SACRAMENTO, Calif. — A new Holland & Knight study examining more than a decade of California appellate decisions argues that the California Environmental Quality Act is increasingly being used to challenge housing and infill development, findings the study’s author says make an “incontrovertible case” for Proposition 45.
Opponents of the November ballot measure dispute that conclusion, arguing the research relies on older litigation data, uses a contested definition of infill and fails to account for major CEQA changes enacted by the Legislature in 2025 that exempt qualifying infill housing projects from environmental review.
The Holland & Knight study examined 498 published and unpublished CEQA appellate decisions from 2013 through 2023.
According to a Holland & Knight press release, residential projects accounted for 25.5% of the cases examined, making housing the largest category of projects involved in CEQA appeals.
Among projects categorized by location, the study found 64% were infill developments within existing communities, while about 11% were located on previously undeveloped county land. Nearly 90% of challenged housing developments were classified as infill.
Environmental impact reports, the most extensive form of CEQA environmental review, were involved in about 53% of appellate decisions, according to the study, and were found deficient in 23% of those decisions.
Government agencies prevailed in approximately 75% of the appeals, up from 56% in Holland & Knight’s earlier research. The study argues that projects can nevertheless remain stalled for years while litigation and appeals proceed.
“California cannot solve its housing, infrastructure and affordability challenges if CEQA continues to delay the very projects the state urgently needs,” said Jennifer Hernandez, head of Holland & Knight’s West Coast Land Use and Environmental Group and lead author of the study.
“A law designed to protect the environment should not be used to block housing, reliable water and electricity infrastructure, public services or good-paying jobs,” Hernandez said. “The data presented in our study make an incontrovertible case for Proposition 45.”
Proposition 45 would establish new environmental review, permitting and litigation procedures for specified projects, including housing, transportation, water, health care, clean energy and other infrastructure.
According to the Legislative Analyst’s Office, the measure would tighten deadlines for agencies to complete environmental reviews and other approvals and establish deadlines for courts to resolve CEQA litigation.
It would also make substantive changes to environmental review, including limiting the alternatives agencies must consider and changing standards governing environmental impacts. It would restrict the scope of evidence courts can consider and the remedies they can impose when reviewing challenges to project approvals.
The LAO estimates implementation would initially cost state and local governments in the high tens of millions of dollars annually and could potentially exceed $100 million per year, with some costs offset by fees. Longer-term fiscal effects could be positive or negative depending in part on how the measure affects development.
Hernandez argues the reforms would reduce litigation-driven delays while preserving environmental protections.
“In a state that purportedly values equity and opportunity but has achieved the nation’s highest poverty rate and homeless population because we can’t build the housing, infrastructure and public services we need — let alone approve new manufacturing and other good-paying jobs for those without advanced degrees — we instead preserve a 1970 law that ceased functioning as intended decades ago,” Hernandez said.
“California should not have to choose between protecting the environment and building the housing and infrastructure we need,” she added.
But the No on Proposition 45 campaign challenged both the study’s methodology and its relevance to the current housing debate.
In a response provided to the Vanguard, campaign spokesperson Woody Little said the study largely examines litigation occurring before California enacted major changes to CEQA governing infill housing.
“The Hernandez report primarily discusses the impact of CEQA on housing, focusing on litigation that occurred in and before 2021,” Little said. “But this discussion is largely irrelevant to Prop 45 because, in 2025, the Legislature exempted nearly all urban housing from CEQA via AB 130.”
AB 130, enacted in 2025, created a broad CEQA exemption for qualifying infill housing projects meeting statutory requirements, along with additional exemptions and streamlined procedures.
Little argued those changes fundamentally alter the significance of litigation patterns identified in older studies.
“Whatever the true retroactive number is over a given time frame, it’s irrelevant — groups can’t and won’t file CEQA lawsuits over infill housing that’s exempt from CEQA,” Little said.
The campaign also pointed to longstanding criticism of how earlier Holland & Knight research defined infill development.
Sean Hecht, then managing attorney of Earthjustice’s California regional office and previously a UCLA School of Law faculty member, raised that issue in written testimony to the Little Hoover Commission in 2023.
Hecht said Holland & Knight’s earlier research defined infill as private or public projects located entirely within one of California’s cities or immediately adjacent to existing development in an unincorporated county.
Under that methodology, Hecht wrote, projects including a Walmart in Milpitas and a development containing 114 single-family luxury homes and a golf course were classified as infill.
“The report’s analysis of CEQA’s impact on infill development is thus so flawed as to be useless,” Hecht wrote.
Hecht acknowledged that CEQA can sometimes be used in ways that impede housing but argued that research does not establish it as the primary barrier to dense housing development in existing communities.
“This is not to say that CEQA has no flaws, or is not sometimes used in counterproductive ways; there may well still be ways that CEQA can be improved to ensure it doesn’t impede building the housing we need,” Hecht wrote.
“But it’s crucial to understand what the trade-offs actually are, and to avoid unintended consequences out of zeal to ‘fix’ CEQA,” he added.
Opponents have also challenged the transparency of some of Hernandez’s previous research.
In a 2023 letter to the Little Hoover Commission, attorneys Douglas Carstens of Carstens, Black & Minteer and Aruna Prabhala of the Center for Biological Diversity criticized an earlier Hernandez report because the underlying list of CEQA lawsuits and datasheets was not included in the publication.
Instead, the earlier report stated that copies of the lawsuits and datasheets could be reviewed by appointment at the author’s law office.
The attorneys also questioned Hernandez’s comparison between housing units contained in projects facing litigation and statewide annual housing production.
“Because these [large, master-planned housing development] projects actually build out over 20-30 years, one cannot compare their units to the number of permits issued in a single year,” they wrote, quoting a 2023 Housing Workshop report.
That distinction bears directly on another finding cited in the new Holland & Knight report.
Holland & Knight points to a related study finding that CEQA lawsuits filed in 2020 challenged projects containing approximately 48,000 approved housing units, an amount the firm compares with just under half of California’s total housing production that year.
But the number of housing units contained in projects subject to litigation is not necessarily equivalent to the number of homes prevented from being constructed.
Large developments can be constructed over many years, while challenged projects may ultimately proceed, be modified or fail to move forward for reasons unrelated to CEQA, including financing, construction costs and changing market conditions.
More recent research cited by the No on Proposition 45 campaign also reaches substantially different conclusions about the prevalence of CEQA litigation.
A 2025 report by The Housing Workshop examining litigation filed in 2022 and 2023 found an average of 142 CEQA lawsuits were filed annually during those two years, compared with an average of 188 annually since 2002.
The report estimated that 1.05% of projects requiring an environmental impact report, mitigated negative declaration or negative declaration were litigated during 2022 and 2023. The average estimated litigation rate from 2013 through 2023 was 1.8%.
The Housing Workshop also found 21.8% of CEQA cases filed during 2022 and 2023 challenged new housing units and calculated that those lawsuits involved housing units equivalent to about 4% of housing building permits issued during the period.
That study, like Holland & Knight’s research, comes from an organization with an identifiable perspective in the CEQA debate. The Housing Workshop reports were produced for the Rose Foundation for Communities and the Environment and emphasize CEQA’s role in environmental justice, climate protection and natural resource conservation.
The competing studies also measure different things.
Holland & Knight’s new study examines appellate decisions rather than the entire universe of projects undergoing environmental review. Projects reaching appellate courts represent a subset of CEQA disputes that have already progressed through trial court litigation.
The Housing Workshop research, by contrast, attempts to estimate the frequency of CEQA litigation relative to projects undergoing specified forms of environmental review.
Holland & Knight’s finding that agencies prevailed in roughly three-quarters of appeals can similarly support competing interpretations.
The firm argues that the high agency success rate demonstrates how projects can remain tied up in litigation for years even when the government ultimately prevails.
Opponents note that the finding also means challengers sometimes succeed. The Holland & Knight study itself found EIRs deficient in 23% of appellate decisions involving them.
The broader housing debate has also shifted since much of the litigation examined in the Holland & Knight report occurred.
AB 130, signed into law in 2025, created one of California’s most significant CEQA housing exemptions, covering qualifying infill housing projects on sites generally up to 20 acres while imposing eligibility requirements and exclusions.
Even the California Chamber of Commerce, a prominent supporter of CEQA reform, described the legislation after its enactment as providing major CEQA relief for urban infill housing.
Little said those changes undermine the housing rationale Hernandez advances for Proposition 45.
“If anything, the opposite is true,” Little said in response to Hernandez’s assertion that the study makes an incontrovertible case for the proposition. “The report’s focus on justifying Prop 45 via its implications for infill housing, where CEQA has been decisively addressed by the legislature, betrays that the whole argument is a mirage.”
Little argues Proposition 45 would have its most significant consequences outside the urban infill housing context.
“Prop 45 will have no effect on that housing; instead, it will fast-track sprawl developments, heavy industrial facilities like data centers, forest clearcutting, CO2 pipelines, and other highly impactful and risky projects,” Little said.
The official state analysis confirms that Proposition 45 extends considerably beyond housing. Eligible projects include transportation, water, health, clean-energy and other infrastructure, and the measure would alter both environmental review and judicial remedies for qualifying projects.
The dispute therefore extends beyond whether CEQA has historically delayed housing.
Holland & Knight’s appellate research provides evidence that housing has constituted the largest category of projects reaching CEQA appellate courts and that many of those projects were classified by the researchers as infill.
The opposing research shows that CEQA litigation represents a relatively small percentage of projects undergoing environmental review and raises questions about whether units contained in litigated projects can be treated as housing that CEQA prevented from being built.
And the Legislature’s enactment of AB 130 means that the legal environment governing infill housing in 2026 is materially different from the one that existed during most of the period covered by Holland & Knight’s appellate study.
Those competing findings leave a narrower question at the center of the Proposition 45 debate: not whether CEQA litigation can delay development — it can — but how frequently it does so, how much housing it actually prevents or delays, and whether the broader changes contained in Proposition 45 are warranted after California has already substantially changed CEQA’s application to infill housing.
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