For the second time in two years, the California Legislature passed a one-off law to circumvent the California Environmental Quality Act. And this time, the optics aren’t good: In June, the Legislature exempted its own new office building project from CEQA.
The new law passed quickly. Even Sen. John Laird of Santa Cruz, one of the state’s leading environmentalists, expressed concern about the way CEQA was driving delays and therefore the cost of the project, which is more or less the same concern that developers have been expressing forever about CEQA.
The state office building exemption comes on the heels of a similar action last year that kept a UC Berkeley dorm and apartment project alive on the site of People’s Park, despite a court finding that noisy students in the new residences might constitute a significant environmental impact that required CEQA analysis and mitigation.
Everybody loves to hate the California Environmental Quality Act — except the environmentalists, neighborhood groups and unions that use it and often abuse it. Those groups have enough political power to create an eternal stalemate in Sacramento over whether and how to reform CEQA. Minus rational reform, the Legislature exempts projects one at a time, punching holes in the law — let’s call it the Swiss cheese approach to public policy. Legislators should have more courage.
CEQA was passed in 1970, as environmentalism took off. It was carried in the Legislature by a Republican — Assemblymember (and later Gov.) Pete Wilson — and it was signed by a Republican — Gov. Ronald Reagan. The law doesn’t protect the environment directly. Rather, it requires cities and counties to analyze and minimize the likely environmental effect of new development. It also gives almost anybody standing to challenge that analysis and the mitigation effort in court, as long as the lawsuit is filed within 90 days of the local government’s “final” permitting decision.
CEQA’s proponents argue that they’re just trying to make projects better, which often does happen. But CEQA provides lots of opportunities for third parties to slow things down and to try to kill proposed projects for many reasons — simple NIMBYism, for example, or competition among rival developers — that have nothing to do with real environmental concerns. And it can give unions leverage to extract labor concessions from developers and their commercial tenants that isn’t easily obtainable otherwise.
It’s difficult to put a number on the cost of CEQA, though one recent study showed that in 2020, about 40% of the proposed housing units in California were subject to some kind of CEQA lawsuits. Obviously many of those units were built in the end — not all CEQA lawsuits are successful — but the litigation slows things down and adds expense and uncertainty to the process.
Thanks to the efforts of state Sen. Scott Wiener (D-San Francisco), some affordable housing projects now get a free pass from CEQA — as long as they use union labor. Backyard “accessory dwelling units” are exempt. Other infill housing projects — new housing on vacant lots and underused lots in existing communities — sometimes qualify for an exemption, too, and cities are using those potential exemptions more often. Some projects designated by the state as important also get quicker resolution in court, as was the case recently with the Sites Reservoir in Colusa County.
To a certain extent, the Swiss cheese approach in these cases makes sense. Incremental change is easier than wholesale reform. But it has also led to huge inequities.
if you’re building homes for college students, you can get a CEQA break. But if UC or Cal State wants to build classrooms and labs for those same students, chances are they’ll have to prepare a long and expensive environmental impact report. And, of course, if you’re building homes for the students after they graduate, you don’t get a CEQA break — unless you’re building in certain locations or for certain income groups.
And while large infrastructure projects like the Sites Reservoir may qualify for streamlined court review, it’s at the governor’s discretion. There are no set criteria that automatically fast-track a project.
It’s time to stop punching holes in CEQA and fix it instead. The state should streamline CEQA review for projects that meet California’s policy goals on climate, as well as meeting local plans and ordinances that support those goals. A consistent standard should be applied in every case.
Setting standards would also help to end the use of CEQA as blackmail. If environmental groups, neighborhood associations or unions want land-use planning to help them meet their goals, they should engage in that battle when the land-use policies are being made, not on a project-by-project basis using CEQA as a cudgel.
Conventional wisdom would suggest that such reforms are politically difficult if not impossible to achieve. But how many holes does the Legislature have to punch in CEQA — either for the state’s own projects or those of politically influential friends — before the Swiss cheese approach leaves the state’s growth and development policies in shreds?
William Fulton is editor and publisher of “California Planning & Development Report.” He is a former mayor of Ventura and planning director of San Diego.