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AEP 2017 State Conference Lost in Translation: Addressing Communication Challenges Amongst CEQA Consultants, Developers, Public Agencies and Attorneys May 20, 2017. Presented by: Charity Schiller - Partner, BBK
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AEP 2017 State ConferenceLost in Translation:Addressing Communication Challenges Amongst CEQA Consultants, Developers, Public Agencies and AttorneysMay 20, 2017 Presented by: Charity Schiller - Partner, BBK Jennifer Haddow, PHD - Principal Environmental Scientist, Rincon Consultants, Inc. Aimee Epstein - Senior Manager, NRG Energy Deirdre West – Environmental Team Manager, Metropolitan Water District of So. Calif.
Ideal Relationship The Lawyer, Consultant, Developer, and Public Agency… • Are engaged early in the project’s lifecycle to collectively set expectations and priorities • Establish a communication and involvement “baseline” • Understand their role • Respect each others’ roles • Work in good faith to identify mutual acceptable solutions • Complete the CEQA process effectively, efficiently, transparently, and defensibly Kumbaya!
Public Agencies’ Roles • Lead agency (the focus of today), but also responsible agencies and trustee agencies are involved (Pub. Res. Code §§ 21067, 21069, and 21070) • Accountable to the public and/or ratepayers • Acts as lead agency for CEQA compliance (it’s ultimately their CEQA document) • Public noticing, hearings/meetings, & process (CEQA is required in addition to compliance with other public noticing and transparency laws) • Weighs public policy considerations • Conscious of litigation risk Ultimate Goal: To provide a transparent, defensible, and publicly accountable process that takes public policy into account.
Consultant’s Role Prepares the CEQA document(s): • Technical experts • Although CEQA documents need not be prepared by technical experts, in practice most CEQA documents do require specialized expertise • Some technical studies supporting an EIR must be prepared by registered professionals (State CEQA Guidelines, § 15149) • Translators of technical information: CEQA documents to be written in “plain language” (State CEQA Guidelines, § 15140) • Shepherds of information • Assists with oral and written responses • CEQA documents must be reviewed by public agency and reflect the public agency’s independent judgment (Pub. Res. Code § 21082.1) Ultimate Goal: Full and objective analysis supported by facts.
Developer’s Role • Proposes a project for a specific use • Provides project design details: Lead agency is authorized to ask the applicant to supply the information it needs to determine significance of environmental impacts. (Pub. Res. Code § 21160) • Funds the CEQA process • Funds mitigation: Mitigation imposed must be feasible, have a nexus to a project’s impacts, and be proportional to that impact. (State CEQA Guidelines, § 15126.4 • Actively involved in defense of litigation: • Pub. Res. Code § 21167.6.5 requires that developers identified in an NOD/NOE be named in any litigation. • Pub. Res. Code § 21167.8 requires that all parties (including developer) meet and try to settle in good faith. In practice, it is often the developer who has to confirm if settlement terms can be implemented. Developer Priorities: Feasibility • Schedule • Cost • Financiability Ultimate Goal: To obtain project approval in a cost-effective and time-efficient manner.
Attorney’s Role Narrow focus: • Helps client confirm that noticing and substance are legally adequate • Can I defend every threshold in court? • Substantial evidence • Not just the evidence, but the explanation • Anticipate a potential challenger’s moves and arguments • Protecting the administrative record: CEQA typically does not involve discovery or witnesses. Evidence is the administrative record under Pub. Res. Code § 21167 • Does not make decisions, but advises client (either public agency or developer on options and defensibility of options) Ultimate Goal: To have a legally defensible CEQA record.
Teamwork • Public Agency and Consultant determine mitigation for loss of agriculture is required for a proposed solar project. Mitigation proposed is maintaining an onsite vegetable crop – which is not feasible for the solar project. Public Agency, Consultant, and Developer work together – before publishing the CEQA document - to identify another agricultural use that mitigates the agricultural impact, but doesn’t compromise the feasibility of the project: sheep! • Question for Audience: Do you have examples of situations where you have wrestled with “infeasible” mitigation? How did you resolve those issues?
Who really bears the risk? • Developer and lead agency have an honest disagreement over what is “enough” for purposes of CEQA analysis. Developer wishes to take the risk and proceed forward, but public agency wishes to take the time/money to revise document. Developer argues that they should be allowed to proceed because they are “taking the risk” in that it’s their project and they are indemnifying the public agency. Public agency views it differently. • Question for Audience: What risks are there in the face of CEQA litigation? Who bears each one?
Look before you leap • To save expense, Developer retained consultant and had them start writing up EIR before talking with attorney or public agency. Attorney then brought on board, and points out that project is statutorily exempt. Oops. • Question for Audience: How many of you regularly consult with legal counsel as part of your CEQA process? Does that help or hinder your processes (and be honest)?
Know and define your acronyms According to Dictionary.com, there are 142 known phrases for which “IA” is an acceptable abbreviation. • Consultant team develops schedule for completion of what they call the “IA” (Initial Assessment or Initial Study) for a transmission interconnect project. Developer agrees to schedule. Three months later, developer asks for the IS to take to a meeting with regulatory agency. Only then does consulting team learn that the Developer thought they were referring to the IA (Interconnection Agreement). • Question for Audience: How many of you deal with CEQA on a daily basis; monthly basis? Has the heavy use of acronyms ever caused your comments to be lost in translation?
Tips for Public Agencies • Ensure that you only have one point of contact with the consultant. • Take noticing time periods into account. • Be aware that applicants have carrying costs, which means that holding the schedule is important. • Be definitive about agency authority, but acknowledge expertise of consultants. • Be clear about expectations in methods, deliverables, and schedules. • Use caution when emailing even on private devices. • Proactively manage the record to ensure all evidence is available.
Tips for Consultants • Don’t ignore comments – ask and explain • Know that attorneys are dependent on you • Think about the substantial evidence standard • Assume the judge will see everything you put in a memo or in an email • Assume the judge will only see what you actually write down in plain language. • Be cognizant of how long review takes • Project approval is not the end
Tips for Developers • Discuss communication expectations and level of involvement with consultants early on. • Set a schedule baseline with public agencies during a (pre-) application meeting. • Be an active participant in the preparation and review of the CEQA document to ensure accuracy of Project details and feasibility of mitigation measures. • Emphasize feasibility in discussions with public agencies and consultants. • Don’t skimp on legal review! Build legal review time into your project schedule (consultants – help Developers plan for this!). • Remember the Public Records Act – your emails to public agencies can be made available to the public (and used against you in a lawsuit).
Tips for Attorneys • At the start, remind everyone of your role • Explain why you are asking • Keep your client’s priorities in mind • Encourage communication and candor, but remind the team of the difference between an oral discussion and a written communication
Open Mic • What recommendations did we miss? • Do you have examples of good / bad relationships? • Questions for how to handle a particular situation you’ve experienced?
