The Landmark Environmental Law Inside a NIMBY Firestorm - Bloomberg
Since the 1970s, critics have argued that the California Environmental Quality Act is doing more harm than good. What would reforming the law look like?
Patrick Sisson
In 1978, Los Angeles City Councilman Marvin Braude, who described himself as the city’s “first avowed environmentalist elected to public office,” took aim at a landmark California environmental regulation.
“Will we now drown in paper pollution?” asked the headline of his Los Angeles Times editorial on March 26. “It’s raining environmental impact reports.”
The target of Braude’s ire was the California Environmental Quality Act, or CEQA, a pioneering law signed in 1970 that requires public agencies and local governments to evaluate and disclose the environmental impacts of development projects and major land use decisions, and mitigate those impacts to the extent feasible. The councilman drolly argued that the far-reaching conservation legislation would create an “administrative morass” that promised to “bring new construction in the city to a grinding halt.” Moreover, he warned, misuse of CEQA by homeowners groups who wanted to thwart development could transform the law into “a tool for anyone who wants to maintain the status quo.”
Such warnings go back even further: a Times article from 1972 quoted a lawmaker as saying CEQA would trigger 500,000 layoffs in the construction trade by Christmas, and “there wouldn’t be any presents under the trees for the kiddies.”
But the pushback CEQA received in its first decade pales by comparison to the outrage of today. In recent weeks, the regulation has been called “an abomination” that “hobbled” government. State Senator Scott Wiener, citing CEQA’s role in throttling new housing, dubbed it “the law that swallowed California.”
The current wave of indignation stems from the law’s role in a dispute between the University of California at Berkeley and groups of homeowners over student housing: Save Berkeley’s Neighborhoods, a citizen’s group, sued the university, deploying CEQA to argue that the growing student population was driving up rents and homelessness and that the school failed to factor in the environmental impacts of increased enrollment. The issue made it to the state’s Supreme Court, which upheld a lower court ruling that froze UC Berkeley’s admissions at 2020-2021 levels, denying 2,500 accepted students the opportunity to study on campus.
“The decision goes against every principle we think we need in 2022 in a moment of climate change and growing inequality,” said Moira O’Neill, a senior research fellow at Berkeley who focuses on land use.
In mid-March, the state legislature generated a legislative fix to the impasse, quickly passing an exemption for higher-ed development plans that “leaves the larger problem of CEQA untouched,” according to Chris Elmendorf, a CEQA expert and law professor at the University of California, Davis.
The Berkeley case has revived long-simmering questions about changing or reforming CEQA. But many of those who complain about the law’s burdensome paperwork and frequent use as a NIMBY cudgel are reluctant to scrap it entirely. To paraphrase Churchill’s quote about democracy, is CEQA — with all its imperfections, delays, and complications — the worst form of environmental review, except all the others?
When CEQA was signed into law in 1970 by California’s then-governor Ronald Reagan — who, if alive today, would likely mock the delays and red tape it generates — it bore the high-minded goal of preserving a “high-quality environment that at all times is healthful and pleasing to the senses and intellect of man.” The law was part of a wave of state-level environmental regulations following in the wake of the National Environmental Policy Act. This was a time when the nascent environmental movement would achieve long-lasting impact via the formation of the EPA and the Clean Water Act, and average Americans were horrified by a series of high-profile environmental disasters, such as the burning of the Cuyahoga River and the 1969 Santa Barbara Oil Spill, which help inspire the first Earth Day.
Having developers conduct environmental impact reports, and provide information to the community at large about environmental consequences, seemed smart and straightforward. But CEQA has since evolved into a “monstrosity” of a regulatory regime, says Chris Carr, one of the authors of “The CEQA Gauntlet,” a new study by the Pacific Research Institute outlining the challenges projects have getting through the progressive legislation. A law that once consisted of 13 code sections when passed now consists of 190 code sections with 250 implementing regulations and 14 appendices for good measure.
The litany of extreme cases involving the law’s use is well known. Construction unions hold up CEQA lawsuits as a threat to developers who don’t work with them on projects. Community groups delay or derail homeless housing projects, solar farms and transit expansions. A 2015 study found that transit and renewable energy were the categories of projects subject to the most CEQA lawsuits. Carr found a rejected San Francisco apartment complex, next to a transit line, required a more than 1,110-page environmental assessment. In a particularly egregious case, an anti-abortion group used a CEQA lawsuit to delay the opening of a Planned Parenthood clinic, arguing that the noise and traffic delays caused by their protests represented an environmental impact.
CEQA’s unique form and application covers discretionary action at all levels of government in California. It’s also self-executing, meaning anybody can file lawsuits and jam up projects. There are narrow exemptions, and case law covering an extensive range of decisions. Yet, because decisions are based on administrative records and the individual circumstances of each project, every case is still document-intensive and unique, making compliance incredibly long-winded and complicated.
“CEQA creates opportunities for vulnerable people as well as classic NIMBYs,” said O’Neill. “Process can be extremely important to equitable and environmental outcomes. The question is, how do we shape that process?”
And in examining that process, it’s also key to understand the true outcome of CEQA. Flaws and all, research suggests CEQA, though significant, isn’t close to the lone impediment to solving the state’s dire housing shortage. Of the roughly 2,000 housing developments she studied with colleagues, less than 3% faced CEQA lawsuits, O’Neill says. And two-thirds of those that did faced suits focused on local law and CEQA. The study concluded that “local governments are placing regulatory obstacles in the way of new multi-family housing near transit,” and that “the biggest barrier is cities themselves, specifically, through zoning and process.”
Similarly, a 2021 report by the Rose Foundation, an environmental organization, found that CEQA lawsuits averaged less than 200 per year, and added very low compliance costs to housing developments, 0.6% at most, and concluded that “CEQA is not a barrier to housing.”
“Sometimes CEQA becomes a code world for the permitting process in general, and for other processes in local communities,” said Aruna Prabhala, senior attorney for the Center for Biological Diversity. “CEQA is a powerful tool for local communities and can be used as a bogeyman for developers, because it forces real changes to large-scale projects.”
Ashley Werner, directing attorney for the Leadership Counsel for Justice and Accountability, agrees that the true story of the law isn’t getting told. “The media by and large leaves out the really critical role of CEQA in upholding environmental justice for disadvantaged communities,” she said. “Any law can be used for purposes contrary to the public benefit and real intended purpose of the law, but doesn’t mean it’s not crucial in many other ways.”
Werner points to the power that CEQA gives communities that bear grossly disproportionate environmental burdens, a feature that other defenders of the law cite.
“Losing CEQA would mean losing the ability to address the kinds of pollution impacts that led to the enactment of CEQA in the first place,” said Robert Perlmutter, an attorney and partner at Shute, Mihaly & Weinberger, a leading CEQA law firm that represents the city of Berkeley (not the Friends of Berkeley) in the infamous admissions case. “Many other laws address these issues, but CEQA brings them together to help implement and enforce them.”
Lawyers consulted for this story weren’t able to name specific cases when CEQA was first “weaponized,” though Carr said it started happening in earnest in the late 1970s. But they did note that over time, whether it was due to expanding case law or increasingly complex environmental analysis, the statute has grown in complexity.
The 1973 Friends of Mammoth case, where a community group pushed back against the approval of a condominium project, went to the state Supreme Court, which codified that the regulation applied not just to public projects, but private projects that needed public approval, expanding the scope of CEQA to just about everything being built in the state, and setting in motion what many see as gridlock today.
“You can be sure the authors of CEQA didn’t think about the Boschian hellscape we have today,” said Carr. “But each year, there are new statutory sections or case law, which build up the body of the CEQA regime. It’s proliferated so much that California’s leading policy priorities are frustrated, complicated, slowed and sometimes entirely thwarted by CEQA. We’re in a situation where California is at war with itself.”
A key issue at play is how CEQA defines environmental impact. In the Berkeley case, for example, residents objected to the prospect of noise, trash and traffic increases from new students — issues that might be “legitimate matters of local concern,” as Elmendorf told the New York Times, but don’t represent statewide environmental threats. “CEQA pretends that if those people weren’t living in Berkeley they wouldn’t be living on planet Earth, where they’ll be driving or making trash or noise or starting wildfires or bulldozing habitat,” he said; indeed, adding Berkeley residents is “an environmental win, from a statewide perspective,” thanks to the smaller environmental impact of urban living.
But defenders of the law note that CEQA’s flexibility and decentralized format, which allows for any member of the public to question a project, is one reason it can be so effective as an environmental tool, according to Prabhala. It has evolved over decades to encompass concerns about climate change and wildfire, which weren’t nearly as prevalent as they were when it was signed in 1970. CEQA isn’t a “paperwork statue,” she says, existing merely to generate thousands of pages of documents (though it certainly does). It’s often the “best, last opportunity” for communities to fend off long-term and potentially damaging impact to the landscape.
And Prabhala says it’s rarely used against smaller, urban infill-type projects (though many housing providers, subject to nuisance lawsuits from NIMBYs, would disagree). “Development projects have 30- or 40-year footprints, and once approvals come into place, there’s very few if any opportunities to make changes,” she said. “It really forces companies and developers to go back to the drawing board and address community concerns and make substantive changes.”
Prabhala points to a pair of projects that show CEQA can make substantial environmental improvements without stopping development cold. In the Inland Empire, the World Logistics Center, a 40 million-square-foot warehouse planned to serve the e-commerce industry, was finally given the green light to proceed in 2021 after a years-long CEQA process and pressure from local activists pushed the developer to create a $47 million sustainability-focused community benefits agreement that included solar power, electric chargers for trucks, and funds for local residents to purchase electric vehicles.
In another corner of the state, Otay Ranch, a housing development outside of San Diego, was placed on hold after CEQA lawsuits found the developers didn’t do enough to address greenhouse gas emissions and wildfire concerns. (Prabhala notes they could still move ahead, if they just made the changes mandated.)
“I think there are some powerful economic forces that don’t like CEQA, beyond caring about good public policy,” said Perlmutter. “It’s effective in making big developers and companies mitigate the impacts of their projects, and that costs money.”
Could the Berkeley uproar press lawmakers to reform CEQA and contain its most notorious excesses?
So far, the powerful constituencies supporting the law have successfully resisted wholesale change. Werner of the Leadership Counsel for Justice and Accountability argues that any reform efforts should focus on protecting tenants and the rights of disadvantaged communities, while also making sure changes aren’t made without the input of those communities and their advocates. “The environmental justice community had to fight hard for a seat at the table in these discussions, and we want to make sure the value of CEQA to certain populations in the state are taken into account,” she said.
The rise of citizen voice in the decision-making process often slows down projects more than environmental review, says Will Rinehart, an academic at Utah State University. His recent paper used the term “vetocracy” to describe the way that public and community feedback produce a series of potential derailments for any project to navigate before approval, a problem CEQA exacerbates. The Pacific Research Institute agrees to a point, arguing that to truly reform CEQA, action needs to be taken to end or limit frivolous lawsuits, and streamline the process to eliminate CEQA abuse.
Laws such as SB 35, which exempt certain affordable housing projects from CEQA, also offer a glimpse of what reform can look like. State Senator Wiener has also championed extending and widening the impact of fixes such as SB 288, a 2021 bill that exempted green transportation and mass transit projects from the full breadth of CEQA analysis (and delays). It remains to be seen if the aftermath of Berkeley can open up an opportunity for lawmakers who want to be both pro-city and pro-environment, as Elmendorf put it, to finally achieve a breakthrough after decades of reform efforts. .
But fixing CEQA — or getting rid of it entirely — is no magic bullet, said O’Neill: The flaws and challenges in California’s development process run too deep for that.
“We need to do more to fine-tune the scope and breadth of environmental review, that’s my perspective,” she said. “But failure to include vulnerable groups in the planning of the built environment will have negative outcomes.”
source: https://www.bloomberg.com/news/features/2022-04-20/the-landmark-environmental-law-inside-a-nimby-firestorm
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