Reforming CEQA Part 1

Thinking about CEQA as a backstop statute

The qualification for the November ballot of the California Chamber of Commerce ballot initiative rewriting CEQA does create an opportunity, if the legislature is so inclined, to strike a deal with the proponents and do an overhaul of CEQA.  As I noted in the last of my series of blog posts on the initiative, there are real issues with CEQA and its implementation – but the ballot initiative is an imperfect tool to address those issues.  In this series of blog posts, I’ll lay out my vision for what an update to CEQA would entail, and how one might amend current law to achieve that vision.

I’ll begin with why I think we should have an environmental review law in California – a reasonable question since most other states do not have one, and the federal version (NEPA) is substantially weaker than CEQA.

To me, the most compelling reason why we might have environmental review law is as a backstop to other environmental laws.  That backstop is important in a number of ways.  First, environmental review law can address the impacts of projects that are not captured by simply measuring, in isolation, the emissions or footprint of that project, but instead by the interaction of impacts from existing projects, currently approved projects, and the project under consideration.  This is a concept that is usually called cumulative impacts in environmental law.

Some examples can help make the concept concrete – consider the cumulative impacts of placing multiple facilities that emit air pollutants in a single neighborhood; or the cumulative impacts of doing multiple development projects in the habitat of an endangered species; or the cumulative impacts of doing multiple timber harvest projects that will produce runoff in a single watershed.  In each case, we could just analyze the individual impacts of the project.  But we may also care about the impacts of that project with the other projects in the area.  The residents of the neighborhood will breathe air affected by all of the projects in the neighborhood, not just the emissions of the project we will consider.  The habitat of that endangered species will be reduced by all of the projects in that area, not just by the project we are considering.  And the water quality of the waterway will be affected by all of the timber projects in the watershed, not just the one we are considering.  Moreover, it may be that adding one more project in a particular location will have impacts that are more than additive – i.e., more than just adding that new project’s impacts to the others.  Those impacts might interact.  They might cross a tipping point, such as putting an endangered species on the path to extinction, for instance by cutting off the last connection among vital pieces of habitat already fragmented by other development.  Or when residents are exposed to multiple different pollutants, they may interact to produce worse harms than if one were exposed to the pollutants individually.

Our current regulatory systems, as a general rule, do not handle these cumulative impacts very well.  In fact, environmental review in California is the primary way we consider those cumulative impacts.  (One could imagine a state-level planning process as an effort to address many of these cumulative impacts, similar to what Washington and Oregon do.  However, that seems unlikely to be a path that the state legislature would pursue.)

That leads to the second way in which environmental review can be a backstop.  There are important ways in which California environmental law as currently constituted depends on CEQA as a way to manage harms that are not covered by other more specific environmental laws.  I flagged one example of this in one of my earlier blog posts – endangered species habitat protection in California is primarily done through CEQA, not through the California Endangered Species Act.  Likewise, much of the efforts to manage cumulative air quality impacts are done through CEQA.

Third, environmental review allows for consideration of second-order consequences of actions that might produce significant environmental effects – what is often called “indirect effects” in environmental review.  As an example, consider what the environmental effects of building a new highway might be.  There is the footprint of the roadway itself, which may alter habitat.  There is the air pollution produced by the vehicles that drive on the roadway.  But there is also the development that the highway will facilitate, if it provides access to new areas.  That development might, for instance, harm wildlife habitat or convert agricultural lands.  And in many cases, those impacts are by far the most important impacts of a new highway.  But again, these impacts are not generally considered under existing environmental laws in California.

Finally, environmental review allows for consideration of new harms, harms that result from new types of projects, or identification of new ways in which we affect the environment.  These are harms that may not be covered by existing environmental laws, but we may wish to address them (at least until we do enact laws that focus on them).  Climate change emissions are one example of this dynamic.

A paradigm of environmental review as a backstop is in contrast to two other paradigms that one might embrace for environmental review, one old and one new.  The old one is environmental review as a technocratic tool to identify the “best” or “optimal” project that minimizes environmental impacts overall.  In many ways, this was the original goal of environmental review.  It was a tool to force agencies to develop information they had previously ignored, and incorporate it into a technocratic decisionmaking process to produce the best possible decision.  That conception fit in well with a concept that was still predominant (although quickly fading) in the late 1960s and early 1970s that government agencies should be technocratic entities that take goals set by the public and elected officials and develop optimal proposals to achieve those goals.

In many ways, this technocratic decisionmaking model is out of favor today.  We are more skeptical of the ability of technocratic planning to produce optimal outcomes, with greater humility about our knowledge about both the natural world and social systems.  There is more skepticism about the ability and willingness of government agencies to reliably achieve the goals set by the public, with more cynicism about the possibility of agency capture.  And the idea that all goals can be fed into an algorithm that allows for optimization has less traction today, in a world in which concerns about distributional outcomes are higher.

The new paradigm, or “new-ish” paradigm, is one of environmental review advancing community voice, empowerment, or even veto power over projects.  I call this a new paradigm not because it was not relevant for the original drafting of statutes such as CEQA, but because I see it as much more important in debates over (and rationales for) environmental review today than twenty or more years ago.  It is a paradigm that has been heavily relied upon by many environmental groups, particularly environmental justice groups – including as a tool to redress historic inequities in political empowerment and environmental outcomes across race and class.

I believe that a paradigm of environmental review as a backstop is superior to either of these other paradigms.  As noted above (and as scholars like Brad Karkkainen have well documented), the technocratic optimization paradigm has long fallen into disfavor.  And while the community empowerment paradigm has real prominence today, I am skeptical of its ability to do much of the justice or equity work that many of its proponents embrace.  As work on land-use regulation and housing politics has helped show, providing an additional mechanism for communities or neighborhoods to shape policy will often benefit those communities or neighborhoods that are already well organized and have political power – environmental review statutes do not, in and of themselves, rectify the inequities of power across communities, but instead may just provide an alternative channel by which those inequities flow.

A paradigm of environmental review as a backstop leads to a range of conclusions about how to reform or update environmental review for the present-day.  As I have noted elsewhere, there are powerful arguments to be made that the focus of environmental law and lawyers on stopping bad development, whatever merits it had in the past, has less correlation with good environmental outcomes today.  Addressing climate change requires new clean energy infrastructure and electricity transmission.  Restoring forests and fire resilience requires scaling up active forest management.  Reducing emissions from car-dependent development requires encouraging infill housing.  And there is good evidence that environmental review, even if it is not the primary cause of delays for some of these projects, is an issue that is worth addressing.

Moreover, in a highly polarized political environment, there are challenges to providing differential environmental review depending on the type of project – such an approach might work for projects that have wide support (housing) or in specific political contexts (California and clean energy), but it will have limits in its scope, and it may not be sustainable over the long run.  Indeed, this is precisely the challenge we have seen with “permitting reform” at the federal level.

Thus, reform to environmental review would be beneficial on its own merits from an environmental perspective.  There are also important non-environmental arguments for reform, such as the need to address an urgent housing crisis.  An opportunity for reform is worth taking.  And ideally reforms would be holistic, applying to all projects.  This may be more politically sustainable over time.  It also has the virtue of transparency and simplicity.

In the next blog post I’ll provide an overview of the approaches to reform that I think meet this paradigm of CEQA as a backstop.

CEQA, environmental review, permitting reform