BB&K's Michelle Ouellette Writes About Efforts to Reform the California Environmental Quality Act
California has always been on the cutting edge when it comes to environmental protection. Nowhere is this more apparent than in the adoption and implementation of the California Environmental Quality Act, frequently referred to as CEQA. Passed in 1970, CEQA’s basic purpose is to require state and local public agencies to analyze, and if possible mitigate, significant environmental impacts for both public and private projects such as housing developments, mass transit and renewable energy.
But this landmark law has come under fire in recent years, and there is a move afoot to reform it. In a recession-weary state, CEQA is seen by many as a statute that is not only hindering economic recovery by delaying well-meaning public projects but also being misused by parties for financial gain such as unions and business competitors. However, little legislation has been passed in recent years to amend CEQA to make it more workable. In the last year, though, a growing coalition of public agencies as well as the private sector have made it a priority to implement CEQA reform. And, in just the last couple of weeks, the head of the California Senate was among the legislators who introduced a flurry of bills to reform CEQA. In fact, state Sen. President Pro Tem Darrell Steinberg has made updating CEQA a top priority of the current legislative session so there is certainly the political will to make something happen in the near future.
CEQA was originally modeled after the National Environmental Policy Act, the federal act that requires federal agencies to analyze the impacts of their projects or certain private projects that require federal permits or funding. In its 43-year history, however, CEQA has far exceeded the more procedural requirements of NEPA and thus, has been both praised as a vital law to protect California’s natural resources and attacked as a mechanism for some unions, NIMBYs and other groups to stop growth and consequently economic recovery.
There is no dispute that CEQA has imposed important protections and standards across the state. Prior to considering public and private projects that could have a potentially significant environmental impact, public agencies must determine whether a project is exempt from CEQA or requires an environmental analysis, usually in the form of a negative declaration, a mitigated negative declaration or an environmental impact report. Each of these documents requires an analysis of an array of potential impacts of the proposed project, ranging from biological resources to greenhouse gases. Potentially significant environmental impacts must be mitigated to below a level of significance, if feasible. Projects analyzed in an environmental impact report also require the analysis of alternatives to reduce significant project impacts. The opportunity for public review and comment on these documents is required and often the public agencies schedule a public hearing to obtain further comments.
Neighbors and environmental groups praise CEQA for requiring public transparency in decision-making and looking at alternatives and mitigation measures to reduce potential impacts. On the other hand, developers and increasingly public agencies see CEQA as a statute abused by labor unions, NIMBYs, litigators and others who they allege have largely a financial interest in project labor agreements or attorney fee payouts, rather than actual concern about the environment. Additionally, CEQA lawsuits are easy and relatively inexpensive to bring. Therefore, many CEQA lawsuits are filed each year, which can take two years or more to resolve through the appellate courts. CEQA litigation then can significantly slow or even stop projects from going forward. Additionally, state and federal funding can be jeopardized due to such delays, often for important projects such as public transportation. Finally, given the lack of legislative action in recent years to clarify CEQA, the courts are left to make CEQA policy, often in inconsistent ways. Legislation that has been approved in past years has largely focused not on general reform but on CEQA exemptions, often either project specific _ such as an exemption for a downtown Los Angeles sports stadium _ or with significant restrictions in their use. Assembly Bill 900, known as the Jobs and Economic Improvement through Environmental Leadership Act of 2011, allows certain projects with identified public benefits to skip the trial court and go directly to a state appellate court for review. Even this legislation has been challenged by an environmental group. Thus, CEQA has primarily evolved through the court system in recent years.
With the recession, state decision makers have been looking for ways to get the economy back on track. Increasingly, their attention is focusing on CEQA reform that would allow important projects to get through the entitlement process and be built. Gov. Jerry Brown has been quite vocal about his desire for CEQA reform, recently referring to it as a “land mine.” Last year, then state Sen. Michael Rubio, D-Shafter, introduced the short-lived SB 317 that proposed certain CEQA reforms but was quickly withdrawn. This year Rubio and other legislators have again been considering CEQA reform. However, Rubio announced on Feb. 22 that he was resigning from the senate effective immediately due to family issues. That day, twenty nine CEQA bills were introduced, including SB 731 by Steinberg, D-Sacramento. Steinberg’s bill states that it provides “the framework to encourage smart, environmentally sound growth by streamlining the environmental review process without compromising the quality of life Californians deserve and expect in our communities.” Although lacking specific details, SB 731 states that it is the intent of the Legislature to revise CEQA to, among other things, provide greater certainty for certain infill projects, streamline the law for certain projects and provide thresholds of significance for certain types of environmental impacts. Some of the introduced bills would impose even greater CEQA requirements such as repealing certain existing CEQA exemptions and requiring CEQA documents and notices be translated when the impacted community has a substantial number of non-English speakers. Many of the bills are spot bills and thus, it is not yet clear what specifics will be added.
There is no doubt that some CEQA reform will occur over the next several years. The only question is how far that reform will go, especially given that the Democrats have a majority and may in fact have a super majority again later this year.
Michelle Ouellette is a partner at Best Best & Krieger LLP in Riverside and a member of the law firm’s environmental law & natural resources practice group. She represents cities, counties, special districts and private clients in environmental issues arising under the California Environmental Quality Act, the National Environmental Policy Act, the state and federal Endangered Species Acts, and wetlands regulations. She also known for her legal work on renewable energy projects and habitat conservation plans that protect endangered species while allowing development to move forward. She can be reached at email@example.com.