The Case Against CEQA “Reform” — San Diego’s Lame Transportation Plan
The movement to “reform” the California Environmental Quality Act (CEQA), a citizen-enforced law that requires public agencies to analyze environmental impacts of significant proposed projects, is gaining strength in 2013. Everyone from the Governor to the Senate President to business groups to public agencies are joining forces, singing the same anti-CEQA song.
Their evidence that CEQA is broken? A heaping of random anecdotes of CEQA abuses, and one misleading law firm-backed study of a small group of outlier appellate cases. Meanwhile, the overwhelming trial court data reveal a different story, as documented by NRDC and the California League of Conservation Voters. In fact, according to the NRDC/CLCV data, CEQA litigation is hardly widespread or the all-powerful tool of nefarious NIMBYs and rival businesses or labor groups that reformers claim.
CEQA reformers’ argument is that since CEQA was passed, new environmental laws and standards have been enacted, negating the need to study most impacts in advance. State Senator Michael Rubio carried the torch last year, proposing a secretive and last-minute bill to essentially replace CEQA review by deferring to project compliance with existing environmental standards.
This is where the lame San Diego transportation plan comes into play. Under SB 375, the state’s land use climate change law, San Diego was supposed to develop a regional transportation plan that would meet state-developed greenhouse gas targets. San Diego would do this by encouraging development near transit and discouraging sprawl-inducing transportation projects. But the San Diego Association of Governments (SANDAG), the local transportation planning agency responsible for drafting the plan, responded by essentially fudging numbers based on inputs like proposed freeway construction to reduce traffic, increases in telecommuting, and job losses from the Great Recession. Using these factors, SANDAG’s projected emissions dipped in the short run just enough to meet the targets, before rising again by 2050 — in short, a total failure to make a good-faith effort to implement the law through long-term changes in land use and transportation planning (see chart below).
In response, environmental groups sued SANDAG under CEQA to enforce meaningful change in the transportation plan. SANDAG ignored a host of options: reconsidering transportation projects in the pipeline as discretionary so they could reprogram those funds, revisiting their sales tax plan that mandates too many highway projects, and generally promoting more infill development instead of sprawl throughout the north county. The trial court agreed, finding against SANDAG last month.
You’d think the SANDAG case would cause the environmentally minded infill proponents who are backing CEQA reform to reconsider their standards-based plan. But instead, State Senate pro Tem Darrell Steinberg and Senator Rubio, both pro-infill supporters of CEQA reform, have held up the lawsuit as an example of CEQA abuses. After all, SANDAG met the SB 375 standard, right?
Their arguments are misguided and counter-productive. In this case, San Diego met the targets through creative statistics and an emphasis on highways and sprawl, running completely counter to the clear SB 375 intent. Relying solely on these targets would result in worse environmental outcomes and more sprawl. CEQA was therefore needed to hold SANDAG’s feet to the fire and encourage meaningful compliance.
I’m sure enforceable, aggressive environmental standards exist that could replace CEQA review in certain instances. But replacing CEQA almost wholesale in favor of these standards is fraught with disaster, as the SANDAG case exemplifies. After all, what do we do when the standards are weak? Or when there is no mechanism to enforce meaningful compliance with the standards, as in the SANDAG case? Or when the standards are in place precisely in response to concerns over citizen suits under statutes like CEQA – pressure that would disappear with CEQA suits?
I’m all in favor of looking at ways to reduce barriers to CEQA compliance for environmentally friendly projects, such as certain infill development, public transit, and renewable energy installations. But a gutting of CEQA protection in favor of reliance on broad, inconsistent, and sometimes unenforceable standards is too much.
Californians deserve a more thoughtful approach to CEQA reform, and I hope the Legislature will deliver it in 2013 (perhaps as a positive indication, Sen. Steinberg and Rubio have already launched a CEQA “listening tour”).
And I also hope that CEQA reformers who claim to support infill and urban development actually read the SANDAG plan before holding it up as an example of something worth preserving. Now that’s a standard I could support.
Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…READ more