
Drucker has also explained why the private sector should be anxious to
participate specifically in impact analysis. In 1968 he stated—some-
what prophetically, before the enactment of NEPA—two laws of "social
responsibility" for organizations. The first law is to limit impacts
as much as possible—within the organization as well as outside it.
The second law, perhaps even more important, is the duty
to anticipate impact. It is the job of the organization
to look ahead and to think through which of its impacts
are likely to become social problems. And then it is the
duty of the organization to try to prevent these undesir-
able side results.
This is in the self-interest of the organization. Whenever
an undesirable impact is not prevented by the organization
itself, it ultimately boomerangs. It leads to regulation,
to punitive laws, and to outside interference.^-^4
In California's current EIR management program, a great deal of "slough-
ing off" of operating responsibility is occurring—from State to local
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government and, in significant measure, from local government to the
private sector. Private developers in response have begun at their
own initiative to consider environmental factors in their projects in
order to minimize governmental interference in their operations. This
tendency appears to increase to some degree where developers are ac-
tively encouraged to participate in the EIR process, and thus to learn
for themselves what is expected.
SUMMARY
EPA programs at present—as exemplified by the Clean Water Grants Pro-
gram—are excessively structured in their management and in their
required documentation, to the detriment of local operators' capability
to respond, and to the detriment of the Agency's own ability to address
the full span of its legal responsibilities under the law. The State
management of the EIR process in California, by contrast, has very
little structure. Administrative regulation is very much the responsi-
bility of the local agency, the citizenry, and the courts.
Review of local actions from the standpoint of policy statements in
the law can take place in a short "feedback loop" under CEQA. The
dominant dialogue in the review procedure is local, between the developer
and the local government agency, or between the developer and the envi-
ronmentalists, with the agency acting as an intermediary.
Review under the Grants Program from the standpoint of the policies and
purposes of P.L. 92-500 depends largely on EPA at the Regional Office
level. Dialogue is dominantly "vertical" between local agency staff,
the State, and EPA. The amount of work required of the Agency is very
great. It prevents the Agency from attending to a large number of
cases, and also tends to submerge concern for some significant portions
of the policies and purposes of P.L. 92-500.
A more decentralized, self-regulating approach to the grants program is
possible, and appears to be strongly advisable. It could be based in
part on California's overall experience under CEQA, and more particularly
on some specific examples of successful, self-regulating local experience
under CEQA. Of particular note from the standpoint of managerial strategy
is the example of Santa Clara County, where maximal delegation of oper-
ating responsibility is given to private developers, to financial insti-
tutions, and to cities within the County. Policy overview is maintained
and service offered by the County, but little actual staff effort is
needed to sustain the program. The review procedure is held "in reserve"
at the County level, and is applied primarily for appeals and for un-
usual kinds of projects.
What is most needed at present is a new perspective on the meaning of
delegation of responsibility to the local level. It should not be a
mere forcing down of decisions, but rather the stimulation of an active
local dialogue in which a variety of interests are balanced, and in
which a consciousness is maintained of overall policy intent—in order
to avoid interference in local processes and decisionmaking authority.
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The role of citizens and their network of public interest organizations
—not only as commentators on specific project proposals, but as active
participants in managerial processes—is seen in this report to be
particularly important from EPA's point of view. Citizens with a gen-
eral outlook on the long-term quality of life in the community are
most likely of all participants, including many of their elected repre-
sentatives , to reflect a point of view and policy intent like that of
Congress when it passed the law. They thus may be best able to assist
on a local level in relieving EPA of some of its policy review workload,
allowing the Agency to perform, eventually, more of a service function
—attending for technical review purposes primarily to unusual cases and
to appeals of local-level, areawide, or State decisions. Citizens and
their non-governmental organizations are increasingly well-prepared and
willing to provide the needed assistance.
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SECTION X
REFERENCES
1. (a) Trzyna, Thaddeus C., Environmental Impact Requirements in
the States. Office of Research and Development, Environmental
Protection Agency, Washington, B.C. (Socioeconomic Environ-
mental Studies Series EPA R5-73-024), July 1973. (b) Trzyna,
Environmental Impact Requirements in the States: NEPA's Offspring.
Office of Research and Development, Environmental Protection
Agency, Washington, D.C. (Socioeconomic Environmental Studies
Series EPA-600/5-74-006), April 1974. (c) Trzyna and Arthur W.
Jokela, California Environmental Quality Act: Innovation in State
and Local Decisionmaking. Office of Research and Development,
Environmental Protection Agency, Washington, D.C. (Socioeconomic
Environmental Studies Series EPA-600/5-74-023), October 1974.
2. Cal. Public Resources Code Sees. 21000-21174. The full statute,
as amended in 1972, is reproduced as Appendix A in Trzyna and
Jokela (fn. l(c)).
3. Discussed below in Section V.
4. Trzyna and Jokela, pp. 53-61, reproduced in part below in Sec-
tion VI.
5. CEQA, Section 21001 (d).
6. See fn. 1 (a) and (b) .
7- California's environmental problems, and the State's efforts to
meet those problems, are well documented. For general treatment,
see, e.g., Raymond F. Dasmann, The Destruction of California
(Macmillan, 1965) ; Richard G. Lillard, Eden in Jeopardy: Man's
Prodigal Meddling with his Environment: The Southern California
Experience (Knopf, 1966); Alfred Heller, ed., The California
Tomorrow Plan, rev. ed. (William Kaufmann, Inc., 1 First St.,
Los Altos, California 94022, 1973); and Robert C. Fellmeth,
project director, Politics of Land: Ralph Nader's Study Group
Report on Land Use in California (Grossman, 1973). See also the
quarterly journal, Cry California, issued since 1965 by California
Tomorrow (681 Market St., San Francisco 94105).
8. For summaries of California State environmental law, see Gerald
R. Mylroie, ed., California Environmental Law: A Guide (Center
for California Public Affairs, annual, 1971-); Primer on Envi-
ronmental Law in California (California Department of Justice,
350 McAllister St., San Francisco 94102, revised periodically);
and Joseph J. Brecher and Manuel E. Nestle, Environmental Law
Handbook (University of California, Continuing Education of the
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Bar, 2150 Shattuck Ave., Berkeley 94704, 1970). The latter
includes much California material, but is now somewhat out-
dated.
9. The study is under the direction of Robert L. Small of Envi-
ronmental Analysis Systems, Inc.
10. Council on Environmental Quality (CEQ), Environmental Quality,
the Third Annual Report, (Washington, D.C., U.S. Government
Printing Office, 1972), p.224. The full analysis of NEPA
occupies Chapter 7, pp. 221-259.
11. Ibid., p. 222.
12. Ibid., p. 222.
13. Ibid., p. 225.
14. Ibid., p. 230.
15. See later discussion in Section VI.
16. In EOF v. Coastside County Water District, 27 Cal. App. 3d, 695,
701, (1972), the Court observed that "judicial interpretation
of the federal law is strongly persuasive in our deciding the
meaning of our state statute." Also see Friends of Mammoth,
cited below, at 260-261.
17. Friends of Mammoth v. Mono County Board of Supervisors, 8 Cal. 3d
247, 502 P.2d 1049, 104 Cal. Rptr. 761 (1972); discussed in Trzyna
and Jokela, op.cit., pp. 25 ff.
18. CEQ, op.cit., p. 255-256.
19. Ibid., p. 257.
20. Trzyna and Jokela, op.cit., pp. 40-50, 51.
21. Friends of Mammoth, at 254.
22. Ibid. , at 263.
23. Burger v. Mendocino County, (45 Cal. App. 3d 322); a general dis-
• cussion of the role of legislative intent in CEQA and NEPA may
be found in the Attorney General's amicus curiae brief, pages
22-27, which is the source of several quotations here.
24. Ibid., p. 36.
25. San Francisco Ecology Center v. City and County of San Francisco,
Cal. App. 3d , 1975 (Slip Opinion, p. 5, May 9, 1975).
26. Gordon Getchel, The Irvine Company, pers. comm.
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27. Myrdal, Gunnar, Challenge to Affluence (Vintage, New York,
1962), p. 98.
28. Byron Curl, pers. comm., November 1973, reaffirmed in 1975 by
Jerry Brown, Administrative Assistant to the City, who empha-
sized that, contrary to earlier expectations, the EIR had turned
out to be useful in protecting the City's environnent, by pro-
viding a basis for excluding unsuitable industries, or for
bargaining over mitigation of offensive features such as noise
or excessive outdoor storage.
29. The analysis of the environmental review process on this project
is one of four case studies in a companion project to the present
one (untitled draft, Feb. 1975), carried out by Teknekron, Inc.,
for the EPA Washington Environmental Research Center. The study
analyses the effectiveness of the use of NEPA statements by local
government in evaluating sewage treatment projects. Part of the
purpose of the present study is to compare the results of the
Teknekron work with the operation of California local government
under CEQA. Section IX of this report contains most of the
discussion relevant to this purpose.
30. This is one of four case studies in a predecessor study to the
one cited just above, Use of Environmental Analyses on Waste-
water Facilities by Local Government, EPA Contract No. 68-01-1898.
31. "Draft Environmental Impact Report, Filtered Water Distribution
System Improvements to 1980," URS Research Company for San Diego
County Water Authority, October 1974, pp. 145ff and appendices.
32. Diane Barlow, pers. comm., March 1975.
33. Comment of a CWA staff member.
34. Comment in reply to an informal letter survey conducted inde-
pendently in October 1973 by the Center for California Public
Affairs in conjunction with the earlier study reported in Trzyna
and Jokela, op.cit. The purpose of the survey was to get a general
overview of local conditions and attitudes toward the EIR process
after one-half year of operating experience, and to serve as a
guide for field visits. Several quotations here are taken from
responses to the circular. A surprisingly high rate of response
was received, 82 returns out of 110 letters sent (75%), probably
reflecting high interest level but low amount of communication
at the time among local EIR practitioners; the lack of communica-
tion was particularly striking in view of the precedent-setting
nature of the work—a point that was evident to many local
practitioners. A number of formal and informal communication
media have developed subsequently, notably the State's EIR
Monitor, published biweekly by the Secretary for Resources. A
recent development specifically intended to promote the mutual
interest of EIR process administrators and consultants is the
formation of an "Association of Environmental Professionals,"
mentioned later in Section VIII.
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35. Anti-growth or anti-developer sympathies can be expressed on a
larger scale where they are more significant politically, taking
the form, for example of moratoria on major development projects
such as have existed formally for the past year in the City of
Del Mar and informally in the City of Sausalito (see later dis-
cussion in Section VI). A further form is the anti-growth
ordinance, as illustrated by the pioneering ordinance of the
City of Petaluma, California. A useful discussion of the
ordinance and the related lawsuit is "The Petaluma Case," by
John Hart, Cry California, Spring 1974, pp. 6-15.
36. The Santa Clara County Planning Department had provided an early
stimulus to local environmental activities, and an example to
the State, in its publication of an Environmental Action Directory
(San Jose, July 1972). The directory provided a guide to sources
of information and to responsible agencies? its purpose was to
stimulate the formation of a framework of communication among
citizens groups and governmental agencies (see Kaiser, et al.,
op.cit., fn. 90, p. 266). Hall's comment was made to a colloquium
of Federal, State, and local officials, held in Sacramento on
July 9, 1974 by the Center for California Public Affairs for the
purpose of reviewing the prior study in the present series (Trzyna
and Jokela, op.cit.) and of preparing for the work reported in
the present study.
37. Carter, Steve, Murray Frost, Clare Rubin, and Lyle Sumek, Environ-
mental Management and Local Government, Office of Research and
Development, Environmental Protection Agency, Washington, D.C.
(Socioeconomic Environmental Studies Series EPA-600/5-73-016),
February 1974, p. 314. This study, prepared for EPA by the Inter-
national City Managers Association, provides useful collateral
reading for the present report; it analyses and summarizes the
local government chief executive's view of environmental manage-
ment , based on an extensive national survey. A complementary
volume, also of value here, is Kaiser, et al., cited below (fn.90).
It provides an analogous survey of planners' perspectives on envi-
ronmental quality, emphasizing examples of current practice in
local government.
38. See note below about the "rain dance effect" of repetitive analy-
sis, noted in the discussion of San Diego County in Section VI.
39. This summarizes too briefly a wide range of viewpoints on the
matter. The discussion is based on personal observation of the
program, including numerous conversations with City staff and
interested citizens. A major stimulus to the structural change
now underway was the onset of environmental analysis (by the
Environmental Quality Department) of community plans prepared by
the Planning Department. One particular instance, the Mission
Beach Precise Plan, had resulted in a public confrontation when
the Environmental Quality Department offered, for purposes of
environmental impact comparison, an alternative sketch plan that
differed significantly from the proposed plan. This was apparently
embarrassing to some policymakers and to the Planning Department,
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and led to a re-evaluation of the Department's former position
that it was healthy to have an entirely independent environ-
mental review program.
40. Discussed in greater detail in Section VI.
41. Council on Environmental Quality (CEQ), Environmental Quality,
the Fifth Annual Report, (Washington, D.C. , U.S. Government
Printing Office, 1974), pp. 372, 373, 378.
42. Ibid., pp. 374-378.
43. Ibid., pp. 378-381.
44. Robert L. Lane (survey comment).
45. Adolph, Charles, Richard Heuwinkel, Donald Lansing, and Richard
Morefield, "California Environmental Impact Reports (EIR),"
(mimeo, undated ms.), p. 25.
46. The City of Palo Alto funded an influential "Environmental Design
Study" of the Palo Alto Foothills (Open Space vs. Development,
published by the City in March, 1971), which concluded that
future development of the study area of 6,100 acreas was economically
unjustified, because it would require protracted subsidy of City
tax funds to provide services. Charles McCabe reviewed the study
in the San Francisco Chronicle of March 18, 1971, noting "The
results of this environmental design study have been described
as a 'sensational breakthrough' and the words do not seem too
strong." The implications of this and similar studies contributed
significantly to the high level of interest in environmental analysis
leading up to the Mammoth decision and AB 889 in the following year.
47. Elizabeth S. Crowder, City of Palo Alto (survey response).
48. CEQ Third Annual Report, op.cit., p. 259.
49. League of California Cities "Action Plan for Environmental Control
and Land Use Authority," October 1973, p. 1.
50. State of California, Office of Planning and Research, Local Govern-
ment Reform Task Force Report, Sacramento, 1974.
51. Ragman, Donald G., "NEPA-like State Laws—A Description and a
Critique," draft address to the Annual Banquet, Urban Law Annual,
Washington University, April 7, 1973, pp. 63-64.
52. C. F. Ridenour, pers. comm., February 1975.
53. Jack Green, pers. comm., May 1975.
54. California Journal, April 1973, p. 135.
55. Local Government Reform Task Force Report, op.cit., Technical
Papers, Task IV, pp. 33-39.
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56. Bosselman, Fred, and David Callies, The Quiet Revolution in
Land Use Control, CEQ (Washington, B.C., U.S. Gov't Printing
Office, 1971).
57- Ibid., p. 1.
58. Ibid., p. 316.
59. Ibid., p. 3.
60. CEQ, Fifth Annual Report, op.cit., p. 36.
61. Prepared speech given to a "Conference on Land Use Planning in
America," University of California, Berkeley, December 16, 1974.
62. Beer, Stafford, "The Liberty Machine," Keynote Address to the
Conference on the Environment, American Society for Cybernetics,
Washington, D.C., October 8, 1970, p. 8.
63. League of California Cities, op.cit., p. 2.
64. Discussed later in Section IX. In essence it would delegate
authority to the local level by requiring the local jurisdiction
itself to accommodate Federal standards and criteria as a condi-
tion of grant and project approval.
65. Discussion of the EIR management programs is based largely on
private conversations with the following individuals: David
Nielsen, County of San Diego; Linda Shumer, City of Irvine;
Gordon Getchel (staff member) and Ray Belknap (consultant), The
Irvine Company; Herb Case, City of Sausalito; Gary Binger, City
of Del Mar; Richard Hall, County of Santa Clara; Charles Frank
and Robert McKechnie, County of Sacramento.
66. Cited earlier (fn.24).
67. The San Diego County EIR program staff is now large compared to
Santa Clara County's, in part because it had over a million
dollars of "outside" funds to spend on a two-year environmental
program demonstration project. That doesn't necessarily make
San Diego's program less important as a model, but it certainly
has helped to make the roles of the EIR -diverge in the two
experiments. San Diego County's program, partly because of its
size and budget, was incidentally important as a laboratory
program for individuals such as Richard Hall, who was a con-
sultant to the IREM project (and a faculty member in the Planning
Department at California State Polytechnic University, Pomona)
before assuming his duties at Santa Clara County. Another
"graduate" of the IREM experience was Albert F. Reynolds, who
served as Executive Officer in EDA before becomming Environ-
mental Coordinator for Santa Barbara County. He is President
and co-founder of the Association of Environmental Professionals,
which- is mentioned later (in Section VIII) in the course of a
more general discussion of the educational role of the EIR
process in California.
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68. Robert L. Small, then Administrator of the San Diego County
Environmental Development Agency (Spring 1971) , referring to
a very early attempt in that agency to implement CEQA.
69. Croke, E.J., K. G. Croke, A. S. Kennedy, and L. J. Hover, "The
Relationship Between Land Use and Environmental Protection,"
Argonne National Laboratory Center for Environmental Studies,
(Argonne, Illinois, March 1972), p. 40.
70. Presentation to "A Conference on Land Use Planning in America:
Alternative Policies and Practices," University of California,
Berkeley, December 16-18, 1974.
71. League of California Cities, "Action Plan," op.cit.
72. Drucker, Peter F., Technology, Management, and Society, (Harper
& Row, New York; first published in Technology and Culture,
Spring 1966) , p. 131.
73. Pers. comm., Sept. 1973.
74. Pointed out by Ronald Smothers.
75. Yost, Nicholas, presentation at CEQ-sponsored "Conference on
State Environmental Impact Statement Processes," Nov. 18-19,
1974.
76. William Matuszeski, workshop discussion at conference cited above.
77. Oakley Hunter, pers. comm., June 1975.
78. Trzyna and Jokela, op.cit., p. 60.
79. Ibid., p. 27.
80. In which a statewide staff of ten fulltime Deputy Attorneys Gen-
eral is organized as an Environmental Unit with the assignment
of initiating and- supporting significant legal actions under
CEQA, NEPA, and other environmental laws.
81. CEQ, Fifth Annual Report, op.cit., pp. 393-395.
82. Mogulof, Melvin B., Intergovernmental Relations in Land Use Con-
trol; The Case of the California Coastal Zone. The Urban Insti-
tute, Land Use Center Working Paper 0785-01 (Washington, D.C.,
May 1974), p. 69.
83. Construction figures in this section are from the San Diego
Union Review of Business Activities; numbers of professionals in
the following paragraphs are from the local chapters of the
American Society of Civil Engineers, the American Institute of
Architects, the American Society of Landscape Architects, and the
San Diego Board of 'Realtors. City and County staff provided
documents and data about their own offices, and assisted with.
103
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rough estimates of numbers of professionals and costs. The
purpose of this brief survey of costs is merely to provide
gross "guideline" estimates; all errors of fact or judgment
are the author's.
84. Professor Emil Genetelli, Rutgers University Department of Envi-
ronmental Sciences, pers. comm., June 1975.
85. CEQ, Third Annual Report, op.cit., p. 258.
86. C. F. Ridenour, pers. comm., January 1975.
87. Editorial, Journal of the American Institute of Planners,
January 1972, pp. 1-2.
88. Ronald Smothers provided the basic discussion for this paragraph.
89. Survey responses, fall 1973.
90. Kaiser, Edward J., Karl Elfers, Sidney Cohn, Pegga A. Reichert,
Maynard M. Hufschmidt, and Raymond E. Stanland, Jr., Promoting
Environmental Quality Through Urban Planning and Control, Office
of Research and Development, EPA, Washington, D.C. (Socio-
economic Environmental Studies Series EPA-600/5-73-015, February
1974). This report may be consulted for a nationwide survey of
a broad range of "mainstream" and "cutting edge" practices in
planning and environmental quality control.
91. Environmental Protection Agency, "Guidance for Facilities Plan-
ning," Second Edition (Washington, D.C., October 1974), pp. 102.
92. California State Water Resources Control Board, "Facilities Plan
and Project Plan Guidance" (Sacramento, January 1975), pp. 49.
93. EPA Office of Federal Activities, "Manual for Preparation of
Environmental Impact Statements for Wastewater Treatment Works,
Facilities Plans, and 208 Areawide Waste Treatment Management
Plans" (Washington, D.C., July 1974), pp. 35.
94.
With regard to the specific problem of consolidation of the EIS
into the planning program, some California experience under
CEQA is germane in view of efforts being taken in consolidating
the EIR with various types of land use planning at the local
level. The consolidation problem is somewhat simpler in the
201 grants program, however, in that the procedures and docu-
mentation for the plan and the EIS are very similar, and may be
nearly superimposed, provided a suitable management arrangement
can be found to suit legal requirements for a separate EIS
document. The more general problem of organization for prepara-
tion and review of both documents is of more central concern, and
the plan and EIS are assumed to function as a unit for discussion
purposes here.
104
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95. Op.cit., pp. 14-33, plus further discussion of certain sections.
A project is defined as "complex" if it satisfies any of the
following criteria: within an SMSA (Federal Standard Metropolitan
Statistical Area); new investment likely to exceed $5 million;
area growth rate above the national average; environmental set-
ting relatively sensitive; or opportunities exist for regionali-
zation of sewage treatment.
96. Caldwell, David H. , Charles Oilman Hyde, and A. M. Rawn, Report
on the Collection, Treatment and Disposal of the Sewage of San
Diego County, California (known locally as "the Rawn Report"),
San Diego County Board of Supervisors (San Diego, September
1952) , pp. 515.
97. Pers. comm., Dennis A. O'Leary, Lowry and Associates, San Diego.
98. The author attempted to invoke this opportunity in San Diego as
a participant in early stages of the project, by actively advo-
cating an experimental program of minimal, public-oriented docu-
mentation.
99. Heckroth, Charlie, "'Water...water...everywhere...nor any drop
to drink.' Paper...paper...everywhere...creating such a stink.",
Editorial, Water and Wastes Engineering, April 1974, p. 25.
100. Parkhurst, John D. , "WPCF President's Message," Journal of the
Water Pollution Control Federation, September 1974, p. 2091.
101. Urban Systems Research & Engineering, Interceptor Sewers and
Suburban Sprawl: The Impact of Construction Grants on Resi-
dential Land Use, prepared for CEQ, Contract No. EQ4C027
(Washington, D.C., July 1974), Executive Summary.
102. Heckroth, Charles W., "P.L. 92-500 (Two Years Later) Is Not the
Answer," Water and Wastes Engineering, December 1974, p. 39.
103. Teknekron, Inc., op.cit. (fn.29) , p. 24.
104. Ibid.
105. Ibid., p. 9.
106. Ibid. , p. 25.
107. Environmental Protection Agency, Water Quality Strategy Paper,
Second Edition, (Washington, D.C., March 15, 1974), p. 79. The
paper indicates that impact statements should be prepared for
smaller projects which have "major effects on public parks or
historic sites, are located on wetlands or the habitat of an
endangered species, induce growth affecting non-water quality
aspects of the environment, or divert water from the basin with
resulting adverse effects on water quality or quantity."
108. Ibid. , p. 11.
105
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109. Supervisor Bill Kortum, Sonoma County, pers. comm. April 1975.
110. Murray Warden, pers. comm., September 1974.
111. Trzyna and Jokela, op.cit., pp. 20, 21, 25, 29.
112. California Coastal Zone Conservation Commission, Preliminary
Coastal Plan, Hearing Draft (San Francisco, March 1975), Policy
7, p. 27.
113. Ibid., Policies 24 and 25, pp. 54-56.
114. Robie, Ronald, Luncheon Address at a program on "Water Reclama-
tion" co-sponsored by the State Water Resources Control Board
and University Extension, University of California, Davis.
115. Mrs. Jean Auer, pers. comm., April 1975.
116. Discussion is based on conversations with Russell Freeman, Deputy
Administrator, EPA Region IX, and Andy Mank of the Administra-
tor's staff.
117. P.L. 93-383; a principal feature of the act was the conversion
of several "categorical grant" programs (urban renewal, open
space, sewers, etc.) into lump-sum "block grants" based on a
formula involving factors such as population amount and density,
and the proportion of low-income families. The immense former
amount of paperwork for grant applications and program manage-
ment was largely dispensed with, and replaced with simple certifi-
cations by the chief executive of the jurisdiction that certain
features of intent of the law had been complied with. An in-
centive to compliance was the promise of post-audit by Federal
officers of the Department of Housing and Urban Development
(HUD), which had administered the previous categorical programs.
P.L. 93-383 authorized delegation of NEPA responsibilities to
local agencies for the affected programs. When the law first
passed, it appeared that California's experience of local self-
implementation of an EIR program might be replayed to some degree
on a national scale, since over a thousand local jurisdictions
were likely to receive grants. However, as of June 1, 1975,
only twelve draft EIS documents from local agencies had been
received by CEQ (Michael Kane, pers. comm.).
118. "...fundamental responsibility for conducting much of the effort
should reside with State and local governments. The tasks are
too many and too sensitive to local conditions to be success-
fully managed in detail on a national scale. Agencies that are
closer to the origins of water pollution must provide the
direction for its control." Water Quality Strategy Paper,
op.cit., pp. 3-4.
119. Beer, op.cit. (fn.63).
120. Beer, op.cit., p. 10.
106
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121. Benninghoven speech before the Planning and Conservation
League, November 1973, quoted above in Section V-
122. Oakley Hunter, op.cit.
123. Drucker, Peter, The Age of Discontinuity, (Harper & Row, New
York, 1969), pp. 233-234.
124. Ibid., pp. 202-203.
107
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SECTION XI
APPENDICES
Page
Appendix A. California Environmental Quality Act: 109
Policy Statement
Appendix B. National Environmental Policy Act: 111
Policy Statement
Appendix C. Selected Public Hearing Reports, 113
Governor's Task Force on Local Government Reform
Appendix D. Draft Code of Ethical Practice, 120
Association of Environmental Professionals
Appendix E. State Environmental Impact Statement 1-2
Requirements
Appendix F. Section 201, Public Law 92-500 131
108
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APPENDIX A
CALIFORNIA ENVIRONMENTAL QUALITY ACT: POLICY STATEMENT
(Public Resources Code Sees. 21000 et seq.)
21000. The Legislature finds and declares as follows:
(a) The maintenance of a quality environment for the people of
this state now and in the future is a matter of statewide concern.
(b) It is necessary to provide a high-quality environment that
at all times is healthful and pleasing to the senses and intellect of
man.
(c) There is a need to understand the relationship between the
maintenance of high-quality ecological systems and the general welfare
of the people of the state, including their enjoyment of the natural
resources of the state.
(d) The capacity of the environment is limited, and it is the
intent of the Legislature that the government of the state take imme-
diate steps to identify any critical thresholds for the health and
safety of the people of the state and take all coordinated actions
necessary to prevent such thresholds being reached.
(e) Every citizen has a responsibility to contribute to the
preservation and enhancement of the environment.
(f) The interrelationship of policies and practices in the manage-
ment of natural resources and waste disposal requires systematic'and
concerted efforts by public and private interests to enhance environ-
mental quality and to control environmental pollution.
(g) It is the intent of the Legislature that all agencies of the
state government which regulate activities of private individuals,
corporations, and public agencies which are found to affect the quality
of the environment, shall regulate such activities so that major con-
sideration is given to preventing environmental damage.
21001. The Legislature further finds and declares that it is the
policy of the state to:
(a) Develop and maintain a high-quality environment now and in
the future, and take all action necessary to protect, rehabilitate,
and enhance the environmental quality of the state.
(b) Take all action necessary to provide the people of this state
with clean air and water, enjoyment of aesthetic, natural, scenic, and
historic environmental qualities, and freedom from excessive noise.
(c) Prevent the elimination of fish or wildlife species due to
man's activities, insure that fish and wildlife populations do not
drop below self-perpetuating levels, and preserve for future genera-
tions representations of all plant and animal communities and examples
of the major periods of California history.
(d) Ensure that the long-term protection of the environment shall
be the guiding criterion,in public decisions.
109
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(e) Create and maintain conditions under which man and nature
can exist in productive harmony to fulfill the social and economic
requirements of present and future generations.
(f) Require governmental agencies at all levels to develop stan-
dards and procedures necessary to protect environmental quality.
(g) Require governmental agencies at all levels to consider
qualitative factors as well as economic and technical factors and long-
term benefits and costs, in addition to short-term benefits and costs
and to consider alternatives to proposed actions affecting the envi-
ronment.
110
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APPENDIX B
NATIONAL ENVIRONMENTAL POLICY ACT: POLICY STATEMENT
(Excerpt from Public Law 91-190)
PURPOSE
Sec. 1. Th.e purposes of this Act are: To declare a national policy
which will encourage productive and enjoyable harmony between man and
his environment; to promote efforts which will prevent or eliminate
damage to the environment and biosphere and stimulate the health and
welfare of man; to enrich the understanding of the ecological systems
and natural resources important to the Nation; and to establish a
Council on Environmental Quality.
DECLARATION OF NATIONAL ENVIRONMENTAL POLICY -
Sec. 101. (a) The Congress, recognizing the profund impact of man's
activity on the interrelations of all components of the natural environ-
ment, particularly the profound influences of population growth, high-
density urbanization, industrial expansion, resource exploitation, and
new and expanding technological advances and recognizing further that
critical importance of restoring and maintaining environmental quality
to the overall welfare and development of man, declares that it is the
continuing policy of the Federal Government, in cooperation with State
and local governments, and other concerned public and private organiza-
tions, to use all practicable means and measures, including financial
and technical assistance, in a manner calculated to foster and promote
the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future generations of
Americans.
(b) In order to carry out the policy set forth in this Act, it is
the continuing responsibility of the Federal Government to use all prac-
ticable means, consistent with other essential considerations of national
policy, to improve and coordinate Federal plans, functions, programs,
and resources to the end that the Nation may—
(1) fulfill the responsibilities of each generation as trustee of
the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable
and unintended consequences;
(4) preserve important historic, cultural, and natural aspects
of our national heritage, and maintain, wherever possible, an
environment which supports diversity and variety of individual
choice;
(5) achieve a balance between population and resource use which
will permit high standards of living and a wide sharing of life's
amenities; and
111
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(6) enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a health-
ful environment and that each person has a responsibility to contribute
to the preservation and enhancement of the environment.
112
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APPENDIX C
SELECTED PUBLIC HEARING REPORTS
GOVERNOR'S TASK FORCE ON LOCAL GOVERNMENT REFORM
HEARING #3. SANTA ROSA. SONOMA COUNTY. FEBRUARY 23. 1973
There was a strong tone of provincialism at this hearing. Many of the
witnesses expressed resentment of state interference in local affairs.
Particular objections were expressed about state mandated local, pro-
grams, and several witnesses objected to what they consider forced
membership of Sonoma County in ABAC. County officials in this area
particularly charge that state policies are rendering local govern-
ments weak and in some instances inoperative. County and city offi-
cials alike wish to see more flexibility in local financing and object
to strictures like those of SB 90 (1972). City officials object to
what they consider a push from the state toward regional government.
They contend that the Joint Exercise of Powers mechanism is sufficient
for interjurisdictional efforts when necessary and want "no state inter-
ference," but they want the state to provide incentives for establishing
"Joint Powers" agencies.
HEARING #5, SAN FRANCISCO. SAN FRANCISCO COUNTY. MARCH 1, 1973
There was an overall concern expressed about the future of Local Govern-
ment Reform. This attitude was reflected in discussions about LAFCO,
annexation, finance, special districts, regionalism and citizen in-
volvement. City members' interests lie in improving citizen access to
government, restructuring the tax system to improve inequities, obtain-
ing more land use control, revising annexation laws to ease the pro-
cedure of incorporation and giving more power to the people. Special
district people maintained that neither structure nor fiscal responsi-
bility need to be changed, but that services to the people should be
delivered regardless of the boundaries. Academicians discussed the
consequences of centralization and decentralization. Areawide planning,
they feel, may be unworkable. Concerning education, the desire was ex-
pressed for financial support by state levied taxes. Multipurpose
regional planning was felt to be an answer to solving problems by the
citizen groups.
HEARING #6. BAKERSFIELD. KERN COUNTY, MARCH 9, 1973
Witnesses at this hearing were virtually all local officials or academics.
Their major concern was that the state or federal government might move
to establish regional government in their area. Their specific reserva-
tions centered on the inclusion of Kern County in a multi-county regional
planning organization. City officials at this hearing were very con-
cerned about governmental fragmentation particularly with what they see
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as excessive problems imposed on them through the proliferation of
special districts. They wish to deal with this problem through the
county's LAFCO and want the state to strengthen their ability to do
so. They also seek annexation law reform and liberalization of munici-
pal finance. District officials defended their record and seek to
maintain the status quo. County officials,concur in the concern over
fragmentation and claim that excessive state and federal preoccupation
with "regional" problems undercuts the efforts of counties in these
areas.
The academics who testified at this hearing spoke about the relation-
ship of their specialties to the matters under investigation. They
spoke of the potential greater use of systems analysis, the need to
develop greater expertise and information at the local level, and the
investigation of new and old political devices to re-vitalize local
government. Virtually all witnesses felt that regionalism beyond
Kern County limits was a mistake.
HEARING #8, BERKELEY. ALAMEDA COUNTY. MARCH 16, 1974
This was the hearing of the special districts and the experts. The
witnesses and the audience were almost exclusively made up of local
officials and academics specializing in local government affairs.
Several academic witnesses were from the Institute of Governmental
Studies at U.C. Berkeley. Representatives of special districts were
by far the most numerous group, and they mounted a counter-attack on
what they consider a generalized movement to do away with their agencies.
They contended that the charges of inefficiency and "invisibility"
against them are unwaranted. They claim they are closer to the people
thus providing better access, more responsiveness, and a broader local
choice of public services. Their watch-word is, "Bigger does not mean
better."
Most academic witnesses voiced a need for multipurpose regional govern-
ments with real clout in major metropolitan areas to deal with problems
that are inescapably interjurisdictional. They also stressed the need
to investigate the role of state taxing policies in contributing to
poorly planned development and service/tax inequities.
City and county officials were advocating change. They were particu-
larly interested in changes to strengthen general purpose governments
and facilitate the absorption of special districts in urban fringe
areas. The lines at this hearing were clearly drawn between general
government and special government.
HEARING #10, PASADENA, LOS ANGELES COUNTY, APRIL 6, 1973
This hearing was characterized by a very strong defense of the status
quo and by expressions of anxiety over the state's role in reforming
local government. This is seen as an incursion of state authority into
areas where some citizens feel it has no legitimate interests. The
proceedings were repeatedly disrupted by several local citizens' groups.
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The incorporated cities were heavily represented and the major thrust
of their testimony was that as long as cities were self-supporting
and able to provide essential services, they should be allowed to do
so without interference from the state. Instead, they assert, the
state continues to place increasing administrative and financial
burdens on cities making their task nearly impossible. Some concede
the need to develop mechanisms for cooperative effort but, they insist,
accessibility and responsiveness must remain primary.
Representatives of special districts and authorities testified that
interjurisdictional planning, rather than consolidated departments,
would be sufficient to achieve coordination and economies. They res-
ponded to arguments of several academics that consolidation was neces-
sary to improve many services and to reduce service costs.
HEARING #11. EUREKA. HUMBOLDT COUNTY, APRIL 26, 1973
The general tone of the meeting was that of accomplishment and positive
anticipation that it would result in action. Topics covered were
LAFCOs, annexation, and planning law. City representatives recommended
that county service areas should replace independent districts, that
there should be greater utilization of the joint powers agreement, and
that cities should have greater power over land use decisions. County
officials expressed the hope that CSAC's Modernization Committee would -
be an active liaison for the county and the local government reform
project. Ten principles to be used as a basis for study were presented.
Problems of small counties were discussed and suggestions and approval
of substate districts and single county COGs were made. Others regis-
tered complaints about the abundance of single purpose agencies. The
people from special districts stated that one of the main reasons that
there was a need for special districts was because they provide services
not otherwise available through formal government agencies. There was
also- talk..about taxes and by what means could they best be used for
services.
HEARING #1.2. LONG BEACH. LOS ANGELES COUNTY. APRIL 27, 1973
Representatives of various groups offered constructive criticism and
suggestions regarding annexation, tax issues and government structure.
Again, city officials desired to have more control over annexation of
unincorporated areas. Concern was also expressed about the problems
which have appeared as a result of a lack of understanding on part of
the state, of local government structure. SB 90 is criticized, especially
as it concerns encroachment on areas which are constitutionally of local
concern. Testimony also indicated a desire for the state to finance
programs which it mandates. Special districts felt that they were left
in a difficult financial situation because of the Local Assistance Act
of 1972 and SB 90. Libraries, in particular, need financial support.
Academicians expressed an interest in having greater control and citizen
participation in local government. Some other major topics discussed
were a list of items which must be followed in order for a democracy to
work, bases for operating a governmental system to replace present forms
115
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of local and regional government, and reasons why reform is resisted.
Some citizens were opposed to regional government as it takes power
away from the people and they felt that local government should be given
more authority. League of Women Voters stated that government officials
should be elected and more responsive to the people.
HEARING #13, SAN DIEGO, SAN DIEGO COUNTY, APRIL 27. 1973
Great emphasis was given to San Diego being a single county district.
The problem of the inability of the governments to work together still
exists, however, particularly where boundaries are crossed. City offi-
cials indicated a need for studying, as component of local government
reform, the allocation of limited resources, regional planning, and re-
quirements for good management. Flexibility, county officials feel, is
the key to any reform program. State legislation and financial incen-
tives could be a help in restructuring San Diego's local government
organization, particularly in such areas as contracting with counties
for special services to avoid duplication. Special district testimony
revealed that consolidation would result in savings in overhead cost.
LAFCO stated that since San Diego was a single county region, planning
activities were facilitated. Financial mechanisms were imperative, they
said, to the encouragement of reform. Special interest groups, academi-
cians, and private citizens all expressed concern about citizen aliena-
tion, lack of citizen control, and responsible political leadership.
HEARING #14. SAN JOSE. SANTA CLARA COUNTY. MAY 11. 1973
This meeting was composite of those who felt that reorganization of
local government was part of a conspiracy and those with opposing views.
Cities maintained that the biggest problem facing cities is money.
The state mandates programs but does not back them financially. Effec-
tive reform can be accomplished by setting up objectives and providing.
proper finance. Small cities were concerned with public access and
control of government. The importance of having a better relationship
between state and local government was also discussed, as well as the
elimination of special districts. The county representatives spoke
primarily about organizational adjustments. As an effort to reorganize
government and not alienate the taxpayer, a constitutional convention
would be in order.
HEARING #16, REDDING, SHASTA COUNTY, MAY 24, 1973
Much of the testimony centered on government in rural areas with
emerging rural problems. Elements fearing an international conspiracy
were also present. County representatives maintained that one way that
reform efforts could assist counties to meet the requirements of local
government is to assign public services specifically to the area which ^
it involves, not by the number of people who live there. Some feared
that local government reform meant an undermining of home rule and the
installation of regionalism. Weaknesses in California government,
according to academicians, included lack of administrative responsibility
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in the counties, annexation, citizen interest, and multipurpose
special districts. The primary problem of multipurpose districts,
which could be an alternative to full incorporation of areas on the
urban fringe, is revenue. The Community Planning Council needs sup-
port, as does better funding for early childhood programs, citizen
involvement, and the accessibility and responsiveness of government.
Taxpayers Association representatives states that they believe that
better results could occur if the functions now being performed by
the counties were performed by the state. The cities spoke for more
city control and authority. A newspaper spokesman said that regional-
ism was not an answer to local government problems. Local government
can be made more effective if the present problem of the ineffective-
ness of county governments to deal with local problems is alleviated.
HEARING #18. SANTA ANA, ORANGE COUNTY. JUNE 1, 1973
This meeting was very constructive and the witnesses were well in-
formed. Some county officials felt that as long as local government
enjoys the confidence of its constituents, it should stay as is.
Others indicated that basic problems of local government officials
were a result of a lack of management techniques and too much political
competition, also no financial support for state mandated programs.
If changes in local government are made, they must be made at all
levels because of the complex interrelationships. In order to have
strong local government which is necessary because it is more respon-
sive to the people, city officials say that adequate legal authority
and more money is a must. Some wanted special districts eliminated
and more consolidation to eliminate waste. Comments were also made
that intergovernmental reform would be more successful if it were a
result of voluntary, not mandated, power. Academicians thought that
decentralization would preserve citizen satisfaction and accountability
of officials. Special district people stated that elimination of dis-
tricts just for the sake of elimination is not progress. LAFCOs were
concerned with public access and control of government and voters who
have lost confidence in their government. League of Women Voters
representatives stated that LAFCO should be delegated more power to
handle services in a situation of rapid growth.
HEARING #22, MONTEREY, MONTEREY COUNTY, JULY 6, 1973
This hearing had a mood of apprehension. Many witnesses voiced oppo-
sition to any move toward regional government and objected to what
they consider to be state and federal encroachment on local affairs.
On the question of "regionalism" a fine line was drawn between
regional government and regional planning. Several witnesses conceded
that in specific areas of policy there may well be a need for regional
planning and would not object to that per se. However, they say, this
concession carries the danger that it may lead to regional government
to which they are vehemently opposed. The tenor of the testimony was
that the state should research alternatives and provide technical
assistance to locals who are considering reform.
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Further, they called for reform of state laws and administrative poli-
cies to facilitate the processes of locally initiated reforms. Local
officials showed an unusally keen interest in altering county boundar-
ies. Representatives of citizens groups stressed that service programs
and their funding should be kept to the lowest possible level of gov-
ernment and that state restrictions on local revenue sources should be
relaxed. The call here is for stronger home rule and no regional
government. A resolution of one citizens' group charges that regional
government and all other efforts toward local government reform are
part of a conspiracy to usurp the constitutional rights of the people
and establish a national dictatorship.
HEARING #23, CHICO, BUTTE COUNTY, JULY 20. 1973
Special districts and county officials were heavily represented at this
meeting. Main concerns indicated were state mandated programs and a
lack of citizen control and participation in government. Some county
representatives took the position that consolidation should be avoided.
Others stated that it was helpful in situations where economy and ef-
ficiency were improved. The difference between urban and rural prob-
lems was also emphasized. Rural interests resist regional government
as governmental service systems seem to be carried out most effectively
when managed locally. Again it was mentioned that mandated state pro-
grams should also be financed. District spokesmen felt that special
districts should have greater access to fiscal resources and should be
evaluated on their own merit. The great advantage here is that since
districts concentrate on a single subject, they become experts in that
area. LAFCO people expressed a need to be backed by legislation.
Academicians made the point that a way to prevent the flow of power to
a centralized agency is to give more power to local government. Private
citizens said that local options were being neglected as a result of
state mandates, while along similar lines, the League of Women Voters
expressed a concern for a lack of citizen access and control.
HEARING #24, SACRAMENTO, SACRAMENTO COUNTY, JULY 27, 1973
Although representatives from the county, city and special districts
attended this meeting, this hearing was most noted for its response
from private citizens. The county people urged the establishment of
county government reform models. They believed that localities should
be urged to reform themselves as it was impossible to rely on legisla-
tive or executive mandate. Also questioned was the amount of control
the region would have over the county. City problems centered on a
source of revenue versus the demand for expenditures, annexation laws,
taxation policies, and confused lines of authority. One of the ways
problems of the special districts could be improved is through the
establishment of a Comprehensive Land Use Plan. Special district
delegates said that because they are closest to the people, they know
and can best fulfill their needs. The Northern California-Nevada
Resource Organization expressed a need for multicounty-city planning
in the form of general and special purpose government. Some private
citizens feared that regionalism put government into the hands of a few.
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Flexibility of local governments to reorganize should be allowed. A
two tier system of government was talked about, always with concern
for improved public control of government. The state was named respon-
sible for not protecting local government functions. Library spokesmen
used their cooperative system as a good example of intergovernmental
relations. Libraries, however, are badly in need of financial backing.
Emphasis was also given regarding the movement of a merger between
public and school libraries. A state official testified as to what
he felt to be a lack of intelligence in economic planning. Testimony
by the Association of Governments was given regarding growth and
services and consolidation of certain city-county functions.
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APPENDIX D
DRAFT CODE OF ETHICAL PRACTICE
PREPARATION AND PROCESSING OF ENVIRONMENTAL DOCUMENTS
ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS*
1. WHEREAS, the goal of my endeavor is to provide a full-disclosure
environmental document in which decision makers and the public
can place full confidence,
2. THEREFORE, I subscribe to this Code of Ethical Practice:
3. I WILL examine all relationships or actions which could be
legitimately interpreted as a conflict of interest by clients,
officials, the public, or my peers; and I will fully disclose
my financial or personal interests in the project and each
alternative, including the no-build or null alternative.
4. I WILL encourage, by every reasonable means, that environmental
planning begin in the earliest stages of project conceptualiza-
tion.
5. I WILL refuse to create an environmental document as a justifi-
cation of a project or as a platform for opposition or advocacy.
6. I WILL abstain from attempting to delay the outcome of an action
or project through the environmental document process.
7. I WILL produce an objective environmental document; I will not
allow any of my relationships with clients, employers, or others
to interfere with my duty to provide a full disclosure environ-
mental document.
8. IF PREPARING A DOCUMENT PURSUANT TO THE ENVIRONMENTAL DOCUMENT
PROCESS, I WILL:
9. define a level of investigation appropriate to the nature and
scope of the proposed project or action, and its probable
impacts;
10. select and use qualified persons of pertinent disciplines in the
conduct of the study;
11. incorporate the best principles of the design and environmental
planning arts in recommending measures for mitigation of envi-
ronmental harm and enhancement of environmental quality;
*The Association may be contacted in care of the Office of Environmental
Quality, County of Santa Barbara, Santa Barbara, California 93101.
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12. rely upon the independent judgment of an interdisciplinary team
to determine impacts, define and evaluate all reasonable alter-
natives to the proposed action, and assess short-term versus
long-term productivity with and without the project or action;
13. encourage public participation from the beginning in an open,
frank and productive atmosphere to stimulate democratic con-
sensus;
14. write in a clear and accurate manner, to achieve objectivity
and remove all possible bias;
15. list all study participants, their qualifications and affiliations;
16. cite all sources, written and oral;
17. strive to create a complete, scientifically accurate, objective
environmental document that.can be defended professionally.
18. IF REVIEWING AN ENVIRONMENTAL DOCUMENT, I WILL:
19. insist upon review of original technical reports or findings upon
which conclusions or recommendations summarized in the environ-
mental document are based, to ensure they are in conformity with
applicable laws and guidelines;
20. assure that the assessment reflects my own best judgment where I
am qualified to judge, and that of independent persons expert in
areas beyond my capability to assess effects deemed "significant";
21. determine that the document is consistent with all pertinent laws,
ordinances, guidelines, plans and policies to the best of my
knowledge and ability;
22. certify acceptability of the environmental document only if I am
satisfied that it has been prepared and reviewed in conformance
with all of the above.
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APPENDIX E
STATE ENVIRONMENTAL IMPACT STATEMENT REQUIREMENTS
The following information and comments, provided by the Council on
Environmental Quality, updates (as of May 1975) the summary of state
requirements in Appendix A of Environmental Impact Requirements in
the States: NEPA's Offspring, by Thaddeus C. Trzyna (EPA-600/5-74-006),
April 1974.
STATES WITH COMPREHENSIVE STATUTORY REQUIREMENTS
CALIFORNIA
Source: California Environmental Quality Act of 1970, Cal. Pub. Res.
Code, Section 21000-21174 (Supp. 1972), as amended by Ch. 56, Statutes
of 1974, March 4, 1974, as amended by Ch. 276, Statutes of 1974, Sec-
tion 21100(c), January 7, 1975.
Guidelines: 14 Cal. Admin. Code Ch. 3, Guidelines for Implementation
of the California Environmental Quality Act of 1970 (Register 73, No.
50—12—15—73), as amended by order of the Secretary for Resources,
March 22, 1974, as amended January 7, 1975, as amended April 1975.
Guidelines are prepared by the Resources Agency of California.
State Contact: Norman E. Hill, Special Assistant to the Secretary for
Resources, The Resources Agency, 1414 Ninth Street, Sacramento, Cali-
fornia 95815 (Phone: 916-445-9134).
CONNECTICUT
Source: Connecticut Environmental Policy Act of 1973, Pub. Act 73-562
(approved June 22, 1973). Conn. Gen. Stat. Ann. Ch. 439, Section
22a-l, et seq. (Cum. Supp. 1974-1975) (effective February 1, 1975).
Guidelines: New guidelines are being prepared by the Department of
Environmental Protection. Currently in effect: "Draft Guidelines for
the Implementation of Executive Order No. 16," transmitted to the state
agencies under Memorandum from the Governor, dated December 13, 1972.
State Contact: Mary Ann Massey- Assistant Director of Planning and
Research, Department of Environmental Protection, State Office Building,
Hartford, Connecticut 06115 (Phone: 203-566-4256).
HAWAII
Source: Act 246, Sess. Laws of Hawaii (approved June 4, 1974), Hawaii
Rev. Stat. Ch. 334 (1974). This Act supercedes the previous Governor's
Executive Order of August 23, 1971.
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Guidelines: Guidelines are being prepared by the Hawaii Environmental
Quality Commission.
State Contact: Richard E. Marland, Director, Office of Environmental
Quality Control, Office of the Governor, 550 Halekauwila Street, Room
301, Honolulu, Hawaii 96813 (Phone: 808-548-6915).
INDIANA
Source: 1C 1971, 13-1-10, added by Pub. L. 98, 1972, Ind. Stat. Ann.
Section 35-5301, et seq. (Supp. 1971).
Guidelines: Guidelines are being prepared by the Environmental Manage-
ment Board and are scheduled to be completed by fall 1975.
State Contact: Ralph Pickard, Technical Secretary, Environmental Man-
agement Board, 1300 W. Michigan Street, Indianapolis, Indiana 46206
(Phone: 317-633-4420).
MARYLAND
Source: Maryland Environmental Policy Act of 1973, Ch. 702, Md. Acts
of 1973, 41 Ann. Code of Md., Section 447-451, (Cum. Supp. 1973), and
Ch. 703, Md. Acts of 1973 Natural Res. Art., Ann. Code of Md., Section
1-301 et seq. (1974 Volume) as amended by Ch. 129 of the Md. Acts of
1975, Section l-301(c) (effective July 1, 1975).
Guidelines: "Revised Guidelines for Implementation of the Maryland
Environmental Policy Act" issued by the Secretary of the Department of
Natural Resources, June 15, 1974.
State Contact: Paul McKee, Assistant Secretary, Department of Natural
Resources, Tawes State Building, Annapolis, Maryland 21404 (Phone:
301-267-5548).
MASSACHUSETTS
Source: Ch. 781, Acts of 1972, Ann. Laws Mass. Ch. 30, Section 61-62.
(Cum. Supp. 1973), as amended by Ch. 257 of the Acts of 1974.
Guidelines: "Regulations to Create a Uniform System for the Preparation
of Environmental Impact Reports," dated July 6, 1973, as amended October
15, 1973, as amended January 8, 1975. Guidelines are prepared by the
Executive Office of Environmental Affairs.
State Contact: Matthew B. Connolly, Jr., Chief Planner, Executive
Office of Environmental Affairs, 18 Tremont Street, Boston, Massachusetts
20488 (Phone: 617-727-2808).
MINNESOTA
Source: Minnesota Environmental Policy Act of 1973, Ch. 412, Laws of
1973, Minn. Stat. Ann. Ch. 116D (Cum. Supp. 1974).
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Guidelines: "Rules and Regulations for Environmental Impact State-
ments," issued by the Minnesota Environmental Quality Council on April
4, 1974. These guidelines are presently being revised with distribu-
tion scheduled for July 1975.
State Contact: Jock Robertson, Manager, Environmental Analysis Program,
Environmental Quality Council, Capital Square Building, 559 Cedar Street,
St. Paul, Minnesota 55101 (Phone: 612-296-2757).
MONTANA
Source: Montana Environmental Policy Act of 1971, Ch. 238, L. 1971,
Rev. Code Mont., Section 69-6501, et seq. (Cum. Supp. 1973). Statute
was amended in 1975 (Ch. 65, Section 69-6508 and Section 69-6509), but
as of April 15, 1975 had not been signed into law.
Guidelines: Montana Environmental Quality Council, "Revised Guidelines
for Environmental Impact Statements Required by the Montana Environ-
mental Policy Act of 1971," issued September 19, 1973.
State Contact: Loren L. Bahls, PhD., Ecologist, Montana Environmental
Quality Council, Capitol Station, Helena, Montana 59601 (Phone:
406-449-3742).
NORTH CAROLINA
Source: North Carolina Environmental Policy Act of 1971 (1971, c. 1203,
s. 1), N.C. Gen. Stat. Ch. 113A (Cum. Supp. 1973).
Guidelines: North Carolina Department of Administration, "Guidelines
for the Implementation of the Environmental Policy Act of 1971," issued
February 18, 1972.
State Contact: D. Keith Whitenight, Environmental Planning Coordinator,
Department of Natural and Economic Resources, P.O. Box 27687, Raleigh,
North Carolina 27611 (Phone: 919-829-3838).
SOUTH DAKOTA
Source: South Dakota Environmental Policy Act, SL 1974, Ch. 245 (approved
March 2, 1974), S.D. Comp. Laws 1967 Ch. 11-1A (Supp. 1974).
Guidelines: Department of Environmental Protection, 1974 Informal Guide-
lines .
State Contact: Dr. Allyn 0. Lockner, South Dakota Department of Envi-
ronmental Protection, Office Building No. 2, Room 415, Pierre, South
Dakota 57501 (Phone: 605-224-3351).
VIRGINIA
Source: Virginia Environmental Policy Act of 1973, Ch. 384, Laws of
1973 (approved March 15, 1973) and Ch. 774, Laws of 1972, Va. Code Ann.
Sections 10-17.107 through 10-17.112, and Sections 10-177 through 10-186
124
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(Supp. 1973), as amended by Ch. 354, Laws of 1974 (approved April 4,
1974), Va. Code Ann. Section 2.1-51.9, Section 10.181, Section 10.183,
and Section 10.185.
Guidelines: Procedures Manual for Environmental Impact Statements in
the Commonwealth of Virginia, issued by the Governor's Council on the
Environment (December 1973; revised January 1975).
State Contact: Susan T. Wilburn, Environmental Impact Statement Co-
ordinator, Governor's Office, Council on the Environment, Eighth
Street Office Building, Richmond, Virginia 23219 (Phone: 804-770-4500).
WASHINGTON
Source: State Environmental Policy Act of 1971, Rev. Code Wash. Ch.
43.2C (Supp. 1973), as amended by Sub. Senate Bill 3277, Ch. 179, Laws
of 1974 (May 5, 1974).
NOTE: For State Highway Project Environmental Impact Report Requirement
see Rev. Code Wash. Ch. 47.04 (Supp. 1973).
Guidelines: Guidelines currently in use are "Guidelines for Implementa-
tion of the State Environmental Policy Act of 1971." Current guides
were prepared by the Department of Ecology. Revised guides are presently
being prepared.
State Contact: Peter R. Haskin, Environmental Review and Evaluation,
Office of Planning and Program Development, State of Washington, Depart-
ment of Ecology, Olympia, Washington 98504 (Phone: 206-753-6890).
WISCONSIN
Source: Wisconsin Environmental Policy Act of 1971, Ch. 274, Laws of
1971, adding Wise. Stat. Ann. Ch. 1, Section 1.11, et seq. (Cum. Supp.
1974-1975).
Guidelines: "Guidelines for the Implementation of the Wisconsin Environ-
mental Policy Act," issued by Governor's Executive Order No. 69 (December
1973).
State Contact: Farnum Alston, Office of the Governor, State Capital,
Madison, Wisconsin 53703 (Phone: 608-266-7829).
PUERTO RICO
Source: Puerto Rico Environmental Policy Act, 12 Laws P.R. Ann. Section
1121, e_t seq. (1970) .
Guidelines: "Guidelines for the Preparation, Evaluation, and Use of
Environmental Impact Statements," issued by the Environmental Quality
Board on December 19, 1972.
Puerto Rico Contact: Carlos M. Jimenez Barber, Executive Director,
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Environmental Quality Board, 1550 Ponce de Leon Avenue, 4th Floor,
Santurce, Puerto Rico 09910 (Phone: 809-725-5140).
STATES WITH COMPREHENSIVE EXECUTIVE OR ADMINISTRATIVE ORDERS
MICHIGAN
Source: Michigan Executive Order 1971-10, as superceded by Michigan
Executive Order 1973-9, as superceded by Michigan Executive Order
1974-4 (May 1974).
Guidelines: Interim Guidelines, prepared by the Environmental Review
Board and issued June 24, 1974. Revised guidelines are presently in
preparation.
State Contact: Terry L. Yonker, Executive Secretary, Environmental
Review Board, Department of Management and Budget, Lansing, Michigan
48913 (Phone:517-373-0933).
NEW JERSEY
Source: New Jersey Executive Order No. 53 (October 15, 1973).
Guidelines: "Guidelines for the Preparation of an Environmental Impact
Statement," issued by the Office of the Commissioner, Department of
Environmental Protection in 1973 and updated in February 1974.
State Contact: Alfred Guido, Special Assistant to the Commissioner,
Office of Environmental Review, Department of Environmental Protection,
P.O. Box 1390, Trenton, New Jersey 08625 (Phone: 609-292-2662).
TEXAS
Source: Policy for the Environment, adopted by the Interagency Council
on Natural Resources and Environment on March 7, 1972, and published
in "Environment for Tomorrow: The Texas Response." A proposed revi-
sion of the Policy was issued by the Council on March 6, 1975.
Guidelines: Guidelines and procedures are contained in "Environment
for Tomorrow: The Texas Response," prepared by the Office of the
Governor, Division of Planning Coordination, January 1, 1973. A pro-
posed revision of the guidelines was issued by the Division of Planning
Coordination on March 6, 1975.
State Contact: Leon Wilhite, Office of the Governor, Divison of Plan-
ning Coordination, Box 12428, Capital Station, Austin, Texas 78711
(Phone: 512-475-6156).
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STATES WITH SPECIAL OR LIMITED EIS REQUIREMENTS
ARIZONA
Source: Game and Fish Commission Policy of July 2, 1971.
Guidelines: Memorandum by the Arizona Game and Fish Commission,
"Requirements for Environmental Impact Statements," issued June 9,
1971.
State Contact: Robert D. Curtis, Chief, Wildlife Planning and Develop-
ment Division, Arizona Game and Fish Commission, 2222 W. Greenway Rd.,
Phoenix, Arizona 85023 (Phone: 602-942-3000).
DELAWARE
Source: a) Delaware Coastal Zone Act, Ch. 175, Vol. 58 Laws of Del.
(June 28, 1971), adding 7 Del. Code Ann. Section 7001 et seq. (Supp.
1973) and b) Delaware Wetlands Law of 1973, adding 7 Del. Code Ann.
Ch. 66 (Supp. 1973).
Guidelines: a) 7 Del. Code Ann. Ch. 66, Section 6604 (Supp. 1973),
and "Permit Application Instructions and Forms and Information Material
on Required Procedures for the Coastal Zone Act," prepared and published
by the Delaware State Planning Office, and b) Guidelines for the Wet-
lands Act are being prepared.
State Contacts: For the Coastal Zone Act — John Sherman, Coastal
Zone Administrator, State of Delaware, Executive Department Planning
Office, Dover, Delaware 19901 (Phone: 302-678-4271). For the Wetlands
Act — F. Michael Parkowski, Deputy Attorney General, Department of
Natural Resources and Environmental Control, Division of Environmental
Control, Dover, Delaware 19901 (Phone: 302-678-4636).
GEORGIA
Source: Ga. L. 1972-179 (March 10, 1972), Ga. Code Ann. Ch. 95A-1,
Section 241(e)(1) (1973).
Guidelines: Policy and Procedures Manual; State Tollway Authority,
prepared by Georgia's Tollway Administrator's Office in May 1972 and
revised in February 1973.
State Contact: Frank Harschler, Tollway Administrator, Department of
Transportation, 2 Capitol Square, Atlanta, Georgia 30334 (Phone:
404-656-3915) .
NEBRASKA
Source and Guidelines: Nebraska Department of Roads, Department of
Roads Action Plan (1973). This is being rewritten to meet new directives
of the U.S. Department of Transportation (FHPM 771 and 772).
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State Contact: Robert 0. Kuzelka, Comprehensive Planning Coordinator,
Office of Planning and Programming, Box 94601, State Capital, Lincoln,
Nebraska 68509 (Phone:402-471-2311).
NEVADA
Source: Ch. 311, Laws of 1971, 58 N.R.S. Ch. 704 (1971).
Guidelines: No guidelines have been issued.
State Contact: Roger S. Toundray, Director, Department of Human Re-
sources, 308 N. Curry Street, Carson City, Nevada 80701 (Phone:
702-885-4730).
NEW JERSEY
Source: a) Coastal Area Facility Review Act, P.L. 1973, Ch. 185
(approved June 20, 1973), N.J.S.A. 13:19-1 et seq. (Cum. Supp. 1974-
1975), and b) the New Jersey Wetlands Act of 1970, Ch. 272, Laws of
1970, N.J.S.A. 13:9A-1 et_ secL- (Cum. Supp. 1974-1975).
Guidelines: a) "Procedural Rules for the Administration of the Coastal
Area Facilities Review Act," Draft prepared by the Department of Envi-
ronmental Protection dated 1974, and b) "New Jersey Wetlands Order:
Basis and Background," issued by the New Jersey Department of Environ-
mental Protection (April 1972). New guidelines for this Act are
presently in the late draft stage.
State Contact: Harold Barker, Chief, Bureau of Marine Lands Manage-
ment, Marine Services Division, Department of Environmental Protection,
P.O. Box 1889, Trenton, New Jersey 08625 (Phone: 609-292-8262).
COMMENTS
Because the majority of state EIS requirements have been in effect for
at least two years, it should now be possible to step back and examine
the efficacy as well as the future of these state acts. While only
one state (New Mexico) has repealed its environmental assessment law,
an increasing number of states are amending their statutes or are con-
templating changes. In addition, there are a few states which are
having serious difficulties with implementing their existing laws.
California, Maryland, Virginia, Washington, Hawaii, Michigan, and Texas
have all amended their statutes or executive orders within the past
year — most of the changes have tended to increase the strength and
durability of the environmental impact laws. California, for example,
now requires a discussion of mitigating measures especially as they
concern the wasteful and unproductive consumption of energy; the amend-
ments to Virginia's statute provide for an Administrator to the Virginia
Council on the Environment who is responsible for "developing uniform
management and administrative systems which will assure coherent
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environmental policies and will facilitate the provision of environ-
mental services to the public." (Chapter 354, Section 10-184.1)
The State of Washington amended its State Environmental Policy Act
(SEPA) to provide a "watchdog" agency — the Council on Environmental
Policy — to oversee implementation of SEPA. By revising its two
previous executive orders, Michigan established an Environmental
Review Board which is responsible for advising the Governor, suggest-
ing environmental policy, conducting public hearings, and assisting
the Governor in the review of state environmental impact statements.
The other states made minor and/or wording changes in their statutes,
leaving the basic policy goals and objectives intact. •
Still other states are considering changes to their existing laws.
Wisconsin, Minnesota, Texas, and New York all have reviewed or are
presently reviewing legislation which would amend or establish EIS
requirements. New York City and Bowie, Maryland — the two cities
which require environmental assessments — have also considered new
legislation.
In Wisconsin, a bill was introduced in 1974 to expand the EI& to in-
clude economic as well as environmental factors. The Texas legislature
introduced a series of bills ranging from one which would establish
new reviewing procedures to one which would create a stronger and
more powerful Inter-Agency Council on Natural Resources and Environ-
ment. In New York a bill was introduced in the 1975 legislature which
would require the preparation of EIS's for all major state actions
based on NEPA procedures. The New York City Council introduced a bill
which would require the environmental assessment to include energy
resources, traffic patterns, and the "natural ecology." Bowie,
Maryland has been seriously considering administrative and/or legisla-
tive changes, although no bills have been introduced.
While state regulation of environmental affairs is frequently difficult
due to a lack of expertise and funding, the several states which have
passed amendments or are considering amendments appear to be on the
road toward strengthening their EIS processes. Yet there are a few
states which are having serious problems with their statutes and/or
with implementation.
Connecticut, North Carolina, and South Dakota all have statutory re-
quirements dealing with the preparation of EIS's. Connecticut, how-
ever, is faced with deficiencies in the law which effectively block
implementation, according to the Connecticut Department of Environmental
Protection. The Department is attempting to prepare new guidelines in
order to make the statute more effective, but they feel that amendments
or new legislation are needed.
Similarly, the Department of Natural and Economic Resources of North
Carolina feels that their Environmental Policy Act is poorly imple-
mented, due primarily to the fact that the Department has no enforce-
ment authority. The Department expects that the Act will most likely
be renewed in 1977 when it comes up for reappraisal, but they are
doubtful that the Act will be made more effective at that time.
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South Dakota is the third state which is having difficulty with their
Environmental Policy Act. The South Dakota Department of Environ-
mental Protection is given no authority to enforce its standards and
is presently only required to keep the EIS's received on file. While
each South Dakota government agency is to compile and use its own
guidelines for implementing the Act, few agencies have done so to date,
Thus, the future of state-NEPA laws seems to be mixed. While many
states have been able to secure effective implementation, other states
are losing ground in this area. In either case, the next years will
be increasingly important in terms of state environmental policy and
adminis tration.
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APPENDIX F
SECTION 201, PUBLIC LAW 92-500
(Federal Water Pollution Control Act Amendments of 1972)
Sec. 201. (a) It is the purpose of this title to require and to
assist the development and implementation of waste treatment manage-
ment plans and practices which will achieve the goals of this Act.
(b) Waste treatment management plans and practices shall provide
for the application of the best practicable waste treatment technology
before any discharge into receiving waters, including reclaiming and
recycling of water, and confined disposal of pollutants so they will
not migrate to cause water or other environmental pollution and shall
provide for consideration of advanced waste treatment techniques.
(c) To the extent practicable, waste treatment management shall be
on an areawide basis and provide control or treatment of all point and
nonpoint sources of pollution, including in place or accumulated pol-
lution sources.
(d) The Administrator shall encourage waste treatment management
which results in the construction of revenue producing facilities
providing for —
(1) the recycling of potential sewage pollutants through the
production of agriculture, silviculture, or aquaculture pro-
ducts , or any combination thereof;
(2) the confined and contained disposal of pollutants not
recycled;
(3) the reclamation of wastewater; and
(4) the ultimate disposal of sludge in a manner that will not
result in environmental hazards.
(e) The Administrator shall encourage waste treatment management
which results in integrating facilities for sewage treatment and re-
cycling with facilities to treat, dispose of, or utilize other indus-
trial and municipal wastes, including but not limited to solid waste
and waste heat and thermal discharges. Such integrated facilities
shall be designed and operated to produce revenues in excess of capital
and operation and maintenance costs and such revenues shall be used by
the designated regional management agency to aid in financing other
environmental improvement programs.
(f) The Administrator shall encourage waste treatment management
which combines 'open space1 and recreational considerations with such
management.
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(g)(1) The Administrator is, authorized to make grants to any State,
municipality, or intermunicipal or interstate agency for the construe-?
tion of publicly owned treatment works.
(2) The Administrator shall not make grants from funds authorized
for any fiscal year beginning after June 30, 1974, to any State,
municipality, or intermunicipal or interstate agency for the erection,
building, acquisition, alteration, remodeling, improvement, or exten'-
sion of treatment works unless the grant applicant has satisfactorily
demonstrated to the Administrator that •»—•
(A) alternative waste management techniques have been studied
and evaluated and the works proposed for grant assistance will
provide for the application of the best practicable waste treats
ment technology over the life of the works consistent with- the
purposes of this title; and
(B) as appropriate, the works proposed for grant assistance
will take into account and allow to the extent practicable the
application of technology at a later date which will provide
for the reclaiming or recycling of water or otherwise eliminate
the discharge of pollutants.
(3) The Administrator shall not approve any grant after July 1, 1973,
for treatment works under this section unless the applicant shows to the
satisfaction of the Administrator that each sewer collection system dis-
charging into such treatment works is not subject to excessive infiltra-
tion.
(4) The Administrator is authorized to make grants to applicants
for treatment works grants under this section for such sewer system
evaluation studies as may be necessary to carry out the requirements
of paragraph (3) of this subsection. Such grants shall be made in accord-
ance with rules and regulations promulgated by the Administrator. Initial
rules and regulations shall be promulgated under this paragraph not later
than 120 days after the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972.
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
1. REPORT NO.
EPA-600/3-76-040
3. RECIPIENT'S ACCESSION-NO.
4. TITLE ANDSUBTITLE
Self-Regulation of Environmental Quality:
Analysis in California Local Government
Impact
5. REPORT DATE
April 1976
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
Arthur W. Jokela
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Center for California Public Affairs
226 W. Foothill Blvd.
Claremont, CA 91711
10. PROGRAM ELEMENT NO.
1HA095
11. CONTRACT/GRANT NO.
68-01-2963
12. SPONSORING AGENCY NAME AND ADDRESS
EPA
Corvallis Environmental Research Laboratory
200 SW 35th Street
Corvallis, OR 97330
13. TYPE OF REPORT AND PERIOD COVERED
Final Report
14. SPONSORING AGENCY CODE
EPA/ORD
15. SUPPLEMENTARY NOTES
16. ABSTRACT
Recent revisions of guidelines for the preparation of environmental impact statements
(EIS) issued by the Council on Environmental Quality have defined clear requirements
as to what can be expected in EIS's from Federal agencies. However, such uniformity
of procedure and approach has not been extended below the Federal level on either Fed-
eral agency requirements or individual State requirements. Further, while the guide-
lines may specify what is desired in EIS's, technical approaches to meeting these
objectives may not always be available and universally acceptable.
As a part of its series of Socioeconomic Environmental Studies, the Environmental Pro-
tection Agency, Office of Research and Development, is conducting research whose objec-
tives are to: 1) improve the technical quality of environmental impact analysis in the
areas of Agency responsibility; 2) improve the ability of the Agency to provide substar
tive technical review of EIS's prepared by other agencies; and 3) improve the effec-
tiveness of the use of environmental impact analysis in influencing decisionmaking at
all governmental levels.
This publication is the fourth in a series of reports on environmental impact analysis
requirements several State governments have instituted. This report describes imple-
mentation of the California law at the local level of government.
17.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.IDENTIFIERS/OPEN ENDED TERMS
c. COSATI Field/Group
Environmental Impact Statements, Local
Governments, California Environmental
Quality Act
05/A,D,K
13. DISTRIBUTION STATEMENT
Release to Public
19. SECURITY CLASS (This Report)
UNCLASSIFIED
20. SECURITY CLASS (This page)
UNCLASSIFIED
21. NO. OF PAGES
138
22. PRICE
EPA Form 2220-1 (9-73)
133
U.S. GOVERNMENT PRINTING OFFICE: 1976-697-092181 REGION lb
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