CEQA Reform Battle Lines Getting Drawn

Jan 30th, 2013 | Posted by

The California Legislature is currently in a special session dealing with state implications of federal health care reform, but once the regular 2013-14 session resumes, proposals to reform the California Environmental Quality Act will quickly become a top issue.

As I argued last week, there are three main groups when it comes to CEQA reform:

1: Businesses and developers who chafe at the added time and cost created by CEQA. Some of these folks want to build environmentally friendly stuff and just want a law that works more easily, but others want to gut it with loopholes.

2. Transit and sustainability advocates who are fed up with CEQA’s unnecessary delays, costs, and its empowering of NIMBYs – but who also generally support the law’s original goals and want to see it fixed rather than undermined. I consider myself part of this camp.

3. Conservationists and slow-growth or anti-growth folks who think CEQA works just fine as it is now.

Not every individual or group neatly fits into one of those groups, but it’s a workable classification.

My theory is that if group 3 can rally enough members of group 2 to their side by arguing that group 1 just wants to create a bunch of loopholes, then they can stop group 1 from enacting any changes to CEQA. But if group 1 crafts a good enough proposal that doesn’t undermine environmental protections, they might be able to make common cause with group 2 and some sort of reform could happen.

Those of us in group 2 are increasingly adamant that CEQA needs to be fixed. In addition to the obvious and flagrant abuses of CEQA like one person being able to stall the San Francisco Bike Master Plan for four years with a CEQA suit, there are other recent examples of CEQA being used for clearly anti-environmental purposes. Chowchilla sued the California High Speed Rail Authority under CEQA because they were afraid the HSR route might make it difficult to build more sprawl:

The Avenue 24 option would span an area identified for annexation by the city for commercial, entertainment and industrial development, according to court documents.

This lawsuit, filed in order to promote sprawl, cost California taxpayers $300,000. I’m sorry, but that’s a sign that something needs to change.

But what is that something? We haven’t yet seen a specific, detailed proposal. And so the battle lines are being drawn, as members of groups 1 and 3 pursue their strategies.

One of the main leaders of group 1 is State Senator Michael Rubio, a Democrat from Bakersfield. Rubio attributes his motivation to reform CEQA to seeing it be used to undermine solar energy projects in Kern County, showing he overlaps into group 2, according to this Sacramento Bee profile:

State Sen. Michael Rubio says he first wondered if something were wrong with California’s environmental review law during his days as a Kern County supervisor, when he saw it used to slow wind and solar projects he considered green by their very nature.

Now, just more than two years into his Senate term representing a large swath of the southern Central Valley, he is taking on fellow Democrats on the issue, moving to rewrite the California Environmental Quality Act, one of the most complicated and controversial policy issues under the dome.

Making changes to “modernize” the law, a process he compares to updating an outdated iPhone app, is in Rubio’s view “the most important issue facing California today.”

He is quick to praise the law, signed in 1970 by Republican Gov. Ronald Reagan, for bringing “tremendous good” to the environment and the state. But he said he was “shocked” to see projects that could improve the environment and public health “delayed significantly by misuses and abuses of a wonderful statute.”

This is much better messaging from Rubio than when he argued last month that the lawsuit against SANDAG’s freeway heavy, climate-ignorant transportation plan was an example of why CEQA needed to be changed. As a strong supporter of that lawsuit, I was not exactly pleased to see Senator Rubio go down that path, and his comments alienated other potential CEQA reform supporters. But his more recent remarks show a clear effort to appeal to the sustainability-minded folks in group 2.

We know that Governor Jerry Brown supports some kind of CEQA reform. And leaders in the Senate and the Assembly are at least willing to explore reform:

With Brown, Assembly Speaker John A. Pérez and Senate Leader Darrell Steinberg – the three most powerful elected state leaders – amenable to discussing changing CEQA, the potential is great for the most significant alterations ever to the law.

“The Speaker is certainly open to discussions about CEQA, but he believes that these discussions need to be held in full view of the public, with input from all the various stakeholders,” spokesperson John Vigna wrote in an email. “With something as complex as CEQA reform, the Speaker believes it’s important to make sure every voice is heard so that the final product, if any, has been thoroughly vetted.”

Steinberg, D-Sacramento, who last September blocked efforts at the 11th hour to rewrite CEQA, has publicly placed a CEQA overhaul high on the Legislature’s agenda. He said he has supported CEQA, but “like any well-intentioned law in existence for more than 40 years, changes are needed to eliminate abuses. We must ensure CEQA is used to protect our environment through a more efficient and timely process.”

Steinberg authored a major bill, SB 375 signed into law by former Gov. Arnold Schwarzenegger, to curb urban sprawl and promote transit-friendly development. That legislation contained CEQA exemptions for some projects. Steinberg also authored SB 900, which speeded up judicial review of CEQA projects.

At the same time, Steinberg named a number of CEQA defenders to key committees in the Senate for the 2013-14 session. One of them is Senator Noreen Evans, who along with Assemblymember Das Williams wrote an op-ed in Capitol Weekly laying out their position on the issue:

Our experience, and that of our constituents, tells a different story about how CEQA really works.

Forty-three years after it was signed into law by Governor Ronald Reagan, CEQA continues to provide essential environmental protections.

CEQA was designed to give a voice to local people in local planning decisions. It ensures that residents in every California community can understand how land use decisions will impact shared resources – like clean air, clean water, open space, and traffic flow – and public health. It also empowers community members to hold public agencies accountable to local and state environmental laws.

Evans and Williams appear to be straddling groups 2 and 3 here, pushing back hard against arguments that CEQA is “broken” but also laying out some reforms they would accept:

However, there are a number of updates to improve CEQA’s efficiency that we could easily support. These include shifting to electronic noticing and administrative record preparation. We agree we should make the public comment period consistent throughout all California jurisdictions. These kinds of modifications would give both the public and project proponents more certainty in the environmental review process.

We would like to see the environmental review process made even more transparent. The most polluting projects are often located in proximity to low-income communities, which sometimes include large populations with limited proficiency in English. CEQA should require translation of notices and executive summaries of documents for projects located in communities where English is the second language for a significant proportion of the population.

Other opportunities for making CEQA stronger include adding an environmental justice component to the required areas of analysis in an Environmental Impact Report. We also support raising the standard for overriding considerations that allow environmentally damaging projects to move forward without sufficient mitigation. And we should close loopholes in order to make sure CEQA fully evaluates the potential safety hazards of projects on local communities.

These proposals are all good ones. Evans and Williams also argue for giving more time to gauge the result of reforms to infill development rules, including Steinberg’s landmark bill SB 375.

The Sierra Club is also open to some change:

Kathryn Phillips, lead lobbyist for the Sierra Club of California, said she sees the potential for a compromise bill that would tackle some “low-hanging fruit” to make CEQA work better. But she characterized the types of changes sought by Rubio and his backers as misguided attempts by developers and other interests to use a down economy as an excuse “to go after something they haven’t liked for some time.”

My guess is the types of changes she proposes are similar to or the same as the ones Evans and Williams proposed. Together they are setting up a set of small but potentially useful changes to CEQA that may not go as far as some would like, but fall well short of the reforms desired by Senator Rubio and others.

Finally, ardent defenders of the status quo are beginning to organize. The Planning and Conservation League, which has not been supportive of high speed rail, has set up a new website titled CEQA Works, with a message that CEQA is just fine as it is and doesn’t need any change at all. PCL executive director Bruce Resnick co-authored a San Francisco Chronicle op-ed last week making that case:

Similarly, some contend CEQA hinders large-scale renewable energy projects, and we should therefore exempt such projects from environmental review. Utility-scale solar and wind projects typically require thousands of acres to be bulldozed, obliterating wildlife habitat, cultural sites and even key agricultural lands.

Large-scale renewable energy has important benefits and, likewise, tangible environmental costs. CEQA is designed to wrestle with these challenges, identify the best way forward and mitigate environmental damage when possible.

The matter of frivolous lawsuits also has been addressed by a recent update of the law that empowers courts to impose a $10,000 penalty on a party filing a frivolous CEQA claim.

The response I’d make is that there are surely better ways to address the potential impacts of utility-scale solar and wind projects, both of which are absolutely essential to protecting California’s climate and its environment. But then, concern about climate change has never been PCL’s strong suit.

Personally, I’m waiting to see the specific text of a reform proposal before making up my own mind. I think CEQA isn’t working and needs to be fixed, but I won’t support anything that makes it easier to build projects that are bad for the environment or the climate.

If reformers go too far with their proposals, they will drive those of us in group 2 into alliance with folks in group 3 to kill those proposals. But if reforms are not sufficient to fix CEQA’s problems, transportation and green energy projects will continue to be delayed or made more costly and demand for reform will continue, pushing folks in group 2 back into the arms of group 1.

The best solution is to find a more effective and holistic way to meld statewide and regional plans with carbon emissions reduction targets, mitigation, and environmental justice. That would entail totally redesigning CEQA and coming up with perhaps a new process that meets 21st century environmental needs. But such proposals rarely emerge from a contentious legislative debate. We may have to resolve the current CEQA debate before something more visionary becomes possible.

  1. Ted Judah
    Jan 30th, 2013 at 23:21
    #1

    There are three camps in the CEQA debate, but it’s really more a matter of geography than ideology:

    1) Republican districts in the east, north, and south of the state have no love lost for CEQA. They are bankrolled by industries that can’t stand land use control of any kind…whether it’s homebuilders in San Diego, oil drillers outside Bakersfield, or rice farmers in Oroville.

    2) Democratic districts that are either poorer and/or more Hispanic than the state as a whole want CEQA relaxed to allow everything from the Peripheral Canal in the San Joaquin Valley to downtown L.A.’s putative new football stadium.

    3) Democratic districts in both Southern California and the Bay Area that don’t want to set off a fight with the trial lawyers who have a lot to lose if CEQA is simplified.

    The reason why Senator Rubio is getting all the attention is that he is the only one that can force President Pro Tem of the Senate Darrell Steinberg to join the rest of leadership in camp 1 or 2. (Assembly Speaker Perez and Governor Brown are in #2.) Steinberg simply wants to get Rubio’s vote on the budget and other crucial bills that will require a two-third majority for as little as possible.

    Thus, the ultimate outcome is going to be a loosening of CEQA, not a real overhaul. Plus, given that the Legislature can always abrogate CEQA’s application to a specific project, the Legislature could always suspend CEQA until after the project is built, and then allow the matter to be adjudicated.

    Robert Cruickshank Reply:

    Yeah, that geographic approach does make a lot of sense. I would put #3 in a less pejorative way – they are more worried about the enviros, and many of those legislators personally believe that CEQA as it is works well. And your discussion of the political endgame makes sense too.

    Ted Judah Reply:

    I have no doubt that the majority in camp number 3 do care about the environment, but Mother Nature doesn’t write campaign checks.

  2. Derek
    Jan 30th, 2013 at 23:23
    #2

    A fundamental flaw of CEQA is that it doesn’t require that externalities be internalized. So instead of a market-based solution to limiting environmental damage that compensates those who suffer, we have a legislative, big-government solution that can never be as effective and that compensates nobody for their injuries.

    Robert Cruickshank Reply:

    Well, those kinds of government solutions work well. Markets don’t solve big problems.

    Derek Reply:

    Markets don’t solve big problems.

    Please support the above statement by naming a problem that wasn’t solved when its externality was fully internalized.

    Jonathan Reply:

    Perfect markets work perfectly. Name a perfect market. Many “big” problems aren’t solvable by markets beacuse the externalitiees cannot be internalized. Take climate-change. There’s no global agreement on who should reduce first, or how much.

    Derek Reply:

    We already know that the social cost of carbon is estimated to be about $43 per ton with a standard deviation of $83 per ton. Why can’t that externality be internalized?

    Derek Reply:

    [source]

    joe Reply:

    You didn’t answer Jonathan.

    $43 per ton with a SD of $83. per ton. Think about the distribution you described and that it was produced by Governments.

    Derek Reply:

    Some people won’t be satisfied until the cost is calculated down to the penny with 100% certainty, but do you really think it’s realistic to expect that kind of precision?

    joe Reply:

    Derek

    http://en.wikipedia.org/wiki/Standard_deviation
    A high standard deviation indicates that the data points are spread out over a large range of values.

    The approximated answer is $43 with a standard deviation of $83. The range is +- 1 SD or +/1 $83

    The old global ecology joke in a talk is something like this: “The answer is 1 plus or minus 2″

    Look where this came from in context

    More than 100 estimates of the social cost of carbon are available. They run from US$-10 to US$+350 per tonne of carbon. Peer-reviewed estimates have a mean value of US$43 per tonne of carbon with a standard deviation of US$83 per tonne. Uncertainties in climate sensitivity, response lags, discount rates, the treatment of equity, the valuation of economic and non-economic impacts and the treatment of possible catastrophic losses explain much of this variation including, for example, the US$310 per tonne of carbon estimate published by Stern (2007). Other estimates of the social cost of carbon span at least three orders of magnitude, from less than US$1 per tonne of carbon to over US$1,500 per tonne [20.6.1]. It is likely that the globally-aggregated figures from integrated assessment models underestimate climate costs because they do not include significant impacts that have not yet been monetised.

    We can NOT unambiguously create a market due to the wide discrepancies and incomplete understanding of impacts.
    We need to negotiate some first steps but it takes governments to agree and then enforce carbon costs.

    Derek Reply:

    That’s just an excuse to avoid paying the full cost of your preferred lifestyle.

    Some people will never be satisfied with any price on carbon, but we must not listen to them or we’ll never achieve anything. From now on, try not to be one of those people.

    joe Reply:

    “That’s just an excuse to avoid paying the full cost of your preferred lifestyle.”

    Who cares about what I do or do not do.

    You still haven’t explained how we will solve this with market forces when the “cost estimates” are off by orders of magnitude and the impacts are not fully monetized.

    We need “a legislative, big-government solution” to create and enforce a market. A WORLD WIDE government standard to agree on market prices and enforcement.

    Derek Reply:

    We don’t have to be the sheep. We can take the lead even without a worldwide standard.

  3. Richard Mlynarik
    Jan 31st, 2013 at 10:41
    #3

    There’s a nice pithy term for dim people who are seen to unwittingly support a malignant cause which they naïvely believe to be a force for good..

    Keep up the sterling anti-environmmental developer-proxy work, Robert! The strip mall wetlands pavers, sports stadium profiteers, freeway contractors, and farmland subdividers love it all. Hooray for “sensible” “reform” of “onerous” environmental “red tape”!

    synonymouse Reply:

    Thank you, Richard, for mustering the energy to point out the obvious.

    Neville Snark Reply:

    Yes, Richard, it would be better to nothing unless it were perfect. You can die with a clean conscience.

    synonymouse Reply:

    I suggest we are not talking about the somewhat less than perfect here, but the resolutely imperfect, almost to the perversely imperfect.

    I believe Craig Ferguson said something close to or to the point thereof: “Why does LA have to be so ugly?”

    It’s a cultural statement. Let’s kill the natural world. And replace it with the a fake lake and the like. But California pollyanna airheads thinks it’s Disneyland. And Moonbeam and Villa are clean as the wind-driven snow.

    VBobier Reply:

    So You think something is ugly and so it should not be built?

    Being out of sight costs extra and someone has to pay for that and that isn’t Government.

    joe Reply:

    He chooses to live here and complain bitterly as does his compatriot. Worse place ever ……
    Neither leaves for a better place. Says a lot about their opinions and convictions.

    Alon Levy Reply:

    Love it or leave it is an idiotic refrain.

    joe Reply:

    It is. But I didn’t write that.

    People who are deeply unhappy with the State and it’s culture/infrastructure/politics are welcome to stay. I would not.

    Move to a better place. It’s easy and it’s a very big, diverse country. If there are none – well it should reflect on their opinions and convictions.

    synonymouse Reply:

    You need lots of energy and money to relocate to another place.

    Not so much another place, anyway, but another time.

    Alon Levy Reply:

    Okay, so you said “move to a better place” instead. How is that different?

    Also? Check your privilege when you say “it’s easy.” In some industries, you get to choose where you live. In others, you do not. I don’t live in Vancouver because Translink is well-run by North American standards; I live in Vancouver because UBC offered me a job early in the application cycle and nobody else did. (And all of this is much easier for US citizens because of things like NSF postdocs, which let you choose where you live. Apparently, those of us who aren’t the 5% are not allowed that security.)

    adirondacker12800 Reply:

    the temerity of the US government only providing benefits to US citizens, just awful.

    Alon Levy Reply:

    a) The EU equivalent is for everyone. They even have some positions specifically for people who are not citizens of the country the position is in, to encourage people to move around more and form new collaborator networks.
    b) A globalized world has global industry clusters. Americans-only positions make about as much sense as software developer positions that only go to people who were born in California.

  4. synonymouse
    Jan 31st, 2013 at 19:33
    #4

    Stupidest line of the day:

    http://blog.sfgate.com/cityinsider/2013/01/30/meters-buses-bonds-the-talk-of-mta-board/

    “– Muni is over capacity — no surprise to anyone who’s ever tried to ride the N-Judah — and the agency is actually looking at how to encourage people who could easily walk or bike to their destinations to do that instead, clearing room on the buses and trains.”

    As if anybody would not avoid taking Muni if they could get there by walking. If Muni needs capacity start with the bloated payroll. If personnel is not your forte try hardware. The #38 is the heaviest line – at the very minimum convert straightaway to articulated trolley bus and operate out of the upper bays of Geary Carhouse-Presidio Yard. Or since Geary is relatively flat by SF standards go to low-floor 3 section articulated streetcars so that one overpaid operator is carrying more passengers even if you have to operate in the curb lane. Something has got to give when you are over capacity.

    Most all transit ops I know want to add more patrons not dump them. But if you truly want to shuck some the best way is to tell the union to perform the classic anatomically impossible act and bring on a strike, a 6 month one that would knock TWU 250A on its keester. And you would lose the requisite number of passengers assuredly in the process but put those clowns under control.

    YESONHSR Reply:

    your comment has nothing to do with the topic Robert posted…I want to hear HSR issues .not your Teaparty views

    nslander Reply:

    Its your own fault for reading beyond the by-line.

    Keith Saggers Reply:

    Geary and Van Ness are getting BRT
    Church (N Judah) is getting red transit only lanes

    synonymouse Reply:

    The J runs on Church. A great line but let’s bring back the 11 to Noe Valley now that we’re throwing money at pet projects.

    Keith Saggers Reply:

    sorry got the letter wrong

    flowmotion Reply:

    The capacity problems with the LRVs are entirely in the Market Street subway. That red lane project is essentially just wasting paint.

  5. synonymouse
    Feb 1st, 2013 at 00:33
    #5

    @ YESONHSR

    And your CEQA spiel is exactly what?

    I’ll hazard a guess: “The business of America is business”.

    PB worshippers, please cut the eco-green hypocrisy. Y’all are developer shills.

  6. Reality Check
    Feb 1st, 2013 at 11:03
    #6

    Push to overhaul CEQA law divides Democrats

    A major political battle is brewing in Sacramento over California’s landmark environmental law referred to mainly by its acronym, CEQA, with some powerful Democrats urging an overhaul of the regulations.

    Critics of the 43-year-old legislation say it has become a tool for special interest groups to thwart development, or to coerce project managers into accepting their terms, a process referred to derisively as “greenmail.”

    “It’s a weapon misused by people who want to stop something,” said Keith Woods, chief executive officer of the North Coast Builders Exchange.

    Gov. Jerry Brown and Democratic Party leaders in both houses of the state Legislature have stated their willingness to change the law. So far they’ve not released specific details.

    State Sen. Noreen Evans, D-Santa Rosa, has emerged as a major player in the debate as a defender of the status quo, or even adding more provisions to the law that in some instances would be anathema to business interests.

  7. Reality Check
    Feb 1st, 2013 at 11:28
    #7

    Map shows California growth projections by county

    Urban coastal areas will see some of the slowest 2010-2030 growth, while the San Joaquin Valley is expected to grow quickly (e.g., Kern Co. projected to grow 59.9%).

    synonymouse Reply:

    Except it is not going down that way. The focus of business(read IT)is along the coast. Drought and high taxes of an expanding welfare state guarantee Valley jobs will be decamping to places like Texas.

    Of course you could pimp hyper long distance commuting – aka sprawling.

  8. Reality Check
    Feb 1st, 2013 at 11:53
    #8

    Caltrain Launches Electrification Environmental Review

    The environmental impact report for Caltrain electrification and modernization does not include High Speed Rail service, which will be subject to a separate environmental review.

    Modernization and electrification of Caltrain is anticipated to allow increased service to more stations while reducing greenhouse gas emissions by 90 percent.

    Caltrain will begin operating electrified service by 2019, but this will not include High Speed Rail service, which is not expected to reach the Peninsula until 2026, at the earliest.

    To kick off the environmental clearance process, Caltrain staff will be holding four public scoping meetings to receive feedback:

    Feb. 27, 2013
    Caltrain Offices, 2nd floor Auditorium
    1250 San Carlos Ave., San Carlos
    -Open House: 3 – 6 p.m.
    -Scoping Meeting 6 – 8 p.m.

    Feb. 28, 2013
    Palo Alto City Hall, City Council Chambers
    250 Hamilton Ave., Palo Alto
    6 – 8 p.m.

    Mar. 5, 2013
    Santa Clara Valley Transportation Authority, Auditorium
    3331 N. First St., San Jose
    6 – 8 p.m.

    Mar. 7, 2013
    San Francisco City Hall, Board Chambers
    1 Dr. Carlton B Goodlett Pl., San Francisco
    6 – 8 p.m.

    Caltrain will be accepting comments on the electrification scoping process until 5 p.m. on Mar. 18, 2013. Comments may be made in person, by e-mailing electrification@caltrain.com, subject line “Peninsula Corridor Electrification Project” or by mailing to:

    Peninsula Corridor Joint Powers Board (Caltrain)
    Attn: Stacy Cocke, Senior Planner
    1250 San Carlos Ave.
    San Carlos, CA 94070-1306

    The Notice of Preparation can be found online at caltrain.com/electrification

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