CEQA Reform Battle Lines Getting Drawn

Posted on 31 January 2013

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By Robert Cruickshank

The California Legislature is currently in a special session dealing with state implications of federal health care reform, but once the regular 2013-14 session resumes, proposals to reform the California Environmental Quality Act will quickly become a top issue.

As I argued last week, there are three main groups when it comes to CEQA reform:

  1. Businesses and developers who chafe at the added time and cost created by CEQA. Some of these folks want to build environmentally friendly stuff and just want a law that works more easily, but others want to gut it with loopholes.
  2. Transit and sustainability advocates who are fed up with CEQA's unnecessary delays, costs, and its empowering of NIMBYs - but who also generally support the law's original goals and want to see it fixed rather than undermined. I consider myself part of this camp.
  3. Conservationists and slow-growth or anti-growth folks who think CEQA works just fine as it is now.

Not every individual or group neatly fits into one of those groups, but it's a workable classification.

My theory is that if group 3 can rally enough members of group 2 to their side by arguing that group 1 just wants to create a bunch of loopholes, then they can stop group 1 from enacting any changes to CEQA. But if group 1 crafts a good enough proposal that doesn't undermine environmental protections, they might be able to make common cause with group 2 and some sort of reform could happen.

Those of us in group 2 are increasingly adamant that CEQA needs to be fixed. In addition to the obvious and flagrant abuses of CEQA like one person being able to stall the San Francisco Bike Master Plan for four years with a CEQA suit, there are other recent examples of CEQA being used for clearly anti-environmental purposes. Chowchilla sued the California High Speed Rail Authority under CEQA because they were afraid the HSR route might make it difficult to build more sprawl:

The Avenue 24 option would span an area identified for annexation by the city for commercial, entertainment and industrial development, according to court documents.

This lawsuit, filed in order to promote sprawl, cost California taxpayers $300,000. I'm sorry, but that's a sign that something needs to change.

But what is that something? We haven't yet seen a specific, detailed proposal. And so the battle lines are being drawn, as members of groups 1 and 3 pursue their strategies.

One of the main leaders of group 1 is State Senator Michael Rubio, a Democrat from Bakersfield. Rubio attributes his motivation to reform CEQA to seeing it be used to undermine solar energy projects in Kern County, showing he overlaps into group 2, according to this Sacramento Bee profile:

State Sen. Michael Rubio says he first wondered if something were wrong with California's environmental review law during his days as a Kern County supervisor, when he saw it used to slow wind and solar projects he considered green by their very nature.

Now, just more than two years into his Senate term representing a large swath of the southern Central Valley, he is taking on fellow Democrats on the issue, moving to rewrite the California Environmental Quality Act, one of the most complicated and controversial policy issues under the dome.

Making changes to "modernize" the law, a process he compares to updating an outdated iPhone app, is in Rubio's view "the most important issue facing California today."

He is quick to praise the law, signed in 1970 by Republican Gov. Ronald Reagan, for bringing "tremendous good" to the environment and the state. But he said he was "shocked" to see projects that could improve the environment and public health "delayed significantly by misuses and abuses of a wonderful statute."

This is much better messaging from Rubio than when he argued last month that the lawsuit against SANDAG's freeway heavy, climate-ignorant transportation plan was an example of why CEQA needed to be changed. As a strong supporter of that lawsuit, I was not exactly pleased to see Senator Rubio go down that path, and his comments alienated other potential CEQA reform supporters. But his more recent remarks show a clear effort to appeal to the sustainability-minded folks in group 2.

We know that Governor Jerry Brown supports some kind of CEQA reform. And leaders in the Senate and the Assembly are at least willing to explore reform:

With Brown, Assembly Speaker John A. PĂ©rez and Senate Leader Darrell Steinberg - the three most powerful elected state leaders - amenable to discussing changing CEQA, the potential is great for the most significant alterations ever to the law.

"The Speaker is certainly open to discussions about CEQA, but he believes that these discussions need to be held in full view of the public, with input from all the various stakeholders," spokesperson John Vigna wrote in an email. "With something as complex as CEQA reform, the Speaker believes it's important to make sure every voice is heard so that the final product, if any, has been thoroughly vetted."

Steinberg, D-Sacramento, who last September blocked efforts at the 11th hour to rewrite CEQA, has publicly placed a CEQA overhaul high on the Legislature's agenda. He said he has supported CEQA, but "like any well-intentioned law in existence for more than 40 years, changes are needed to eliminate abuses. We must ensure CEQA is used to protect our environment through a more efficient and timely process."

Steinberg authored a major bill, SB 375 signed into law by former Gov. Arnold Schwarzenegger, to curb urban sprawl and promote transit-friendly development. That legislation contained CEQA exemptions for some projects. Steinberg also authored SB 900, which speeded up judicial review of CEQA projects.

At the same time, Steinberg named a number of CEQA defenders to key committees in the Senate for the 2013-14 session. One of them is Senator Noreen Evans, who along with Assemblymember Das Williams wrote an op-ed in Capitol Weekly laying out their position on the issue:

Our experience, and that of our constituents, tells a different story about how CEQA really works.

Forty-three years after it was signed into law by Governor Ronald Reagan, CEQA continues to provide essential environmental protections.

CEQA was designed to give a voice to local people in local planning decisions. It ensures that residents in every California community can understand how land use decisions will impact shared resources - like clean air, clean water, open space, and traffic flow - and public health. It also empowers community members to hold public agencies accountable to local and state environmental laws.

Evans and Williams appear to be straddling groups 2 and 3 here, pushing back hard against arguments that CEQA is "broken" but also laying out some reforms they would accept:

However, there are a number of updates to improve CEQA's efficiency that we could easily support. These include shifting to electronic noticing and administrative record preparation. We agree we should make the public comment period consistent throughout all California jurisdictions. These kinds of modifications would give both the public and project proponents more certainty in the environmental review process.

We would like to see the environmental review process made even more transparent. The most polluting projects are often located in proximity to low-income communities, which sometimes include large populations with limited proficiency in English. CEQA should require translation of notices and executive summaries of documents for projects located in communities where English is the second language for a significant proportion of the population.

Other opportunities for making CEQA stronger include adding an environmental justice component to the required areas of analysis in an Environmental Impact Report. We also support raising the standard for overriding considerations that allow environmentally damaging projects to move forward without sufficient mitigation. And we should close loopholes in order to make sure CEQA fully evaluates the potential safety hazards of projects on local communities.

These proposals are all good ones. Evans and Williams also argue for giving more time to gauge the result of reforms to infill development rules, including Steinberg's landmark bill SB 375.

The Sierra Club is also open to some change:

Kathryn Phillips, lead lobbyist for the Sierra Club of California, said she sees the potential for a compromise bill that would tackle some "low-hanging fruit" to make CEQA work better. But she characterized the types of changes sought by Rubio and his backers as misguided attempts by developers and other interests to use a down economy as an excuse "to go after something they haven't liked for some time."

My guess is the types of changes she proposes are similar to or the same as the ones Evans and Williams proposed. Together they are setting up a set of small but potentially useful changes to CEQA that may not go as far as some would like, but fall well short of the reforms desired by Senator Rubio and others.

Finally, ardent defenders of the status quo are beginning to organize. The Planning and Conservation League, which has not been supportive of high speed rail, has set up a new website titled CEQA Works, with a message that CEQA is just fine as it is and doesn't need any change at all. PCL executive director Bruce Resnick co-authored a San Francisco Chronicle op-ed last week making that case:

Similarly, some contend CEQA hinders large-scale renewable energy projects, and we should therefore exempt such projects from environmental review. Utility-scale solar and wind projects typically require thousands of acres to be bulldozed, obliterating wildlife habitat, cultural sites and even key agricultural lands.

Large-scale renewable energy has important benefits and, likewise, tangible environmental costs. CEQA is designed to wrestle with these challenges, identify the best way forward and mitigate environmental damage when possible.

The matter of frivolous lawsuits also has been addressed by a recent update of the law that empowers courts to impose a $10,000 penalty on a party filing a frivolous CEQA claim.

The response I'd make is that there are surely better ways to address the potential impacts of utility-scale solar and wind projects, both of which are absolutely essential to protecting California's climate and its environment. But then, concern about climate change has never been PCL's strong suit.

Personally, I'm waiting to see the specific text of a reform proposal before making up my own mind. I think CEQA isn't working and needs to be fixed, but I won't support anything that makes it easier to build projects that are bad for the environment or the climate.

If reformers go too far with their proposals, they will drive those of us in group 2 into alliance with folks in group 3 to kill those proposals. But if reforms are not sufficient to fix CEQA's problems, transportation and green energy projects will continue to be delayed or made more costly and demand for reform will continue, pushing folks in group 2 back into the arms of group 1.

The best solution is to find a more effective and holistic way to meld statewide and regional plans with carbon emissions reduction targets, mitigation, and environmental justice. That would entail totally redesigning CEQA and coming up with perhaps a new process that meets 21st century environmental needs. But such proposals rarely emerge from a contentious legislative debate. We may have to resolve the current CEQA debate before something more visionary becomes possible.

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.

How much does all this cost? Has any effort been made for an independent audit of what has been spent already? Green is important, but we have to look at the cost. Are we getting "the bang for the buck"? Or is just a starry-eyed Mitty-like wish?