GUEST COMMENTARY-At the beginning of each state legislative session, the list of laws on the chopping block inevitably includes the California Environmental Quality Act (CEQA).
Developers (and some local agencies) routinely attempt to gut the landmark law, mislabeling their efforts as seemingly innocuous “reform.” As professional environmental advocates, we’re used to perpetually defending CEQA.
But we also have a wish list that includes measures to strengthen CEQA. The effectiveness of this law is too often overlooked.
CEQA results in greater transparency and better projects. When projects undergo CEQA review, their environmental impacts must be revealed and, to the extent possible, either avoided or mitigated. Sometimes these and other CEQA requirements aren’t followed and, as a result, a lawsuit is filed. The vast majority of projects, however, are never challenged. While it’s the prospect of CEQA litigation that worries developers and agencies, that’s also what makes CEQA effective.
Though it is ultimately the government’s job to review CEQA documents and decide whether and how to approve a project, CEQA compliance is often just a rubber stamp approval by elected officials – especially when the proposed project is in their district. As a result, enforcement is routinely left to citizen activists.
Successful CEQA lawsuits have resulted in countless benefits around the state, including preservation of pristine habitat and agricultural land, wildlife protection, reduction in air quality and traffic impacts and groundwater protection.
But CEQA litigation isn’t just a mechanism to ensure developers address their impacts on things like wildlife and water quality. It’s also a way to force local agencies to get serious about tackling one of our greatest environmental challenges: climate change.
For example, a recent lawsuit invalidated the San Diego County climate plan based on violations of CEQA. Likewise, SANDAG’s approval of a Regional Transportation Plan was shot down in a CEQA suit because the agency failed to comply with a state mandate to reduce greenhouse gas emissions. Other government entities, like the city of San Diego, will now have to develop stronger climate plans to avoid a similar fate.
These legal victories illustrate the importance of CEQA.
Because the review requires consideration of all environmental impacts, the efficacy of many environmental laws and policies – including those addressing climate change (like AB 32), the Endangered Species Act, and the Clean Water Act – is determined in part by the willingness of citizen activists to enforce CEQA. If we care about our open space, wildlife, water quality or air, we should be making CEQA stronger, not weaker.
To do that, we’ll first need to reverse an alarming new trend in CEQA suits by ensuring government agencies produce records (used as the basis for review in CEQA lawsuits) at a reasonable cost.
When nonprofit groups file suit, they often do so with the aid of attorneys working on contingency — at no cost unless they win — or at greatly reduced rates. Any additional financial burden makes it that much more difficult for nonprofits to sue. In a recent lawsuit, a plaintiff group was hit with a $64,000 bill for a record. This is not only contrary to the CEQA mandate to prepare the record at a reasonable cost, but is also a serious deterrent to citizen enforcement.
Another long sought revision to CEQA is a requirement that unscrupulous developers pay for their unlawful activities. Currently, so long as CEQA review begins after unlawful activity takes place – no matter how severe or irreversible – it isn’t taken into account during CEQA review. This incentivizes shady practices like grading of wetlands before commencement of environmental review. It also puts developers who follow the law at a disadvantage. Developers and environmentalists alike should be pushing for amendment of this rule.
Lastly, so-called “CEQA in reverse” should be ratified. CEQA requires analysis of the impact of bringing development to a hazardous area. Nonetheless, some courts have found this type of review unlawful because, the argument goes, CEQA is meant to assess the impacts of the project on the environment, not vice versa. However, there’s simply no legitimate reason not to disclose the impact of building in an area that will be inundated by sea level rise, in a fire prone area or on seismic fault.
Once a development is built, there’s no going back. Environmental victories, however, are short lived.
The environment is never saved – it’s always being saved. Our ability to keep saving the environment largely depends on the continued efficacy of CEQA. As agencies and developers look for new ways to chip away at CEQA, we should be calling for ways to strengthen it. That’s true CEQA reform.
(Livia Borak is an attorney at Coast Law Group. This commentary was posted first at Voice of San Diego.)
Vol 12 Issue 2
Pub: Jan 6, 2015