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The response I hear most often when the subject of reforming the California Environmental Quality Act (CEQA) comes up is a heavy sigh.
Everyone thinks it should happen, but no one’s especially confident that it will. That’s unfortunate, because while California was ahead of the curve when it passed CEQA in 1970, CEQA has fallen out of step with the evolution of the state’s land use planning and environmental policy.
Good reform could balance CEQA’s mandate for informed environmental decision-making with other important California policies like mitigating climate change, promoting renewable energy and encouraging sustainable, transit-oriented development.
Let’s start by clarifying what CEQA is. You might’ve heard of the law, but don’t assume it’s an environmental protection statute. CEQA isn’t like the federal Endangered Species Act or Clean Water Act, each of which strictly prohibits causing harming the country’s endangered species or waters. CEQA is principally about decision-making, not protection.
CEQA demands California’s governmental agencies make informed decisions. An agency must fully consider the environmental impacts of proposed development projects. This includes identifying impacts and alternatives, proposing mitigation if necessary and justifying the project’s approval to the public. Public participation is another critical aspect of CEQA review.
There is, however, a fine line between contributing to informed decision-making and participating just to delay or kill projects.
CEQA might promote informed decision-making, but all too frequently it paralyzes beneficial environmental actions. Examples of this paralysis include renewable energy projects in San Diego County and mass transit projects throughout the state. To appropriately accommodate California’s shift away from greenhouse gas-dependent development patterns and toward sustainability, CEQA should afford projects promoting important state policies some protection against NIMBY attacks or crusades under the guise of environmental perfectionism.
Developers and government agencies alike are subject to attacks on CEQA grounds, and this comes with consequences. For developers, the threat alone of litigation can kill a project before it even begins. The costs of an environmental impact report, agency hearings and legal defense can render a project economically unfeasible. And with the abandoned project go the jobs and economic benefit for the community. In the case of government, taxpayers pay for the legal defense of a challenged environmental impact report, and when it’s finally approved, we also pay the difference in cost, inevitably higher, for building the project.
This isn’t to say all CEQA challenges are without merit, or that we should be primarily motivated by economic considerations. But CEQA reform could seek to inoculate environmentally sound projects from opponents looking to simply interfere with or delay a project, or exact some economic benefit from a developer.
At this point, I cannot say exactly how CEQA reform should look. But I hope these thoughts provoke a hard look at the topic of CEQA reform, and provide fodder for future conversations about this important policy issue.
Jim Whalen is president and CEO of J. Whalen Associates, and an expert in real estate development, environmental and governmental affairs. Whalen’s commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.