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The California Environmental Quality Act itself doesn’t create traffic.
His main point, however – that the “primary focus” of the law is disclosure – is misleading. The aim of that disclosure is to identify impacts so they can be eliminated. At the end of the process, government agencies must eliminate every impact or impose an offsetting benefit. Mitigating impacts can get very expensive, and the offsetting benefits are often called extortion.
Briggs draws on some court opinions discussing the CEQA process. Some judges have emphasized the right of the public and the duty of decision-makers to be informed about projects before a decision is made. However, that right of involvement is not unique to CEQA. For example, in Horn v. County of Ventura, the California Supreme Court created a constitutional right in favor of property owners and residents to learn of and comment on most nearby developments.
But the point of all those disclosures and comments is to protect the environment from the project: to identify potential impacts and require that the impacts either be eliminated or require something in exchange.
Cities simply can’t approve a project that’s subject to CEQA unless the decision-makers are sure that all impacts have been mitigated, or that another agency should mitigate them, or that mitigation is infeasible. And if mitigation is infeasible, there must be other benefits to justify allowing the project to proceed.
Briggs correctly states that disclosure is an aim of CEQA. But disclosure, and lawsuits complaining about inadequate disclosure, serve the ultimate goal of mitigation.
I’ve lived in the San Diego area since 1960 (when Mission Valley was mostly dairy farms), and it’s true that CEQA isn’t to blame for traffic in Mission Valley. That’s not a legitimate point, though, because CEQA isn’t a physical action. More importantly, the mitigation measures that result from disclosures can range from installing a stop sign to building an ugly noise wall to paying millions of dollars for habitat.
The benefits required to justify approving a project whose impacts can’t be mitigated often get ridiculous. I’ve seen, for example, hundreds of thousands of dollars demanded for a library when the proposed project would have had no impact on the existing library. Those mitigation costs get added to the price of everything sold or leased in this state.
Nothing in California is simple, and CEQA is no exception. For instance, CEQA doesn’t apply to some projects. Comments on Voice of San Diego articles often express a concern that projects are not sufficiently mitigated. That does happen sometimes, but the converse — over-mitigation — also occurs because many analyses assume the worst.
Project opponents sometimes accuse the developer’s counsel of trying to get clients cheaply through the process, but actually the opposite is true. My role as an attorney is to strengthen the analyses and mitigation measures to ensure a successful defense when opponents sue to derail an approved project.
I’ve butted heads with Briggs on many occasions. Unlike many environmentalists and attorneys I’ve dealt with, I’ve always found him to be genial and honorable. This time, though, let’s just say we disagree. There’s a lot more to CEQA than disclosure.
Richard Schulman is a land use attorney with Hecht Solberg Robinson Goldberg & Bagley LLP and an occasional adjunct professor teaching, among other things, municipal and real estate law. Schulman’s note has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.