CEQA Reform Dead – For Now
After a dramatic 24 hours, in which the “gut and amend” process was used to insert into an existing bill on the Kings River language that would reform the California Environmental Quality Act, CEQA reform is now dead – at least until next year.
At a Sacramento press conference today, State Senate President Pro Tem Darrell Steinberg announced that no CEQA reform would be taken up in what remains of the 2011-12 legislative session:
“The Senate will not take up comprehensive CEQA reform in the last days of the legislative session,” Steinberg told reporters at the Capitol. “This law, for all of its strengths and its faults, is far too important to rewrite in the last days of the session.”
Environmentalists were relieved after spending the morning mobilizing to fight off reforms they believed would significantly weaken the law. The California League of Conservation Voters put up a website Save CEQA, soliciting signatures to oppose the proposal, and began mobilizing progressive organizations to help drum up support.
The text of the proposed bill, an amendment to SB 317, has not yet surfaced publicly. Reports circulated by opponents argued that it could limit or exempt oil rigs, power plants, and the proposed Peripheral Canal from review. Concerns were raised that the proposal’s language allowing projects to move forward if they conformed to general plans was basically a loophole, given that many local general plans are several decades old. Opponents argued the reforms would undermine the state’s global warming law, AB 32, as well as its urban planning counterpart, SB 375. They also charged that projects could escape mitigation requirements.
These charges are very serious, and if true would indeed mean this proposal wasn’t the right way to reform CEQA. Surely it is the case, as the LA Times argued this afternoon, that reforms of this importance should be carefully deliberated and not rushed. I agree with that assessment, and shoehorning this into the very end of a legislative session was not a confidence-building move.
Reports indicate that other reform proposals have circulated in the Capitol. Some have called for a special session to deal with CEQA reform in early 2013, but even if that doesn’t happen, the 2013-14 session is almost certain to see a major reform effort mounted.
The case for reform remains strong. CEQA reform is going to happen. Its backers have the money, and they have the momentum. They can point to any number of truly egregious examples of wanton CEQA abuse to make their case for them. One is the man who stalled the San Francisco Bike Master Plan for four years with a CEQA suit, on the charge that giving bikes more space on the roads would hurt the environment by causing traffic. High speed rail advocates have seen CEQA used to delay the environmentally and climate friendly project, with well-heeled Peninsula NIMBYs filing lawsuits under CEQA they keep losing, aside from technical fixes that the project was easily able to make. CEQA has even been used to try and overturn a marijuana dispensary ban (and while I oppose such bans, I also don’t see this as a legitimate use of that law). It’s ridiculous things like that which make a mockery of the law and are simply not affordable in an era of climate crisis.
On the other hand, environmentalists have also pointed to a number of examples that showed how CEQA legitimately stopped environmentally damaging projects that other laws would have allowed. One friend described to me today a pollution-spewing project that was permitted under loopholes in existing laws, only to be stopped by a CEQA suit.
My response was that showed the need for reforming not just CEQA, but California’s whole approach to environmental regulation. A new system is needed, because this one is broken. It doesn’t make sense that one should have to go to court to stop an oil refinery but that someone can use environmental law to stop an electrified passenger train that massively reduces carbon emissions. Something isn’t right here.
Others have reached similar conclusions. In 2006, SPUR issued a report titled Fixing the California Environmental Quality Act. They argued that CEQA has failed to meet its objectives, has actually made environmental problems worse, and that it should be replaced in urban and suburban settings with a statewide planning process:
In the absence of strong statewide planning and in the presence of weak local planning, stopping projects is what California does best. CEQA has become the tool of choice for stopping bad ones and good ones. SPUR has reviewed CEQA from the standpoint of sound planning and environmental quality. We contend that after the law’s 30-plus years of operation, the type and pattern of developments, viewed at citywide, regional, and state scales, are environmentally worse than before. Not all of this can be blamed on CEQA; it has improved individual project design in some cases. Yet viewed broadly, 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.
California ought to be moving toward a system where we have statewide land use plans that have regional and even city specificity, emphasizing environmentally friendly projects and mandating carbon emissions reductions. That’s the goal of SB 375, and the basis of a lawsuit by Attorney General Kamala Harris against the San Diego Association of Governments plan which did not meet the state’s greenhouse gas reduction targets and instead favored sprawl. Governor Jerry Brown is very interested in these kinds of modernized plans and that’s good. Harmonizing CEQA with those kinds of state and local plans is smart.
More fundamentally, the current CEQA process is not one that encourages thoughtful design or encourages democratic participation. CEQA relies on lawsuits as its primary enforcement mechanism. But many people in communities affected by the worst environmental impacts don’t have the money to go to court. The existing planning process is often described as “decide-announce-defend” where a government agency or private developer decides to do something, announces it, and then holds public meetings to defend it. A more inclusive process, one that would address environmental and social justice concerns, would still have the courts as a pathway but could rely on more democratic processes of engagement to develop regional general plans that meet statewide carbon reduction requirements and environmental rules. Of course, the details of how that might work matter a lot.
Further, CEQA is inherently biased in favor of the status quo. An existing oil refinery or a freeway doesn’t have to face the CEQA process, but a new wind farm or an electric passenger rail system does, making it harder and more costly to replace the polluting infrastructure with clean infrastructure. There’s got to be a better way – CEQA should help address climate change and clean up the skies, the waters, and the neighborhoods, not make it harder to do that.
As I’ve argued before, it won’t work to try and maintain the current status quo. CEQA does need reform and that the status quo isn’t acceptable. I wouldn’t want to see CA progressives wind up in a place of defending the current process from any kind of change.
Without reform, the legislature will keep finding ways to give projects whose backers are politically connected CEQA exemptions or expedited reviews. Farmers Field in LA got a bill passed to expedite their CEQA review thanks in part to those connections. I’m not convinced that’s the best way to reform CEQA, but we will see more of it in the absence of lasting fixes.
We need to close the loopholes but also modernize the law and harmonize it with our climate efforts, rather than letting it undermine those efforts. While this specific plan may be dead, others are out there. Eventually one of them will pass. The other side has a lot more money and they have a solution to a system that is broken. I would not bet against them. It is time for a progressive solution. There’s at least four months in which one can be crafted. I hope that work is now under way.