Should CEQA Reform be Given a “Fair” Hearing?

David Kersten
David Kersten is an independent political consultant who lives in the Bay Area. Kersten is also an adjunct professor of public budgeting at the University of San Francisco.

The evidence suggesting the dire need to reform the California Environmental Quality Act (CEQA) appears to have reached a critical mass in recent months, but there appears to be at least a few holdouts in the California State Senate, state-funded academic community, and political stakeholders who benefit from the status quo.

The key argument for CEQA reform is that it drives up the cost of building affordable housing and is preventing the state from building a sufficient supply of both affordable and market rate housing.

Both former Governor Jerry Brown and his successor Gavin Newsom have both acknowledged the need to overhaul CEQA.

Brown famously called CEQA reform “the Lord’s work” and Governor Gavin Newsom (D) raised the issue in his January State of the State address, saying that the Legislature needs to streamline the judicial review process and work to accelerate housing production.

But at least two major California State Senate policy committees appear to be less enthusiastic about the prospects of CEQA reform, and tried to tap down expectations for reform at a little publicized joint hearing held on March 12, 2019.

Titled “Just the Facts: An Evidence-Based Look at CEQA Streamlining and CEQA’s Role in Development held two panel discussions,” however, “the hearing was anything but objective,” according to a report on the hearing by the California Chamber of Commerce.

Senator Hannah Beth Jackson (D), chair of the Senate Judiciary Committee, began the hearing by stating “We’re here to talk about the mythology that CEQA stops development, and debunk it as far as it can be debunked,” according to the Chamber’s public report of the hearing.

From there, the panel of pre-screened, state-funded academics went on to “downplay CEQA’s role in raising housing costs in California,” states the Chamber report.

Sen. Ben Allen (D), chair of the Senate Environmental Quality Committee, also participated in the hearing by making favorable remarks about CEQA and thanking Sen. Jackson and her committee staff for putting the informational hearing together.

In watching the video of the joint committee hearing, it quickly became apparent to objective observers, including this columnist, that the initial goal was to construct a narrative that CEQA does not significantly impact housing production in California.

Furthermore, the hearing chair Sen. Jackson and Senate committee staff, appeared to have went out of their way to selectively screen facts and cast a dragnet for any commentary or evidence to the contrary.

But facts, evidence and ultimately the truth has an uncanny way of rising to the surface.

By the end of the two and a half hour hearing, despite the committee’s best laid plans, it quickly became apparent that their efforts had backfired as key evidence emerged clearly linking CEQA to the state’s housing affordability crisis.

Perhaps the hearing would have gone off without a hitch if it was not for the inquiry of State Senator Andreas Borgeas (R), who shocked the committee when he compared CEQA to “Frankenstein,” suggesting that the act has went from being an “environmental shield” to a “sword” for preventing development by bad actors and environmental extremists.

Sen. Borgeas said he had significant experience with CEQA and land use approvals through his time serving on the Fresno City Council and on the Fresno County Board of Supervisors.

Sen. Borgeas keyed in on a “dangerous methodology” that has developed through the abuse of CEQA that discourages certain projects from going forward.  He cited “unnerving trends” where opponents threaten lawsuits and then extract concessions “behind closed doors,” which make the lawsuits disappear.

Perhaps the most entertaining moment of hearing came when Sen. Borgeas questioned one panel’s conclusion that CEQA reform was not needed.

“Does the Governor [Newsom] have it wrong?,” Sen. Borgeas asked, citing Governor Newsom’s State of the State address.

That panel, composed of a long-time government employee and a California Appeals Court Judge, quickly retreated saying that they did not want to “second guess” Governor Newsom’s call for reform.

Sen. Borgeas’ comments drew the quick rebuke of committee chair Sen. Jackson who said the committee was not here to debate the Governor’s comments and was only here to talk about the CEQA process.

In sum, despite the questionable intent and curation of the “facts” presented in the hearing, the joint hearing actually proved to provide a very insightful look at the CEQA process, potential issues, and the politics of CEQA reform.  (You Tube Link to full hearing:  https://youtu.be/Sfw-BxN6v-c )

Perhaps most interestingly, the hearing shows the great lengths that some Democrat lawmakers and major stakeholders will go to prevent a “fair” and objective airing of the facts on CEQA.

The March 12 joint hearing did not even include a panel of developers, independent economists, business groups (i.e. Chambers of Commerce), and/or CEQA reform-oriented groups.  Limiting the discussion to groups and individuals that have proven to have financial ties to the Democrats and the status quo will inevitably lead to the curation of facts and the production of a “biased narrative” that downplays the need for reform.

To illustrate, San Diego Mayor Kevin L. Faulconer has been one of the biggest champions of innovative local regulatory reforms aimed encouraging local housing development, yet I am virtually certain that Mayor Faulconer did not receive an invitation to the March 12 hearing.

Faulconer, who has stressed nonpartisan, common sense solutions, places CEQA reform at the top his list for public policies needed to alleviate the state’s housing crisis and even met with Governor Newsom to discuss such solutions earlier this year, according to a recent Calmatters.com podcast with the Mayor.

Faulconer joins former Governor Brown and now Governor Newsom on the state’s growing list of high-profile politicians who believe CEQA reform is long overdue.

More tomorrow.

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