CEQA Reform Takes Shape for 2013
By Robert Cruickshank
One of the top issues facing the state legislature in 2013 will be reforming the California Environmental Quality Act. It's an idea whose time has come. CEQA is popular with environmentalists, but overall it has failed to achieve its goals of producing better development and protecting the state's environment. Since CEQA's passage in 1970, sprawl has exploded, carbon emissions have soared, species have been lost, and other environmental impacts have not been averted. Rather than promote environmentally friendly planning, CEQA's primary use is for NIMBYs who wish to prevent sustainable change. At times it does serve to stop projects that are truly bad for the environment, but those are rare cases, and too many good projects are delayed or made more expensive by the flawed process. California can do better.
Back in August a CEQA reform effort suddenly appeared late in the legislative session. After 33 Democratic legislators balked at the effort, and as widespread criticism was made over the timing, CEQA reform was deferred to 2013.
Since then, advocates of CEQA reform have been hard at work developing a new proposal. Workgroups have met around the state to discuss and assess different ideas. Governor Jerry Brown wants to make CEQA reform a top priority in 2013. And now a specific reform proposal is starting to take shape, as U-T San Diego reports:
Negotiations center on a handful of core proposals:
- A legal challenge could not be filed against a project for failing to adequately address an impact as long as the developer has complied with umbrella state or federal laws that specifically cover the impact, such as the Endangered Species Act, the Clean Air Act and the Clean Water Act.
I like the idea of aligning environmental legislation as much as possible. This could work, but runs the risk of becoming a loophole if federal laws are weakened further. That risk can be avoided if the project complies with state laws, rather than federal, because California's environmental laws are likely to be much stronger for the foreseeable future. The details matter, but as a concept, I would say this is at least worth exploring.
- A project could not be challenged in court if it complies with an approved city or county general plan, if those plans have an approved environmental impact report (EIR) and the project is consistent with the Sustainable Communities Strategy launched by Senate Bill 375 authored by Steinberg. That law established a path to lower greenhouse gas emissions linked to global warming through "smart growth" building policies that also encourage more alternative transit, from buses to bicycle paths.
The argument made against this kind of provision back in August was that many cities and counties had outdated general plans. This newer proposal is somewhat better, in that it requires general plans to have an approved EIR and comply with SB 375.
As a concept, this provision is a good one. In SPUR's 2006 report titled Fixing the California Environmental Quality Act they pointed out that Oregon's process has produced much more environmentally friendly outcomes than CEQA has:
CEQA has contributed to sprawl and worsened the housing shortage by inhibiting dense infill development far more than local planning and zoning would have done alone. To re-form California, we must first reform CEQA ...
Our neighbors to the north provide a dramatic model for change. At almost the same moment that California turned to environmental impact reports to protect its environment, Oregon turned to a strengthened planning program, requiring effective local plans and zoning by all jurisdictions. Oregon has protected and greatly improved its natural environment without review of individual projects, but with sound intergovernmental planning. The recent property-rights crusade that passed compensatory zoning at the Oregon ballot box does not lessen the fact that the Oregon environment remains one of the most pristine in the country.
This provision too is worth exploring, but it should be linked to even stronger state and regional planning processes that aim for carbon neutrality while also having strong provisions protecting air, water, and addressing environmental justice concerns. Environmentalists have leverage here and should push for such a linkage.
Back to the emerging CEQA reform proposal:
- Those filing lawsuits must reveal their financial interests and who is paying the legal costs. There is also debate on whether to extend those transparency requirements to the local planning process as well so decision-makers know whether a protest is being lodged out of genuine concern for the environment or if there is a profit motive.
Transparency strikes me as reasonable as long as it does not inhibit justice.
Almost as important as the legal provisions themselves are the way these reforms are being discussed. From the U-T article come these quotes:
"The challenging thing about a law like this is everybody knows it needs fixes," Steinberg said. "The question is, what are the fixes that preserve the strength of the law and at the same time (address abuses)? That's what we will grapple with."
Steinberg has been the leader of the State Senate since 2008, and in that time he has shown he means what he says, and is a friend of the environment. I do not see anything to suggest he would help dismantle CEQA and allow a loophole-riddled process to emerge.
Of greater concern is the way Senator Michael Rubio, a moderate Democrat (and strong HSR supporter) from Bakersfield is citing a pivotal case from San Diego as an argument for CEQA reform:
The debate -- a continuation of a frantic late campaign last summer to make the law more business friendly -- is also being fueled by an early December court order rejecting a $200 billion, 40-year regional transportation plan adopted by the San Diego Association of Governments.
The SANDAG plan improperly permits greenhouse gas emissions linked to global warming to increase from 2020 through 2050, a judge ruled, siding with critics of the plan. But it does comply with reduction standards in state law through 2020 and was given the green light by the state Air Resources Board, SANDAG maintains.
The San Diego case illustrates what's wrong with the law, according to Sen. Michael Rubio, a Bakersfield Democrat and leader in the drive to make it more difficult to use what is commonly known as CEQA to challenge projects in court.
"It highlights the point that you can meet or exceed the law and still get sued and stopped," Rubio said.
I strongly support this lawsuit and believe it is an excellent example of the direction that regional planning ought to be headed. SANDAG's plan is a ridiculous relic of the 20th century, focusing on more freeways and more sprawl. It would allow carbon emissions to increase beyond 2020, which is simply unacceptable. The plan needs to be thrown out and SANDAG needs to start over, producing a plan that focuses on transit and carbon emission reductions. Senator Rubio does not do his cause any favors by citing the SANDAG case as a justification for CEQA reforms, and I would oppose reforms that would have the effect of letting that flawed SANDAG plan become law.
Environmentalists are wary of CEQA reform, and I'm sure that Senator Rubio's comments aren't helping. There is growing unease about rules regarding fracking, which is only now coming to California in a big way but could have a lucrative future given the huge reserves in the Monterey Shale. And given that it's moderates from both parties and business interests pushing CEQA reform, environmental advocates are not likely to grow any fonder of this emerging process.
However, I believe it would be wrong for environmentalists to sit this process out. CEQA reform is going to happen in 2013. Governor Brown wants it, and there appear to be enough Democrats who could cobble together a majority with Republicans to pass something. Such an alliance would probably not produce a good reform. But environmentalists would only hasten such an outcome by not engaging. CEQA reform should be a purely Democratic product that is crafted and passed without Republican votes. That means environmentalists should offer their own proposal and try to define the debate on their terms.
What would such a proposal look like? It would not just focus on CEQA, but on how land use and project planning is done. It would set out clear guidelines for projects to follow, emphasizing density and carbon emissions reductions. A better CEQA would be aligned with an even stronger AB 32 and SB 375.
It would reduce opportunities for NIMBYs to oppose taking action to address climate change by excluding things such as aesthetics and traffic impacts from environmental reviews. It would also exempt, or provide expedited review of, major infrastructure projects that reduce carbon emissions. This includes not just high speed rail, but other local electrified transit projects, along with solar and wind projects. Bike and pedestrian plans would be completely exempt from any kind of environmental review, as they should be.
SPUR's 2006 report provides some welcome specificity:
We propose the following principles to help us think about how to improve CEQA:
- Cities should continue to rely on developers to pay a pro rata portion of the cost of developing plans, policies, zoning and zoning approvals, and whatever environmental assessment is needed involving their sites. This may require a new form of assessment or exaction.
- Whatever system is used in place of CEQA must ensure that the state's unique environment is fully protected. Sound policy respecting the environment should be included in newly defined and updated general plans.
- CEQA reform should reflect sound planning tenets, particularly those mandating a regionwide perspective on all urban and environmental matters, so that the result will be intensified population centers and protected greenfield areas viewed at a regional scale.
- All development-related processes--planning, zoning, and environmental assessment, should be coordinated so that they use common environmental thresholds, standards, and criteria, interact smoothly, and do not require separate bureaucracies to administer. The imposing of expense and delay are not worthy growth-management measures.
- Guidance about which projects are desirable and which ones are not should be offered to applicants before a project is underway, not after enormous investment in planning and redesign after environmental assessment.
- Environmental review procedures should consider the location of a project, and not treat all projects, no matter the setting, in a one-size-fits-all mode. A development that would be environmentally beneficial inside a city next to transit might be environmentally harmful on the suburban periphery or in exurban, rural, or open settings.
- Absent CEQA, the planning process should include mechanisms to grapple with the impact of land-use decisions on low-income communities in urbanized areas.
All of these principles should be acceptable to environmentalists, as they include protections for sensitive areas, address environmental justice, and are consonant with the processes that are required to reduce carbon emissions. It is oriented around the apparently radical idea that state environmental laws should encourage people to do the good things, rather than just trying to mitigate the bad things.
CEQA reform is an opportunity to move beyond a flawed model that has failed to protect environmental quality and has become a tool to block action to address climate change. This law is going to be changed, but that change will only be a positive one if environmentalists, transit advocates, and progressives stand up and take control of the process, rather than hang back out of fear.
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.