January 10, 2013 by Justin Ewers
New study finds infill & public transit projects caught up in CEQA net
Public infrastructure construction, like the Expo Line in L.A., were the public works projects most commonly challenged via
CEQA lawsuits. (Photo Credit: John Guenther)
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.
The debate over how to modernize the California Environmental Quality Act—the state's long-disputed environmental law, which was passed in 1970—often gets bogged down in anecdotes. Business groups have their horror stories about the law allowing a single individual to stallworthy projects out of existence, whileenvironmentalists share an equally robust arsenal of case studies showing how CEQA has been used for a range of worthy causes.
Often lost amidst the sound and fury, though, are reliable numbers showing just how many projects—and what kind—are actually affected by California's premier environmental law. Are the majority of CEQA suits really job-strangling albatrosses around the neck of business? Or is CEQA more often the righteous crusade against heavy industry so often depicted by environmentalists?
A new study released this fall by the law firm Holland & Knight finally sheds some light on the matter, demonstrating CEQA lawsuits don't fit neatly into the narrative of either side of the CEQA wars—and providing a more nuanced picture of the law that will help shape the expanding conversation about regulatory reform in Sacramento.
Authored by Holland & Knight attorneys Jennifer Hernandez and Daniel Golub, the paper examines the last fifteen years of higher court decisions on the most hard-fought ground in the CEQA landscape—the validity of Environmental Impact Reports (EIRs) required for the development projects with the most substantial impact on everything from traffic congestion to air and water quality.
Defenders of CEQA often make the case that very few project EIRs—in which developers must outline plans to mitigate for the environmental impact their project will have—actually end up court. Indeed, a 2005 study by the Public Policy Institute of California found that only a tiny fraction of CEQA cases (0.3 percent) go to trial.
Business groups, meanwhile, point to studies of CEQA litigation history which show 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. EIRs are now successfully challenged fully half the time in published cases reviewed by the state’s highest courts. By comparison, challengers prevail against the IRS on tax matters only 22 percent of the time.
Caught in the CEQA net
But what kinds of projects are involved in all of these lawsuits? The Holland & Knight study offers a revealing analysis of the 95 published opinions on CEQA cases by the California Courts of Appeal and the state Supreme Court between 1997 and 2012—providing a glimpse into exactly what kinds ofprojects are currently undergoing California's highest level of environmental scrutiny.
The study's findings:
- Most suits are aimed at infill development: 59 percent of challenged projects in the last 15 years were either infill or greenfield projects, reflecting the trend in urban development away from sprawl—and toward more sustainable, mixed-use development.
- Most litigation is focused on non-polluting projects: Fewer than 11 percent of the cases involve industrial projects.
- Lawsuits aren't just tripping up "developers": More than a third (39 percent) of projects challenged were public works projects—mostly water or waste facilities—with public infrastructure being the most commonly challenged (19 percent).
- Statewide environmental groups aren't responsible for most suits: State and regional organizations with high profiles like the Sierra Club or Natural Resources Defense Council were only involved in 26 percent of the cases. Nearly three in four cases, meanwhile, were filed by local organizations, many of which are unincorporated associations that are not required to disclose their members or their motives.
Hernandez, one of the study's authors, doesn't mince words about the implications of these findings: "CEQA is being abused to get in the way of environmental goals that weren't paramount in 1970," she says. "The best example is climate change and the increasing density of our built environment."
To get fewer people to use cars, cities are finding new ways to grow, focusing on infill development and public transit projects. But the Holland & Knight study reveals that those same projects—usually supported by local environmentalists—are increasingly finding themselves tangled up in CEQA suits.
A pox on sustainable development?
"CEQA is about not changing," says Hernandez. "We've broadly expanded CEQA's scope to include things like private views, which the public didn't intend. We can't rebuild our existing communities to create lower carbon footprint without reforming this law – we just can't."
As the debate continues in Sacramento about how to resolve this problem, the Holland & Knight study makes one other relevantpoint. In the 95 cases studied, the report finds that CEQA litigation almost always focused on environmental issues that were already regulated by other environmental laws—and were also addressed in local land-use plans.
In the cases in which courts found an EIR deficient, the study finds, the most likely environmental issues were the adequacy of water supply (34 percent), traffic impacts (25 percent), and air quality impacts (25 percent). But the state has other laws that deal with all three: Legislative and regulatory standards cover water supply and air quality issues, while local governments have land-use plans that address traffic impacts.
Hernandez believes CEQA should be streamlined to help move projects forward more quickly, integrating the law into environmental statutes that the state now has on the books. "If a statute's been adopted to actually protect the environment, the CEQA environmental protection goal should be reconciled with that statutory protection goal," says Hernandez. "If you meet the statute, you really shouldn't be able to get sued to do more under CEQA."
Hernandez is quick to say her study doesn't say anything about taking away the requirement that projects need community approval, or skipping over the existing disclosure process. "You should still have to do all that," she says. "But if you're complying with existing standards, you shouldn't be losing a lawsuit."
For a small subset of worthy projects getting caught up in the CEQA net, however, that appears to be exactly what is happening.