Last week, the SFHAC, SPUR and AIA-SF, hosted another in their successful series of lunchtime forums to a full house. The audience came to hear Jennifer Hernandez, a partner at Holland & Knight, and one of the state’s foremost authorities on the California Environmental Quality Act (CEQA). Ms. Hernandez discussed her remarkable 2015 study about how CEQA does (or does not) help protect the state’s environment. Her study analyzed over 600 CEQA lawsuits filed in California between 2010 and 2012.
Passed in 1970, and signed into law by then-Gov. Ronald Reagan, CEQA has changed very little over the last four decades. While it’s widely agreed that it brought new process, rigor and transparency to how the state confronted its environmental challenges at that time, growing numbers of observers agree that CEQA is broken and out of date.
Among most urbanists, planners and SFHAC’s members, CEQA is seen as an enormous obstacle to addressing the actual environmental challenges the state faces. How do we quickly reduce our collective carbon footprint and begin to slow climate change? The answer is to increase height and density of living arrangements in ways that make desirable neighborhoods and reduce the need for private auto use while increasing transit in urban areas, something CEQA too frequently impedes.
Analyzing the targets of the 600 lawsuits, however, refutes the conventional uninformed wisdom that CEQA simply gives environmentalists a needed tool to prevent harm to the environment.
Based on the data, the study made some startling 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.
- 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.
- 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.
- CEQA litigation is overwhelmingly used in cities, targeting core urban services such as parks, schools, libraries and even low-income housing.
- 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 business competitors and labor unions seeking non-environmental outcomes.
Ms. Hernandez’s study makes three recommendations to modestly improve how CEQA functions:
- Improve transparency by requiring those who file CEQA lawsuits to disclose their real identity and environmental interest.
- Eliminate sequential, duplicative lawsuits aimed solely at derailing projects for which an EIR has already been certified and was either not challenged or had been upheld in court.
- Preserve CEQA’s structure and access to litigation for environmental purposes, but prevent the extraordinary judicial remedy of invalidating entire projects unless they pose a significant adverse threat to public health, irreplaceable tribal resources, or ecological systems.
The depressing reality of Tuesday’s presentation, however, is that, barring big political changes in Sacramento, there is little immediate prospect of any reforms to CEQA. Unlike almost all parties in California whose work concerns cities, neither Governor Brown, the state legislature nor various powerful interest groups appear willing allow changes to this antiquated law. How very sad.
