Recent legislative efforts to streamline the far-reaching California Environmental Quality Act should lessen the environmental-review burden on infill and transit-oriented projects, proponents say. Detractors contend the reforms won't reduce the lawsuits that, they claim, abuse CEQA's original intent.
Gov. Jerry Brown (D) signed S.B. 743 into law in September 2013. The bill amalgamated CEQA reform with specific provisions to foster speedy development of a new arena for the Sacramento Kings in order to meet a deadline imposed by the National Basketball Association.
The Governor's Office of Planning and Research is expected to release a revised CEQA guidelines draft in July, with implementation by 2015.
The new guidelines will revamp the unpopular level of service (LOS) calculations against which traffic impacts of projects are assessed and resolved. Proponents hope the changes eliminate "the bias in CEQA that actually encourages widening roads and too often leads to reducing the size of development projects in sustainable locations to minimize impact on LOS, which is considered from the standpoint of a car, rather than of people and habitat," says Tim Frank, director of the Center for Sustainable Neighborhoods, San Francisco.
But others say S.B. 743's reforms are illusory. "It was just a vehicle to get the Kings' arena project enacted," says Jennifer Hernandez, partner at law firm Holland & Knight, San Francisco. "It provided the illusion of something for other [projects], but there's really no substance to it."
CEQA was passed in 1970 to supplement the National Environmental Policy Act and requires public agencies to identify and mitigate significant environmental impacts for publicly funded projects as well as private developments that require permitting. But critics say CEQA has become a tool of special-interest groups to tie up for years projects in the courts and recently has been used to delay or kill seemingly environmentally beneficial projects, such as city bike paths and transit-oriented infill projects.
“We looked at 15 years of reported cases in CEQA litigation, and [found that] CEQA is overwhelmingly a tool used to fight infill,” Hernandez says. “It has nothing to do with pollution anymore.”
According to the firm’s study, petitioners won nearly 50% of cases involving CEQA, even when an environmental impact statement was prepared for the project. “The mere act of filing a lawsuit is enough to stop projects worth hundreds of millions of dollars that have zero adverse environmental effects,” she adds.
While CEQA can be "like death by a million cuts sometimes," says Andrea Leisy, managing partner with Sacramento-based environmental law firm Remy Moose Manley LLP. But she sees promise in the bill's LOS reform and its removal of parking and aesthetic standards as grounds for legal challenges against project developments in urban infill areas.
Further legislative action on CEQA isn’t expected this year, but there may be other strategies to make improvements. For example, reversing recent judicial budget cuts could help speed up CEQA litigation within the overburdened California courts, Leisy says. Municipalities will also have a hand in how the new guidelines are implemented locally.
Despite SB 743’s incremental revisions to CEQA, the development community should embrace the reforms, says Frank, adding: “There is no silver bullet that fixes every problem all at once, and I think holding out for that is a mistake.”
