It’s Not All CEQA’s Fault
Public process can actually be pretty important.
I first wrote a version of this post way back in July 2021, when Ezra Klein dropped a couple of lines knocking the California Environmental Quality Act (CEQA) into one of the op-eds The New York Times loves to perennially run about how California is actually the worst (I’m sorry it can’t be 80 degrees in March everywhere, guys). At the time, I thought it was possible his mischaracterization of CEQA was a one-off, but it’s now apparent that Klein has joined the all-out crusade against the law that has existed in one form or another for decades. His most recent piece even goes so far to take a potshot at the federal National Environmental Protection Act (NEPA) and other “little NEPAs” in states across the US.
Klein’s op-ed paints CEQA and other laws like it as a thing of the past, used by environmental advocates to laudable conservation-related ends in the early years of the environmental movement, but now just an unnecessary roadblock on the way to housing the unhoused, developing renewable energy generation capacity, and, of course, getting more students educated at Cal. According to Klein, CEQA has hobbled government, keeping it from tackling the most pressing problems of our day.
That analysis dramatically overstates CEQA’s role in problems like California’s housing crisis (we’ll get there in a minute). But, perhaps more importantly, it also completely overlooks the critical role CEQA has always played and still plays for overburdened environmental justice communities that have few tools to combat the siting of unwanted polluting uses or lax local government approval processes in their neighborhoods. My colleague Heather Dadashi recently wrote about one environmental justice community’s CEQA victory compelling a local government to meaningfully assess the environmental risks of siting an elementary school on contaminated property—just one of many examples of a low-income community of color protecting itself from environmental harms using CEQA.
CEQA—and the role it does, or doesn’t, play in hampering development—is complicated. It’s true that CEQA can be, and has been, used to challenge high-volume multifamily urban infill projects in recent years. It’s true that some of those challenges or threats of challenge come from NIMBY groups in well-heeled communities or from other non-environmental interests, like organized labor. It’s true that CEQA litigation can delay or even halt a project completely, and that even the threat of CEQA litigation can cause a developer, or its financing sources, to reconsider a project. And the recent Cal lawsuit has CEQA naysayers shouting loudly that CEQA reform would be a panacea: The thwarted dreams of would-be Berkeley students at the hands of rich homeowners is compelling stuff.
But it’s also true that CEQA challenges don’t affect many developments in California; that racist local zoning patterns, bureaucratic hurdles, and high materials costs have played an even bigger role in the housing crisis; that several laws passed since the early 2000s have created CEQA exemptions to attempt to make transit-oriented and affordable housing developments easier to build; and, as environmental justice advocates continue to point out, that CEQA remains an important tool used by environmental groups and environmental justice communities. Moreover, Klein himself acknowledges that even in the context of climate change—where he posits that laws like CEQA stand in the way of the transformational societal changes we need to make—there are really challenging tradeoffs; his argument seems to be that we should just ignore those tradeoffs in favor of acting quickly.
We know how that’s panned out in the past: The same communities that time and again find themselves underrepresented in the decision-making process get the short end of the stick. As one of those climate policy people Klein invokes in his piece, I’m here to tell you that while climate change is a GIANT PROBLEM that we as a society have wasted a horrible amount of time in acting to effectively combat, I don’t think the solution is to dismantle public process in favor of letting government (or private industry, since in the development context, governments often farm out their environmental impact analysis to the developers themselves) address the problem in the way it determines is “best,” at least not when we have institutions that historically, and to this day, have ignored the needs and desires of our most vulnerable communities.
The basic concerns Mr. Klein articulates in his article aren’t wrong, and he does much better when he questions overly complex permitting processes for things like climate-friendly home improvements. But painting those processes and CEQA with the same brush is misleading, and wrong. Trashing a piece of environmental protection legislation with a long history of providing a forum for disadvantaged communities to articulate their concerns about projects coming into their home communities misses the point and hinders environmental justice goals.
Julia Stein is Supervising Attorney for the Frank G. Wells Environmental Law Clinic, and Project Director for the Emmett Institute on Climate Change and the Environment a…READ more