You’ve come a long way, baby! This summer CEQA will turn 40. It was enacted by the Legislature and signed into law with very little fanfare on August 1970 by Governor Ronald Reagan. Throughout the remainder of this year, we will be blogging from time to time on the major milestones in the life of CEQA and maybe (sorry, CEQA) pointing out areas where she’s not aging well and could use some work. Stay tuned.
This blog is the first in our series on CEQA’s major milestones, and Friends of Mammoth marks a mammoth milestone for CEQA.
As first enacted, the scope of CEQA’s applicability was not well understood. In particular, CEQA did not initially define the term “project,” which is the governmental activity that triggers the statute. Many argued, and in fact most city and county governments assumed in the first two years after CEQA’s enactment, that the statute applies only to “projects” that are being undertaken by the government. Or to put it another way, most people did not interpret CEQA as to apply to purely private actions, even actions that might require a government permit or permission.
The Supreme Court disabused them of this notion in Friends of Mammoth v. Board of Supervisors of Mono County (1972) 8 Cal.3d 247. This case represents the “old west” of CEQA, and is the result of a “showdown” between the old Republican guard represented by Attorney General Evelle Younger and the new face of the Republican party as represented by Governor Ronald Reagan. Reagan’s Office of Planning and Research was proposing to adopt guidelines that would interpret CEQA to apply only to governmental projects, and Younger challenged those proposed guidelines, arguing that CEQA’s intent and broad policy mandated that it be applied all areas under significant governmental control, including private projects requiring government approval or support of some kind. Younger relied heavily on the lengthy policy statements in CEQA touting the importance of protecting the environment and evaluating environmental impacts of governmental action at all levels.
Younger then began looking around for the appropriate case to test his theories in the courts. The Board of Supervisors for Mono County presented just such a case when it approved a condominium project in the Mammoth Lakes area without considering the environmental impacts of the project. A local environmental organization—Friends of Mammoth—sued the County, arguing that the County should have complied with CEQA before approving the project. After having lost in the trial court, Friends of Mammoth took the unusual tack of seeking review directly in the Supreme Court. For reasons that appear to be lost in the mists of time, the Supreme Court accepted review, bypassing the Court of Appeal entirely. In the Supreme Court, counsel for Friends of Mammoth were joined by several friends of the court, including the Attorney General.
The parties each tried to convince the Supreme Court that their view of the act was supported by the legislative intent. The legislative history of CEQA is sparse, so the parties resorted to obtaining declarations from individual legislators. Not surprisingly, the Attorney General and the Board of Supervisors presented conflicting declarations from legislators regarding the intent of CEQA—one stating it clearly was intended to apply to private projects, the other stating it clearly was intended to apply only to government projects. In view of this conflict, the Court reiterated its general reticence to rely on statements of individual members of the legislature for expressions of intent of the entire legislative body. (Friends of Mammoth, at p. 258.) Instead, the Court looked for evidence of legislative intent in the broad policy language of the CEQA itself and well as to the regulations being promulgated for the National Environmental Policy Act, since that federal legislation served as the model for CEQA. In those documents, with their sweeping policy declarations about the importance of environmental protection, the Court found sufficient ground to conclude:
In resolving the conflict on intent, as we must, we conclude that the Legislature intended EQA to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. We also conclude that to achieve that maximum protection the Legislature necessarily intended to include within the operation of the act, private activities for which a government permit or other entitlement for use is necessary.
(Friends of Mammoth, at p. 259.) We query whether such a conclusion would have been reached just a few years later when the judicial vogue for the strict plain meaning rule came to the fore. But as the California Supreme Court later explained, what’s done is done: “[i]t is, of course, too late to argue for a grudging, miserly reading of CEQA.” (Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 274.)