By Andrew Sandahl
Abstract
The California Environmental Quality Act (“CEQA”) is as contentious as it is consequential. Standing as California’s most prominent and influential environmental law, CEQA is responsible for producing far more environmental review reports proportionally than its national predecessor, the National Environmental Policy Act (“NEPA”). CEQA’s controversial reputation for generating paperwork stems in major part from its seemingly ambiguous statutory language and inherently precautionary approach to environmental protection. The fair argument standard, which dictates when an Environmental Impact Report (“EIR”) is required, exemplifies both ambiguity and precaution, making it a prime subject for exploring the deeper values operating within CEQA. Although sometimes criticized for setting a generally low threshold for EIR production, the fair argument standard is moderated by two seemingly substantive terms—substantial evidence and significance determinations. This Article examines how these two terms have been interpreted, through regulatory language and case law, to ultimately reinforce CEQA’s precautionary nature through various underlying values (i.e., constitutive and contextual values). By illuminating the underlying values shaping the fair argument standard, this Article provides a framework for refining CEQA policy discussions, reconciling conflicting perspectives, and reducing the attitude polarization that CEQA often engenders. Upon considering these values, regulatory agencies and courts seeking to decrease CEQA litigation and improve policy clarity may find the fair argument standard a productive focal point for reform. At a minimum, acknowledging the value-laden nature of CEQA’s fair argument standard has the potential to foster more constructive discussions—encouraging thoughtful consideration of how, through redefining terms such as substantial and significant, CEQA has tilted the regulatory scale once more towards precautionary environmental protection.