CEQA Reform and Transit Planning

Posted on 17 January 2013

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By Robert Cruickshank

Last Saturday the Planning and Conservation League held a daylong symposium on the California Environmental Quality Act. Coming amidst a concerted effort to reform the 43-year old law, the PCL wanted to use the day as an opportunity to rally progressives and environmentalists to defend the status quo and oppose any changes to CEQA. However, the day's discussions revealed a series of divisions among the ostensible allies regarding CEQA's future. While the PCL wants to frame the debate as one of heroic environmental and community advocates resisting evil oil companies and sprawlmongers who want to destroy environmental protections, the reality is far more complex.

The PCL Twitter account provided a good overview of the day's discussion, as did Coast Law Group, the San Diego law firm that is doing great work by taking on the flawed SANDAG transportation plan. Both feeds provide a good sense of the conversation; I've also had participants email me their impressions of the event.

One of the more revealing moments of the day came when Stuart Flashman, a longtime opponent of the California high speed rail project, attacked the California High Speed Rail Authority for rejecting the Interstate 5 alignment through the San Joaquin Valley before beginning CEQA review. Some participants nodded their heads and agreed with Flashman's contention that this was an example of the CHSRA abusing and evading CEQA.

But that's not an accurate charge. The route for the California high speed rail project was selected after 10 years of public hearings and discussion. It was ratified by the state legislature and then by voters at the November 2008 election. The route was selected based on sound transit planning principles - one of which is "send the trains where the people are." If HSR followed Interstate 5 through the Valley, it would bypass over 2 million potential riders. Serving those riders helps reduce carbon emissions and other aerial pollutants in the Valley, where transportation is a leading cause of severe air pollution.

I don't see how it makes sense to force the transit planning process into a CEQA framework. Proposed rail routes, for example, should be planned based on how well they will serve the city or region or state transportation need. Once a route is chosen, that route alone should be submitted for environmental review. If it passes review, great, build! If it doesn't pass review, then things can be fixed. CEQA was never intended to provide a process for evaluation of different routes. But if that's what Flashman wants, well, he too is arguing for CEQA reform.

That's just one example of how CEQA has become a de facto state planning law when it was never designed or intended to play that role. CEQA is designed to ensure that new projects have to publicize how they conform to different environmental standards. It wasn't designed to pick winners and losers. It wasn't designed to shape transportation systems or regional land use plans. If people want a law that does so, then they are looking to reform CEQA, whether they're aware of it or not.

Since CEQA passed in 1970, California's carbon emissions have soared and tens of thousands of square miles of new sprawl has been built. Clearly, CEQA hasn't achieved the goal of building a more sustainable state or protecting its environment. California's neighbors to the north, Oregon and Washington, have less sprawl and stronger land use planning laws than does the Golden State. Those who want to reduce carbon emissions as well as those who don't want to reduce them both see CEQA as a tool to serve their own ends. Even those who came to defend CEQA wound up making the case for change, even if unintentionally.

Saturday's event clarified that there are three distinct groups when it comes to CEQA reform, and while their positions may at times overlap, they are not the same:

  1. Businesses and developers. These stakeholders are tired of the expense and delays caused by the CEQA process. We should not universalize this group, as their positions and intentions are not all the same. Some of them do not have good environmental intentions, such as oil refinery operators, sprawl builders, and toxic polluters. But some of them have very good environmental intentions, such as those promoting infill development and those wanting to build large-scale solar or wind projects. Their preferred CEQA reforms would probably not be ones that work for progressives or environmentalists, as they'd come with too many loopholes. Yet they are also able to play the long game with increasing success, winning legislative support for specific CEQA exemptions as even Democrats have a harder time justifying a broken CEQA process. Currently they're driving the CEQA reform process.
  2. Sustainability and transit advocates. These stakeholders are increasingly angry at watching CEQA used by NIMBYs to slow down, make more expensive, or even stop entirely those projects that are indisputably good for the environment. California cannot address climate change, stop sprawl, or provide for sustainable and broadly shared prosperity without building more solar panels, wind turbines, dense urban developments, or mass transit routes. They are aware that the status quo has failed California and that change is needed immediately to avert catastrophe and provide environmental and social justice. So on that level they have a lot of sympathy with the well-intentioned folks in group #1. At the same time, they do not want to see CEQA gutted and projects that are bad for the environment or that increase carbon emissions, like the freeway-heavy SANDAG transportation plan, become permissible under a reformed CEQA. That gives them sympathy with the folks in group #3.
  3. NIMBYs. Some may object at my use of that term to describe this group of stakeholders, but it remains the most accurate. Groups like PCL and the numerous small groups that pop up to oppose specific developments and projects regardless of their environmental impact are not acting out of concern for the climate, but out of their own self-determined notion of what counts as environmental protection. They like CEQA as it stands, because it gives them a way to attack infill development and mass transit projects that are very good for the environment but otherwise offend their individual sensibilities. Sometimes they do use CEQA to attack truly bad projects, but increasingly they are using it to undermine environmentally friendly projects. Peninsula anti-HSR activists, Beverly Hills anti-subway forces, even the guy who stopped the San Francisco bike plan in court for four years under CEQA because he claimed it would cause traffic delays are all classic examples of this group. They don't take climate change very seriously, they hate density, and they are not much interested in social or environmental justice. They just want to protect their own privileges. But they also know that they can sway a lot of people in group #2 to their side by rallying against the more egregious members of group #1. That was clearly PCL's goal with Saturday's event.

I consider myself part of group #2, and I have been urging members of that group to take the lead in charting a new and better course for CEQA, rather than leaving it in the hands of group #1. Several of us in group #2 have been sketching out what a better CEQA law looks like, one that improves public participation, provides better incentives for good urban planning, and helps reduce carbon emissions without empowering people who oppose those values and goals.

On the other hand, the members of group #3 may well succeed in framing the debate instead as one of defending CEQA against the bad actors in group #1. I think that would be a huge mistake, not just in terms of politics (it could make more likely a moderate Democratic and Republican alliance to do bad things to CEQA), but also in terms of a missed opportunity. CEQA can be better. Land use planning in California can be better. Carbon emissions can be lower and sprawl can be reduced. We know that CEQA as it stands today won't achieve those goals. Why not seize the moment and build something better?

Senate President Pro Tem Darrell Steinberg walked a fine line at Saturday's event, acknowledging legitimate concerns while vowing that the essence of CEQA must remain unchanged and reminding the audience that the law has a LOT of defenders in the Capitol. I consider him a part of group #2, and I believe he is one who can help drive a good reform through the Legislature - and one who would help kill a bad reform. But a good reform can only happen if environmentalists, transit advocates, those who want environmental and social justice, labor unions, and others interested in building a 21st century economy step up and start driving the conversation.

The suggestions laid out by SPUR in 2006 remain a good starting point. Let's hope those start to drive the discussion over CEQA's future.

Robert Cruickshank writes on California politics at Calitics and California High Speed Rail Blog. This article was originally published at California High Speed Rail Blog.