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Court Provides Guidance on Ministerial Permits Not Subject to CEQA

The California Environmental Quality Act (CEQA) does not apply to ministerial approvals; it only applies to discretionary approvals.  In Sierra Club v. County of Sonoma, 2017 WL 1422533, the Court of Appeal provided significant guidance to public agencies on how to determine if CEQA applies to projects approved under ordinances containing both ministerial and discretionary standards.  The Court held that a project approval was ministerial and not subject to CEQA where the discretionary elements of the ordinance did not apply to the specific project and the discretion does not confer the authority to mitigate environmental impacts in a meaningful way.

In Sierra Club v. County of Sonoma, environmental groups challenged the Sonoma County Agricultural Commissioner’s ministerial issuance of a vineyard development permit (Permit).  The environmental groups alleged that the Permit was subject to CEQA because the standards for Permit issuance conferred a significant amount of discretion to the Commissioner.  The Court of Appeal rejected their argument for two reasons.  First, the Court ruled that the relevant question was whether the regulations granted the agency discretion regarding this particular project, not whether the regulations generally granted discretion in the abstract.  Therefore, the Court refused to set aside the decision based on arguably discretionary standards that were not applicable to the project at issue.  Second, the Court rejected the argument that any discretionary standards applicable to the project must result in a determination that CEQA review is required.  The Court ruled that the appropriate issue was whether any discretionary standard gives the public agency the ability to meaningfully mitigate potential environmental impacts of the project.  Under this test, the Court ruled that the provision requiring a 50-foot setback from wetlands “unless a wetlands biologist recommends a different setback” did not confer discretion to the Commissioner.  The Court held that the ordinance was still ministerial because the Commissioner could only impose either the 50-foot setback as stated in the ordinance or the setback size recommended by the biologist.  The Commissioner’s approval imposed a smaller 35-foot setback based on a biologist’s recommendation.

The Court of Appeal’s decision provides substantial guidance to public agencies intending to establish or apply ministerial permitting schemes which will not require CEQA environmental review.  Regulations which establish clear standards that projects must meet to address environmental impacts will likely be found ministerial.  The determination of CEQA’s application to project approvals under regulations containing both ministerial and discretionary elements will be project-specific.  Discretionary permitting standards will only require CEQA review if the provisions provide the agency with significant discretion to shape the project in a way that meaningfully addresses environmental impacts.