CEQA applies broadly to activities that are proposed to be (1) either undertaken, supported, or approved by the public agency, (2) that may cause either a direct physical change or a reasonably foreseeable indirect physical change in the environment, and (3) that are discretionary. (Pub. Resources Code, §§ 21065, 21080(a); see also CEQA Guidelines, § 15060(c).) If an agency determines that an activity lies outside this scope, then it may proceed “without further regard to CEQA.” (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185-1186 (UMMP).) “Whether an activity is regulated by CEQA is a question of law that may be decided on undisputed facts,” and therefore is reviewed de novo. (Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907 (Sky Ranch).)
Agency involvement
Public Agencies
In order for CEQA to apply, the activity in question must involve a “public agency.” (Pub. Resources Code, § 21065(a)-(c).) This includes any state agency, board, commission, county, city, regional agency, public district, redevelopment agency, or other political subdivision. (Id., § 21063.) However, the Governor is not a public agency. (Picayune Rancheria of Chukchansi Indians v. Brown (2014) 229 Cal.App.4th 1416, 1430 (Picayune Rancheria).) Nor does CEQA apply to the actions of state courts, the state legislature, or the federal government. (CEQA Guidelines, §§ 15378(b)(1), 15379.) Whether an entity is a public agency is a question of statutory interpretation, subject to de novo review. (See Picayune Rancheria, supra, 229 Cal.App.4th at p. 1422.)
Types of activities to which CEQA applies
CEQA applies where a public agency either undertakes or supports the activity, or has authorization power over the activity, such as where a discretionary permit is required. (Pub. Resources Code, § 21065(a)-(c); see also Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 262.)
Activities undertaken by agencies that are normally subject to CEQA include a wide range of actions, including construction and related activities as well as legislative enactments, such as the amendment of zoning ordinances or general plans. (CEQA Guidelines, § 15378(a)(1).) Actions by a public agency approving leases, permits, licenses, or other entitlements or constituting support for an activity, including awarding grants, subsidies, loans, or other financial assistance, are also normally subject to CEQA. (Id., § 15378(a)(2)-(3).) The Guidelines also state that CEQA does not apply to a number of specified activities, including legislative proposals and ongoing administrative and maintenance activities (e.g., purchasing supplies). (Id., § 15378(b).)
Agency inaction is not subject to CEQA, at least where no legal duty to act exists. (Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation (2019) 39 Cal.App.5th 1044, 1051-1054 [ongoing failure to maintain or make repairs to a historic hotel was not a project under CEQA].) Likewise, an agency’s disapproval of a proposed project is not itself a project. (Pub. Resources Code, § 21080(a), (b)(5); Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 848; see, e.g., Sky Ranch Pilots, supra, 47 Cal.4th at pp. 907-909 [agency denial of a use permit needed for continued operation of a privately owned airport was not a project].) However, the closure of public facilities by an agency may be a project, as this can represent activity undertaken by the agency. (Sky Ranch Pilots, supra, 47 Cal.4th at p. 908; Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 639; see also San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1379.)
Activities that may cause a physical change in the environment
CEQA only applies to activities that “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065; see also CEQA Guidelines, § 15378(a).) “Environment” means the physical conditions which exist within the area which will be affected by a proposed project and includes both natural and man-made conditions. (Pub. Resources Code, § 21060.5; CEQA Guidelines, § 15360.) “‘Environment’ is a very broad concept encompassing both tangible and intangible factors. But the intangible has CEQA consequence only if there is a nexus to a physically perceivable reality.” (Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392, 403; see also id. at pp. 404-406 [interior renovations of a historic house not perceptible to the public had no potential for physical impacts].) In contrast to the impacts of a project on the environment, the impacts of the environment on a project, or its users or residents, are generally outside the scope of CEQA, except insofar as the proposal might exacerbate existing environmental hazards. (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 386-393; East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 295-297.)
Public Resources Code section 21080(a) lists examples of discretionary projects, such as the amendment of zoning ordinances and the issuance of conditional use permits. However, the Supreme Court has held that the provision does not dictate that these activities are CEQA projects as a matter of law because CEQA requires consideration of an activity’s potential to cause an environmental change. (UMMP, supra, 7 Cal.5th at pp. 1190-1194.) Nonetheless, whether an activity may cause a physical change in the environment, “is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381 (Muzzy Ranch) [airport land use compatibility plan freezing certain residential densities was a CEQA project in light of potential for displaced development].) While the analysis considers the “substance of a proposed activity,” it does not consider “the activity’s actual impact in the specific circumstances presented,” or “the specific type of governmental action required.” (UMMP, supra, 7 Cal.5th at p. 1198.) That is, “the analysis is restricted to the effects that the activity is capable of causing, rather than those it actually will cause if implemented.” (Ibid.)
Based on this reasoning, activities with only indirect impacts nonetheless constitute a CEQA project if the action is found to be an “essential step” or “causal link” in a chain leading to environmental change. (UMMP, supra, 7 Cal.5th at pp. 1199-1201 [ordinance permitting some medical marijuana dispensaries could foreseeably result in physical changes, including new retail construction]; Muzzy Ranch, supra, 41 Cal.4th at pp. 381-385; Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 793, 797-798 [approval of secession from school district was a project due to likelihood of impacts from construction of a new school and changed traffic patterns, despite there being no specific construction plans]; see also Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 472-474 [approval of a financing district for the construction of schools was not a project, as it was not essential to any subsequent construction of schools].) However, even when it is reasonably foreseeable that an activity may cause some physical changes, an action may not constitute a CEQA project if the nature of those changes is so speculative that environmental review would be premature. (See, e.g., Friends of the Sierra Railroad v. Tuolumne Park & Recreation Dist. (2007) 147 Cal.App.4th 643, 656-659 [agency sale of land to party with no development proposal was not a project, as meaningful CEQA review of subsequent physical changes was not yet possible].)
Agency Discretion
Only discretionary activities, and not ministerial activities, are subject to CEQA. (Pub. Resources Code, § 21080(a), (b)(1); Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 488 (Protect Our Water).) While technically a threshold legal question distinct from whether the project is exempt (see Pub. Resources Code, § 21080(a)), this line is commonly blurred due to the additional inclusion of an exemption for ministerial projects. (Id., § 21080(b)(1); see UMMP, supra, 7 Cal.5th at pp. 1186, 1187 [referring variously to the ministerial exemption and to the principle that CEQA only applies to discretionary projects]; Protect Our Water, supra, Cal.5th at p. 489 [referring to “ministerial projects”].)
Where an agency may exercise subjective judgment or deliberation when considering whether to approve a project, it is discretionary. (Protecting Our Water, supra, 10 Cal.5th at p. 489; CEQA Guidelines, § 15357.) If the agency merely determines whether fixed standards are satisfied, exercising little to no personal judgment as to the wisdom or manner of carrying out the project, then the approval is ministerial. (Protecting Our Water, supra, 10 Cal.5th at p. 489; CEQA Guidelines, § 15369.) CEQA does not apply to ministerial projects because no matter what environmental review might reveal about the environmental consequences of proceeding, the agency would lack the power to stop, modify, or mitigate the damage in any way. (Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 20.) As such, in order to trigger CEQA compliance, the agency’s discretion must provide it with the ability and authority to mitigate the environmental damage to some degree. (Id. at pp. 22-23; see, e.g., Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 308 [an agency’s ability to impose delays on a project does not render it discretionary].) An approval that contains elements of both ministerial and discretionary actions is deemed to be discretionary (CEQA Guidelines, § 15268(d); Protecting Our Water, supra, 10 Cal.5th at p. 497) – so long as “the discretionary component of the project gives the agency the authority to mitigate environmental impacts.” (McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 94 [discretionary design review did not grant the City authority to address the project’s environmental effects].)
Even when standards for permit approval are established, if the standards also allow the agency to make individualized judgments as to whether the standard is sufficient for a particular project, then its approval is discretionary. (Protecting Our Water, supra, 10 Cal.5th at p. 496-497 [well permits could not categorically be determined to be ministerial as the relevant regulation conferred discretion to relax or heighten the stated standards].) Similarly, even where the agency has no discretion to refuse to undertake the project it may still be discretionary insofar as the agency has discretion in how the project is undertaken. (Citizens for Non-Toxic Pest Control v. Dep’t of Food & Agric. (1986) 187 Cal.App.3d 1575, 1582-1583 [statutorily mandated project to control and eradicate the apple maggot fruit fly was a project under CEQA because the agency had discretion in how to accomplish this goal].)
The CEQA Guidelines encourage, but do not require agencies to identify or itemize those types of actions requiring their approval which are deemed ministerial. (CEQA Guidelines, § 15268(c).) An agency’s categorical determination that a particular type of activity is ministerial is a question of law, reviewed de novo. (Protecting Our Water, supra, 10 Cal.5th at p. 499.) However, its factual determination that a particular activity is ministerial is typically subject to the more deferential substantial evidence review. (See ibid.)
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