The following article was originally published in the San Francisco Daily Journal January 21, 2014. ©2014 Daily Journal Corporation. Reprinted with permission.
After more than 40 years on the books, the California Environmental Quality Act (CEQA) continues to be the focus of contentious legislation seeking to reform the environmental law that dominates land development throughout the state.
This year saw the usual flurry of bills introduced to “streamline” CEQA’s environmental review process, as well as the usual strong opposition from environmentalists and others for whom “streamlining” is a euphemism for “weakening” the statute. As in past years, all the sound and fury signified nothing, or at least very little, for the vast majority of development subject to CEQA. The only significant bill to survive this year’s CEQA wars, Senate Bill 743, shows again that the only reform on which all sides can agree involves small-scale tinkering that will benefit the few.
Signed into law on Sept. 27, 2013, SB 743 revamps the environmental review framework for “transit-oriented infill projects” by eliminating aesthetic and parking impacts from consideration as “significant environmental impacts” and promising new, more flexible guidelines for analyzing transportation impacts under CEQA.
The law also provides a complete exemption from CEQA for an “employment center project” or a “mixed-use development project” that is: (1) located in a “transit priority area”; (2) undertaken to implement, and is consistent with, a specific plan for which an environmental impact report has been certified under CEQA; and (3) consistent with a “sustainable communities strategy” or “alternative planning strategy” adopted pursuant to the provisions of the Sustainable Communities and Climate Protection Act of 2008.
SB 743 includes provisions applicable to a new Sacramento Sports arena, including an expedited judicial review process for challenges to the final CEQA document. The law also introduces new guidelines for qualifying as an “environmental leadership project,” which are certified on a project-by-project basis by governor and, like the Sacramento arena, benefit from streamlined judicial review.
While certainly significant for the narrow category of projects that it touches, SB 743 leaves unaffected most projects subject to CEQA. Unfortunately, this reflects the status quo for CEQA reform legislation: an utter inability to reach consensus on any fundamental change to the statute.
More than four decades of CEQA in action have demonstrated that the statute’s crucial goals — informed environmental decision making and, where feasible, mitigation of significant environmental impacts — are being met, but at an unnecessarily high price. Developers and municipalities face a constant stream of lawsuits that often delay or derail projects with a substantial public benefit, with no counterbalancing benefit to the environment. But the Legislature has reached stalemate on reform.
Unlike narrow legislative fixes, decisions made by California’s courts arguably have a much greater impact on the vast majority of projects. For example, in 2013 the state Supreme Court clarified the requirements for analyzing a project’s impacts against “baseline” conditions, often critical to the determination of whether a particular impact is considered potentially significant under CEQA. Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal. 4th 439. In Friends of Oroville v. City of Oroville, the Court of Appeal provided guidance on analyzing environmental impacts associated with a proposed project’s anticipated greenhouse gas emissions. 219 Cal. App. 4th 832. While not comprehensive reform, appellate decisions like these, rather than legislation, will likely be the source of the vast majority of changes to CEQA practice for the foreseeable future.