Most environmental planners and (in California) CEQA experts have heard the phrase “mitigate or litigate” during their professional careers. While clever and a bit flippant, there is a lot of truth to this little timeworn rhyme. Ill-conceived and poorly executed mitigation is arguably one of the leading causes of environmental grief (legally and financially) for developers and other business entities. It is clear that environmental documents that underestimate or ignore impacts - and consequently undersize mitigation - are vulnerable to legal challenge. It is also true that mitigation “overkill” and mitigation that is ill-timed, vague or general in nature can be equally debilitating to the health of a project in terms of time and money.
Provided below are four basic tenets for developing practical, implementable and effective mitigation. Upon reflection, these tenets may seem to be self-evident, even obvious. However, in my experience, these fundamentals are often overlooked or ignored in the development of environmental mitigation.
Mitigation Must Be Specific
Good mitigation plans, strategies and measures identify the specific impacts that they are designed to reduce. Some types of impacts lend themselves easily to quantification and measurement. For example, the effectiveness of measures designed to achieve a fixed level of traffic flow, reduce tons of carbon emissions, or limit noise generation to a maximum decibel level can be easily determined. On the other hand, the use of generalities must be avoided. An example of this is “minimize air pollution.” This cannot be verified because it is subjective and cannot be measured. Similarly, “work with the applicant to maximize open space conservation” is less to the point than “dedicate a minimum of 10 acres of open space for conservation purposes” which specifies an unambiguous target. Specificity with respect to what is to be achieved is essential to any good mitigation program.
Mitigation Language Must Be Clear
Closely tied to the need for specificity is the need for clarity. The language used in crafting mitigation needs to be clear, logical and free of jargon related to a particular technical discipline. Although there may be a high degree of technical complexity in the analysis provided for environmental documents, they are often intended to provide public disclosure information – this is especially true in the United States and California in particular. It is therefore important that general members of the public (and unfortunately sometimes judges) who may not be versed in the terminology and nuances of particular technical disciplines can understand the intent, purpose and objective of a given mitigation measure or plan.
In addition, since a mitigation measure is essentially a requirement that will need to be satisfied as part of the implementation and development of a given project, the language used must be directive in nature. The use of the permissive “should” is to be avoided and the mandatory “shall” used in its place. Mushy verbiage such as “encourage” or qualifiers such as “where practical” used in describing potential actions will also leave the reader puzzled as to what a given measure is really intended to do.
However, if the objective is to be vague and non-committal, try using phrasing like this -
“Where possible, the city should work with the applicant and/or other involved stakeholders to encourage, where practical, actions to minimize air pollution, when and where convenient.”
Alright, this example is a little silly, but you get the point.
Mitigation Must Be Matched to Environmental Impacts
This may seem obvious, but mismatches between the environmental impacts caused by a project and the mitigation intended to ameliorate such impacts occur all the time in the real world. For instance, a project may dedicate a large tract of land to open space, but if the dedicated land doesn’t have the same characteristics as a sensitive habitat area that is planned for development, impacts to such sensitive habitat will remain unaddressed. Likewise, providing for badly needed traffic improvements to an arterial on the west side of town may do nothing to resolve localized traffic congestion near the project site on the east side of town.
In addition to the apple and orange mismatches described above, out-of-balance mitigation overkill can occur. Often in the name of caution and prudence a project can become weighted down with mitigation requirements that do not have a proper nexus to project impacts. This “belt and suspenders” approach can become very expensive and, in extreme cases, destroy the economic viability of a project. On the other end of the spectrum, it is obvious that too little mitigation is a problem. Having too little or too much mitigation both usually stem from sloppy and imprecise analyses of potential impacts.
Mitigation Must Be Properly Timed
Perhaps the most basic element of right-timing mitigation is to provide it prior to the potential impact occurring. For example, mitigation meant to provide for special-status species or cultural resources preservation may be ineffective if it is implemented after grading commences, as grading could well destroy the resources intended for protection. Conversely, requiring improvements for traffic and other types of infrastructure prior to grading would be pointless and burdensome, since these improvements are not needed until a project is up and running.
Right-timing mitigation is even more critical for large scale projects that may develop over a number of years. Spending the time to carefully scale mitigation programs in concert with project phasing can really pay off in minimizing upfront mitigation costs. Developing a well conceived mitigation strategy can, in some cases, allow for the deferral of big-ticket mitigation costs to later phases, after a project has already started generating revenue that can be used to pay for such costs.
The development and implementation of mitigation plans and strategies can often be quite difficult and expensive. The array of technical and other issues that can come into play can be extensive. However, sticking to the basic tenets outlined above provides a solid foundation for tackling (with common sense) any type of mitigation needed. FirstCarbon Solutions has a strong bench of experienced envirionmental planning experts that can help you develop practical, defensible and cost-effective mitigation strategies, plans and measures. Contact us for a consultation.
Did you enjoy this post? The author of this article is Bob Prasse. Learn more about him here.