Yesterday, we presented a critique of CEQA (California Environmental Quality Act), with the law firm of Holland & Knight arguing that CEQA is often used not by environmental groups, but rather by competing businesses to block development. The discussion suggested that those filing CEQA lawsuits disclose their identity and environmental (or non-environmental) interests, and proposed to “restrict judicial invalidation of project approvals to those projects that would harm public health, destroy irreplaceable tribal resources or threaten the ecology.”
However, there is another side to the story. In the Legal Planet, Sean Hecht, Co-Executive Director of the Emmett Institute on Climate Change and the Environment and Law Professor at UCLA School of Law responds in a September 28 article, “Anti-CEQA Lobbyists Turn to Empirical Analysis, But Are Their Conclusions Sound?”
Here he concludes that these attacks on CEQA are not supported by the data.
He writes, “Last month, the law firm Holland and Knight, which has been a leading force on this issue, issued a new report designed to gain support for dramatic changes to the law. The report assembles a nearly-complete census of virtually all CEQA cases filed in California trial courts during the three-year period 2010 through 2012, and concludes—in heavy-handed rhetoric—that CEQA is typically not used to protect the environment, but actually harms the environment (and the economy).”
However, he writes, “despite the impressive quantity of data amassed for the report, my major takeaway is that the report’s own dataset does not support its conclusions. This report should not be used to inform future policy.”
Professor Hecht explains the requirements of CEQA, saying that it “requires local governments and state agencies to study, understand, and consider the environmental impacts of projects before they approve them. It also requires government agencies to mitigate significant environmental impacts to the extent feasible.”
He argues, “CEQA has done a lot of good over the years, increasing dramatically our knowledge of environmental challenges and requiring mitigation for most of the significant impacts caused by new development and industry over the past 40 years. On the other hand, application of the law sometimes has negative unintended consequences, such as providing a way for businesses to attack competitors to gain advantage.”
However, he believes, those instances “shouldn’t be used to take the heart out of the law.”
Professor Hecht respects the work of Jennifer Hernandez who believes that CEQA does more harm than good, but he disagrees with her on the merits of CEQA and believes “this report, which has been widely covered uncritically in the media, makes claims that are not supported by the data.”
In his article, he reviews the central claim of this report, “that the evidence demonstrates that CEQA is disproportionately used to attack projects that have environmental benefits.”
He writes that the claim rests on three specific assertions: “(1) CEQA lawsuits disproportionately are aimed at infill development projects that contribute to higher-density communities that achieve environmental benefits and relieve housing demand, reducing our ability to provide infill housing. (2) CEQA lawsuits often target transit systems that likewise contribute to environmental quality and reduce carbon emissions, reducing our ability to develop mass transit. And (3) CEQA lawsuits often target renewable energy projects, especially solar energy, that is needed to replace fossil fuels to meet our state’s energy needs, reducing our ability to develop renewable energy capacity.”
The first problem he cites is that the definition of “infill” seems overly broad. The report defines infill projects as “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.”
And, in fact, he raises a good point here as defining infill to include anything next to a developed area of the city is problematic at best. He writes, “Under this definition, it is unsurprising that most CEQA cases would involve ‘infill.’ In fact, it would be surprising if any significant number did not!”
The report also concludes that “[t]he most commonly targeted type of public infrastructure project was transit systems.” According to the report, “[t]ransit projects attracted the highest number of CEQA lawsuits during the study period. Transit systems in the Los Angeles region were particularly targeted, notwithstanding legal mandates to establish and improve transit services to reduce traffic congestion, improve ambient air quality, and reduce greenhouse gas emissions.”
In short, the report implies that transit development has been hampered by CEQA.
He writes, “I am skeptical of the value of looking at sheer numbers of lawsuits in evaluating the role of CEQA here.” He finds, looking through the data, that just 12 transit project approvals were challenged over a three-year period.
He argues, “Legal challenges to three or four transit projects per year in a state the size of California does not constitute a crisis in litigation. And, more importantly, mass transit is going forward. “
Finally, he notes, “The report emphasizes the idea that solar and wind energy projects were disproportionately targeted by lawsuits.”
For example, it says that “[t]he second-largest category of greenfield development lawsuits targeted new renewable energy facilities, such as solar plants” and refers to the “high percentage of renewable projects in the Southern California desert that were threatened or sued under CEQA.”
However, he argues that “the report’s published data do not support the conclusion that CEQA litigation is frequently filed against renewable energy projects, nor that it is preventing the state from meeting its renewable energy goals.”
Instead, he finds “five solar projects and two wind projects were challenged under CEQA. And one of the two wind projects was approved originally based on a categorical exemption, so no CEQA documentation was prepared at all. “
He writes, “Overall, renewable energy generation is growing rapidly in the state.”
Prominent California energy policymakers recently noted that “California leads the pack with the share of electricity from renewable sources, more than doubling from 12% in 2008 to 25% today.”
Professor Hecht concludes, “CEQA is a bogeyman. While the law is not perfect and sometimes doesn’t work as well as it might, the evidence in this report doesn’t appear to support claims that it is seriously hampering our attainment of environmental goals. Attempts to change the law shouldn’t be based on incorrect or misleading empirical claims.”
—David M. Greenwald reporting
Good balance to yesterday’s article. Hecht came to functionally the same conclusions as I about the Holland and Knight study.
Do you deny that sometimes CEQA lawsuits are used by those who oppose growth, as a tactic to stop development? Obviously just because CEQA at times may be misused, does not necessarily mean CEQA is bad law. But I would argue that perhaps some CEQA tweaking might be in order, to avoid frivolous lawsuits. Not sure what specific tweak would work, but it is an intriguing idea in light of some of the funny business that is going on in Davis…
Anon, a couple days ago you made a similar comment about Net Zero Energy (NZE) being used as a tactic to stop development. I responded to you in that thread, noting that I really didn’t see that happening, providing a list of a dozen names of citizens who have spoken up for NZE who are simply looking to improve our carbon footprint, not stop development. I also acknowledged one name that probably fit your model. A 12 to 1 ratio is pretty good IMO.
With that said, I suspect your very similar argument above about using CEQA as a tactic to oppose growth would have a much lower ratio. One of the ways we might accomplish what you are looking to do is to separate the legal/process issues from the design issues.
Matt- It is hard to quantify the number times a group has threatened a CEQA lawsuit for non-environmental reasons. For example, the Warriors just agreed to give the City of San Francisco $10,000,000 per year for transportation upgrades around their proposed arena to satisfy a group so they would not sue using CEQA. The new Sacramento arena agreed to use union labor to avoid a possible CEQA lawsuit. So there are two examples of non-environmental groups using the law as leverage with zero lawsuits filed. The law was not intended to be used as leverage for their personal gain and people should not be able to use it that way.
I do not disagree with you Sam. Don’t disagree with you at all. Both the examples you have given illustrate “the time value of money.” Neither were resolved by the courts based on the weight of the evidence, but rather were settled by the parties because one of the parties felt that the time lost adjudicating the lawsuit was more valuable to them than the value of the concession they made in the settlement agreement. Neither you nor I know who would have won the Warriors/City of SF/transportation group CEQA lawsuit based on the evidence, and unfortunately we will never know.
The other problem is that so many of the CEQA issues are subjective. Looking at the Hotel/Conference Center issues, one perspective on the transportation study is that “we all know that Interstate 80 has more traffic volume on it in 2015 than it had in 2011. Using 2011 Interstate 80 volume data is inadequate.” Another perspective on that same issue is that “the increased volume on Interstate 80 is close to 100% thru-traffic going to and from points east and west of Davis, and the exiting traffic volume on the Richards exit is not materially different form 2011 to 2015.”
I’m realistic about the fact that I’m not knowledgeable enough about the vagaries of traffic volumes to know for certain which of those arguments is correct, but my gut feel is that Brett Lee is right (which is one of the many reasons I endorse his candidacy for City Council) that one needs to separate the already existing traffic issues from any incremental addition that the hotel/convention center will add to those existing traffic issues.
Similarly, Mike Harrington has argued that the hotel/convention center will “impact” the National Register Landmark known as the Davis Subway/Richards Underpass. I can’t help but wonder what that impact to the Davis Subway/Richards Underpass will be? More automobile throughput? I can’t help but wonder what the impact of more automobiles going through that concrete and asphalt structure are going to be? I also can’t help but wonder what the impact of more automobiles going through that concrete and asphalt structure are going to be on its historic significance? Which gets us to part three of the issues, environmental sustainability. As a member of the Valley Climate Action Center I completely agree with Alan Pryor that the carbon footprint of the proposal could be better, but is that a CEQA issue? I truly don’t know.
CEQA with all its nooks and crannies creates an “abundance of caution” environment, and (at least for me) the possible CEQA issues that exist with the hotel/convention center application appear to center around whether the caution was abundant enough. If it wasn’t, then the door was legitimately opened.
The Bay Alliance in the Warriors example are not necessarily trying to win the lawsuit, but are using the lawsuit (or threat) to delay the project with the hope that it is eventually abandoned. Unions do the same thing. Threaten or file a suit citing some environment issue, but once the developer agrees to use union labor all of the environmental issues disappear.
*I read an update on the Warriors deal and it was only an agreement with the hospital, Bay Alliance is still planning to sue using CEQA to delay the project so the Warriors will consider another site.