Environmental Review

Under the proposed lease, Chuka Foods would procure and deliver to SCE evidence of compliance with all applicable codes, ordinances, regulations, and requirements for permits and approvals from the various governmental agencies having jurisdiction.

Under the California Environmental Quality Act (Public Resources Code §21000,et seq., hereinafter "CEQA"), the Commission is obligated to consider the environmental consequences of a project that is subject to the Commission's discretionary approval. (Public Resources Code §21080). In the Proposed Decision, the assigned administrative law judge (ALJ) concludes that, since development of the property by Chuka Foods is subject to all applicable laws and the receipt of approvals from the City of Ontario, the Commission may defer to the City of Ontario to conduct any necessary environmental review and to impose any needed mitigation. On that basis, the ALJ concludes that the Commission can issue its discretionary approval without the benefit of environmental review, merely insisting that the project proponent comply with any mitigation subsequently imposed by the local permitting agency.

The ALJ is correct in observing that the Commission has followed this approach in various past decisions. However, this approach is incorrect under applicable law.

CEQA applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to "inform governmental decision-makers and the public about the potential, significant environmental effects of proposed activities." (Title 14 California Code of Regulations, hereinafter "CEQA Guidelines", §15002.) Each public agency is responsible for complying with CEQA. A public agency must meet its own responsibilities under CEQA and cannot not rely on comments from other public agencies or private citizens as a substitute for work CEQA requires the Lead Agency to accomplish. (CEQA Guidelines §15020)

Where a project is to be approved by more than one public agency, one agency must be responsible for preparing an Environmental Impact Report (EIR) or Negative Declaration for the project. This agency is called the Lead Agency. (CEQA Guidelines §15050) Any other public agency which has responsibility for approving the project is a "Responsible Agency" (Public Resources Code §21069). The decision-making body of each Responsible Agency must consider the Lead Agency's EIR or Negative Declaration prior to acting upon or approving the project. Each Responsible Agency must certify that its decision-making body reviewed and considered the information contained in the EIR or Negative Declaration on the project. (CEQA Guidelines §15050).

Because the proposed project is subject to CEQA and the Commission must issue a discretionary decision without which the project cannot proceed, this Commission must act as either a Lead or Responsible Agency under CEQA. If the project is to be carried out by a private person or entity, the Lead Agency is the public agency with the greatest responsibility for supervising or approving the project as a whole. (CEQA Guidelines §15051 (b)). In the current situation, the Commission's discretionary role is very limited: to approve SCE's request for authority to enter into a lease. It is the City of Ontario, as the agency which must approve and supervise the regional shopping center that will use the land subject to the lease, that has the duties of Lead Agency. Thus the Commission is a Responsible Agency for the purposes of this project.³

A Responsible Agency complies with CEQA by considering the EIR or Negative Declaration prepared by the Lead Agency and by reaching its own conclusions on whether and how to approve the project involved. (CEQA Guidelines §15096(a)). The Responsible Agency must be available to consult with the Lead Agency upon request, and should review and comment on draft EIRs and Negative Declarations for projects which the Responsible Agency would later be asked to approve. These comments must be limited to those project activities which are within the agency's area of expertise or which are required to be carried out or approved by the agency or which will be subject to the exercise of powers by the agency. (CEQA Guidelines §15096(d)). In the case of a lease request such as this, the Commission's responsibility to comment on a draft document would be extremely limited.

Prior to reaching a decision on the project, the Responsible Agency must consider the environmental effects of the project as shown in the EIR or Negative Declaration. (CEQA Guidelines §15096(f)). ⁴ The Responsible Agency must state that it considered the EIR or Negative Declaration as prepared by a Lead Agency. The Responsible Agency must make findings required for each significant effect of the project. (CEQA Guidelines §15096(h)). The Responsible Agency must file a Notice of Determination in the same manner as a Lead Agency, except that the Responsible Agency does not need to state that the EIR or Negative Declaration complies with CEQA. (CEQA Guidelines §15096(i)).

The Commission can do none of these things, in the current circumstances, because it faces an application devoid of environmental documentation and is asked to issue discretionary approval without knowledge of whether the City of Ontario or any other agency has fulfilled its Lead Agency responsibilities subject to CEQA. Thus, we must reject the current application and advise SCE to first pursue its needed authority from the local Lead Agency.

³ In most circumstances, the determination by the Lead Agency of whether to prepare an EIR or a Negative Declaration is final and conclusive for all persons, including Responsible Agencies.