Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?

Environmental Law News, Vol. 14, No. 1, p. 18, 2005

7 Pages Posted: 12 Oct 2010  

Jessica Owley

University at Buffalo Law School

David C. Levy

Morrison and Foerster

Date Written: June 1, 2005

Abstract

Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects.

This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.

There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.

Keywords: CEQA, mitigation, preservation, conservation easements, agricultural easements

JEL Classification: K11, K32

Suggested Citation

Owley, Jessica and Levy, David C., Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh? (June 1, 2005). Environmental Law News, Vol. 14, No. 1, p. 18, 2005 . Available at SSRN: https://ssrn.com/abstract=1674058

Jessica Owley (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-8182 (Phone)
716-645-2064 (Fax)

David C. Levy

Morrison and Foerster

San Fransisco, CA
United States

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