Commentary: Abusing CEQA Is Hurting Us All

Yesterday I was reading through the material on Field + Pond and one of the things that struck me was how neighbors were suing under CEQA (California Environmental Quality Act) to stop a development they do not want.  The court struck down most of the suit, but upheld just enough to force the event center owners to have to go through an expensive CEQA process and do an EIR (Environmental Impact Report) rather than an MND (Mitigated Negative Impact).

“The Court found that the Project may have a significant environmental impact on tricolored blackbird, valley elderberry longhorn beetle, and golden eagle. The remaining claims were denied,” the county wrote in their Notice of Preparation.

In short, the court found that there might be a significant environmental effect that will have absolutely no impact on the neighbors and yet now these folks are being forced to do an EIR, declare the impact, and mitigate it – at great cost.

No wonder CEQA gets such a bad rap.  I would consider myself an environmentalist, but watching the abuse of CEQA not only here but on several projects in Davis – it is turning me off to CEQA.

I am even more concerned with the use of CEQA against Lincoln40 and Nishi because those are two student housing projects in areas where we should build student housing.  By housing a combined 3000 students, we are taking students from troubling situations and having to commute and drive to campus, and putting them in locations where they can bike and walk.  That is a net  benefit to the environment.

I have cited the stats time and time again.  Students who live within a mile of campus – over 90 percent of them get to school through means other than driving their cars.  When students live over five miles from campus, they drive and most of them drive alone.

I find it ironic then that California’s signature environmental law is being used (or abused) to stop an environmentally advantageous project.  Never mind that these are highly sustainable projects.

In the coming days, possibly within a week, the campus is going to release a survey that will give us a much clearer picture of the number of homeless and housing insecure students there.  Spoiler alert: while I cannot divulge the figures, let us just say they are MUCH higher than even the very highest previous estimates and the numbers for both should shock and outrage this community.

And yet here we are, with local residents using CEQA in a way that will increase the costs of housing to students, delay the implementation of these projects by a year or two, and force many students to continue to live homeless when they do not have to.

This is unconscionable.

Last year, the Los Angeles Times Editorial Board, no bastion of anti-environmental conservatism, hammered industry people for using CEQA to stop a $5 billion plan that would have modernized ground transportation services to LAX (Los Angeles International Airport).

This passage rings true: “There’s a perennial fight over California’s signature environmental law, which was enacted as a way to inform and empower the public by requiring developers to disclose the environmental effects of their projects in detailed reports and to mitigate any harm they may cause.”

They write: “While CEQA is a vital tool that has made countless projects better since its inception, it is also too easily used to stop projects for reasons that have nothing to do with environmental protection.”

Here is the problem: “Organized labor groups have used the threat of CEQA lawsuits to force developers to hire unionized labor. Companies have filed CEQA lawsuits to block competing businesses. Homeowner groups have used CEQA to stop construction or shrink the size of apartment complexes in the middle of cities.”

Here is Davis, and we are using CEQA to stop highly environmentally friendly projects.  We are using CEQA to prevent the city from building housing near campus.

The irony is that the delays in these projects will not only increase student suffering in the short term – they will increase housing costs down the line, they will increase the cost of doing business in Davis which will ironically lead to less in the way of amenities, and they will at least in the short term increase traffic, VMT (vehicle miles traveled), and the resultant GHG (greenhouse gas) emissions.

In other words, the use of CEQA to stop projects will do more harm than good.

The thing is – not one project locally has been or will be stopped because of one of these lawsuits.  The only thing these things accomplish is delay.  The other thing is everyone has learned that they cannot simply reach a settlement agreement, because that simply incentivizes more suits.  The only way to stop lawsuits is to take them to court and prevail.

But the Field + Pond suit shows another problem – you have to do an EIR.  While it was probably reasonable to believe they could do a mitigated negative declaration on a small project like that, the result was the court found just enough cause to force them to do the EIR anyway.

That is why Lincoln40 did an EIR even though they were not required to do so.  As Robb Davis pointed out at the time, that came at great cost and meant that benefits to the community were not realized because money that could have gone to a variety of amenities went to the EIR instead.

They got sued anyway.

This fall, thousands of students will not have housing.  As they struggle to find places to live, and seek shelter in cars, on living room couches or in libraries, they need to remember that people living in the comfort of their own homes are holding up housing that could have gone on line within two years and now will be delayed for an unknown number of months.

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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29 thoughts on “Commentary: Abusing CEQA Is Hurting Us All”

  1. PhilColeman

    “This is unconscionable.”

    It’s much more than that. We need a catchy descriptor, “Legal System Bullying,” might be apt.

    Filing a lawsuit is far too easy in this country. It further sustains and enhances the growth of a profession that already has an overflow of tort attorneys. They all expect handsome 6-figure plus annual compensation and the general public unfailingly and repeatedly ends up meeting this requirement for many. Reform is virtually impossible, thanks to a system with an existent blatant conflict of interest were it exercised anywhere other than the legal system.

    Attorneys in this nation created a system to sorta regulate itself. The legal profession dominates or monopolizes all regulatory oversight powers, in all three branches of government–executive, judiciary, and legislative.  As the saying goes, “There are more attorneys in Washington DC than humans.”

    Conceptually, the notion that “the little guy” should have ready access to the courts for relief sounds good and so “American.” The reality is that the little guy can’t even get in, a civil case typically takes 2-3 years to get to trial!

    A major reason for the civil court glut is this routine representative tactic to file frivolous lawsuits to delay or destroy far more critical social needs.

    What to do? Well, how about we look at the criminal justice system for an existing model. Before a criminal matter can formally be allowed to formally heard in court, a “preliminary exam” be conducted by a panel of 3 judges and a review of the legal merits of the suit takes place. Similar to the criminal process, a dismissal for lack of sufficient cause is final and unappealable. It won’t happen as, again, the legislatures in this country will never cause harm to their own children.

     

    1. Jeff M

      Good points and ideas.

      There is a great conflict of interest in that elected officials are generally attorneys that make laws that attorneys then milk for money.

    2. Alan Pryor

      A major reason for the civil court glut is this routine representative tactic to file frivolous lawsuits to delay or destroy far more critical social needs.

      Uh…by “far more critical social needs”, I am assuming you mean developer profits?

      1. Howard P

        Actually the $$$ the plaintiffs “exact” in settlement suits, knowing there is incentives for City and developers to pay “blood money” to avoid delays and court costs in defending the suit.

        A form of “extortion” that it sounds like you are OK with, Alan.

        Just as there are ‘ambulance chasers’, there are ‘CEQA chasers’…

      2. Richard McCann

        If we reduce uncertain litigation costs for developers, that makes it easier and more justifiable to ask for specific development mitigation expenditures that would come out of profits. An economic axiom which is empirically true is that increased uncertainty/risk leads to a need for increased expected profits to offset the increased potential risk to those profits. Reduce that risk, and projected developer profits can be less.

        1. Jeff M

          Add time to that point.

          Return expectations for investments are impacted by assessed risk and also the time.  CEQA challenges tend to add years to the project timeline and thus increase the expected ROR.

  2. Alan Miller

    “The Court found that the Project may have a significant environmental impact on tricolored blackbird, valley elderberry longhorn beetle, and golden eagle.”

    A bit through the looking glass here . . . an occasional crowd for a wedding causes harm, but nearby spraying of ag fields . . . ???  F&P should go back in a time machine to when the ag was proposed and counter sue using CEQA.  In this scenario, CEQA law also goes back in time.

    1. David Greenwald Post author

      Personally I think the whole objection is largely through the looking glass – you’re talking about a few events a year and prohibitions on events during harvest and planting seasons.

  3. Alan Pryor

    I would consider myself an environmentalist, but watching the abuse of CEQA not only here but on several projects in Davis – it is turning me off to CEQA.

    David – Most folks would hardly consider you an environmentalist given your over-the-top support for all Davis development projects exactly as proposed by the developers without any pushback to make the projects better or less impactful on  neighbors or the environment.

    As full disclosure, I am Chair of the local Sierra Club Yolano Group and am an unabashed supporter of CEQA. I consider it to be the most important part of environmental legislation ever passed in California and is a main reason why California is viewed as THE most progressive environmenal government body worldwide. The protections offered by CEQA are the main reasons California is so different than Texas or Louisiana where the energy companies and the developers run the states. That said, I still give more money every year to the Vanguard than to any of the dozens of environemtal organizations I support. But that is because of your work in Court Watch and certainly NOT because of your pro- “development at any costs” opinions which I find distasteful.

    But that aside, can you name even a single worthwhile development project that did not have significant and adverse environmental impact that was stopped by a CEQA lawsuit. I doubt you can because they are very, very few and far between. Almost all CEQA lawsuits result in projects continuing but with less impacts on the environment because mitigation was required to lessen those environmental impacts. And that is exactly the purpose of CEQA…it is doing exactly what it is intended to do despite the wails of hollow protests by the developers and their shills.

    Even looking at Field and Pond which you put out there as a yet another example of an egregious violation, the judge only ruled in favor of the plaintiffs on a very narrow aspect of the case where it was clear that the defendents did not adequately consider the impacts of the project on endangered and/or listed species. Or do you consider the developers right to hold luxury weddings in environemtnally sensitive settings more important than the further demise of species heading toward extinction because of loss of habitat due to development 9and if that is the case then don’t bother to read any further because you’d just be wasting your air). And even in the case of F&P, the judge (wrongfully, IMHO) let the center continue to host events while they perform the requisite environmental studies.

    And let’s look at who brought the prevailing claims forward. They were advanced by Tuleyome which arguably is the most influential, prestigious, and environmentally protective organization in Yolo and Napa Counties; if not the entire region. Quite honestly, your self-procaimed environmental chops can’t hold a candle to the breadth of good and important work that they do. You only have to look at the thousands of acres of prime habitat they have acquired to perpetually protect and the hundreds of miles of trails they have constructed or maintain and the thousands of disadvantaged kids they bring on rafting or camping trips for free to recognize what an premier organization they are – and this is coming from an environmentalist that has had some real differences of opinion with some of their leaders in the past.. They were also probably the singular most influential organization in the establishment of the Berryessa- Snow Mountain National Monument. So despite your uninformed rhetoric to the contrary, if they ever support a CEQA lawsuit I assure you it was valid and done with the best of environmental intentions. They participate in CEQA cases on a very limited basis and I have never ever seen them do so in which there were not rock-solid environmental justifications.

    So my suggestion is not just look at the headlines when you are making your self-serving proclamations about the problems with CEQA vis-a-vis any development project you otherwise support. Rather you need to look at the underlying claims as to whether or not they have merit. To me, summarily blanketing CEQA with claims that it is abusive to developers because of a few isolated incidents that did not actually block any projects (even here in Davis despite your wails to the contrary) is akin to knocking the need for juries or the provision of free legal representation if a defendent can’t afford one in the criminal justice system – for which I am sure your would abhor the thought. Well, in my opinion CEQA is an important of a component in the environemtntal justice systems as juries and the DA are to the criminal justice system. You just don’t see it because of your pro-development tendencies.

      1. Alan Pryor

        David – You take a point on which we all agree is bad (driving to Davis to go to classes is bad ) to try to strike an unrelated but broad-based blow against CEQA. But, OK, I’ll play the game – an equally valid alternative argument could be made that waiting 15 minutes in traffic to cross the Richards overpass to get to the University to go to classes might be as environmentally damaging (particularly to your fellow drivers and neighbors in the Olive Dr area) as driving down 113 from Woodland for 10 minutes.

        1. Richard McCann

          Allan, your example is incorrect because the emissions, both GHG and criteria, from the drive from Woodland are still much higher than idling for a longer period of time. So it’s still worse to drive from Woodland to have an increased delay at Richards (which was created by the 1996 initiative that blocked fixing the problem in the first place.) That’s why OPR changed the CEQA criterion from traffic impacts to VMT.

          CEQA is poorly designed and its purpose has been badly diverted. In my experience, the mitigation adopted in response to lawsuits (in contrast to comments on EIRs) have generally detracted from the project objectives, and too often have countereffective in achieving overall environmental gains because the suits are narrowly focused. And I have seen good projects in urban areas cancelled due to CEQA barriers that have been set too high. And what’s not seen are the projects no longer proposed due to anticipation of undue CEQA barriers.

          On top of this, the CEQA documents have become a joke of pages of CYA language, and “executive summaries” running hundreds of pages. CEQA was intended to deliver a “decision document” but instead its become a form of a legal contract that is impenetrable by almost everyone.

        2. Ken A

          I’m wondering if Alan thinks that most people would continue “waiting 15 minutes in traffic” to cross the Richards overpass to get to the University to go to classes all year or if after a few days some would make the ~15 minute walk from the apartments in South Davis to Campus or buy a cheap bike on Craig’s List to get to campus in ~5 minutes?

        3. David Greenwald

          I’m kind of confused by Alan’s point since the two projects in question that have been approved are Lincoln40 and Nishi, neither one of which would generate traffic to the university through the tunnel.  There’s also the fact that Alan opposed Nishi 1.0 with its tunnel bypass plan.

    1. Alan Pryor

      Sorry for the typos in my long-winded defense of CEQA…and I obviously meant  the “Public Defender” rather than the “DA” in the last sentence. This is what happens when I get excited.

      1. David Greenwald

        And in response I would say that if you look back at my piece I agree that CEQA is important, it gets undermined when it gets abused.  When every single project gets litigated, we end up increasing the cost of doing business in davis to no great environmental impact and the people who pay that price are the poor, the renters, and the students.

        1. Alan Pryor

          And it would seem that you feel that you (as the biggest promoter of development in Davis and with absolutely no environemental legal credentials) gets to be the arbiter of what is an abusive CEQA lawsuit. Why do I not feel comfort in that thought?

        2. Alan Pryor

          and the people who pay that price are the poor, the renters, and the students.

          Ah, David, defending the downtrodden again are you while you advance the causes of the developers. Talk about using red herring arguments which you seem to otherwise abhor when others do it…

          So let’s get real here about the real costs to developers imposed by these abusive CEQA lawsuits. Nishi’s total legal costs for defending against the CEQA lawsuits will almost certainly be well less than $100,000 (or they are reamed by their lawyers). Juxtapose that against the almost $1,000,000 they spent on their election campaigns and the $100,000,000 cost of the project. Recognizing that all rents are market driven, can you really honestly claim that that $100,000 spent on the CEQA legal costs are going to increase the rent to “the poor, the renters, and the students”. C’mon, get real here. It is a cost to the devlopers and that’s it.

          And even if the rent is somehow able to be passed on to tto “the poor, the renters, and the students”, let’s see how much it is going to cost them. $100,000 amortized over a minimum of 10 years is $10,000 per year. Divided by 2,200 beds is $4.54/bed/year. That is a drop in the bucket compared to the $9,600 to $12,000 the students will otherwise spend for rent to live there (at $800/$1,000/mo).

        3. Richard McCann

          Allan

          You’re ignoring the financing cost of delay. Using a 10% average return on real estate investments (I have data to base that on), for a $100M investment, that’s a $10M cost for a delay of one year. That rolls through to increased rents.

  4. Jeff M

    The Democrat-controlled state killed RDA because of de minimis abuse, so I say we should kill CEQA for the same reason.

    Alan Pryor: “it is doing exactly what it is intended to do despite the wails of hollow protests by the developers and their shills.”

    It is creating a housing and commercial space shortage in California… is that what you mean by “what it is intended to do”?  Or where you referring to the billable hours for attorneys?

    1. Alan Pryor

      It is creating a housing and commercial space shortage in California

      Yes, yes, so all the devlopers’ and their friends keep saying over and over and over…ad nauseum. My challenge to you, sir,  is the same one I gave to David above,”…can you name even a single worthwhile development project that did not have significant and adverse environmental impact that was stopped by a CEQA lawsuit.”

        1. Alan Pryor

          Project was not stopped by a CEQA lawsuit (that was actually settled). This project was changed because the developer could not get the financing for the full-blown conference center he wanted so he downsized it to the hotel with some large meeting rooms. It was subsequently approved by the City but he still has not started construction – ostensibly because there are still financing issues – probably because of all of the other approved hotel rooms that may come on line in Davis makes economic viability a little suspect.

          Oh wait, I know…blame it all on those bloodthirsty bankers now!

          Bankers, lawyers, and environmentalists, oh my!! The world would surely be a better place if we would just let the developers have their way because we all know it is our collective best interest that is foremeost in their minds.

           

           

           

  5. Matt Williams

    David Greenwald said . . . “In the coming days, possibly within a week, the campus is going to release a survey that will give us a much clearer picture of the number of homeless and housing insecure students there.  Spoiler alert: while I cannot divulge the figures, let us just say they are MUCH higher than even the very highest previous estimates and the numbers for both should shock and outrage this community.”

    I will wait to see the report (and especially it’s qualification methodology) before making any definitive comments, but I will share the observation that according to the qualification methodology in the most recent predecessor UCD report, I would have been classified as “homeless” three out of my four years at Cornell because I lived in University-owned housing that was closed by the University during the Year-End Holidays break, and I chose to remain in Ithaca rather than go home to Philadelphia.  As a result I stayed with friends (couch-surfed in today’s parlance). I was neither homeless nor housing insecure.  Plus I had access, if I chose to do so, to the financial where-with-all of my parents, who were paying my tuition.

    Nonetheless, in the UCD survey I was consistently both homeless and housing insecure.  If the current UCD survey David has referenced has the same level of academic rigor, then it isn’t worth the electrons it is made of.

    1. David Greenwald Post author

      Matt – I think there is a chance that your example would be counted as homeless according to my understanding of the data measures. What I don’t know is whether the survey allows the student to describe their living situation and categorize it or whether the surveyor does that.

      However, I would also add, I think your example is an aberrant case that would be exceedingly rare and therefore would not invalidate the overall data method even if you were counted as homeless. It would basically be statistical noise of a low enough level not to impact much of anything.

      1. Ken A

        I’ve never been “homeless” as most people would define it (living in a homeless shelter or under an overpass with all my possessions in a shopping cart) but like Matt every time I see a survey from the “homeless advocates” (aka the homeless industrial complex that spends close to a quarter BILLION of tax money every year in just SF) if I answered it honestly I would qualify as being “homeless” many times in my life.  Similar surveys trying to increase the number of “victims that need tax money” will include me as “housing insecure” “food insecure” and “sexually assaulted on campus”…

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