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