By David M. Greenwald
CEQA was once California’s premier environmental law. Now many see it as a huge barrier to developing housing—and it’s not only conservatives and developers who see the law as a huge boogeyman.
Noah DeWitt, writing for the Pepperdine Law Review, last year illustrates the problem.
In his piece, he argues, “One major roadblock to building more housing is the California Environmental Quality Act (CEQA). The Act was enacted in 1970 as a pioneering law to protect the environment from adverse developmental impacts. However, today, those opposing multifamily development have turned what was supposed to be a legislative tool for environmental protection into a convoluted tool to oppose multifamily housing development.”
To illustrate the problem, DeWitt notes that in 2020 construction was completed on the huge 298-acre SoFi Stadium in Inglewood, CA—a $5 billion project.
Last year it served as the host for the Superbowl and houses both of LA’s recent arrivals—the Rams and Chargers.
It took the city just four years to complete the project. And they followed it up with another project for an NBA Arena.
While many residents were excited about this project, some living in close proximity were upset about the developments, concerned about gentrification and worried about the need for the city to build more affordable housing.
“Despite these concerns and the ardent refusal of some private landowners to sell their property, Inglewood’s City Council has done their best to successfully mute the local residents’ critiques and fast-track the project’s approvals,” DeWitt writes.
However, just a few miles away, a “very different development story (was) being written relating to affordable housing.”
As DeWitt puts it, “Unlike the large stadiums, the relatively miniscule affordable housing projects in Los Angeles have run into seemingly insurmountable roadblocks. All these roadblocks exist despite the fact that Los Angeles desperately needs more housing stock—arguably much more than it needs new stadiums.”
In fact, LA residents voted in 2016 to pass Prop HHH, which was supposed to set aside $1.2 billion for the development of 10,000 supportive housing units for those experiencing homelessness.
“In passing HHH, Los Angeles thought that it had cleared one of the greatest burdens to its housing crisis – funding and public support,” DeWitt notes. The result was that the city now projects that instead of reaching the 10,000 housing goal (an initial goal no less), it will reach barely half that.
“The major barrier that affordable housing proponents now face is the political opposition of angry, development-reticent citizens who are effectively stalling what could have been a turning point in the history of Los Angeles.”
But of course it’s not just CEQA that’s the problem. DeWitt adds that “unlike the case of the two Inglewood stadiums, local politicians have yet to intervene in any meaningful way to mute the affordable housing critics and speed up the projects.”
CEQA however is the tool that is being used to stop housing. And given that Los Angeles’s need for housing is far greater than its need for new stadiums, the political will here or lack thereof is rather striking.
DeWitt finds that CEQA is a far cry from the original vision for the law and has, as noted, become a barrier to infill multifamily housing production—the type of housing that many who oppose sprawl say they prefer.
The state has repeatedly failed to pass major CEQA reforms—for a variety of reasons. And when it has, DeWitt has found that most have yielded minor if non-existent results.
Perhaps one reason that CEQA has largely survived in its mutated form is that it is easy to pigeonhole critics of CEQA as conservatives or greedy developers attempting to prioritize profit over the environment.
Never mind that it was Governor Ronald Reagan in 1970 who originally signed CEQA into law.
As California YIMBY points out in a recent blog post, “It’s hard to argue with the initial goals of the California Environmental Quality Act: As originally designed, CEQA forced public agencies to disclose and mitigate the environmental and public health impacts of major public projects.
“The Act has unquestionably led to improved environmental outcomes across most of the state, as questionable projects were blocked, or projects in need of improvement were appropriately refined.”
So what’s the problem?
“The problem arises because, under current CEQA law, any private project that depends on ‘discretionary’ approval—such as a rezoning, variance, or site plan review—must pass through CEQA,” CA YIMBY continues. “This has evolved to include such ‘environmental threats’ as bike and bus lanes, mass transit projects, and, yes, infill multifamily housing near transit and jobs – exactly the kinds of homes we need to reduce our environmental footprint.”
The state has attempted to streamline some of those processes, and create exemptions to CEQA, but as we know, even those exemptions carry with them procedural hurdles and can form the basis for litigation.
DeWitt categorizes reform efforts as: litigation streamlining, judicial streamlining, expanded state zoning preemption, and other more piecemeal multifamily development strategies.
What has passed—notable bills like SB 35, SB 540, and AB 73—have “fatal flaws,” particularly trading CEQA exemptions for costly prevailing wage obligations. These have pleased labor interests, but they have at the same time undermined the benefit of streamlining.
DeWitt argues that California should look toward three other states—Massachusetts, Minnesota, and New York—as each has “reformed their environmental statutes in ways that can provide California with solutions to its own CEQA barriers.”
One key is that Minnesota’s plan calls for cities to submit and amend their comprehensive plans for housing. Those comprehensive plans are then exempt from additional environmental review under the state’s law.
In other words, rather than a limited exemption of a small number of affordable housing developments which are still subject to various regulatory hurdles, CEQA should exempt all types of housing with a streamlined process that simplifies RHNA.
What’s clear to me is that what we are doing is not working—and other areas of the country have been able to overcome these hurdles while California cannot.