The California Environmental Quality Act’s (CEQA) intent is to require public disclosure of the environmental impacts of proposed projects to foster informed public comment and public agency decision-making about whether and under what circumstances to approve such projects. Enacted in the 1970s, the purpose of CEQA was — and continues to be — a noble one: to make sure that the public is provided with a good-faith assessment of the reasonably foreseeable environmental impact of a proposed project. This information would be considered by the permitting agency before it approved or disapproved the project. CEQA originally applied to only public projects, but a California Supreme Court ruling expanded CEQA to nearly all projects requiring a public agency approval within California, including those accomplished by private businesses and individuals. After CEQA became law, many other environmental and land-use laws have been passed by multiple agencies at the federal, state and local level, potentially creating perceived or actual duplicative and overlapping processes, standards and mitigation requirements which can result in lengthy project-permitting delays and uncertainty for project proponents. CEQA has served as a cornerstone in California’s environmental legal foundation, and has over time played a critical role in improving the quality of the California environment.
In more recent years, however, there is a growing trend of litigation that appears to use CEQA for “non-environmental” uses—e.g., thwarting competition or cash settlements or contractual commitments that do not result in any environmental benefit. For example, CEQA has become a favorite tool of specially formed groups (e.g., “not-in-my-backyard” [NIMBY] entities) and others who use CEQA in ways that undermine – rather than enhance – sustainable development. In the infill development context, NIMBY advocates have used CEQA to attempt to force development of more parking spaces or reduce project size and density, and in too many instances to “just say no” to any infill project.
Use of CEQA can also undermine environmental improvement when inappropriately aimed at the type of projects that in the modern era are most important to the development of more sustainable regions and environmentally beneficial projects (e.g., transit, infill development, and renewable energy production). The practical effect of this inappropriate use of CEQA has been to undermine the bigger picture land-use and environmental goals that guide the state’s investments in infrastructure, as well as environmental and economic planning. Finally, these non-environmental uses and abuses of CEQA have caused significant delays on projects, which have contributed to the loss of much-needed jobs, especially where we need them most, such as in California’s decimated construction industry (where 300,000 jobs have been lost since late 2007). Environmental, social and economic values all suffer as a result.
A brief sampling of known examples of CEQA use for primarily non-environmental purposes can be seen as follows:
- Conquest Housing, the self-described “Al Qaeda of CEQA”, filed suit using CEQA against the University Gateway project at USC for anti-competitive purposes. Conquest was only stopped using RICO (the federal conspiracy criminal statute created to stop organized crime).
- Opponents of the San Francisco Bike Plan filed a CEQA case against the plan and caused a four-year delay of a plan to restripe streets to make them safer for bikes.
- Adjacent to their existing headquarters, Netflix would like to bring 900 hi-tech jobs to a 21-acre existing but outmoded office park in the heart of Silicon Valley. The site is at the terminus of a future light rail line, is surrounded by development and was envisioned in the general plan as an area appropriate for intensification. The project proponent completed a mitigated negative declaration but faced stiff opposition from residents who do not want buildings taller than three stories in Los Gatos. A lawsuit was filed and 8 months after the project was approved, the judge concluded that a fair argument could be made that there are significant aesthetic and traffic impacts. The developer will now need to complete an EIR in response to a clear cut case of CEQA being used for non-environmental purposes.
- Residents Against Inconsistent Development (RAID) challenged the negative declaration for Silver Bend Apartments, an affordable housing project, in north Auburn. RAID forced sufficient delay to cause the developer to lose loans and grants that expired while the lawsuit was pending. RAID then signed a settlement agreement that bound the developer to abandon the commitment to affordability and to convert as many units as legally possible to market rate. Even the local Sierra Club, which filed an amicus brief, and Audubon considered the suit bogus, an attack to stop affordable housing rather than protect the environment.
- Marie Bowman challenged the environmental documents for Sacramento Senior Homes, a mixed-use development with 40 low-income senior homes built above ground-floor retail on Sacramento Boulevard in Berkeley. Ms. Bowman’s suit was based solely on the claim that the project changed the aesthetic of her neighborhood. The Sierra Club filed an amicus brief supporting the developer who ultimately prevailed in court. But the suit delayed the project by two years and cost the city and the developer an extra million dollars.
- In 2008, the Solano Beach city council refused to certify the EIR for a transit-oriented development project proposed at the Amtrak/coaster station because the project might cause some riders to park on adjacent streets. This refusal killed the third project proposed on the site in 17 years on what is still a dirt parking lot for the most important transit node on the coast north of San Diego. As a result, the city is still in violation of its commitment to the Coastal Commission to build affordable homes to replace those that were demolished to build the train station.
CEQA reforms enacted in recent years show some willingness to deal with the challenges that have been identified across the spectrum, but do not yet address issues such as CEQA being used for non-environmental uses. Some have yet to take effect (AB 226), or are subject to litigation challenge (AB 900 was challenged by the Planning & Conservation League in April 2012 as a violation of the constitutional separation of powers), or are subject to significant litigation risks (SB 375 streamlining first required regional adoption of qualifying plans to reduce greenhouse gas from land-use and transportation activities, and the first of these adopted plans (San Diego) was challenged as legally deficient under CEQA in a pending lawsuit). It is time for meaningful dialogue about CEQA reform among a broad range of stakeholders to get beyond the impasse and litigation that have characterized the recent past, as the need for an informed and thoughtful dialogue about CEQA reform has grown even more acute.
 Chris Coates. “The NIMBY Twist.” Los Angeles Downtown News. May 5, 2006. http://www.ladowntownnews.com/articles/2006/05/08/news/news01.txt.