Viewpoint: CEQA Must Be Modernized

Tina A. Thomas and Michael H. Zischke

2013-01-04 11:30:51 AM

Like many of the latest attempts to discredit the growing public/private movement to modernize the California Environmental Quality Act, the recent Viewpoint in The Recorder rests on a number of flawed premises and simple misstatements ("Attempt to Gut CEQA is Misguided," Nov. 30).

The CEQA modernization movement is a broad-based coalition including a wide variety of public and private stakeholders. The movement is motivated by a growing number of court decisions and lawsuits that have stopped or substantially delayed even the most beneficial projects such as public projects and infill developments. According to a recent analysis by Holland & Knight, out of the 95 published appellate and state Supreme Court decisions issued between 1997 and 2012 where a CEQA lawsuit challenged the adequacy of a project's environmental impact report, or EIR, 59 percent were infill development projects, 36 percent were public works projects and 20 percent were public infrastructure projects.

Another motivating factor is the unpredictability and uncertainty in the CEQA process. Speakers at last year's UC-Davis conference on CEQA at 40 compared statistics from California and New York. In California, agencies defending their CEQA project approvals lost their lawsuits 46 percent of the time. In New York, a state with a strong and robust statute comparable to CEQA, the figure is under 20 percent.

The data above demonstrates that even critical public projects and infill developments are commonly the targets of CEQA litigation, and that there is substantially more uncertainty in California than elsewhere. And today most projects, but particularly the infill and public projects typically challenged under CEQA, are fiscally constrained and the costs and delay caused by CEQA litigation are often critical factors in whether projects move forward at all.

The new momentum of the CEQA modernization effort and the growing diversity of interests that support it have grown out of the understanding that California needs these types of projects to protect both its environment and its economy. A diverse group of stakeholders from local governments and hospitals to universities and affordable housing advocates have recognized that CEQA must be updated so that it continues to provide robust environmental disclosure, while also providing more certainty about the rules that well-intentioned project proponents must follow to avoid the courtroom.

The Nov. 30 Viewpoint dramatically misstates the proposal currently being discussed. There are no "blanket exemptions for large-scale projects." The "standards" approach being advanced by our coalition does not exempt any project from CEQA. In the more than four decades since CEQA was passed, Congress and the California Legislature have adopted more than 120 environmental protection laws, including air and water quality standards, species protection, greenhouse gas reduction, responsible land-use planning and more.

Indeed, California has a well-deserved reputation for having some of the strongest state and local environmental protections in the world, with laws like AB 32 and SB 375 that severely restrict greenhouse gas emissions and mandate responsible growth patterns. The point of the "standards" approach is to integrate those laws into the CEQA process, rather than allowing project opponents and ultimately a judge to constantly second-guess whether those legislatively mandated state and federal protections are sufficient on a project by project basis. The "standards" approach does not create any CEQA exemptions or omit analysis of any potential environmental impacts — it simply requires existing environmental standards to be applied in providing that analysis.

The Nov. 30 Viewpoint contains other major misstatements. The authors claim the "standards" approach would eliminate the public's opportunity to meaningfully participate in land-use decisions and permit lead agency's to "ignore or even conceal environmental concerns." There is nothing in the proposal that reduces public input or public hearings. The authors also claim the bill would mandate project approval if a proposal is consistent with a local general plan — but there is nothing in the proposal that mandates approval of any type of project. Finally, they characterize the application of environmental standards as a "rote determination" of compliance — but any attorney who has worked with clients to ensure that projects meet federal and state air quality, wetlands and endangered species standards knows that these determinations are far from "rote."

Most prior CEQA reform legislation has been designed to streamline the project approval process at the administrative level. The focus of the current CEQA modernization effort is to reduce the uncertainty associated with CEQA litigation. A recent analysis by the Thomas Law Group focused on EIR litigation, and confirmed the numbers earlier reported at the UC-Davis conference. It established that in nearly 50 percent of all published California decisions reviewing the substantive merits of an EIR, the courts have determined that the agency failed to comply with CEQA. There is a long-standing judicial presumption that, as a matter of practice, "governmental agencies will obey and follow the law." See e.g., County of San Diego v. State of California, 164 Cal.App.4th 580 (2008). The fact that, within the context of CEQA, courts so often find some fault with the lengthy and detailed EIRs that agencies are preparing demonstrates that the statute needs to be modernized to ensure both agencies and the courts better understand their roles and obligations under CEQA.

Opponents of CEQA modernization routinely argue that there is no CEQA litigation problem because "[o]nly a small fraction of all projects reviewed under CEQA are contested in court." This argument is a red herring. The opponents lump all CEQA determinations — the vast majority of which are exemption determinations for minor projects — together to create a misleading ratio of CEQA approvals to CEQA litigation.

Data from the Office of Planning and Research demonstrates that CEQA exemptions comprise well over 50 percent of all CEQA determinations made by lead agencies, whereas less than 10 percent of all CEQA determinations involve certification of an EIR. Public infrastructure projects, infill projects and other projects that are both environmentally and economically important to California typically require preparation of EIRs. Therefore, to meaningfully understand the impact of CEQA litigation on these types of projects requires a comparison between the number of EIRs adopted and the number of EIRs litigated.

Data recently gathered regarding the city and county of San Francisco demonstrates that between July 2010 and December 2011, San Francisco certified 22 EIRs. Of those 22 EIRs, CEQA lawsuits were filed against seven of the projects. Thus, over a 1 1/2-year study period approximately 32 percent of all EIRs approved by San Francisco were litigated (and some were challenged more than once). This data starkly contrasts the assertion that only a small fraction of projects are litigated.

Opponents of any CEQA reform use the same divisive and tired rhetoric in an attempt to block even the most reasonable modernization efforts. They like to paint the picture that only "heavy industry" and "big developers" are interested in CEQA reform and that CEQA is only a tool of last resort to stop environmentally destructive projects. But those claims are simply not supported by the facts.

There are countless examples of CEQA being used to stop or delay environmentally beneficial projects such as high-density infill developments, large-scale renewable power projects, mass transit and transit-oriented development, and vital public works projects like schools, hospitals and universities. The data demonstrates that CEQA lawsuits are most frequently used to challenge precisely the type of infill and smart growth that are necessary for California to meet its environmental goals.

Under the "standards" approach, projects that are currently required to undergo CEQA review would still be required to undergo such review and to prepare an environmental document that details the project's impacts, the laws that govern those impacts, and all of the mitigation required by law to address those impacts. Importantly, the "standards" approach also explicitly allows lead agencies and local governments to require additional mitigation as they see fit based on local circumstances. What would be different under the "standards" approach — and what would add the certainty that is now lacking — is that petitioners could not successfully defeat projects by arguing that mitigation must go above and beyond the requirements of existing environmental laws.

We are pleased to see increasing agreement from a variety of stakeholders and elected officials on both sides of the aisle that CEQA is in need of reform to provide more certainty and curb litigation abuses. Reasonable people can differ on the details of such reform, and that is why a robust public policy debate, like the one in which we are all engaged, is necessary to develop thoughtful and meaningful CEQA reform. We look forward to ongoing dialogue about how to make this good law even better for our environment, our economy and our state.

Tina A. Thomas is the founder of the Thomas Law Group and Michael H. Zischke is a partner at Cox, Castle & Nicholson. Both authors have specialized in CEQA practice for decades. Thomas is co-author of the Guide to CEQA, published by Solano Press, and Zischke is co-author of Practice Under the California Environmental Quality Act, published by CEB.

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