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Does CEQA have a future?

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by Stuart M. Flashman, Ph.D., J.D.

The California Environmental Quality Act (“CEQA”, California Public Resources Code 21000 et seq.) has been, since its inception in 1970, one of California’s most important environmental statutes.  Modeled after the Federal National Environmental Policy Act of 1969 (“NEPA”, 42 U.S.C. 4321 – 4370a), CEQA requires that all public agencies within the state study and, if possible, mitigate the potential environmental harm, or “impacts”, that may be associated with a project being approved by the agency.

 Ever since its scope was defined in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104 Cal.Rptr. 761, 502 P.2d 1049], CEQA has become a bone of contention between environmentalists on the one side and development interests on the other.  One primary reason for this is that CEQA, unlike NEPA, has some teeth.  NEPA merely requires a federal agency to identify and discuss a project’s potential environmental impacts.  While that discussion must include consideration of project alternatives and potential ways of mitigating project impacts, the agency has no duty to reduce a project’s environmental damage.  Thus a federal agency could approve a project to drop a hydrogen bomb on San Francisco, and the action would be fully legal under NEPA, so long as the agency had first fully described all the environmental damage that would occur and ways it might be avoided.  CEQA, by contrast, requires the agency to avoid or mitigate environmental damage whenever feasible.  (Public Resource Code 21002.)

 Needless to say, with the formidable political (and financial) power wielded by development interests in California, there have been periodic efforts to weaken CEQA.  Thus, for example, Public Resources Code 21166, added in 1972 in one of the periodic legislative “reforms” of CEQA, limits the ability of an agency to reopen the environmental review process once a project’s impacts have been studied in an Environmental Impact Report (“EIR”) and the EIR has been approved by the agency.  Administrative regulations (15162 of the California Code of Regulations, Title 14, the “CEQA Guidelines) and court decisions have further weakened CEQA by applying that same limitation even when the agency didn’t conduct a full study of impacts, but merely issued a “Negative Declaration”, finding that the initial project, as approved, would have no significant impacts.  (See, e.g., Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 [277 Cal.Rptr. 481].)  This has opened a significant loophole in CEQA, where a project can first be brought forward as a relatively small “stalking horse” project with impacts that can be fully mitigated, then, after a negative declaration has been prepared and approved, gradually and incrementally expanded into a considerably larger and more environmentally significant project.  Because the project has already had a negative declaration prepared and approved, it becomes much hard for project opponents to make their case that it will damage the environment.

 Another fertile ground for weakening CEQA has been the creation of exemptions or limitations on CEQA’s applicability to projects.  In some cases, the political forces are strong enough to simply have the legislature create a statutory exemption.  In essence, the legislature steps in and declares that, as to this particular project or type of project, the importance of the project overrides the public’s right to understand its environmental impacts.  A recent example was the City of Oakland’s pushing through a partial CEQA exemption for development projects in its downtown area.  (AB 436, Chaptered 10/11/01, Public Resources Code 21158.6.)  Oakland Mayor Jerry Brown and Assemblywoman Wilma Chan originally proposed to totally exempt Oakland downtown development from CEQA review.  After encountering strong opposition from environmental groups, the bill was modified to make the exemption partial and to narrow its application.

Likewise, there has been a movement to exempt from CEQA review various types of “infill” development, on the grounds that such development is environmentally beneficial “smart growth” and deserves a streamlined approval process.  (See, e,g., Public Resources Code 21158.5.)  The underlying assumption is that “small” urban infill projects will have minimal environmental impacts, especially when compared to projects that are not infill.  These types of provisions are specifically aimed at reducing the ability of “NIMBY” groups to use CEQA as a tool to attack projects that are objectionable to the local community, especially lower housing projects.

Between statutory modifications and unfavorable judicial decisions, the question has to be raised whether CEQA still has a future in protecting California’s environment.  The answer is still up in the air.  Certainly California maintains a well-justified reputation as a state where environmental values are cherished by the public.  In most parts of California, running for political office as an opponent of environmental protection is still political suicide.  (Some portions of the Central Valley and Orange County may be a partial exception to this rule.)  Even so, however, it is worth noting that the two statutory sections mentioned above that limit CEQA’s application were both authored by “progressive” legislators from the environmentally enlightened S.F. Bay Area.  Just as George Bush could call himself an environmentalist, so do most California politicians.

Perhaps the key question for CEQA’s future is the apparently unrelated question of the future of campaign finance reform in California.  So long as wealthy pro-development interests maintain their ability to make virtually unlimited contributions to California politicians and election committees, Californians will continue to be inundated by deceptive campaign propaganda at every election.  The majority of California voters have neither the knowledge nor the time to see through the deceptive campaign literature put out by pro-development forces.  Without campaign finance reform to level the playing field, the future for CEQA appears dim.

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Law Offices of
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
(510) 652-5373 (voice & fax)
 
 
 
last updated:  November 17, 2008