For new housing, the California Environmental Quality Act (CEQA) is more than a barrier to construction. It’s a menace. If the Legislature is serious about digging California out of the housing supply and affordability mess that it’s in right now, CEQA, the state’s premier environmental law, has to go – roots and all.
CEQA has done everything it was supposed to do when it was enacted back in the early 1970s. Lawmakers passed the law so citizens could identify legitimate environmental defects in development projects and change them. But, over the years, various interests have hijacked CEQA for non-environmental purposes while the state and local decision-makers have looked the other way.
One needs to travel no further than right here in Sacramento to see CEQA at its worst. Here, a NIMBY (“not in my backyard”) group called the “Pocket Protectors” used CEQA to halt an already scaled-down and approved condo project. Among the “environmental” objections they claimed in their lawsuit were that the project minimized open space (in an urban infill setting), provided inadequate setbacks, had insufficient landscaping, presented aesthetic concerns, encroached on the neighboring owners’ privacy and just contained “too many houses.” No threats to the well-being of Yosemite or the California coast.
Carol Galante is one of the smartest housing persons I know. After serving as the Obama Administration’s senior chieftain on housing – recruited from her spot as CEO of BRIDGE Housing Corporation, the most prolific housing non-profit in the nation – she is now Director of the prestigious Terner Center for Housing Innovation at UC Berkeley. Here’s what she had to say about CEQA:
There is no certainty that even after going through a lengthy and expensive CEQA review process that the project which is the subject of the review will not be challenged. To the contrary, virtually all of the expense of the environmental review is consultants and attorneys trying to “bullet proof” the EIR (environmental impact report) from the impact of threatened litigation. Opponents of projects use the process to try and negotiate/demand changes. This does not result in reasoned land use decisions. It simply adds to the cost of the development.
Such was the testimony of an experienced practitioner who for her entire career at BRIDGE built nothing but affordable housing before a panel in the Legislature some years ago looking into CEQA reform. That, in fact, was over 10 years ago and still nothing has been done about this renegade law.
About that time, the following appeared on the Sacramento Bee editorial page:
The California Environmental Quality Act has been turned on its head, becoming a full employment act for lawyers and their client neighborhood groups. They tend to object to the most environmentally benign kind of housing there is. The result is that CEQA has become not a protector of the environment, but a promoter of sprawl, pushing the housing market away from existing neighborhoods and onto farmland, where the cows don’t sue.
Even organized labor was maligned for its many abuses. The unions were called out in another Bee editorial:
With shameless abandon, lawyers and monied players are abusing the state’s premier environmental law – the California Environmental Quality Act. All of us know about “neighborhood groups” that have exploited this law to prevent construction of affordable housing. Turns out labor unions are an even larger abuser of CEQA. In recent years, labor groups have used environmental lawsuits, or the threat of such suits, to stop or slow down power plant construction, hospital expansions and housing developments. The unions’ lawyers always seem to disappear once a developer has signed an agreement to hire only union labor.
What Galante, the Sacramento Bee and others had to say about CEQA was just the tip of the iceberg, though. With the advent of AB 32, the “Global Warming Solutions Act”, CEQA was now blessed by the state as containing the legal basis to halt development because of the carbon emissions it (indirectly) generated. With that came the acknowledgement that CEQA had become the single-most powerful land-use policy in California. Countless subsequent lawsuits and halted development projects confirmed it.
That’s where things stand today and the number of CEQA lawsuits is growing.
Frustrated housing enthusiasts continually propose fixes ranging from lawsuit reforms to the adoption locally of something called “master EIRs”. But, those and similar “resolutions” just nibble around the edges. As long as project opponents have access to the courts, the peril of CEQA remains.
Indeed, CEQA complaints need to be replaced with meaningful zoning, design and nuisance laws – all conducted by local governments. If a NIMBY group has a problem with a well-planned project, its members should be directed to neighborhood polling places or the council chambers, not municipal court.
Housing shouldn’t be held hostage by CEQA anymore. It’s time to repeal the law.