CEQA provides a partial exemption from many of CEQA’s requirements for the regulatory programs of agencies whose activities include the protection of the environment. (Pub. Resources Code, § 21080.5; CEQA Guidelines, §§ 15250-15253.) Programs may be certified when they involve “essentially the same consideration of environmental issues as is provided by use of EIRs and negative declarations.” (CEQA Guidelines, § 15002(l); see also POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 709 (POET I).) Certified may rely on a substitute document in lieu of a negative declaration or EIR. (Pub. Resources Code, § 21080.5(a); CEQA Guidelines, § 15252.) This document serves as the functional equivalent of an analogous CEQA document, to “provide public and governmental decisionmakers with detailed information on the project’s likely effect on the environment, describe ways of minimizing any significant impacts, point out mitigation measures, and identify any alternatives that are less environmentally destructive.” (County of Santa Cruz v. State Bd. of Forestry (1998) 64 Cal.App.4th 826, 830 (County of Santa Cruz).)
Certification
“Certification of a program is effectively a determination that the agency’s regulatory program includes procedures for environmental review that are the functional equivalent of CEQA.” (John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77, 95 (John R. Lawson).) The primary requirement is that the regulatory program require the preparation of a written environmental analysis – a document that substitutes for an EIR or negative declaration – for the issuance of entitlements to third parties or adoption of standards or plans for the program itself. (Pub. Resources Code, § 21080.5(a); CEQA Guidelines, § 15250.) Section 21080.5(d) provides for a number of additional requirements that a program must meet to qualify for certification. Many of these requirements ensure the agency’s rules and regulations mirror particular requirements CEQA would otherwise impose on the agency’s decisionmaking. (See Pub. Resources Code, § 21080.5(d)(2)(A)-(F); see, e.g Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134 [agency regulation implementing section 21080.5, subdivision (d)(2)(A) tracks section 21002 requirement to mitigate significant impacts where feasible].)
Programs which meet the qualifications must be certified by the Secretary of the Resources Agency. (Pub. Resources Code, § 21080.5(e)(1).) All programs that have been certified under these provisions are listed in CEQA Guidelines section 15251.
Effect of Certification
“The practical effect of this exemption is that a state agency acting under a certified regulatory program need not comply with the requirements for preparing initial studies, negative declarations or EIR’s.” (POET I, supra, 218 Cal.App.4th at p. 710.) Specifically, certified programs are exempt from chapters 3 and 4 of CEQA, which deal in large part with the various requirements for an EIR, and section 21167, which sets forth CEQA’s statutes of limitations. (Pub. Resources Code, § 21080.5(c); Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230 (Sierra Club).) Certified regulatory programs may provide exemptions for categories of activities such that those activities are not required to prepare a substitute document or an EIR. (See Elk County Water Dist. v. Dep’t of Forestry & Fire Prot. (1997) 53 Cal.App.4th 1, 12; see also County of Santa Cruz, supra, 64 Cal.App.4th at pp. 840-841.)
“The agency’s actions, however, remain subject to other provisions of CEQA.” (POET I, supra, 218 Cal.App.4th at p. 710; see CEQA Guidelines, § 15250.) This includes both CEQA’s broad policy goals and its substantive standards. (POET I, supra, 218 Cal.App.4th at p. 714; see, e.g., Sierra Club, supra, 7 Cal.4th at pp. 1231, 1236 [Public Resources Code sections 21160, 21000, and 21002 apply to certified regulatory programs].) For instance, as CEQA mandates, a project cannot be approved by the agency, even under a certified regulatory program, before it has conducted the required environmental review. (POET I, supra, 218 Cal.App.4th at p. 717.) Further, the statute specifically requires that a project cannot be approved if feasible mitigation or alternatives would lessen a significant adverse effect. (Pub. Resources Code, § 21080.5(d)(2)(A); see also CEQA Guidelines, § 15252(a)(2).)
Additionally, agencies are cautioned to consider complying with CEQA’s procedural provisions that are not expressly exempted by section 21080.5 unless the certified regulatory program provides a directly applicable procedural requirement. For instance, in Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, the court explained that CEQA’s 30-day review period for a DEIR was not applicable because the Coastal Commissions’ certified regulatory program explicitly provided for a 7-day notice period. (Id. at. p. 934-939.) Since the program, including the notice provision, was certified in 1979, it could not be timely challenged. (Id. at p. 938) However, where the certified program does not include an approved procedure, courts have held the agency was required to comply with CEQA’s procedural requirements. (See, e.g., Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection (2006) 142 Cal.App.4th 656, 667-673 [section 21080.5 does not exempt compliance with CEQA’s recirculation provisions and Forest Practice Act provisions did not preclude compliance with CEQA’s notice and recirculation requirements]; Ultramar, Inc. v. South Coast Air Quality Management Dist. (1993) 17 Cal.App.4th 689, 698-700 [concluding Legislature intentionally excluded CEQA’s notice requirements from section 21080.5’s exemptions such that the agency was required to comply with section 21091].)
Litigation
The standards of review a court applies when reviewing an agency action taken under a certified regulatory program are the same as used in other CEQA contexts. (POET I, supra, 218 Cal.App.4th at p. 711.) Whether the agency has complied with the law is reviewed de novo. (John R. Lawson, supra, 20 Cal.App.5th at p. 96.) Factual findings in the functional equivalent of an EIR are reviewed under the substantial evidence standard of review. (Ibid.) However, the functional equivalent of a negative declaration is reviewed under the fair argument standard. (See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1423-1424.)
Statute of Limitations
Section 21167’s statutes of limitations are not applicable to a certified regulatory program. (Pub. Resources Code, § 21080.5(c).) A 30-day statute of limitations exists to challenge the certification of a program by the Secretary. (Pub. Resources Code, § 21080.5(h)(1).) There is also a 30-day statute of limitations to challenge a project approved under a certified regulatory program, measured from the time the applicable notice is filed. (Id., § 21080.5(g).) The distinct statute of limitations is necessary because the statutes of limitations in section 21167 are “geared to the machinery of the EIR process.” (Envtl. Prot. Info. Ctr. v. Johnson (1985) 170 Cal.App.3d 604, 618.)
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