How to know if you need a Mitigated Negative Declaration or an Environmental Impact Report under the California Environmental Quality Act.

The California Environmental Quality Act (CEQA) was enacted to provide decision-makers and the public full disclosure into the environmental impact of a project during the planning process. The Lead Agency under the CEQA is designed to provide alternatives and mitigating procedures that can prevent harmful environmental impacts.

The process laid out in the CEQA will determine if you will need a Negative Declaration (ND), Mitigated Negative Declaration (MND), or an Environmental Impact Report (EIR). The Lead Agency will conduct an initial study that will help them determine whether there will be a significant environmental impact. Depending on what the initial study reveals, it will determine whether you need an ND, MND, or an EIR. 

If the initial study reveals that there will be no significant environmental impact from the project, the Lead Agency can require an ND, or possibly, the lead agency could determine that the project could be processed with a Categorical Exemption. An MND is issued when the initial study shows that any potential significant environmental impact may be reduced or eliminated to avoid a significant environmental impact. Any changes or mitigation measures must be agreed upon by the project proponent and the Lead Agency prior to public review of the MND. 

If however, the initial study shows that adverse impacts cannot be reduced to less than significant then an EIR will be required. The EIR will be available for the public, so that decision-makers will be aware of the potential impact the project will have on the environment. After the EIR has been subject to public review, you may receive a final EIR and project approval. The Lead Agency will prepare a statement of overriding considerations, which states the reasons for the project’s approval even though there will be significant and unavoidable environmental impacts. 

If you run into legal problems after your project is complete the court will treat your project differently depending on whether the lead agency prepared an ND, MND, or EIR. If you had an ND or MND prepared then the court will review your case under the “fair argument standard.” (shown in Court Applies “Fair Argument” Review to Agency Decision on Necessity of Supplemental EIR for Project First Studied in Negative Declaration – Meyers | Nave). Under this standard the court will determine whether substantial evidence in the record supports a potential that there might be a significant environmental impact that was not previously considered in the initial study. 

If however, your project received an EIR, the court can uphold the Lead Agency’s decision if it is supported by any substantial evidence. (shown in Court Applies “Fair Argument” Review to Agency Decision on Necessity of Supplemental EIR for Project First Studied in Negative Declaration – Meyers | Nave). Under the “substantial evidence” standard the court will uphold the Lead Agency’s decision even if there is some contrary evidence in the record.