There has been much ado about the California Environmental Quality Act (CEQA) and recently there have been articles about the need for significant changes to this 42 year old statute put into law by President Ronald Reagan. What is CEQA? It is a law that offers protection for the quality of life in California: natural resources including open space and clean air, water, and land, and gives the public the opportunity to participate in local land-use decisions.
Before legislative session ended, late August, there was a failed attempt to remove many key provisions, in other words to gut the bill. Environmental groups, democratic leadership and some unions said, let’s not do this and the pressure worked. It was stopped but with the promise that the issue would be readdressed in the new legislative session. http://www.examiner.com/article/california-environmental-quality-act-ceqa-fight-postponed-communities-on-alert
The changing of the guard from the elections has taken place and some of the champions of CEQA have terms out such as Senator Joe Simitian. The newly appointed chairman of the Environmental Committee is Senator Michael Rubio from Bakersfield. Unfortunately it was Senator Rubio who attempted to gut the CEQA laws last session. And though not required, he has no experience on this committee. . Luckily the committee still has senators with a strong background and commitment to the preservation of the environmental laws such as Senator Noreen Evans, who’s approach to reform to CEQA is like the medical community, first, “Do no harm, “ Both she and many other senators on the committee will provide a healthy debate before any changes are brought forward.
Business Community Complaints:
Complaints have been long been lodged by the business community that CEQA was an anti-business law and most recently the Silicon Valley Leadership pushed for changes to the law. http://www.mercurynews.com/opinion/ci_22012555/mercury-news-editorial-ceqa-reform-must-be-top Many of these issues come up yearly with little serious damage to the law so far however last year’s LA stadium exemption seemed to crack the door open a little wider. The stage is now set for more disruption to the law. http://greenroots.pcl.org/tag/ceqa-exemptions/
Governor Brown, who likes to be called an environmentalist and was voted at one time one of the top five greenest governors’ in America http://www.greentowns.com/about/green-ratings-of-governors seems determined to change the law this year. Why? Some say to grow the California economy and create jobs. Some believe it’s his goal is to wipe away growing environmental challenges filed against the “high-speed rail project.” http://www.mercurynews.com/california-high-speed-rail/ci_20761210/gov-jerry-brown-plans-fast-track-high-speed
Some say it’s a bigger issue and believe Brown thinks high-speed rail will be his legacy project. Whatever the reason, President Pro Tem of the Senate, Darrell Steinberg has said “the Governor, who is great, never met a CEQA exemption he didn’t like. “
.At the January 12th, Planning & Conservation League (PC) Meeting exclusively on the subject of CEQA, the importance of the public process and getting them involved early was extremely important. The failure of the public process was indicated as the primary reason lawsuits occur.
How well CEQA works: what it does and does not do
There has been much written by those pushing change to this extremely effective bill but there is another side and that is, how well it actually works. A 2005 study by the nonpartisan Public Policy Institute of California (PPIC) indicates, less than 1%, only one project in every 350 is ever delayed by CEQA-related action. See the full report: http://www.ppic.org/content/pubs/op/OP_405EBOP.pdf It is very rare that comments try to stop a project. “Suggestions and mitigations” can actually improve the project says Shani Kleinhaus, PHD and Environmental Advocate for the Santa Clara Valley Audubon Society.
Kleinhaus describes a case in point, the new Facebook facility in Menlo Park. Commenting on a CEQA document, her organization pointed out that window design in a building planned so close to wetlands along San Francisco Bay could create a hazard for birds. When Facebook read and studied the comments, they decided to implement bird-safe window design in the plans for their new campus. Moreover, the company is now planning to enhance the campus for birds, much beyond the required mitigation measures.
Recently, several organizations did in fact delay a project that planned to build 20 homes on a floodplain adjacent to one of the healthiest urban streams in San Jose, Upper Penitencia Creek. The project would require elevation of the floodplain and by filling the flood plain would increase the risk of flooding to the entire community downstream. In this example, CEQA allowed the public to look beyond the benefit to the particular developer and to consider the cumulative impact to the entire community. There is no other law that provides the public with information, gives them the right to express concern when a project that would benefit few can impose increased costs and risks on many.
In another recent case, a Safeway store was approved by Oakland’s Planning Commission, calling scaled down versions infeasible. However, neighbors close to the development were very concerned about traffic and parking impacts and let their feelings be known. A threat of a lawsuit was a powerful incentive to bring Safeway to the negotiating table. According to Environmental Attorney Stuart Flashman “in this case CEQA led to a project that is now generally recognized as being superior to both sides’ earlier proposals.” Flashman added that “ lately it’s been all the rage to claim that CEQA is a “job killer,” a waste of time and money, and a way for unhappy “NIMBYs” to delay and ultimately destroy valuable projects. In this case, however, it did none of those things”.
“This project was not an anomaly,” said Flashman. “ There have been many cases where the CEQA process has led to approval of a different and better project than the one originally proposed. The CEQA process also routinely identifies ways to mitigate potential project impacts. In short, CEQA does more than stop damaging projects from happening (although it sometimes does that too). It shows the way to better projects while reducing damage to California’s environment. “
Proposed changes to the law
Bruce Reznik, Executive Director of Planning and Conservation League (PCL) said of course we don’t know what the proposal is but if it’s like was proposed in the failed SB317,” it would have ended CEQA as we know it. “ He reported that Senator Steinberg stopped the bill from going through saying it was too sweeping and last minute. Reznik said while little tweaks have been done over the years, the attempt at passing SB 317 was a wakeup call for the environmental community because it was an indication that sweeping changes could be attempted. He said the environmental community needs to do a better job explaining the value of CEQA.
Here’s a list of what PCL calls “Everyday Heroes”- 68 stories that demonstrate the value of CEQA.
http://www.pcl.org/pcl_files/full_report.pdf
David Mogavero is President of the Planning and Conservation League (PCL) and an architect by trade likes the idea of developing standards for CEQA. He says “Developing long term standards can be a good thing. The standards that we have in place don’t work and we need things that indeed regulate project level requirements. We need to write new laws. The existing regulations we have are inadequate for controlling the nature of projects.”
He gives as an example of Title 24 and how this has provided a good frame work for project level standards. This law provides new construction standards every 3 years and the result has been impactful. Buildings construction today will consume 75% less energy than those built in 1980. “It’s been an awesomely successful law. It’s simple, not process intensive. It is enforced at the building permit level, at project level and it’s black and white,” says Mogavero.
While Mogavero is in favor of developing standards, he is not in favor of using general plans as a standard, which tend to be subjective and charter cities can change them at any time. He adds, “In general the local governments have not been good stewards in the area of development with few exceptions such as Sonoma and Ventura counties. Using a statewide standard instead might in fact reduce the undue influence of campaign contributions rampant from the development industry. They provide a significant percentage of the money to local elected officials thus they have inordinate amounts of influence.”
One idea Mogavero believes in is developing a standard around Vehicle Miles Traveled (VMT). For example, when building either new or infill projects, a standard could be developed that would limit travel to no more than 14 miles per day per person in the household. The logic behind the concept is that the “combined costs of housing and transportation have risen steadily over the years from 10% of household costs to 30%. The rise is dominated by transit costs.” The result of instituting a standard like VMT could keep sprawl in check, something CEQA was not designed to do, and promote infill projects.
PCL, as an organization, is willing to talk to lawmakers but bottom line they want to see CEQA improved, not made weaker. They want the law to do a better job to encourage strong community engagement and informed decision making. Bruce Reznik, Executive Director, gives the example of an improvement that might be welcomed such as accepting electronic documents for use in court cases for what’s called the administration record. Years ago it was less expensive, say $10,000.to create the administrative record said Reznik. In a recent case in the Central Valley, the Administrative Record cost $250,000 to prepare, not exactly in the reach of the everyday taxpayer.
Even with these rising costs, advocates for changing the CEQA laws are discussing increasing fees even more which would have the effect of discouraging the public from filing a suit. “While there is fear in the business community that corporate competitors file nuisance suits, increasing fees they won’t deter them, they will still file suits. Increased fees would hurt the small community groups and an individual from protecting communities’ most valuable resources” says Shani Kleinhaus, PHD and Environmental Advocate for the Santa Clara Valley Audubon Society.
In the end, making it more costly to try a suit in court, would help only the well to do and hurt the disadvantaged. The real losers are the people who fall under the category of Environmental Justice. This concept is defined as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
As it is now, the judge has the discretion to grant attorneys fees to the public even if the filer loses, if the judge feels it was not a frivolous suit. The current practice should be enough to deter cases without adding the addition burden of higher costs to do so which will hurt only the public.
Gary Patton, Environmental Attorney said, “The CEQA changes proposed last year would have had two results: First, the CEQA modifications proposed would have virtually eliminated, the ability of ordinary members of the public to have an impact on projects that might affect them, their communities and the natural environment. Second, the proposed modifications to CEQA would have shifted the cost of needed mitigations from project sponsors to the public in general. Under current law, the public agency granting a development approval must require the project sponsor to mitigate all identified impacts. The proposed modifications to CEQA would let project sponsors off the hook. Impacts would either not be mitigated at all, or the public would end up paying for them. I strongly suspect that the reason that so many businesses want CEQA "reform" is that they want to transfer mitigation costs to the taxpayers, instead of having to pay these costs themselves.”
Burden of Proof in Court Cases
Sometime people balk at the idea of lawsuits. It seems so unpleasant. But this is different because civil laws are only enforced by filing a lawsuit. The Legislature doesn’t enforce laws, they just make them.
According to the 2005 Public Policy Institute of California (PPIC) report, “CEQA is a self-enforcing statute, meaning that enforcement is left to citizen court
challenge.”
Limiting or shortening the 30 day filing deadline, would not allow adequate time to discover the action, to study the reports and proceed to action if the EIR was deemed inadequate.
Realistically, the burden of proof is enormous when an organization or an individual is suing the state. The judge can usually justify greater good for the state and naturally in many cases would outweigh the rights of the individual. If there is a scintilla of evidence that the state made a good faith effort, the judge will rule in favor of the state. If it’s a question of a battle of experts, “a he said, she said,” the state wins. The state agency has to be dead wrong, in complete non-compliance to be the loser. In other words the decks are stacked in favor of the state to begin with. But they don’t really lose because the courts will make the project leaders fix what was deemed problematic.
The CEQA process may be inconvenient for the state agency or corporation, but not a deal killer. It is very, very rare to have a CEQA process end a project. Frankly says Shani Kleinhaus, “its ok for things to go slower so the public doesn’t lose their right to be informed and participate in a process that can affect their health and quality of life.” She says CEQA is actually a weak law and should be strengthened not made less effective, since even in the rare case of a truly bad project and a court hearing, the judge usually does not stop the project, only makes sure the public process took place and information is available to the decision makers.”
Use other existing laws to monitor projects:
CEQA is the only law in the state that requires a comprehensive approach to analyzing and mitigating the environmental impacts of projects as a whole. It demonstrates the cumulative effect of the project for environmental impacts. Unlike other environmental, zoning, and planning laws, it does not allow developers or public agencies to piecemeal projects in order to underestimate their total impacts. This is a very important difference since doing projects a little at a time can have detrimental effects on the community that will not be realized until late into the development of a project.
The failed SB 317 pointed out that since CEQA was adopted lots of laws on the books, if the project complies with any of these laws- general plans etc that CEQA wouldn’t apply. This would have virtually gutted the current CEQA legislation.
Some say there are other laws on the books that could take care of the issues that CEQA covers such as general plans, local statutes, air and water quality etc. But, those rules will not specifically examine a particular project in its totality and may in fact have antiquated numbers or facts in other laws on the books or general plans.
If changes are needed to CEQA, they should focus on updating, making it easier to understand the project and continue to allow the full voice to organizations, community groups and the everyday person to protect their communities and the natural environments. It doesn’t need to be weakened, it needs to be strengthened.
See previous articles on the same subject written in January 2013:
See Article one: Steinberg talks about CEQA at PCL Conference http://www.examiner.com/article/pcl-conference-steinberg-says-we-will-grapple-with-ceqa-this-session-part-1
See Article two: PCL participants give their opinion on future changes
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