Underground Environmental Regulations: Regulations Imposed as Mitigation Measures Under CEQA Violate the California Administrative Procedure Act

Abstract

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – California Association for Recreational Fishing v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden them by introducing additional delay and uncertainty into the regulatory process. In addition to identifying some of those burdens, this article suggests ways that agencies can mitigate them in appropriate circumstances.