A Sacramento County Superior Court judge has overturned eight amendments that the Wilson administration made to the Guidelines for implementing the California Environmental Quality Act. And although Judge Ronald Robie had not issued a final judgment as of late May, sources said his decision was unlikely to be appealed. Robie essentially gutted a new portion of the Guidelines that address cumulative impacts, finding that the changes were contrary to the statute (Public Resources Code § 21000 et seq.). Robie also threw out a Guideline dealing with local environmental standards, and a Guideline that excluded at least some government reorganizations and administrative activities from CEQA review. The decision on the Guidelines (14 Cal. Code Reg. 150000 et seq.) drew a mixture of responses. Environmental groups that filed the lawsuit praised it. The California Building Industry Association, which intervened to defend the Guidelines, decried the ruling. Both the CBIA and the state, which did not defend five of the overturned Guidelines, appeared to have little interest in pressing the case further. Some practitioners said the decision would result in more reliance on "substantial evidence in the record," and, thus, longer environmental impact reports. Everyone involved seemed to agree that the 12 Guidelines that environmentalists challenged were the most important changes adopted during the 1998 update. "These were the big ticket items, and these were the ones that seemed illegal," said Richard Drury, attorney for the lead plaintiff, Communities for a Better Environment. "These were adopted at the end of the Wilson Administration, and our feeling was that they did not reflect the requirements of the statute," added Ellison Folk, an attorney with Shute, Mihaly and Weinberger who represented the Environmental Protection Information Center (EPIC), and Desert Citizens Against Pollution in the lawsuit. But Maureen Gorsen — lead author of the revised Guidelines for the Resources Agency and now an attorney with Weston, Benshoof, Rochefort, Rubalcava & MacCuish, which represented the CBIA — said the decision only makes CEQA compliance more difficult for lead agencies. "I think all the rules that were struck put an outline on open-ended impact requirements," Gorsen said. Consultants and local government officials had settled on standard practices to satisfy CEQA "and all the Guidelines really did was put in the rules what was standard practice," she said. "There was no groundbreaking change in the Guidelines." But Folk contended that there were major changes, and she pointed to Guideline 15064(h), which allowed a lead agency to determine that a project's impacts were insignificant if the project complied with local thresholds of significance. Folk argued – and Robie agreed – that the rule conflicted with the "fair argument" standard, under which an environmental impact report is required if someone makes a fair argument that a project may affect the environment. "It really shifted the presumption away from environmental review, which the courts have repeatedly upheld," Folk said of the Guideline. Robie struck down rules addressing what projects must be considered in a cumulative impacts analysis (Guidelines 15130(b)(1)(B)(2). Under the amended rules, projects to consider were limited to previously approved projects that had not been built, projects for which applications had been filed, projects in an adopted plan of some sort, and public projects for which money was budgeted. Robie focused on the word "or" between the types of projects, which he said limited study to only one of the four project types. Gorsen said the intent was to include all four project types in cumulative impacts analyses. Robie also rejected three rules addressing "de minimus" findings for cumulative impacts (Guidelines 15130(a)(4), 15064(i)(4) and 15152(f)(2). And he tossed out a rule that allowed a lead agency to find a project's cumulative impact was insignificant if the project complied with an adopted plan that provided mitigation for the impact (Guideline 15064(i)(3). A rule that limited the definition of a project (Guideline 15378(b)(5)) also was tossed out. The Guideline said that purely "political" activities, such as governmental reorganizations and administrative activities that would not result in physical changes, were exempt from review. Gorsen said the rule was aimed at actions such as the redrawing of school attendance boundaries. But Robie indicated the new Guideline went beyond existing court precedent. Folk said the rule was too broad. The question under CEQA, she said, is whether an activity will lead to a reasonably foreseeable change in the environment. The simple practice of drawing lines on a map is part of a chain of decisions that can lead to changes in the physical environment, she said. Robie upheld four revised rules. Guideline 15064.7 encourages agencies to develop thresholds of significance. Guideline 15041(a) says that mitigation measures must be connected to the project and be "roughly proportional" to the project's impacts – standards encompassed by the U.S. Supreme Court's Nollan and Dolan decisions. Guideline 15330 exempts certain environmental cleanups costing less than $1 million. Guideline 15332 exempts urban infill projects of less than 5 acres, provided that the project will not result in significant traffic, noise, air quality or water quality impacts, and will have adequate public services and utilities. Drury said he was surprised Robie upheld the infill exemption, which appeared to conflict with the judge's conclusions regarding cumulative impacts. Drury said that if the other side appeals the decision, he would cross-appeal the infill exemption ruling. The case appears to be the first ever facial challenge of the CEQA Guidelines since they were first introduced about 20 years ago, said Marian Moe, a deputy attorney general who represented the Resources Agency. The typical lawsuit concerns how the Guidelines are applied to a particular project, she said. The Resources Agency is expected to release a new round of Guideline revisions this summer. The Case: Communities for a Better Environment v. California Resources Agency, Sacramento County Superior Court, Case No. 00-CS00300. The Lawyers: For CBE: Richard Drury, (510) 302-0430. For the Resources Agency: Marian Moe, deputy attorney general, (916) 322-5460. For the California Building Industry Association, John A. Henning, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 623-2322.