The Planning and Conference League (PCL) held a sold out conference on the Campus of UC Davis on January 12th. Senate President Pro Tem, Darrell Steinberg says that it’s important for the legislature grapple with updating the California Environmental Quality Act. (CEQA)
See the first article for key segments of commentary from Senators Steinberg, Evans and Rubio. Senator Evans said they must approach the CEQA debate is to agree first, like the medical community to “ Do no harm.” http://www.examiner.com/article/pcl-conference-steinberg-says-we-will-grapple-with-ceqa-this-session-part-1
Areas ripe for revision are reducing legal challenges by the public, using existing environmental standards (water and air) or creating new standards which will speed up the review process. There are many pro/cons opinions on those subjects.
Another area is to consider is incentives for infill projects or renewable energy projects special consideration but the devil is in the details. See a paper by Berkeley about “infill” projects and then proposed Senator Simitian Bill SB 226, which passed. http://www.law.berkeley.edu/files/Defining_Good_Infill(1).pdf
During the breakout sessions of the PCL conference, there were many comments about how CEQA could be updated and perhaps strengthened. Some comments are controversial since the attendees were from all sides of the issues:
- Bring CEQA up to date by allowing use of technology; allow links that cite laws, state standards and other pertinent work that are important in decision-making which will cut down on redundancies. Result: It will take less time to prepare the actual Environmental Impact Reports and Studies and preparation of administrative records for rarely filed court cases.
- Old doesn’t mean bad
- Projects have been made better though public participation.
- Exaggerated litigation statistics: In fact only 3 out of 1000 of approved projects go to court. http://www.ppic.org/content/pubs/op/OP_405EBOP.pdf See an article about the type of lawsuit that has been filled in the past. California Planning and Development Report. http://www.cp-dr.com/node/3310
- Produce an environmental document that speaks of compliance instead of legally defensible documents. (Senator Michael Rubio)
- Massively sized EIRs have been used as a deterrent for public examination.
- The CEQA laws are like the Rocky Balboa story, it’s taken some punches but it will come out stronger in the end.
- Add economic impact development to the environmental reports and studies. (Senator Noreen Evans) Sometimes economic impacts are exaggerated for the new proposal when in fact they hurt another sector of the community.
- The development community wants certainty that they will be able to use their land and more assurance on the costs associated with development of it. Standards should be developed that give some a frame work. (Several speakers mentioned this including David Mogavero- PCL Board of Directors, Senator Darrell Steinberg)
- Consideration should be given to repairing or modernizing public properties such as bathrooms (Senator Michael Rubio) Or fixing a guard rail as explained in the February 2011 in a House Transportation Meeting in Fresno. Participants asked for an abbreviated and/or exempt process was suggested for projects under $1 million and for projects already operating and within an approved right of way. Example: Guard rail project on an existing road took several years to complete due to the length of the NEPA process.
- Consideration should be given to energy efficient projects such as transit projects such as those that reduce Green House Gases (GHG) (Senator Michael Rubio) Note: Strict guidelines would have to be established with early impacts of GHG reduction.
- See “overriding considerations” completely eliminated since many times they do nothing to address impacts and meaningful mitigation.
- Tighten up the rules for overriding considerations.
- Find a way to override the overriding considerations.
- CEQA is only as effective as the public agency that is in charge of the project.
- Allow fixing one issue that has a problem instead of subjecting the entire environmental document for review. (Senator Darrell Steinberg)
- Infill projects should be incentivized. It appears at times communities are subsidizing sprawl for green field development perhaps gaining approval for projects because of campaign contributions. (David Mogavero)
- Bring the public into the picture earlier. Get an idea from the community what they consider a good project vs. a bad project. (Caroline Farrell) Note: Consider Context Sensitive Solutions as the highway system has used successfully for years at the start of a project, not after approval of the project.
- Leave the basics alone: The voice of the people and the community is paramount.
- The unique cumulative impact of the CEQA process allows all parts of a project to be seen in one place and the effect they have cumulatively.
- Have exclusive courts for CEQA with judges that understand the complex laws and which may result in less political decisions and perhaps less subject to bias.
- There is no state agency that enforces the CEQA law and courts offer the only remedy the public has. Changing the rules about reimbursement of court costs to parties that bring suit if they do not prevail is not wise since it will inhibit the filing of suits. (Senator Noreen Evans)
- Note: The courts give preference to Public Agencies and in the case of our experts against yours, the state will win. Bottom line unless you have overwhelming evidence of wrong doing, the courts do a favor the public agency. So the fact that someone loses does not mean the suit was frivolous or without merit.
- Add the use of public advocates that inform the public of projects early and updates them on key developments. (Stuart Flashman)
- Projects move to litigation when the public process is broken. When the political process wins over the public process, trouble is likely to occur.
An example of the failure of public process is clearly apparent in the California High-Speed Rail Project, the largest public works project in the state and in the nation.
Stuart Flashman, an environmental attorney, currently involved in legal action against the California High-Speed Rail Authority, gave a presentation outlining the long history of the High-Speed Rail Project. When the IA ballot was sent to the public in November 2008, the selection of the route was primarily decided prior to the vote and prior to the beginning of the environmental process.
In the Central Valley even though Hwy I-5 was shorter and would service more people, it is thought that the main reason I-99 was selected largely because the Central Valley cities wanted the train service. Similarly the switch from the Altamont Pass to the Pacheco Pass done in the year 2000, is suspected to stem from political motivations from High-Speed Rail board members, San Jose politicians and the Silicon Valley Leadership group. They wanted San Jose to be very important in this project.
In short, the political process won over the public and environmental process and because of that, several lawsuits still threaten the project from going forward.
While few people argue that the concept of high-speed rail is good, the process that surrounds this project has not been. See Sierra Club’s 2012 letter concerning the high-speed rail project. http://sierraclubcalifornia.org/Documents/SCC_Comments_on_HSR_Business_Plan_1-13-12.pdf
A final article will be published later soon which demonstrates the good the CEQA law has done and why it still has “good bones.”