CEQA: California Dreamin’ or California Nightmare?

Jennifer Hernandez
Attorney in the California environmental and land use practice group of Holland & Knight LLP, an international law firm

Our recent report on “California Social Priorities” — released by Chapman University’s Center for Demographics and Policy and the topic of the first meeting of the Houston based Center for Opportunity Urbanism — stirred up some controversy. A largely negative response came from Josh Stephens from the California Planning and Development Report.

As a lifelong Democrat, granddaughter/daughter/sister/aunt of union members working in the steel and construction trades, major contributor and multi-decade Board member of several California environmental advocacy organizations, top-ranked California environmental and land use lawyer and recipient of the California Lawyer of the Year award for environment and land use work, and Latina asthma-sufferer who grew up in Pittsburg, California amidst factories that belched pollution into our air and waters, I need to first take exception to the author’s apparent assumption that anyone publishing a thoughtful report with accurate data about California’s acute social needs (income inequality, middle-class job loss, educational non-attainment) is a “conservative” with a “hate on CEQA in much more vague ways.” (Indeed, none of the individuals cited by the author fit the derisive (in much of California) “conservative” label: Both David Friedman and Joel Kotkin worked at the Progressive Policy Institute, the think tank for the Democratic Leadership Council when Bill Clinton was at the helm.) Dismissing uncomfortable demographic facts with politicized name-calling seems more about deflecting, rather than engaging, in what I believe is an entirely appropriate – and necessary – debate about how to address California’s social equity challenges in tandem with California’s environmental policies.

I do agree with the author’s characterization that I am “an astute observer of, and enthusiastic participant in, the evolution of CEQA caselaw.” Defending CEQA litigation abuse, on behalf of our public and private sector clients, has been and continues to allow me – and a legion of other lawyers and consultants – to earn a generous income.

I am also delighted that the California Planning & Development Report reported on our demographic analysis at all, because I believe those of us dealing with land use planning uses are long past due for a frank conversation about how the web we have created – the “we” being pro-environment, pro-labor Democrats of a certain age – has without question improved air and water quality, and protected California’s most valuable natural areas, but has also without question managed to dramatically and adversely affect the upward mobility and economic health of many millions of Californians. I believe we are still young enough, still energetic enough, and still creative enough, to work together to improve social equity and economic opportunity – without sacrificing our hard-won environmental improvements.

I believe that part of the necessary solution, as acknowledged by scores of commenters and impartial observers including the  report from the Legislative Analyst’s Office explaining why California housing costs are so high, is modernizing CEQA. I have written extensively about CEQA. In an analysis of 15 years of reported appellate court EIR cases, for example, we learned that the vast majority of CEQA lawsuits challenged non-industrial “infill” projects, renewable energy projects, and transit projects – precisely the types of projects that improve public health and environmental quality, and combat climate change.  This and related work – including widespread media reports of CEQA litigation abuse – calls into question whether CEQA is advancing, or obstructing, progress on today’s environmental challenges. I have too much personal experience as a lawyer with 30 years of experience with CEQA, and now as a researcher and CEQA reform advocate, to pretend that CEQA – and specifically CEQA’s litigation abuse – isn’t a major hurdle we need to discuss, and modernize.

The author also criticizes this demographic report as failing to recommend specific CEQA reforms, but neither CEQA generally nor CEQA reforms specifically were the primary subjects of this Report. As many of CPDR’s readers well know, I have and continue to advocate for sensible and moderate CEQA reforms, like better integrating this 1970 statute into California’s panoply of modern environmental, public health and planning laws, prohibiting secrecy in CEQA lawsuits that try to conceal abuse of this great statute for non-environmental purposes, and extending to all projects – not just politically favored, donor-rich Sacramento basketball arenas – the right to cure minor errors in CEQA studies with a corrected study (and where appropriate more mitigation) rather than derailing a project approval entirely because a judge decided to grade an EIR addressing more than 100 mandatory study topics with an “A-“ rather than an “A+”.

One final note: I am not an expert on Prop 13, nor do I understand why curtailing then-skyrocketing property taxes on the elderly and poor – those losing their homes when Prop 13 was enacted – contributes to today’s income inequality or middle-class job loss challenges. CEQA litigation abuse for non-environmental purposes, in contrast, has earned widespread recognition – by the Governor, by Bill Fulton’s (CPDR’s publisher) CPDR blog, and by every editorial page of every major newspaper in California, to name just a few – as a problem. Notwithstanding Mr. Fulton’s pessimistic assessment that special interests are too wedded to CEQA abuse to ever permit Legislative reform, I believe land planners and environmental advocates have a moral obligation to improve what we know (including CEQA) to address the terrible social inequality that has grown so pervasive in California.

Cross-posted at New Geography.

Comment on this article


Please note, statements and opinions expressed on the Fox&Hounds Blog are solely those of their respective authors and may not represent the views of Fox&Hounds Daily or its employees thereof. Fox&Hounds Daily is not responsible for the accuracy of any of the information supplied by the site's bloggers.