California refuses to fix CEQA. Here’s how Newsom can take charge

The California Environmental Quality Act—colloquially known as CEQA—has long been considered the state’s primary environmental law. The debate over whether CEQA deserves to retain that status, however, has grown in recent years. The heart of the problem is that the central premise of the law does not fit the great environmental problems of our day.

The bottom line of CEQA is that development of any kind is always more dangerous than doing nothing.

Whether we’re talking about major infrastructure, green infrastructure, housing, or even college enrollment, CEQA tips the scales heavily in favor of maintaining the status quo. If one musters a “fair argument” that any physical changes a project might cause would have some adverse local effect, then the project cannot proceed unless the sponsor undertakes an exhaustive study and mitigates all resulting physical effects. are “important”. Do you want to build apartments in the city center? Better soften your shadows first!

In contrast, CEQA gives public agencies free rein to reject projects without any study of the consequences of saying no.

This paradigm would make sense if humanity inhabited an ecological Eden in which everything was perfect until we touched it. But the world we live in today requires fundamental physical changes to remain habitable.

To avoid the worst of climate change, we must rapidly electrify the economy, which includes the large-scale development of wind and solar farms, transmission lines and even lithium mines. To avoid catastrophic wildfires, we must set controlled burns over millions of acres each year. To provide affordable housing—away from wildfires and tidal surges from rising seas—we must build millions of new, denser homes in existing urban and suburban communities.

Energy, fires, housing: One thing these projects have in common is that they usually offend someone who lives nearby. And thanks to CEQA, any disgruntled neighbor with a lawyer can tie up a project by filing a lawsuit and arguing that the government should have provided more thorough discussions of the alleged impacts or recirculated the environmental review document for additional public comment or required further mitigation measures. Even if the plaintiff’s complaints are frivolous, such a lawsuit can be enough to kill or at least delay a project for years.

It is not hyperbole to suggest that CEQA has brought California to a breaking point. Almost all of the electricity infrastructure we use today was built before CEQA – and that’s not enough. For wildfires, the state offers funding for controlled burns, but land managers often turn it down because CalFire’s supposedly streamlined CEQA process is too onerous. And for housing, CEQA is the mother of all loopholes, enabling cities to indefinitely delay the very projects that state law says they won’t deny.

It would not be difficult for the Legislature to fix CEQA’s flaws, but there is no political will to do so. That’s because CEQA, in practice, is not just an environmental protection law. Unions have become experts at using the threat of CEQA litigation to extract labor agreements from developers. Time is money—literally—for project investors, and litigation and delays have become so costly that developers of high-value projects will gladly incur much higher labor costs to avoid it. However, in smaller, more financially marginal projects, developers cannot afford the additional labor costs or the risk of delay. And so these projects are not proposed at all.

Perhaps not surprisingly, the trades have defeated nearly every legislative proposal to improve CEQA’s review of green projects — unless the law comes with work requirements that raise the cost of building the things we need most. A few years ago, the Planning and Conservation League Foundation convened a group of veteran CEQA advocates from across the ideological spectrum to develop a consensus proposal for modest procedural reforms. Even this was too much for the crafts, which killed him.

Major policy transitions are usually orchestrated by the Legislature. But in the case of CEQA, a congested legislative process means that Gov. Gavin Newsom and the courts have to do what they can.

The good news is that the fringes of CEQA are fertile ground.

CEQA authorizes agencies under the governor’s control to issue guidelines that define exceptions to the law and describe methodologies for how it should be implemented. This authority has been used only cautiously in the past.

It’s time to be aggressive.

Governor Newsom should tell his team to create clear exemptions for landfill and green energy projects. They can also create maps using climate-informed criteria to drive development in environmentally beneficial areas.

The guidelines should also narrow CEQA’s review of projects at infill sites that simply lose eligibility for an exemption. Environmental impact reports for such projects should address only the impacts that disqualified the project from exemption, not everything under the sun. For example, infill housing projects typically qualify for an exemption unless the project is on a contaminated site, alters historic resources, or would have significant effects on air, water, noise, or traffic. If a fill project at a contaminated site is otherwise eligible for the exemption, its environmental impact report must address only the pollutants, not the many points of potential impacts that a CEQA study would normally need to analyze.

As for the courts, they more than any other branch of government are responsible for CEQA as we know it. Courts took a thin, vaguely worded statute and fashioned “Big CEQA” out of it.

The question now is whether the courts will have a change of heart — and if so, what they can do about it (beyond tolerating strong guidance updates from the governor’s team).

The latest signals are unclear.

The state appeals court in San Francisco has twice warned that CEQA “can be manipulated to be a formidable deterrent.” Most recently, she allowed a private “malicious process” lawsuit against one of the state’s top CEQA attorneys, overruling law professors who argued it would quiet statewide CEQA litigation. So much the better, the court seemed to say. In another case, the court upheld a trial court’s order requiring a $500,000 bond from plaintiffs who brought frivolous CEQA challenges to an affordable housing project.

On the other hand, another panel of the same Court of Appeals just issued a preliminary opinion (which represents the court’s original opinion and is subject to review) that threatens to make Big CEQA much bigger. The opinion, which concerns UC Berkeley’s plan to expand enrollment and build more dormitories, equips NIMBYs with a new set of arguments for treating disadvantaged classes of people as an environmental blight. The court said that students, statistically, are more likely to make noise than non-students, so UC Berkeley had to analyze the “noise impacts” of students that the university’s housing and enrollment plan would bring to the area. That’s a recipe for wealthy homeowners to resist—using stereotypes or statistics—any housing project that would bring a different kind of person to the neighborhood. This should make anyone familiar with the racist history of land use regulation shudder.

Paradoxically, the logic of the UC Berkeley opinion would also require environmental impact reports when cities undertake projects that improve the quality of life in a neighborhood. Want to clear the air? First the CEQA gauntlet must be run – like Los Angeles, where the oil drilling ban is being pursued by CEQA, you guessed it, an oil company. If you think that sounds murky, you’re not alone.

Courts have long interpreted CEQA broadly so as to afford the “most complete protection possible” to the environment. It’s time for them to accept that more protection sometimes means less interference from the law.

For example, to give the fullest possible protection to the environment, courts should resolve ambiguities about the scope of the governor’s authority to issue guidelines to limit CEQA’s review of housing and green energy projects.

I, for one, fervently hope for a judicial reversal of CEQA—not because I think the courts can fix it themselves, but because the courts can hold the secret key to legislative action.

Sanctioning attorneys for frivolous claims, requiring plaintiffs challenging affordable housing to post bonds, giving cities the benefit of the doubt in closed cases, resolving open questions of law in ways that reconcile CEQA with other important statutes (rather than subjecting everything to CEQA) and perhaps even rejecting some claims of economic leverage, courts may strip away CEQA’s value for private economic gain.

That, in turn, should make the interest groups that have so vociferously defended Big CEQA a little more amenable to legislative compromise. It would set the stage for the branch of government that must regulate CEQA to do its job.

Let’s get on with it.

Chris Elmendorf is Martin Luther King Jr. Professor of Law at UC Davis and longtime resident of San Francisco.