Viewpoint: Attempt to Gut CEQA Is Misguided

Rachel Hooper and Louise Renne

2012-11-30 10:11:49 AM

As recently reported in The Recorder ("Why CEQA May Finally Get Its Rewrite," Nov. 2), developers are proposing major changes to the California Environmental Quality Act. These development interests claim CEQA creates too much uncertainty for the business community, and their solution is to effectively eliminate the public's opportunity meaningfully to participate in land-use decisions. Both the premise and the proposed solutions are fundamentally misguided.

CEQA was originally enacted in the face of widespread development that threatened extensive environmental harm in California. At the time, there was no mechanism for thoughtful review of the environmental consequences of such development. The proposed wholesale rewrite of CEQA would significantly undermine the benefits secured under this landmark legislation and resurrect the 1960s, an era in which environmental issues were ignored. Are Californians prepared to accept land-use decisions that ignore or even conceal environmental concerns? Will they agree to a process that allows public input only after the fact?

CEQA primarily requires public disclosure. It does not place an undue burden on developers or create uncertainty, as long as project plans are clear and potential impacts are fully disclosed and analyzed. Its key purpose is to shine a light on the potential environmental effects of a project and to give the public an opportunity to weigh in on land-use changes and projects that affect everything from air and water quality to climate change.

CEQA allows community members to participate with questions and to suggest alternatives and mitigation measures for proposed projects. Public agencies approving land-use decisions must acknowledge and respond to these suggestions and mitigate impacts when feasible. These essential requirements have not changed significantly since the law was adopted in 1970.

While some developers dislike the disclosure requirements outlined in CEQA, they have built millions of square feet of industrial, commercial and residential facilities in California since the law took effect. This keystone environmental law has been around in good economic times and in bad. Over all of these years, it has remained a powerful force in protecting the environment without curtailing a healthy business climate.

Critically, CEQA ensures that developers pay heed to environmental protections when envisioning their projects. As noted by the late Supreme Court Justice Stanley Mosk in the defining Friends of Mammoth v. Board of Supervisors of Mono County decision, "In an era of commercial and industrial expansion in which the environment has been repeatedly violated by those who are oblivious to the ecological well-being of society, the significance of this legislative act [CEQA] cannot be underestimated."

Development interests claim that CEQA must be "modernized," but this argument ignores history. First, concern about the environment is modern, and indeed, California was ahead of its time when CEQA was first enacted. Advocates' use of the term "modernize" is simply an attempt to make the elimination of key environmental protections seem acceptable to the public.

Second, CEQA is regularly amended to streamline approval processes when it is possible to do so without causing undue harm to public health or the environment. For example, just last year SB 226 streamlined the environmental review and approval process for certain infill projects that are consistent with a city's general plan. This is an example of the type of need-specific amendment that addresses a real concern without cutting the public out of land-use decisions that can have significant effects on public health and quality of life.

Third, the notion that CEQA can stand in the way of critical infrastructure improvements, as advocates have suggested, is a red herring. Wholesale exemptions to CEQA's requirements can be granted, particularly in the case of an emergency. Even major construction projects, such as rebuilding the Bay Bridge after the 1989 earthquake, have been excused from the law's requirements. It is appropriate to make such exemptions on a case-by-case basis, where the compelling need for the project can be balanced against environmental and public health priorities. But creating blanket exemptions for large-scale projects, whether public or private, would unfairly curtail the public's right to know and to participate in crucial land-use decisions, something Californians hold dear.

While CEQA — like any law — can be abused, the charge that there has been widespread abuse does not withstand scrutiny. Only a small fraction of all projects reviewed under CEQA are contested in court. A recent study in the city of Los Angeles found that the litigation rate for CEQA projects was a mere 1.5 percent. The courts are more than capable of weeding out frivolous CEQA lawsuits, and regularly do.

But CEQA lawsuits also can serve an important function: They force a public balancing of economic concerns with environmental protection. Without the strength of CEQA behind these lawsuits, economic interests would almost always win out over environmental protection in the project approval process.

Due to the failed attempt to push though SB 317 earlier this year, CEQA's defenders now have a clear picture of the types of amendments being proposed by the business interests. The proposed solutions go far beyond addressing any actual CEQA problems.

The most radical of these proposed reforms is known as the "standards" approach. The idea behind this approach is that as long as a project meets standards outlined in state and federal regulations and complies with a municipality's general plan, it must be approved. Rather than informing the public about a proposed project's impact on the environment, public agencies would assess the project against a checklist and make a rote determination whether it complies.

There are two significant problems with this approach. The first is substantive. Many general plans around the state are outdated and lack policies addressing today's environmental and fiscal challenges. Furthermore, when cities and counties adopted these plans, they were not required to evaluate the impacts of specific projects. General plans establish a basic plan for a community and designate permitted land uses in specific locations. When individual projects come forward, CEQA works hand-in-hand with the general planning process, allowing community members to understand the environmental impacts of specific land-use decisions.

For example, there is a significant difference between the air quality impacts of an oil refinery and those of a factory producing solar panels. Both of these uses are appropriate on land designated as "industrial" in a general plan, but only CEQA guarantees the public right's to know about specific impacts before an individual project is built. Accordingly, relying on general plan consistency as the principal criterion for project approval is an ineffective means of protecting the environment and public health.

And this last point highlights the second significant shortcoming of the standards approach: It attempts to turn a transparent public process into a bureaucratic process without meaningful public input. Instead of the integrated review provided by the CEQA process, the public would be forced to engage in myriad separate administrative proceedings with local, state and federal agencies. As noted in the recent Recorder article, this approach may well increase, not decrease, uncertainty for project proponents if other types of lawsuits are filed.

The disclosure requirements and public meetings essential to the CEQA process allow both sides to put all of their cards on the table early in the process, ensuring that very few matters end up in court. To eliminate these processes could lead to an increase in legal actions around land-use decisions.

Some believe that the suggested changes will breeze through the Legislature to the governor's desk without much opposition. They are wrong. Strong grassroots opposition to these sweeping changes is already coming together from every corner of the state. Groups that work to conserve the environment, ensure environmental justice and protect public health are uniting to make it clear to elected officials that they will not countenance changes to CEQA that would leave communities and the environment unprotected and without a remedy.

There is common ground between developers, public agencies and citizens to be found on a number of issues. These include simplifying the process of preparing the administrative record for a proposed project, encouraging a plain-language approach in the drafting of environmental impact reports and other key analytical documents, and eliminating unnecessary duplication of analysis. All of these changes would streamline the environmental review process without gutting the strength of this important law.

CEQA, like many powerful statutes, is a living document. It has stood the test of time as an important law that protects air and water quality in the urban core and rural reserves, conserves natural treasures from the Martis Valley outside of Lake Tahoe to Santa Barbara's Ellwood Mesa, and supports California's goal of aggressively tackling climate change. Many pro-CEQA advocates would support reasonable amendments. But they will not stand by while development interests attempt to dismantle CEQA's core environmental protections and opportunities for citizen participation.

Rachel Hooper is managing partner of Shute, Mihaly & Weinberger, a law firm that specializes in land use and local government law. The firm regularly represents both community groups and government agencies in matters relating to CEQA. Louise Renne is a practicing attorney in San Francisco where she conducts a wide-ranging public interest practice. Renne served as S.F.'s city attorney from 1986 to 2002.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.