Sunday Commentary: CEQA Is the Boogeyman, but with More Bark Than Bite in Terms of Impact on Housing

By David M. Greenwald
Executive Editor

Toward the end of the recall election, CalMatters did a very good article on CEQA (California Environmental Quality Act) and the housing crisis.  In some sense the article is dated in that they were asking the mostly Republican recall candidates their opinion of the housing crisis and what they would fix.

Most of them blamed CEQA, had little other in the way of suggestions, and the overall analysis from the article is that CEQA was a small piece of a large puzzle and probably not even the most important piece.

When CalMatters asked candidates Larry Elder, John Cox, Kevin Kiley and Kevin Paffrath, all said they would reform CEQA.

As the article explained, “CEQA is landmark legislation signed into law in 1970 by Republican Gov. Ronald Reagan. It requires public agencies to reduce or mitigate the environmental impacts of development wherever feasible. Essentially, the law tells developers to study a project to see how it could harm the environment and explain how they will lessen the damage. The law has been invoked by NIMBYs to block or delay multiple high-profile housing projects.”

The ask the critical question: “Is this law really the culprit behind the state’s housing woes, or just an easy target?”

The answer: “Overall, experts said CEQA is a huge headache for developers, and there are ample opportunities for reform. But getting rid of CEQA doesn’t get at the heart of the matter because it’s only one of many tools cities and local neighborhood groups use to block housing.”

CEQA is “the boogeyman or the poster child for housing delays, but it’s an oversimplification of our challenges,” said Dan Dunmoyer, president and CEO of the California Building Industry Association. “It’s an important component of it, but there are many projects that we have a hard time getting to ‘yes’ that have not had CEQA pulled on them.”

CEQA then is seen as one of many tools and, as the article explained, the candidates are not interested in most of them because they won’t touch local control.

“CEQA lurks behind so many reasons we don’t have housing,” said Jennifer Hernandez, a San Francisco and Los Angeles-based attorney who often defends developers from CEQA litigation. “Instead of three months getting approval, we can spend 10 years in 39 public hearings, getting sued four times over.”

Hernandez studied lawsuits and found in 2018 that 60% of CEQA lawsuits filed between 2010 and 2012 targeted residential housing developments, and the vast majority of them were urban infill developments, not projects in outlying areas.

For her, “the law was being abused by unions and NIMBYs.”

On the other hand, others who have studied CEQA lawsuits, such as researchers for the environmental nonprofit Rose Foundation, “concluded that fewer than 1% of projects subject to environmental review — housing or not — faced lawsuits.”

Another study “found that fewer than 3% of 2,001 total projects with more than five housing units approved in 20 California jurisdictions between 2014 and 2017 were ever litigated.”

Instead they argue as Moira O’Neill, a senior research fellow at UC Berkeley’s Center for Law, Energy & the Environment, “the number of steps and time it took to get a project approved varied wildly between jurisdictions, even though CEQA applied to all of them.

“By reforming CEQA you’re not solving the problem, because the biggest problem is local governments placing obstacles in the way of housing development,” O’Neill said.

Dunmoyer from the California Building Industry Association supports CEQA reform but also said that “he’s had projects that took 15 years to approve that never encountered environmental litigation.”

Another problem is that even changing CEQA has proven tough—even with a Democratic supermajority or perhaps because of a Democratic supermajority, CEQA reform bills have failed to even get out of policy committees.

They cite one obstacle: labor unions.  Labor unions, as we have seen, have used litigation or the threat of it to get union worker concessions for projects.

The recall candidates did not have many great answers for that.  Elder suggested “he would use his bully pulpit to take on special interest groups.”  We know how well that works.

“The candidates have criticized Newsom for not making more progress toward his goal of adding 3.5 million housing units by 2025. Housing costs, they say, are forcing Californians to leave,” the article notes.  “But besides killing CEQA, they have not proposed many solutions.

“When asked what they would do about local control, the recall candidates said they would leave it untouched,” the article reports.

None of the candidates, for example, would have signed bills to increase density on single-family zoned land.

Instead, “most of the candidates proposed developing land outside of major cities, which is often blocked by the government‐​established boundaries that separate urban areas from rural land, according to a recent CATO Institute study on housing affordability.

Paffrath proposed “the development of new communities, master-plan style communities outside of our large cities. So that way we’re not going into Santa Monica and trying to infill a ton of new housing.”

David Garcia, policy director for UC Berkeley’s Terner Center, said it was “hypocritical to use CEQA as a punching bag without a clear plan to tackle some of the most powerful interest groups that often block housing legislation and production.

“I think it’s a bit of a red herring,” Garcia said. “If you get rid of CEQA, that doesn’t mean much new housing is going to get built because they’re not for zoning reform, they’re not for any of these other things that we’ve identified are important to spur housing development.”

This discussion I found enlightening.  Everyone wants to punch California for its housing crisis—and for good reason.  But the solutions that came out appear to be CEQA reform, which no one really believes is at the heart of the housing crisis—and they oppose density and want to build outside of towns, in some places, perhaps create new towns.

Even in Davis, which has had a much larger percentage of CEQA suits than just 1 to 3 percent, CEQA hasn’t actually done anything other than delay housing for a year or two.  Other tools have been much more effective at blocking housing—most of them local rules that no one wants to touch.

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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14 Comments

  1. Ron Glick

    “Hernandez studied lawsuit and found in 2018 that 60% of CEQA lawsuits filed between 2010 and 2012 targeted residential housing developments, and the vast majority of them were urban infill developments, not projects in outlying areas.”

    This is one reason why its easier to do peripheral development instead of infill. Of course in Davis Measure D makes doing infill easier than peripheral development. With so many different types of roadblocks its no wonder why housing for families is in such short supply in Davis.

  2. Ron Oertel

    Everyone wants to punch California for its housing crisis—

    I want to figuratively “punch” everyone who claims there is a housing crisis.

    By the way, how will we know when this claimed crisis is over?

    Perhaps during the next housing crash?

    1. Richard_McCann

      Ron O

      Please provide evidence that there isn’t a housing crisis. I expect that you also believe that there isn’t a climate crisis? Housing has become unaffordable near job centers so that lower income households have extended commutes and often have to hold 2 or 3 jobs to afford to live where they do. In addition, those families are closed out of sending students to the better schools which are in higher priced communities. Denial isn’t an argument–provide supporting documentation and studies.

      1. Ron Oertel

        Please provide evidence that there isn’t a housing crisis.

        I figure I need about as much proof as those who claim there is one.  In any case, I’d define what this actually means, first.

        I expect that you also believe that there isn’t a climate crisis?

        Only those who support proposals like DISC believe there isn’t a a climate crisis.  Or at least, that it doesn’t matter what “their” community does, while they wait for national governments around the world to solve it for them.

        Housing has become unaffordable near job centers so that lower income households have extended commutes and often have to hold 2 or 3 jobs to afford to live where they do.

        So, your definition of a “housing crisis” actually refers to an “affordability crisis”.  But only for some, which means that it’s actually a discrepancy in income and wealth. I would agree with that definition. I’d probably suggest enacting stronger rent control, since the discrepancy itself will likely continue to exist in a capitalistic system.

        In addition, those families are closed out of sending students to the better schools which are in higher priced communities.

        Not necessarily.  For example, public schools in San Francisco suck, while those in Roseville don’t.

        Denial isn’t an argument–provide supporting documentation and studies.

        For what, exactly?  What are we defining, how are we measuring it, and how will we know when it’s “solved”?

         

  3. Keith Y Echols

     CEQA hasn’t actually done anything other than delay housing for a year or two.

    CEQA hasn’t done anything other than delay housing for a year or two THAT YOU KNOW OF.

    Often before even acquiring a property there’s discussion of the environmental issues up front.  This is long before an EIR is done.  The developer will even pay for an initial environmental assessment of the property during due diligence.

    I remember once my boss came back from a meeting annoyed saying that he wanted the (I think it was the city’s) environmental consultant to get on his hands and knees and find every single kit fox on the 100+ acre property because he had never found one there.

    When I went looking for land to acquire for development in Southern California, I was told stories of environmentalists putting desert tortoises on property to prevent development or at least get some offsetting land or funding.  While some city officials and local real estate brokers would actively sneak around and try to remove the tortoises from prospective properties.

    I know that every time we did a project, our goal concerning CEQA was to try to get a “neg dec” a negative declaration or mitigated negative declaration (city determines there’s little environmental impact, the public gets to make comments and if it’s cool with them…no EIR).  The whole point was to not have to pay for an expensive EIR which could also lead to prohibitive obstacles towards developing a property.

    1. Alan Miller

      • environmentalists putting desert tortoises on property to prevent development

      • city officials and local real estate brokers would actively sneak around and try to remove the tortoises from prospective properties.

      Ugly on both sides.  Law of unintended consequences . . . of laws.  Due to the disgusting ugliness of human nature and greed . . . on both sides.  Desert tortoises are very delicate creatures and it disgusts me that ‘environmentalists’, city officials or real estate brokers would use them as pawns, especially because of the very law that is intended to protect them.  Firing squad for anyone caught doing this . . . the operative phrase is caught.

    2. Richard_McCann

      I agree with Keith E–the prospect of the risk of a CEQA lawsuit deters development. The Chronicle has been running stories about how CEQA is abused in San Francisco to stop in fill projects. The law has gone awry.

      1. Bill Marshall

        You’re almost on the right track, Richard McC… the law is not inherently flawed. It is the misrepresentation of the purpose and provisions of the law that has led to it being “weaponized” by some.

        Most of the ‘weaponization’ goes to finding flaws in procedure, not substance.  In tennis, ‘foot faults’… trivial, but can cost you a serve, or points.

        Some common myths:

        CEQA is landmark legislation signed into law in 1970 by Republican Gov. Ronald Reagan. It requires public agencies to reduce or mitigate the environmental impacts of development wherever feasible. Essentially, the law tells developers to study a project to see how it could harm the environment and explain how they will lessen the damage.

        Whoever wrote that does not understand CEQA.

        CEQA documents are disclosure documents, neither more nor less.

  4. Ron Oertel

    Let’s see what Wiki has to say about this:

    CEQA does not directly regulate land uses, but instead requires state and local agencies within California to follow a protocol of analysis and public disclosure of environmental impacts of proposed projects and, in a departure from NEPA, adopt all feasible measures to mitigate those impacts.[3] CEQA makes environmental protection a mandatory part of every California state and local (public) agency’s decision making process.

    https://en.wikipedia.org/wiki/California_Environmental_Quality_Act

    According to the citation above, it’s more than a disclosure document. Quite a bit more, at that.

    1. Bill Marshall

      There is an ‘error’ (misrepresentation) in that cite.  It’s a Reader’s Digest summary of a Clift Notes summary of the law.  There is a key word in that cite that is oft misinterpreted.

      I see you have bought into the myth (have misinterpreted).

      1. Ron Oertel

        I haven’t bought into anything, including your claims. Just thought I’d look it up and post that citation.

        But there’s now two different citations (from the article, and from wiki) which conflict with your claims.  (Unless they’re using the same/single source document.)

        In any case, I haven’t seen you post any reference which shows that these citations are wrong.

        1. Bill Marshall

          In any case, I haven’t seen you post any reference which shows that these citations are wrong.

          Fine.  What you mean is “show me”, “prove it to me beyond all reasonable doubt”, not what you said. I’m not going to play ‘that game’. You have your mind set on what you want to believe.  You discount my experience, and knowledge, based on interactions with many practitioners.  Fine.

          I frankly (although I’m not) don’t “give a $1@*” as to your level of understanding, or your view of me.

          Have a great day, life.

          Ignore Commenter

        2. Ron Oertel

          No “over-reaction” in your response, is there.

          It’s not hard to find documented information regarding CEQA.  There’s two examples listed – one in the article, and one I posted.

          Neither of which have anything to do with me or you.

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