By David M. Greenwald
Sacramento, CA – It is a seminal, perhaps signature, environmental law, meant to protect the environment and compel disclosure of environmental impacts from projects—but, as many people recognize, CEQA has routinely been used and often misused to prevent, stop or delay housing projects.
In his latest op-ed, columnist Dan Walters writes, “Anti-housing NIMBYs in affluent communities misuse it to stymie high-density, multi-family projects, arguing that their neighborhoods’ bucolic ambience would be altered. And construction unions misuse it to extract wage concessions from developers.”
He noted, “It’s a long-running civic scandal and a major factor in California’s chronic inability to reduce its severe housing shortage” and Walters importantly adds that neither Governor Brown nor Governor Newsom “has been willing to take on the task, which would mean confronting environmental groups and unions, two of the Democratic Party’s major allies.”
As an environmentalist both concerned with maintaining agricultural land and concerned about climate change, I would argue that we need to figure out a way to keep the clear and obvious benefits of CEQA while ending the abuse.
Walters highlights a pair of court actions in the Bay Area, “one expanding the use of CEQA by those who oppose housing projects and another that restricts its use – underscore the law’s chaotic role.”
For instance, “one panel of the First District Court of Appeal issued a preliminary ruling that could open a new avenue for using CEQA to halt projects. It declares that a University of California student housing development in Berkeley violates the law because UC didn’t consider the impact of having more people – 1,100 students – in the neighborhood, citing the potential of late-night parties and other gatherings that could worsen a ‘persistent problem with student-generated noise.’”
The court basically ruled that more people is an environmental impact. Walters calls it “a novel theory that could hand anti-housing groups everywhere a potent weapon.”
UC Davis law professor Chris Elmendorf tweeted: “The court’s reasoning is devastating ammunition for racist white homeowners who would leverage CEQA to keep poor people and minorities out of their neighborhoods.”
He continued, saying “using the court’s statistical-associations logic, white homeowners could argue that CEQA requires affordable housing developers to analyze and mitigate putative ‘gun violence impacts’ from any lower-income housing project in an affluent neighborhood. The homeowners would point to statistics showing that poor people, and African Americans and Hispanics, are statistically more likely than affluent people and whites to be victims of gun violence.”
The other decision cited by Walters came down a couple of days later.
A different panel from the same court rejected efforts by a group attempting to stop a 130-unit project in Livermore.
AG Rob Bonta intervened in the case, supporting the city’s approval of the project. Bonta noted that this is an affordable housing project, “among the most acutely needed types of projects in California, given the State’s serious housing shortage.”
Bonta wrote: “Timing is a critical issue for affordable-housing projects, which often rely, as is the case here, on subsidies, tax credits, bond funding, or other time-sensitive financing sources.”
With respect to CEQA, Bonta makes the critical point: “While CEQA unquestionably serves important purposes, the Legislature has recognized that CEQA litigation also poses a risk of unduly delaying or blocking valuable projects, and accordingly has enacted a variety of provisions designed to ensure expedited judicial review of CEQA claims.”
Perhaps more importantly he noted, “Six months ago, the trial court determined the appellant’s CEQA claims to be ‘almost utterly without merit,’ yet this litigation has already put the Project’s financing, and potentially its entire viability, at risk.”
This underscores the problem in a nutshell, where even in a case where multiple courts have ruled there is no merit to the CEQA lawsuit, the project was delayed, funding imperiled, and the costs multiplied.
Bonta added, “That result is especially unwarranted in this case because the City of Livermore carefully followed a planning process that comports with both the letter and spirit of state law, which encourage a comprehensive environmental review at the land use planning stage to limit or avoid unnecessary or repetitious analysis at the project level.”
In other words, Livermore followed the law. It was an affordable housing project and yet we still have delays, funding placed at risk, housing imperiled and no real recourse for anyone involved.
As Walters notes, following this decision, Bonta tweeted, “CA’s housing crisis is dire. We won’t stand by and let people misuse our laws to avoid being part of the solution.”
The problem is, without actual consequences, while Bonta might fight delays in the court, ultimately the NIMBYs win every time they force delays, put funding at risk, and raise the cost to do business.
As Walters concludes: “The outcomes of both cases underscore the need for a fundamental CEQA overhaul to reinstate its original purpose, rather than continuing wasteful project-by-project skirmishes.”
I agree—there are legitimate purposes for CEQA that should not be denuded or stripped away. But at the same time, when a court rules there is no merit to the case, where the community follows the law, and the project is an affordable housing project, there has to be a way to expedite the process.