GlobeSt.com: How will this decision help?

Casey: This decision shows folks that for a significant project, an MND can be sufficient. I hope that people see that an MND is a viable option, and I hope that people see that an MND can be properly defended in court, and can be used the way that the legislature intended for projects that do not have a significant environmental impact.

GlobeSt.com: What are the benefits of an MND?

Casey: One of the major benefits is that an MND does not need a big analysis of alternatives to the development project. In addition to analyzing what kind of mitigation measures you need, an EIR looks at alternatives, which often means looking at a smaller project. That kind of analysis, which can take time to prepare and can be controversial, is not required for an MND. So, it can be a time saver and it can reduce controversy about the project. That is why I think that this decision can show folks that you can win with an MND.

GlobeSt.com: When is it appropriate to use the longer EIR?

Casey: If your project, despite mitigation measures, still has a significant environmental impact, you cannot use an MND. If you have a project that fits in that category, you are stuck with doing an EIR and you don't even have a choice; however, if you can mitigate those impacts, then you do have an MND as an option.

GlobeSt.com: How much time does an MND save versus a full EIR?

Casey: It can save you around six months.

GlobeSt.com: Why is it significant that Judge Richard Fruin of the Los Angeles County Superior Court upheld the project?

Casey: CEQA requires major cities to designate judges in their county to handle all CEQA cases. It is one of the few areas of law where you have a specialty set of judges set aside, and Judge Fruin is one of them. So, he knows CEQA. Despite that low bar, and we had two rounds of hearings in front of him, he found that there is not enough evidence to show that this project would have a significant environmental impact. We had lots of mitigation measures, which is exactly how the process is suppose to work, and he upheld it. He is a CEQA judge that knows the statute and the differences in the thresholds, and he upheld the MND.

GlobeSt.com: If the development initiatives fail, will it ease the problem?

Casey: If both initiatives fail, particularly the March initiative, I am not sure how much wind it takes out of the sails of the anti-development community. It may cause them to be even more incensed and may cause them to resort even more to the court system, or it may cause them to say that they can't fight City Hall anymore. I'm not sure, but what I do know is that these groups are not focused on the issue of growth versus no growth. They are focused on their own self-interests that leads them to abuse the CEQA litigation process, and those folks aren't going to go away. The issue for developers of whether to use the MND versus the EIR and the risk and the benefits involved in that decision will still be there.

GlobeSt.com: Do you think this highlights the importance of hiring a qualified legal team?

Casey: Yes, and I would like to emphasize the word team, because there are a lot of folks that go into these development teams. You have CEQA consultants that prepare the documents, and a person that has been through the litigation process. The guys in the black robes look at things much differently than a City Councilman may. They are both equally important, but their views have to be equally taken into account. You have to know who your audience is down the road to decide the best path to take.

Alston & Bird

LOS ANGELES—Anti-development sentiment in Los Angeles is creating a backlog of CEQA environmental reviews in the planning department, according to Edward J. Casey, a partner at law firm Alston & Bird. CEQA has two options for environmental review: the full Environmental Impact Report and the shorter Mitigated Negative Declaration, which can be used for projects that will not produce significant environmental impacts. According to Casey, the MND report should be sufficient for many projects, but an increase in CEQA litigation from the anti-development community has driven developers to opt for the full and lengthier report to protect themselves against potential litigation, which is leading to the backlog of draft EIRs in the planning department. Casey, however, just won a case that may turn things around. Munyan, et al. v. City of Los Angeles, et al. defeated a challenge to the City of Los Angeles' approval of new film studio project in the Sun Valley area of Los Angeles, affirming that an MND was sufficient for the project. With implications for many other projects in Los Angeles County, the case illustrates that an MND can be sufficient and successfully defended in a legal challenge. To find out more about the differences between an MND and EIR, what is creating the backlog and why this is such an important case for developers, we sat down with Casey for an exclusive interview.

GlobeSt.com: What is creating the backlog of CEQA EIRs?

Casey: There are two trends that have been happening in this area for a while, and it has kind of crystalized in terms of what has been happening in the City of Los Angeles. First, when CEQA was enacted years ago, they realized that the process to get a full environmental impact report prepared and certified was a long process, so our legislature decided that projects that will not cause any significant impacts and particularly if they can be mitigated with various measures could use, what I call the short form of a CEQA review document, a mitigated negative declaration. The whole intent of the legislature was to shorten the environmental review and entitlement time.

The other trend is the abuse of the CEQA litigation process. CEQA has a very low bar for people who want to file lawsuits. Virtually any one can do it, and the unfortunate aspect of the statute is that if the plaintiff wins, they are eligible to have their attorney's fees paid by the defendant, which is typically the developer, but the converse is not true; if the developer wins, all they get is their project to go forward. No one is going to pay for their attorney's fees. So, we have this entire class of people now that are trying to use the CEQA process for purposes that have nothing to do with the initial goals of the CEQA process in terms of mitigating environmental impacts. Because of the two development voter initiatives in the City of Los Angeles, developers are rushing to get their projects in the pipeline, but they are cognizant of the people who are misusing the CEQA process, so instead of going with the MND process, even for projects that won't have significant environmental impacts, they are opting to go for the full blown EIR. Unfortunately some case law developed in this area years ago that makes it easier for a plaintiff to challenge an MND than an EIR. So, while projects should be going for the MND process, because of the abuse in litigation, people are opting instead to go with an EIR. In the City of Los Angeles, the planning department has almost 100 draft EIRs to look at, and that is causing a complete bottleneck.

GlobeSt.com: How will this decision help?

Casey: This decision shows folks that for a significant project, an MND can be sufficient. I hope that people see that an MND is a viable option, and I hope that people see that an MND can be properly defended in court, and can be used the way that the legislature intended for projects that do not have a significant environmental impact.

GlobeSt.com: What are the benefits of an MND?

Casey: One of the major benefits is that an MND does not need a big analysis of alternatives to the development project. In addition to analyzing what kind of mitigation measures you need, an EIR looks at alternatives, which often means looking at a smaller project. That kind of analysis, which can take time to prepare and can be controversial, is not required for an MND. So, it can be a time saver and it can reduce controversy about the project. That is why I think that this decision can show folks that you can win with an MND.

GlobeSt.com: When is it appropriate to use the longer EIR?

Casey: If your project, despite mitigation measures, still has a significant environmental impact, you cannot use an MND. If you have a project that fits in that category, you are stuck with doing an EIR and you don't even have a choice; however, if you can mitigate those impacts, then you do have an MND as an option.

GlobeSt.com: How much time does an MND save versus a full EIR?

Casey: It can save you around six months.

GlobeSt.com: Why is it significant that Judge Richard Fruin of the Los Angeles County Superior Court upheld the project?

Casey: CEQA requires major cities to designate judges in their county to handle all CEQA cases. It is one of the few areas of law where you have a specialty set of judges set aside, and Judge Fruin is one of them. So, he knows CEQA. Despite that low bar, and we had two rounds of hearings in front of him, he found that there is not enough evidence to show that this project would have a significant environmental impact. We had lots of mitigation measures, which is exactly how the process is suppose to work, and he upheld it. He is a CEQA judge that knows the statute and the differences in the thresholds, and he upheld the MND.

GlobeSt.com: If the development initiatives fail, will it ease the problem?

Casey: If both initiatives fail, particularly the March initiative, I am not sure how much wind it takes out of the sails of the anti-development community. It may cause them to be even more incensed and may cause them to resort even more to the court system, or it may cause them to say that they can't fight City Hall anymore. I'm not sure, but what I do know is that these groups are not focused on the issue of growth versus no growth. They are focused on their own self-interests that leads them to abuse the CEQA litigation process, and those folks aren't going to go away. The issue for developers of whether to use the MND versus the EIR and the risk and the benefits involved in that decision will still be there.

GlobeSt.com: Do you think this highlights the importance of hiring a qualified legal team?

Casey: Yes, and I would like to emphasize the word team, because there are a lot of folks that go into these development teams. You have CEQA consultants that prepare the documents, and a person that has been through the litigation process. The guys in the black robes look at things much differently than a City Councilman may. They are both equally important, but their views have to be equally taken into account. You have to know who your audience is down the road to decide the best path to take.