The California Environmental Quality Act (CEQA, (California Public Resources Code §21000 et seq.) requires that public agencies with discretionary approval authority over a project that could impact the environment are supposed to determine whatever environmental impacts there might be and stipulate mitigation measures. The approving agency with the greatest general authority over the project is known as the Lead Agency. The state's process for forming a new municipality is laid out in the Government Code as the Cortese-Knox-Hertzberg Act (CKH Act, California Government Code §56001 et seq.). Because the CKH Act establishes the Local Area Formation Commission (LAFCO, a state-designated agency for each county) as being in charge of the incorporation process, the local LAFCO is a Lead Agency under CEQA. County-level LAFCOs around the state have different regulatory approaches to how to apply CEQA. Most do a cursory analysis that determines no impacts (called a Negative Declaration). Such an approach is typically "safe" in that a) incorporation is merely a reorganization of government, b) no shovels or earth-moving equipment ever touch the ground as a result of an incorporation and c) in practice it has been very hard for opponents to succeed at claiming such a conclusion by LAFCO was incorrect.

In the 1990s, Sacramento LAFCO (our Local Agency Formation Commission) was asked to let voters consider the formation of the City of Citrus Heights. The proposal met with vigorous opposition, primarily stemming from Sacramento County's fear that it would lose sales tax revenues from Sunrise Mall in the proposed city. Sacramento LAFCO initially applied a Negative Declaration under CEQA to the incorporation proposal. Opponents successfully challenged the findings, resulting in a much more expensive, much more time-consuming Environmental Impact Report (EIR). Since then, Sacramento LAFCO has routinely subjected proposed municipal incorporations to the in-depth analysis of an EIR.

But there is something wrong with the premise that CEQA even applies to an incorporation process at all. In fact, at the beginning of the current millenium the Commission on Local Governance for the 21st Century said just that:

Even though the Commission recommended exempting municipal incorporations from CEQA more than two decades ago, the Legislature has resisted taking action on the recommendation. Legislative staffs and Legislators typically refuse to promote changes to CEQA as though doing so is some kind of deadly "third-rail" that can never pass. And they make that assertion despite the fact that there have been changes to CEQA in just about every legislative session since CEQA became a law in 1970. Most recently, the McKinleyville community proponents requested that their State Senator carry out the Cpommission's recommendation from January 2000, but his staff declined. (see file below)