October 19, 2010
Owley Lippman & Levy on Preservation as Mitigation under CEQA
Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005. The abstract:
Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects.
This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.
There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.
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