|A Primer on How to Make Effective Comments
on an EIR
September 22, 2009
Recent feedback on the proposed Point Molate project concerns me that otherwise well meaning people may not understand how to use EIR comments effectively.
Typically, the EIR process is separate from other actions by the Design Review Board, the Planning Commission or the City Council that actually approve, deny or impose conditions on projects.
The most important thing to understand is that the EIR process is governed by the California Environmental Quality Act (CEQA), which specifies in great detail the steps that must be taken and the contents of the Environmental Impact Report (EIR). This process is not the time or place to simply support or oppose a project, although it may feel good to so.
Once an EIR is completed for the first time, it is called a Draft EIR (DEIR), and it is officially made public for a defined time period for public review.
The lead agency (the agency which had the EIR prepared and may eventually certify it) is then required to provide responses to these comments and incorporate the responses and the comments into the Final EIR (FEIR). Providing effective comments is, therefore, one of the most important ways that the public has to effect change in a proposed project.
The Final EIR becomes an information source for the public body to draw from in a subsequent discretionary decision, which may include approval or denial of a project or approval with conditions.
Substantive EIR Comments
To start, comments that simply reflect an opinion about the project will not be addressed. For example, a comment that states, “I don’t like the project,” or “ I oppose a casino” typically result simply in a response of “Comment Noted.”
Serious comments sometimes lead to changes in the EIR and in the project. Therefore, comments should be accompanied by factual support. The comments should be written in a manner that requires the lead agency to respond.
To have a significant impact on the EIR process, comments must point out errors, inconsistencies, omissions of data or analyses, conclusions not based on evidence, or failures to provide discussion required by CEQA.
The agency needs to respond to respond adequately to such substantive comments prior to certification of the final EIR. Failure to do so would provide the basis for a legal challenge to a certified (approved) EIR, and if the court agreed with the challenge, the EIR would be found invalid. This is what happened on the Chevron Energy and Hydrogen Renewal project. The Court did not reject the project; it rejected an EIR that it considered incomplete.
The EIR describes the environmental impacts of the proposed project and those of a number of alternative plans. The alternative plans considered are intended to cover the full range of feasible alternatives.
The potentially feasible alternatives must be discussed in "meaningful detail," and provide sufficient "information to the public to enable it to understand, evaluate, and respond" to the agency's conclusions. The discussion should "contain facts and analysis, not just the agency's bare conclusions or opinions."
When the proposed plan (the preferred alternative) has significant environmental impacts, the EIR must propose mitigations that would eliminate, minimize or repair the greater environmental impact of the preferred alternative.
In instances where mitigations are not feasible or the agency does not wish to adopt a feasible alternative that would avoid them, the EIR must describe the unavoidable environmental impacts and, in instances where it chose to accept them, the reasons why it made this choice.
CEQA Compels Description Not Choice
CEQA does not compel the agency to adopt the most environmentally desirable alternative, but only to describe feasible alternatives in meaningful detail and to adopt mitigation measures or to justify their non-adoption.
• Be specific: the more specific your comments are, the more they will require the lead agency to consider and respond to them. Don’t say: “this project will increase traffic” if you can say “this project will increase traffic at the corner of 5th and Elm in the vicinity of an elementary school which already has traffic problems. The EIR should analyze the project’s impact on traffic circulation and safety, especially regarding school children near this site.”
• Supply some evidence, if you can, even if it simply personal experience or observations: It is better to say, “I often view the project site when traveling on Harbor Boulevard and consider the site visually prominent in the community” than to say “I’m concerned about visual impacts of this project.”
• Look for inconsistencies in the document. If they use one set of numbers for traffic counts in the traffic section and another in the noise section, the two sections must be made consistent.
• Look for errors in logic. If a proposed mitigation measure isn’t funded, doesn’t have an identified site, or for some other reason looks like a fig leaf rather than a serious effort to address a problem, say so.
• Look for stale data and point it out.
Where to Direct Comments
Typically, the EIR will tell where to direct comments. Comments must be in writing and may be submitted by mail, fax or email. In the case of point Molate, comments should be directed to:
Velasco, Senior Planner