Will 2014 Finally Be The Year For Long-Awaited CEQA Reform?


The following article was originally published in the Los Angeles/San Francisco Daily Journal on January 23, 2014.  ©2014 Daily Journal Corporation, reprinted with permission.
Don’t bet on it. If one thing seems clear from last year’s efforts at reform, it is that 2014 won’t bring the “magic bullet” that opponents of the California Environmental Quality Act (CEQA) have been waiting for. 
The 2013 legislative session began with a flurry of political jockeying and high hopes for CEQA reform, but the results left parties on both sides of the aisle unsatisfied. In early 2013, Senate President pro Tem Darrell Steinberg and then-Sen. Michael Rubio formed an advisory committee that produced Senate Bill 731. The relatively moderate proposal, which initially seemed to have bipartisan support, focused on speeding up the CEQA process, facilitating infill projects, and promoting “tiering” to avoid duplicative review. But the very same day it was introduced, Rubio — a long-time champion of CEQA reform — resigned from the Senate to take a position with Chevron. Then, following a meeting with Gov. Jerry Brown in mid-September, Steinberg agreed to withdraw SB 731 and throw his support behind a bill that would pave the way for a new arena for the Sacramento Kings. Meanwhile, Sens. Noreen Evans and Tom Berryhill also introduced reform bills in 2013, neither of which gained traction. 
The CEQA reform bill that ultimately passed, which Brown signed into law Sept. 27, 2013, left many observers wanting more. Although the bill made small progress toward facilitating urban infill projects, the changes enacted by passage of Senate Bill 743 have been generally described as “marginal.” Though notably, the bill did allow development of the new Kings arena before the deadline imposed by the NBA. 
The most significant provision of the bill in terms of tangible CEQA reform relates to traffic: It requires the Office of Planning and Research (OPR) to adopt a new metric for evaluation of traffic impacts in transit priority areas and allows OPR to do the same outside transit priority areas at its discretion. This will eventually mean abandonment of — or at least limits on the use of — the Level of Service (LOS) metric, a development many see as long overdue. But until OPR acts, the status quo remains for traffic analyses, and the large majority of development projects statewide are unaffected by the other provisions of the bill. 
If there wasn’t much of an appetite for CEQA reform within the capital in 2013, we may see little more than nibbling around the edges during 2014, as it’s difficult to imagine Steinberg mustering the appetite to fight this battle all over again. And while there was a palpable buzz surrounding CEQA reform at the end of 2012 and in early 2013, talk of further reform has barely registered as a murmur since the passage of SB 743.
Brown, however, remains hopeful. Dating back to his time as Oakland’s mayor, the governor has repeatedly voiced his support for a streamlined CEQA process with fewer regulatory hurdles, including a discussion of the issue in last January’s State of the State Address. But Brown said last year that CEQA reform “is not something you get done in a year,” and added that “the appetite for CEQA reform is bigger outside the state capital than it is inside.” Perhaps not wanting to alienate either environmentalists or business interests in the debate, Brown has remained relatively quiet about CEQA reform recently, issuing no further public statements about it since the January 2013 State of the State. Indeed, even the passage of SB 743 was downplayed by his office — the bill was signed on a Friday afternoon along with 14 other bills, and announced by a press release unimaginatively titled: “Governor Brown Signs Legislation.”
So, for now, the herculean task of defining the scope and application of CEQA — while balancing environmental concerns, business interests, and the state’s demand for smart growth — will be left to the courts. The onslaught of CEQA cases continues. More than two dozen published opinions issued in 2013, and 2014 looks to be just as eventful, with the Supreme Court slated to hear at least three cases with potentially major implications. In California Building Industry Association v. Bay Area Air Quality Management District, S213478, the court will consider under what circumstances, if any, CEQA requires an agency to analyze how existing conditions will impact future residents or project users. In City of San Diego v. Board of Trustees of the California State University, S199557, the court will consider whether a state agency with an obligation to make “fair-share” payments to mitigate off-site impacts satisfies its mitigation duty under CEQA simply by stating it has sought the necessary funding from the Legislature to pay for the mitigation, and whether the agency may proceed with the project even if the requested funds are not appropriated. And in an intersection of CEQA and California election law, the justices in Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173, will decide whether a city’s adoption of an ordinance enacting a voter-sponsored initiative under Elections Code Section 9214(a) is exempt from CEQA as a “ministerial project” under Public Resources Code Section 21080(b)(1). 
Whether any of the court rulings described above will influence future CEQA legislation remains to be seen. Regardless, it’s a safe bet that — given the fatigue among politicos — meaningful change will not come out of Sacramento in 2014. Meanwhile project proponents and municipalities await clarity from the legislature that could relieve the ongoing burden on the courts and remove formidable obstacles faced by every development project involving a discretionary agency decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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