January 28 2012

Being an Effective Voice for the Environment

by Angela Howe

On January 26, 2012, the Environmental Law Section of the State Bar of California presented a public workshop entitled “Your Voice: The Public’s Role in Environmental Decision-Making.”  Experts at the workshop spoke on the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act ("NEPA"), the Clean Air Act (“CAA”), and the Brown Act, amongst other important environmental laws.  

The Environmental Law Section Chair, Antonette Cordero, explained that CEQA is more encompassing than its federal companion NEPA due to its requirement that feasible alternatives must be adopted if there is a showing of significant unmitigated environmental impact for a project.  CEQA is also designed to enhance public participation. You will normally have 30 days to review a project's environmental report under CEQA and 45 days if it is a regional project.  For success in battling an environmentally destructive project under CEQA, you must submit evidence to support your comments.  No evidence will be accepted after the comment period closes.  Evidence can include, for example, facts and fact-related reasonable assumptions, expert opinion, relevant personal observation, and comments from other agencies. 

Also, there are common flaws that can be found in CEQA documents, including the, often intentional, listing of a project description with very narrow terms so that it excludes all other feasible alternatives.  There may also be an inflated baseline for mitigation plans, which can render mitigation meaningless.  A common criticism of CEQA environmental documents is that there is bogus mitigation offered, such that it is not real or enforceable.  Additionally, a very effective way to attack a CEQA environmental document is to show that there are other sound, realistic alternatives to the proffered project that the lead agency has not studied.

David Pettit from the Natural Resources Defense Council gave a quick overview of the Brown Act, the California law that outlines meeting requirements for local and regional public agencies. There are many important aspects of this procedural law, including the requirement that agencies (including city councils) make their meeting agendas public no less than 72 hours in advance of the meeting.  Additionally, decision-makers cannot add agenda items on an impromptu basis at the meetings themselves.  They must address only on items that are agendized.  If there is a decision that will be made at the meeting, then the public must be afforded an opportunity to comment on it.  It is also illegal for decision-makers to have agreed in advance on a certain outcome or resolve relating to an agendized item.  They must give public comment full and fair consideration before a decision is made.  Finally, public meetings in California must include a “public forum” agenda item that allows for the public to comment on non-agendized items that may be within the agency’s purview.  The public forum period usually occurs at the beginning and/or end of the public meeting.

The workshop also touched on how to use activism in legal campaigns.  Surfrider Foundation members and activists who would like to become more involved with litigation and administrative appeals should look to become cultivated as core volunteers and educate themselves fully on the issue.  Core volunteers can be used as "Declarants" in litigation cases, who are able to submit their official statements to the court and sometimes testify at hearing.  There are other discrete action items for how to engage community members and bring them further into a legal campaign.  There is also a need to generate media surrounding a legal issue or campaign.  Surfrider members can engage in press conferences, public rallies, invites press to public informational forums and the like.

Overarching themes for success in legal campaigns that were discussed at the workshop include:
o Show Passion - whether it is speaking to the City Council during public forum or to your neighbor informing them on an issue, tell them why it means so much to you
o Give the Details – be sure to get the information in the record during public comment period and support the evidence with fact whenever possible
o Be organized in your opposition - identify core volunteers and assign roles within a campaign plan
o Never relent.

To learn more about environmental advocacy in legal campaigns, check out Chapter 2 of the Surfrider Foundation Legal Handbook.