Planning and Conservation League (PCL) held a daylong conference January 12th to discuss the California Environmental Quality Act. (CEQA) The sold out conference had a host of environmental notables such as Senator Noreen Evans who was awarded the legislator of the year award for her work championing the environment. Caroline Farrell also received a PCL Award for her environmental justice work for Center on Race, Poverty and the Environment.
Darrel Steinberg, President pro Tem for the California State Senate, was the key note speaker and gave a hint of what’s to come for CEQA in the legislature this session.
In a nutshell, people unanimously agreed in the importance of the public participation and the cumulative impacts that only CEQA can offer. Everyone is aware that the development community wants more certainty around what they can and cannot do with the land they acquired, the cost for possible mitigation and perhaps protections if legal action is taken. Many acknowledge that shortening the time frame to do CEQA studies could be a good thing but “how” is the key question. A collection of ideas from some of the sessions will be provided in the second article.
But by far the controversial and troublesome issues seem to be surfacing around legal issues and the ability of the public to use the judicial system to air their grievances. While it is true lawsuits remain the only vehicle for enforcement, in actuality according to a 2005 study by the nonpartisan Public Policy Institute of California (PPIC) less than 1% are delayed by court action.
See what the award winners had to say about anticipated legal challenges to CEQA:
Senator Noreen Evans from Santa Rosa said, “There is going to be an attempt to shut the citizens out of the courtroom with respect to CEQA litigation. That would be extremely unfortunate. By being empowered to bring private litigation, it’s the citizens that enforce CEQA. We don’t have a public agency that is charged with enforcing CEQA, if we did it would have an incredible amount of bureaucracy. If we require citizens to pay the attorneys fees if they lose, that stilts their ability to seek redress.
If we shut them out of the courthouse as was done with legislation in 2011 then we completely absolve ourselves of the enforcement of CEQA and we make it not even worth the paper it’s written on. We’re going to have a real strong debate on this. “
Caroline Farrell, attorney for Center on Race, Poverty and the Environment (Environmental Justice) “Perhaps there are parts of CEQA that should be updated, not quite sure the purpose of this particular effort is. The term “certainty” seems to be “litigation certainty” in other words, “we want to know we are going to win in court.” If that’s the certainly we are talking about there are lots of way to have standing requirements. The courts have their own rules about frivolous lawsuits. She says perhaps litigation reform and civil procedures could take care of some concerns but perhaps not CEQA. I think if it’s litigation certainty, that’s something completely different not a substantive reform of CEQA itself. The reforms that seem to be proposed are ones that are designed to give that litigation certainty by saying what can and cannot be challenged. If you do challenge it, the presumption is you will lose. That’s doesn’t seem to be the outcome from environmental and land use law that that’s the right outcome. A different kind of conversation needed.”
Highlights of Steinberg’s Speech
Senator Darrell Steinberg was the key note speaker and offered a candid glimpse into the challenges coming up this session in relation to CEQA. Steinberg said,” reform is a loaded word, I prefer update.” He told the audience that CEQA was a great law but it needs updating and improvement. “We should not fear honestly grappling with it.”
Reduction of Litigation hooks:
Steinberg says, “It’s become an issue because of the development community, not just those who are developing project that are not clean but those seeking to develop renewable energy and other projects consistent with your goals and my goals. The process is set up to play “gotcha,” there are a lot of litigation hooks. The process itself takes too much time to get through.
Steinberg goes on. “Even when a defect in an environmental document or a proposal is revealed, there isn’t an easy way to fix it and then allow the project to go forward because of court action and remand, “it takes too darn long.” In addition, it can be used “by competitors and organized labor to try to gain other goals which may be laudable but goals unrelated to air quality and water quality.”
The Senate leader says the issue is complicated because we can’t look into someone’s head and determine who has the wrong motive. But he points out that the US constitution and the California state constitution give people the right to bring their grievances to court. “We have to look at the law and ask ourselves what is the right litigation hook because it’s needed to make sure the project complies with this great law.”
“We want to look at the process and efficiencies and make the process go faster so it doesn’t have to go on for years and years.” Then you get to the standards issues, this is where we want to grapple as a legislature. He believes that “standards may be appropriate, when there is an issue around whether or not a state standard has been met or is a legitimate standard, there may be reason to say separate that from CEQA and take that up against the enforcement agency as opposed to the lead agency.
On the other hand, one of the most important parts of the CEQA law in addition to transparency and information for the public is the ability of this the statute to look at cumulative impacts, to look at local impacts and to look at the combination of regulated and unregulated impacts. Unless a standard itself can comprehensively, by virtue of how it’s written and how it is implemented, address those key components of the CEQA law, we are not going wholesale substitute standards for a CEQA analysis. But there may be room there within that construct to find a way to lessen a litigation hook, to reduce a litigation hook or two in a real way without sacrificing the essence of what CEQA does.”
Steinberg seemed aware that most of the audience didn’t approve of his appointment of Senator Michael Rubio to head the Senate environmental committee. Steinberg says Rubio is provocative in his approach to CEQA reform. Then he asked the audience to study the composition of the Senate Environmental Committee and suggested it has a slight majority prone to the goal of keeping CEQA strong. He likened what he did to the new movie release, Lincoln. Lincoln had diverse opinions on his cabinet to insure a vigorous debate on all sides of an issue.
Steinberg said that Rubio wants to do the right thing. We are going to work together to cut a deal, [admitting that sounds crass] with other members of the committee and the legislature and grapple with this. He acknowledged that “at the end of last year’s legislative session the bill SB 317 that was ultimately withdrawn by him, was “not the right bill, it was overwritten but warned it had a head of steam. It came over from the other side”. He sort of warned the audiences to remember while the “Governor is great, he never met a CEQA exemption he didn’t like.”
He reminded the audience, “ I’m out of here in two years.” “I want to make sure to update this statute in the right way with broad support of moderate business community and the environmental community and I want as a condition of that end result, whatever it looks like, to be the declaration of a peace treaty on this issue for a lot of years.”
Senator Michael Rubio from Bakersfield sat on the first panel and here are some ideas he brought.
“If CEQA was perfect and didn’t need to be worked on why has it been in and out of the building [state legislature] for 13 years?” he asks. He himself has used CEQA successfully for “water issues in the San Joaquin Valley not only for environmental improvement but for the public health aspect. “
“Let’s focus on the very good that CEQA does but it’s a law but needs work. “
Rubio offers, “Renewable energy projects are so important and standing in the way is how we cite and permit both the wind and solar project but also the transition projects. “If we want to fight back and win on the global warming front, I think we should find a way to preserve CEQA, never provide any exemptions, which has been somewhat of the flavor recently, as we’ve seen lately but see to it that we provide certainty in that path that we hold everyone to a very high bar.” He wonders if perhaps standards can developed to improve the law.
What’s not working well? “If someone can sue you are reducing parking spaces to create transit oriented development, should you be able to derail and delay the project even though it has significant long term benefit for our state and how we plan in the future?”
What is working well? “Public participation works extremely well, in order to protect their environment and their neighborhood. Other provisions that work, cumulative impacts- how does it impact the neighborhood as a whole.”
Senator Noreen Evans: “I have been hearing the debate on CEQA for at least 20 years. First advised that we should follow the most important rule in the practice of medicine, “ first do no harm” whatever we do to CEQA, both to the public process it creates and to the future of our state and environmental protection. “We have to define the project we’re trying to solve. Business community wants certainty. Nothing is certain in life. CEQA isn’t designed to produce a certain outcome, CEQA is a process law, in which the public has input. It doesn’t define anything in particular as the end result. CEQA isn’t designed to determine any kind of development such as urban sprawl.”
“My red lights are going off because proposals brought forward last year. Senator Rubio was one of the proponents but probably not the only one. The language in SB 317 came at the last minute. These proposals always come at the last minute, when we’re all distracted. The over-riding theme of that proposal was if you are in compliance with some another environmental law or general plan, you should be in compliance with CEQA. That doesn’t work. You cut the public completely out of the process.
CEQA doesn’t set environmental standards, CEQA is the process by which we measure a proposal against standards that are set by other laws. Remember what CEQA was designed to do. Be careful in designing what we want to do and make sure we don’t throw out the best of CEQA in the process.”
Caroline Farrell attorney for Center on Race, Poverty and the Environment (Environmental Justice Organization) The CEQA law is a “valuable tool for the communities we are working in. You should be thinking about how it’s unique to other environmental laws. It’s a crucial part of our planning fabric. It’s the vehicle to give voice to the people about what’s being built in their community and how they will benefit.”
What works well? “The key value is the informational analysis. It identifies gaps in regulations. It shows where things can be done beyond what is currently required mitigation.” I think public participation important.” She notes if comment letters, mitigation impacts are ignored it creates an “us vs. them” atmosphere. As long as the public participation remains open then it works.”
An improvement she noted is to have “a better understanding about what the community believes is a good vs. bad project” and if possible high-level planning would go a long way to define what those projects are.
Next see part 2: Suggestions from the PCL conference attendees on improving the environmental laws