January 18, 2013
CEQA reform is long overdue – Environmental lawyer's perspective
Jennifer Hernandez on a "CEQA tour" of San Francisco last year. (Photo Credit: Angel Cardenas)
Jennifer Hernandez's nearly thirty years of practicing law have given her an unusual pedigree for a CEQA attorney—one that is helping her play a leading role in efforts to reform the 40-year-old law in Sacramento this year.
An avowed environmentalist, Hernandez has worked on nearly every side of the environmental legal divide. Now a partner at the law firm Holland & Knight, she helps clients in the public and private sector navigate CEQA's regulatory maze--from biotech companies and hospitals to solar startups and cities redeveloping old industrial sites.
The City of San Francisco proclaimed a "Jennifer Hernandez Day" in 2002 for her work in sustainable land use, calling her a "warrior on the brownfield."
Hernandez's experience on the front lines of the CEQA wars has convinced her of one thing: CEQA needs to change, and it needs to change now.
"I don't think anyone I'm associated with wants to gut CEQA, but ending litigation abuse is long overdue," says Hernandez, who has played an active role on the Economic Summit's Action Team, a broad group of stakeholders that has called for a statewide discussion about ending the abuse of CEQA lawsuits for "non-environmental" purposes.
Her proposed remedies have two basic components: First, she thinks the time has come to make the law's cumbersome litigation process more transparent. Second, she hopes to integrate CEQA into the dozens of environmental laws that have been put on the books since it passed in 1970.
Time for reform
"CEQA is being abused to get in the way of environmental goals that weren't paramount in 1970," says Hernandez. "The rule of thumb in the late '80s--the era in which I grew up--was if you did an [Environmental Impact Report], more than nine times out of ten, you were going to be fine. Unless you lied or screwed up in a big way, the court was going to find you complied with CEQA."
That is no longer the case. In fact, a recent study of the last 15 years of CEQA litigation history found that even after spending millions of dollars over several years to produce all of the documents required by CEQA, many projects challenged under the law still struggle to win in court. Hernandez's own research shows that the majority of published CEQA decisions by the state’s highest courts now involve infill development and public transit projects—the same smart growth ideas avidly supported by environmentalists.
Which is why Hernandez and her allies in the broad business and labor coalition calling themselves the CEQA Working Group spent last summer pushing a reform package aimed at what she considers the root causes of CEQA's current dysfunction.
Where does Hernandez think CEQA has gone wrong? First, she says, judges have gotten more and more involved in second-guessing the substantive adequacy of EIRs--increasingly dictating how lead agencies choose to conduct their environmental analyses. "That is why so many of these projects are losing in court," she says.
Secondly, "there's virtually no boundary anymore about what constitutes 'the environment,'" she says, pointing to dozens of projects that have lost in court on the basis of everything from private views out a petitioners' window to a city's lack of adequate police staffing. "At no point has this been legislated or stabilized," she says. "The court decisions are just like Whack-a-Mole, popping up somewhere new every time."
And then there is the expanding use of CEQA by groups that don't even have the environment in mind. "Initially, CEQA was used mostly by brand-name environmental groups like the Sierra Club, NRDC, or whatever," she says. "But it's exploded exponentially as a tool of all things for all people."
Only 26 percent of the CEQA cases that move to higher courts involve statewide environmental organizations, she points out. Many of the rest are brought by a range of non-environmental groups, from labor unions using the law to force developers to grant them project labor agreements to groups from shopping malls to gas stations using the law to stymie competitors' projects.
"Then there are the true bounty hunters, bad-guy lawyers who use the law just to force you to get out your checkbook," she says, referring to the rising trend of "greenmail"—using the threat of litigation to essentially blackmail developers in the name of the environment. "They don't even identify their clients a lot of the time," says Hernandez. "But they get the money."
For Hernandez, this is all standing in the way not just of development for development's sake, but of environmentally-conscious efforts to build more sustainable communities.
"CEQA is about not changing," says Hernandez. By allowing individuals to stymie development at any stage of the process, even when the project is consistent with existing environmental standards, she believes CEQA has become the bane of smart growth.
"We can't rebuild our existing communities to create lower carbon footprint without reforming this law," says Hernandez. "We just can't."
What reform would look like
So how would Hernandez's proposed reforms accomplish this? While she would leave many components of CEQA in place--its environmental review process, disclosure process, and informed public debate--she hopes lawmakers will find a way to prevent projects from losing CEQA lawsuits when they comply with all existing local, state, and federal environmental laws.
Her reform ideas have four components:
- Standards compliance - If a project complies with existing adopted environmental standards, a CEQA lawsuit shouldn't be allowed.
- Plan compliance - If the project complieswith a local general plan (which is in compliance with SB 375's new regulations around greenhouse gas emissions), a CEQA lawsuit shouldn't be allowed.
- Petitioner litigation transparency - To determine who's behind CEQA lawsuits, the same kind of transparency CEQA brings to all issues should be applied to the filers of lawsuits.
- Modernizing administrative record - To increase access to CEQA information, lead agencies should be required to prepare administrative records electronically.
While critics of Hernandez's approach say the last decade has produced a variety of legislative fixes to these issues that should be given time to work, Hernandez is unwavering.
"Fundamentally, I question whether [those bills reflected] a sincere desire to create reform," she says. "I think there's been a lot of illusory reform known to be illusory at the time. We're in this kabuki place of environmental advocates saying the sky is falling, the business community saying these [laws] are utterly useless, and elected always just saying 'Oh, give it some time.'"
In Hernandez's long experience with the law, there is no more time. She wants reform now, and she is going to keep pushing for it.
CEQA in the 21st Century -- a series of news stories and individual perspectives designed to educate and spark dialogue on CEQA as the California Legislature revisits the role the environmental law will play in the future of our economy.