The California State University Board of Trustees (CSU) understandably takes the position that in this era of tightening budgets, its funds should only be used for education related improvements. When it comes to compliance with the California Environmental Quality Act (CEQA), CSU agrees that like every other private developer, it has a duty to mitigate for significant impacts from its development projects. But it adds a wrinkle. CSU argues that they can only commit to mitigation if the California legislature grants separate mitigation funding.

In essence, CSU’s position suggests that project mitigation is not actually calculated in their project costs or planning and is in fact, a separate issue. Such a separate issue that if the legislature denies mitigation funding, that decision has no impact on CSU’s ability to move forward on their project. Perhaps it isn’t surprising that an academic institution would raise a fairly academic reading of CEQA. Beyond the ivory tower, however, this proposed interpretation gets a failing grade.

CSU’s position is now before the California Supreme Court in City of San Diego v. Board of Trustees of the California State University.

The Court lists the issue as:

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?”

In another case, CSU made a series of related arguments before the California Supreme Court in City of Marina et al. v. Board of Trustees of the University of California as to why it could not fund the mitigation for its Monterey Bay campus project. There, CSU prepared an EIR for its Monterey Bay campus and identified off-campus impacts to traffic, sewage, fire safety and water. CSU identified feasible mitigation measures, but asserted that it could not use its funds for off-campus mitigation measures. The Court disagreed saying that CSU must mitigate for impacts not just on its campus, but upon the environment and paying fair-share amounts for mitigation is appropriate. In this latest challenge, CSU argues that its funds are not for mitigation purposes and that their requirement under CEQA is actually to request mitigation funds.

Section 21001.1 of the Public Resources Code makes it clear that public agency projects are not exempt from CEQA and are to be carried out “…to the same level of review and consideration…as that of private projects.” The cost of a project includes the mitigation for significant impacts and projects need to be planned accordingly. A project applicant has many options when considering mitigation measures, but one not available to the private sector (or to the public sector as the Court may soon confirm) is to simply make a request to the legislature for separate mitigation funds and, once denied, make a finding of infeasibility.

For years, private developers and government agencies have calculated mitigation into project costs for purposes of CEQA findings. The analysis and implementation of mitigation measures ends up benefitting the project and the environment. CSU should recognize that just like computers and white boards are part of the cost of education, mitigation is properly a cost of development. CSU is hoping to receive an “A” for their bold interpretation of CEQA. However, I expect the California Supreme Court will, with much red ink, send CSU back their argument for a second draft that complies with CEQA.