Don’t Make CEQA Worse by Inserting Native American Religious Beliefs

Loren Kaye
President of the California Foundation for Commerce and Education

State officials are appropriately gearing up to present a competitive economic development package to Tesla, the luxury electric vehicle manufacturer and the it company for this generation.

Tesla is a consequential California corporate citizen. The company employs more than 6,000 in the state – at its Fremont assembly facility, its Palo Alto headquarters and its service centers and galleries around the state. It’s now the biggest auto company in California. The prospect of expanding that footprint with a new battery manufacturing facility – the so-called Gigafactory – would be enormous for our economy and our identity. The $4 billion to $5 billion investment would create not just new, high-skilled, well-paying manufacturing jobs, but also related support and spinoff jobs that would inevitably accompany such a facility.

One of the incentives to be dangled before Tesla CEO Elon Musk will be quick passage through California’s notorious environmental review process. This has some commentators tied in knots because like many of us, they wish the California Environmental Quality Act were comprehensively reformed for all public and private projects, and not just for high profile manufacturers or sports facilities.

That’s a perfectly reasonable sentiment – and perfectly impractical. If there’s anything the Legislature has demonstrated recently, it’s that they cannot overcome the status quo triad of environmentalists, plaintiffs’ lawyers and labor unions, who have a vested interest in maintaining the litigation-focused approach to environmental approvals. Recent history has taught us that these implicit vetoes can only be overcome when a high profile project is adopted by influential lawmakers.

Indeed, the challenge this year is not so much how to improve CEQA for the rest of us, but instead how to prevent the lawmakers from making the law even worse. Even as a consensus of elected leaders and opinion shapers decry the CEQA litigation swamp, another special interest wants to throw in more alligators.

Wealthy Native American tribes are sponsoring a bill to insert religion into the CEQA environmental statute. As a practical matter, Assembly Bill 52 would give the tribes the right to determine what land or landmark would constitute a tribal cultural resource subject to protection and mitigation under CEQA.

Recently approved by a Senate committee, the proposal would devolve land use decision making from local governments to Native American tribes, based on assertions of tribal cultural resources that are not defined in the law and that need not be disclosed to the project developer or the public.

Respect for tribal cultural resources is fraught with an unhappy history. Native American tribes have seen their cultural landmarks, burial grounds and holy places desecrated and their legitimate concerns steamrolled.

That’s why the Legislature a decade ago agreed to a novel process of government-to-government consultation with affected tribes to improve local land use planning and decision making affecting cultural resources.

If the Legislature finds that tribal cultural resources are insufficiently protected or that Native American Tribes have an insufficient voice in their protection, then lawmakers should build on what works – the consultative government-to-government process – and not upon the abused and abusive shambles of CEQA.

This article originally appeared in the Sacramento Bee.

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