September 30, 1990 - From the September, 1990 issue

La Vina Ruling Neglects Realities of EIR Process

La Vina decision by Judge Zebrowski has added a new layer of uncertainty to the EIR process. Clare Bronowski adds her opinion on the issue. Bronowski, a land-use attorney with the law firm of Christensen, White, Miller, Fink and Jacobs, defends the current state of the EIR preparation of local agency with the developer. 

The criticism leveled by project opponents and by Judge Zebrowski of the current system of EIR preparation does not take into account the level of review to which these documents are subjected by the public agency’s staff.

The Planning Department’s staff report on the City’s EIR preparation recommendation reports that as of March, 1990 there was a backlog in the Planning Department’s EIR section of 94 draft EIRs.

Public agencies do more than “rubber stamp” draft EIR’s

Such a backlog indicates the lengthy review and editing process that these draft EIR’s undergo once accepted by the City staff. A 94-case backlog does not indicate that EIR’s prepared by developer’s consultants are “rubber stamped” by the City and delivered to the public hot off the developer’s own presses.

If an EIR is challenged and invalidated by the courts, the judgment is against the public agency who was responsible for the preparation of the document; however, it is the developer who will suffer the delay caused by the inadequacy of the EIR.

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A “Chinese Wall” Between Consultant and Developer

Therefore, it is crucial that the developer be entitled to participate in the process to ensure that an EIR meets the minimum requirements of the law. The public’s overriding interest is that all EIR’s be as accurate and complete as possible. To create a “Chinese wall” between the EIR consultant and the developer does nothing to further the goal of ensuring that the EIR is factual and thorough. Although it may eliminate the “appearance of bias,” it may be at the expense of accuracy and legal adequacy.

Judge Zebrowski’s ruling speculates that the current system produces EIR consultants who are more interested in promoting projects and winning favor with developers than with preparing unbiased and objective documents.

Real life experience does not support this view. In fact, the most highly regarded EIR consultants are those who have earned a reputation of having their documents expeditiously reviewed and certified by the cities and counties. These consultants gain approval because they have already eliminated bias from their documents and write reliable and complete documents in a style which is compatible with the public agency’s objective point of view.

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