The California Environmental Quality Act, better known as CEQA, was landmark legislation passed in 1970 in order to create a statewide policy of environmental protection. While CEQA does not directly regulate land use, it requires local agencies in particular to follow a specific protocol of analysis and public disclosure of environmental impacts of a proposed project – and to study potential mitigation measures to reduce the environmental impact.
However, while it has the stated purpose of requiring documentation and disclosure of environmental impacts, it is often used as a wedge for private interests to stop and/or alter public and private projects through the use of lawsuits.
A 2013 article by the LA Times writer George Skelton notes that the law, signed into law by Governor Ronald Reagan, has been a central piece of legislation in fixing the state’s environment.
Mr. Skelton quotes San Mateo Democratic State Senator Jerry Hill, who argues we have come a long way in terms of environmental laws and the improvement of the environment in California.
He said, “We’ve come a long way. The air is pretty much smog-free now. I don’t want to weaken any of the [environmental] laws. A lot of people consider them a nuisance, but we’re living longer and our quality of life is much better.”
At the same time, he warned, CEQA needs to be modernized.
“We recognize there’s a problem,” Senator Hill said. There are so many interests that utilize CEQA for so many reasons. When something is used for other than its purpose, it dilutes its effectiveness for that purpose.
“We want to make it work more effectively and more timely, so as not to be a hindrance to [development] projects. We have to address these issues and not hide from them.”
The Vanguard has been pointed toward a Holland and Knight report that represents the first comprehensive study of lawsuits filed under the California Environmental Quality Act.
Analyzing all CEQA lawsuits filed in California over a three-year period, 2010-2012, “the report systematically documents widespread abuse of CEQA litigation that undermines the state’s environmental, social equity and economic priorities.”
A lot of these don’t apply to the case at hand, but it is interesting that CEQA litigation is often commenced by business interests attempting to use the environmental law to subvert projects, many of which are environmentally helpful.
Among the study’s key findings: “CEQA litigation is not a battle between ‘business’ and ‘enviros’ – 49 percent of all CEQA lawsuits target taxpayer-funded projects with no business or other private sector sponsors.”
They further find, “Projects designed to advance California’s environmental policy objectives are the most frequent targets of CEQA lawsuits: transit is the most frequently challenged type of infrastructure project, renewable energy is the most frequently challenged type of industrial/utility project, and housing (especially higher density housing) is the most frequently challenged type of private sector project.”
Moreover, “Debunking claims by special interests that CEQA combats sprawl, the study shows that infill projects are the overwhelming target of CEQA lawsuits. For infill/greenfield projects, 80 percent are in infill locations, and only 20 percent are in greenfield locations.”
Furthermore, “CEQA litigation is overwhelmingly used in cities, targeting core urban services such as parks, schools, libraries and even senior housing.”
Finally, they find, “Sixty-four percent of those filing CEQA lawsuits are individuals or local ‘associations,’ the vast majority of which have no prior track record of environmental advocacy – and CEQA litigation abuse is primarily the domain of Not In My Backyard (NIMBY) opponents and special interests such as competitors and labor unions seeking non-environmental outcomes.”
The authors of the study argue that “ending CEQA litigation abuse is the most cost-effective way to restore the state’s middle-class job base; make housing more affordable; ensure that taxpayer funds are spent on projects – not process; and improve the future of the nearly nine million Californians living in poverty. “
The authors recommend three moderate reforms to curtail the abuse:
- Require those filing CEQA lawsuits to disclose their identity and environmental (or non-environmental) interests.
- Eliminate duplicative lawsuits aimed at derailing plans and projects that have already completed the CEQA process.
- Preserve CEQA’s existing environmental review and public comment requirements, as well as access to litigation remedies for environmental purposes – but restrict judicial invalidation of project approvals to those projects that would harm public health, destroy irreplaceable tribal resources or threaten the ecology.
What will happen is not clear. There are delicate politics involved.
Mr. Skelton two years ago wrote, “Gov. Jerry Brown also wants to do something, although it’s not clear what because he hasn’t proposed anything. He has characterized reforming CEQA as “the Lord’s work.” But he seems to be waiting for the Lord to do it.
“Brown and Democratic legislators are leery of ticking off labor, their biggest financial benefactor and, therefore, the strongest influence in Sacramento. Labor is the principal protector — along with environmental organizations — of the CEQA status quo.”
In the meantime, CEQA is being used in ways that probably undercut the environment rather than improve it.
—David M. Greenwald reporting
“Brown and Democratic legislators are leery of ticking off labor, their biggest financial benefactor and, therefore, the strongest influence in Sacramento. Labor is the principal protector — along with environmental organizations—of the CEQA status quo.”
Governor Brown is not going to take away one of the unions best ways to “persuade” businesses.
I guess I can’t call it extortion or blackmail because it is not illegal
my view of brown is that he has always been a mixed bag with the unions. since he’s not actually running for election, he’s just as likely to push this through. the question of course is what would this look like?
I guess you can’t . . . very nicely put.
David – The entire tone of the article from the title to the references cited are misleading. It is completely one-sided and overly dismissive of the role of CEQA in California based on the single reference cited. In fact, this entire story really reads like a regurgitation of the supposed “facts” from that single reference which has been widely criticized by many major environmental organizations.
Firstly, I strongly disagree that this is the first comprehensive study of lawsuits filed under the California Environmental Quality Act. I will agree, though, that it is the first comprehensive study that came to the business-friendly conclusions you prattle off as fact in your article.
Secondly, who “pointed” you to the articles in the LA Times and the Holland and Knight report? What is the genesis of this story? Did you really research and write this article yourself or is this just a paraphrase another’s writings or talking points?
With respect to the independence of Holland and Knight, you really should have made it clear to the reader that Holland and Knight is widely noted as a “business” law firm as shown in the law firm’s own website noting their awards,
“Chambers USA – More than 140 Holland & Knight attorneys were named in the Chambers USA – America’s Leading Lawyers for Business 2015 guide (emphasis added)
BTI Consulting Group’s Annual Survey – Holland & Knight is one of the top 25 firms recommended for 5 years in a row by corporate counsel (emphasis added) in BTI Consulting Group’s Annual Survey”
With respect to the accuracy of the report, many of the definitions the authors use to characterize or segregate different types of projects to come to their analysis are highly suspect. For instance, “infill” is described in the report to “include private and public sector projects located entirely within one of California’s 482 cities, or located immediately adjacent to existing developed areas in an unincorporated county (emphasis added).” By this definition, both the Nishi and Mace Business Parks would be described as “infill”.
This was not one of your better writing jobs, David. It is your personal right to choose to be a newfound cheer-leader for development in Davis, but that does not obviate the need for fair and balanced reporting which was certainly not evident in this article.
At minimum, you should have presented opposing viewpoints such as from http://switchboard.nrdc.org/blogs/dpettit/CEQA%20Litigation%20Analysis%20FINAL.pdf or http://ceqaworks.org/ceqa-successes/
The two links that you posted talk about how the CEQA has help the environment and how few are filed each year. I don’t see how that negates the fact that the Act is also used for non environmental purposes such as requiring construction projects to use union labor and in attempts to kill projects like the San Diego convention center, Fresno Airport parking solar project, Mono County Geothermal Plants, Warrior’s San Francisco Arena…… Even saying that not many have been filed is irrelevant because the threat of one being filed can cause developers to sign PLAs like in the case of the new Kings arena.
Yup.
All good questions.
I see three major projects in the pipeline that are at risk for CEQA challenges:
(1) Embassy Suites – Accelerated processing and a Negative Deceleration for the most dysfunctional travel corridor in the City.
(2) Nishi – Bait and switch on UCD access under the railway. High density housing project being mischaracterized as an innovation park.
(3) MRIC – Bait and switch on the Council directive to exclude housing from the innovation park proposals.
All three environmental documents have significant problems. Couple this with City’s apparent inability or unwillingness to shoot straight with the public, and you have a recipe for CEQA challenges.
My thoughts exactly. In fact, my initial reaction to this article was that it was in reference to a threatened lawsuit against the Embassy Suites project…
Interesting to see an article today “walking it back.” Hecht’s rebuttal of the Holland and Knight report should have been cited yesterday so that the article was “fair and balanced.”
maybe he didn’t know about the hecht piece – it doesn’t seem to be in wide circulation, in fact, in that article it seemed that a common complaint by hecht was that the holland and knight article was uncritically reported.