Just two years ago, California voters resoundingly defeated an industry-backed attempt to weaken AB 32 — the state's signature climate change law. By doing so, citizens like myself rejected the tired argument that we must sacrifice our health and environmental protection in order to create more jobs. But now industry is at it again. This time they are trying to convince the Legislature to weaken the California Environmental Quality Act.
According to CEQA's opponents, the law is "outdated" and leads to too much litigation in which plaintiffs too often prevail. They also claim it must be watered down because it needlessly hinders environmentally beneficial infill and alternative energy projects. But a closer look at the facts shows that only a tiny fraction of CEQA decisions are challenged in court. Likewise, the law already offers exemptions and streamlined review for infill and alternative energy projects.
Opponents of robust environmental review claim that too many development projects are delayed or stopped due to CEQA litigation. In reality, the alleged cascade of CEQA litigation is a myth. A review of documents filed with the state attorney general shows that, over the past decade, there have been an average of 200 CEQA cases filed statewide every year, and that this number has not increased over time. This represents approximately 0.02 percent of cases filed in the state's court system, meaning that only one out of every 5,000 cases filed involves CEQA. Studies have also shown that lawsuits are filed against a mere 0.3 to 1.5 percent of all agency approvals that are subject to CEQA. In other words, 99 percent of relevant agency actions are not challenged under CEQA. The supposed cascade of litigation is more like a trickle.
Opponents also cite studies showing CEQA plaintiffs prevail in litigation approximately half of the time. For example, a recent study issued by Holland & Knight analyzes the 95 published appellate CEQA decisions issued between 1997 and 2012 in which plaintiffs litigated the validity of an environmental impact report. The study found that plaintiffs won at least one of their claims in 44 of the 95 cases, or 46 percent of the time. The study contrasted this success rate with that of litigants in cases involving the federal corollary to CEQA, the National Environmental Policy Act, or NEPA. Curiously, however, the authors only looked at NEPA cases in front of the U.S. Supreme Court, and found that plaintiffs there had an abysmal 0 percent success rate. The authors' conclusion? Plaintiffs win CEQA suits too often as compared to their success using other environmental laws, and so the law must be weakened.
But CEQA's opponents use facts selectively. In reality, the nationally regarded Environmental Law Institute published a study showing that NEPA plaintiffs have historically won cases in federal district court 46 percent of the time, and in front of federal appeals courts 35 percent of the time — very similar rates of success as cited for CEQA plaintiffs in the Holland & Knight study. Moreover, that CEQA plaintiffs prevail nearly half the time on appeal does not mean that the law is too strong. Rather, I interpret it as simply meaning that plaintiffs tend to bring meritorious claims.
The second myth perpetuated by CEQA's opponents is that the law must be weakened in order to promote infill and alternative energy development. Opponents usually trot out a couple of anecdotes of cases where litigation delayed an affordable housing project or other infill development. But anecdotes are hardly useful; you can always find a case or two to make a point.
Opponents also like to cite statistics, such as the Holland & Knight report, which found that of the study's five dozen cases involving residential or commercial construction, 59 percent of them challenged infill projects. But this statistic is also useless. The study did not include unpublished decisions, those involving challenges to negative declarations or exemptions, or trial court decisions that were not appealed. Cases that are published on appeal represent approximately 5 percent of all CEQA litigation, and are by definition atypical cases that involve important legal issues worthy of publication. Accordingly, we have no idea whether those handful of cases are statistically representative. Likewise, the authors do not say whether the challenged projects were improved as a result of the litigation and ultimately constructed. After all, CEQA does not prohibit projects, even ones with significant impacts.
Beyond the hype and the anecdotes, studies have consistently shown that CEQA is not the main barrier preventing infill development. A recent article, which analyzed a survey of planning directors from 423 California cities and 49 counties, concluded that "when it comes to the big factors stopping infill ... in California, CEQA ranks below a host of other barriers, such as local zoning codes that outlaw infill, lack of infrastructure development, high construction costs, tax incentives that favor strip malls over housing, and poor neighborhood schools." (Ethan Elkind, "Why Developers Shouldn't Blame Environmental Review for Lack of Infill," Legal Planet, Sept. 24, 2012.) Likewise, at a recent conference on CEQA's future, developer David Mogavero, of Mogavero Notestine Associates, stated that in his experience working on between 150 and 200 infill development projects, "CEQA review has never killed a project. CEQA is not the reason infill isn't happening." If we really want to promote infill, weakening CEQA will not substantially help.
The infill argument is disingenuous for yet another reason. In the past few years, the Legislature has passed two laws — SB 375 and SB 226 — that streamline or exempt certain residential, commercial and mixed-use infill developments, as well as school and transit stop projects, from CEQA review if they meet certain criteria. Given that these laws are just beginning to be implemented, few if any agencies have used these new streamlining provisions to date. Thus, statistics regarding whether CEQA thwarted past infill projects are meaningless; such projects recently received extraordinary new streamlining provisions, and we have not yet given them an opportunity to work.
CEQA opponents make other misleading arguments about how the law needs to be weakened so that clean energy projects can be approved more easily. This is nonsense. Many, if not most, renewable energy projects already receive little or no environmental review. Pursuant to law enacted in 2011 (SB 226), solar power systems installed on existing roofs or over parking lots are already exempt from CEQA. Furthermore, the California Energy Commission currently conducts streamlined environmental review for all utility scale solar thermal projects (i.e., projects that produce power by concentrating sunlight on a fluid, which turns a turbine when it evaporates). The commission's decisions are essentially exempt from court challenge, so litigation plays no role in delaying these projects. Likewise, many of the larger solar energy projects are being proposed on federal land, where CEQA does not even apply. Once again, we should not use the pretext of wanting more renewable energy as an excuse to weaken the state's preeminent environmental law.
Beyond the hoopla and the questionable justifications, the debate over CEQA's future boils down to a fundamental issue. As Joni Mitchell has sung, "Don't it always seem to go that you don't know what you got 'til it's gone." Currently under CEQA, agencies are required to tell us what we have before it's gone, and citizens can hold agencies accountable for minimizing the environmental harms of their actions. If CEQA is weakened, agencies may or may not tell us what we have before it's gone, but either way, citizens will have little or no ability to hold agencies accountable.
David Pettit is senior attorney at the Natural Resources Defense Council. He recently co-authored an article entitled "CEQA: The Litigation Myth." The article is available on the NRDC blog.
The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.
