A few days after we released our “In the Name of the Environment” update on CEQA litigation abuse, which reported on three years of CEQA lawsuits (2012-2015) filed to block construction of about 14,000 housing units (and a 200-bed homeless shelter) in the 6-county, 191-city region included in the Southern California Association of Governments, the Oakland-based Rose Foundation issued a report dismissing claims by “special interests” and “developers” that CEQA should be reformed to curtail litigation abuse for non-environmental purposes and to address the state’s housing supply and affordability crisis.

The consulting firm and attorney authors of the report – including two law professors who continue to represent petitioners in CEQA lawsuits – ignored the housing CEQA reforms proposed by the state’s highest elected official, Governor Brown, and summarily dismissed the conclusion that CEQA was being used to block critically needed housing in reports authored by the Legislature’s own non-partisan think tank, the Legislative Analyst’s Office.

The Governor’s CEQA reform proposal, included in the May revise of the state budget, would have allowed qualifying “infill” projects that included affordable housing units and complied with locally-approved zoning standards that had already undergone CEQA review to skip a second round of CEQA studies (and thereby avoid new rounds of lawsuit challenges). The Governor’s proposal was informed by both the extraordinary cost of new affordable housing (in San Francisco each “affordable” new unit costs on average $579,000), and the LAO’s extensive analysis of how wealthier, jobs-rich, coastal communities had used CEQA and other land use tools to block new housing projects.

Welcome to the polarized politics of CEQA, in which anyone – even the state’s highest officials and non-partisan analysts – are dismissed as “special interests” and “developers.”

Hiding in Plain Sight

Although the Rose Report lists the same set of CEQA lawsuits filed between 2012-2015 that we reviewed for our 2016 “In the Name of the Environment” SCAG regional update, the report’s authors made no attempt to describe the targets of CEQA lawsuits. Our study does this, and for example we now know that CEQA housing lawsuits in the SCAG region disproportionately target the types of projects that are – at a “big picture” level – environmentally beneficial, notably higher density transit-oriented housing in existing urbanized areas. The Rose Report likewise did not acknowledge that CEQA lawsuits were being filed to advance non-environmental goals such as protecting businesses from competition, providing leverage for negotiated labor agreements, or empowering NIMBYs to keep “those people” and their rental apartments out of wealthier coastal communities.

Instead, the Rose Report concludes that there is no problem at all with CEQA, and California is a superbly prosperous state: don’t worry, be happy!

The Rose Report notes as evidence in support of their “findings” that the number of CEQA lawsuits has not increased over the past few decades in relation to California’s population, that only a small fraction of CEQA lawsuits are filed in relation to the number of public agency decisions that are subject to CEQA, and because there is no definitive data describing CEQA costs there is simply no evidence supporting any assertion that CEQA compliance costs or delays are a problem for anyone, anywhere. The report also concludes that there is no problem with CEQA because California’s economy is prosperous, we currently have a low unemployment rate, and we even have some urban areas with dense populations.

As longtime CEQA practitioner Art Coon observed in his review of the Rose Report, arguing that CEQA’s not a problem because only some projects get challenged is like saying cancer’s not a problem because only some people get cancer.

And arguing that the California economy is just fine ignores that pesky data from the US Census Bureau that California has the highest poverty rate in the nation when housing costs are taken into account – that’s right, 9 million Californians in poverty, according to the Obama Administration.

Even peskier data was gathered by the United Way of California, which noted that when California’s much higher-than-average housing, electricity, gasoline, and other basic living costs are collectively taken into account, we actually have 40% of Californians who every month do not have sufficient income to meet their basic needs. Minority households are more likely to be poor, but even 20% of white households “do not have sufficient income to meet their basic costs of living.”

We’ve separately reported on two decades of decay in California’s most basic middle class gateway metrics, including income inequality (it soared, with the bottom 80% of Californians falling behind the national average), our high school graduation rate (it plummeted, even as graduation rates from other high immigrant states improved), and our job creation (slashed by half from the job creation rates during 1970-1990).

And arguing that the absence of some unknown “economic” data means that CEQA’s compliance costs and litigation risks aren’t a problem, or that this concern is limited to “special interests” and “developers,” simply ignores major stakeholders like the agencies targeted by the half of CEQA lawsuits filed statewide in our first “In the Name of the Environment” report that had no private sector sponsors and repeated pleas for reform by elected leaders and their organizations like the League of Cities.

Pick any economic indicator and CEQA isn’t 100% responsible for California’s success or failure. But how do lawsuits seeking to stop 14,000 housing units – 99% in “urbanized areas” and 98% in “infill” locations – in the nation’s most unaffordable rental market help advance the state’s climate policies?

CEQA Litigation Status Quo Protects Different Special Interests

Former San Francisco Mayor and former Assembly Speaker Willie Brown recently opined that “Trump has the support of angry white guys, and Bernie Sanders has the support of the angry white guy’s kids.”

A too-common theme of this election season is indeed anger, and the Rose Report’s conclusion that all is well with CEQA is eerily similar to the ongoing disdain of our political elite (overwhelming Democrats) for the real problems of real people: the 170,000 people commuting daily to the NIMBY-dominated Bay Area notwithstanding more than a decade of hollow pro-density rhetoric by our resident climate activists, the “drive until you qualify” diaspora of minorities from ever-pricier urban cores as they seek out the homeownership in distant suburbs as the first rung on the middle class ladder, and the desperate grind of an employment recovery dominated for most by lower-wage retail or “gig economy” jobs with steady sniping by environmental elites against the middle wage “stationary source” and good movement jobs that once offered high school graduates a future of economic stability and a solid foundation for their families.

The CEQA orthodoxy gets shouted from environmental and labor pulpits as the mandatory catechism of California Democrats and packaged “In the Name of the Environment.” As the daughter and granddaughter of union steelworkers from Pittsburg, California, this orthodoxy is no more defensible or just than the job choices I was given in fourth grade by our nuns (nurse, teacher, secretary – or mother).

The Rose Report ignores the inconvenient truth that CEQA litigation abuse – including the 14,000 infill housing units made more costly, stalled, or killed by the last three years of CEQA lawsuits filed in the SCAG region alone – hurts young and working families who need and deserve decent housing, functioning transportation systems, and basic urban services like safe schools and clean drinking water.

The emerging new generation of climate leaders in the Legislature has promised that new climate initiatives must help people as well as the environment. Ending CEQA litigation abuse will make our investment in climate infrastructure happen faster and cost less. So, let’s start with the modest reforms to CEQA’s litigation rules we’ve proposed: require transparency in who files CEQA lawsuits to curtail the “leveragers” who use CEQA lawsuits to advance their own economic agendas, end duplicative CEQA lawsuits to allow timely implementation of housing and infrastructure projects that have already run the CEQA gauntlet, and reserve the nuclear judicial remedy of blowing up project approvals to those projects that could actually harm public safety or the environment.

The CEQA litigation status quo defenders in the Rose Report should stop protecting their own “special interests” and start recognizing that this status quo has failed too many of us. We should work together to repair the damage done to CEQA and move into the expeditious implementation of projects that help us achieve climate mandates – like implementing the Sustainable Communities Strategies adopted under SB 375 to complete the transportation and land use projects that align with our greenhouse gas reduction targets, all of which have already passed the policy, climate and CEQA approval gateways of local and regional agencies, as well as the California Air Resources Board. We should also expand the range of projects that qualify under the environmental leadership project program under recently-extended AB 900, which is also aligned with the state’s climate policy.

Here’s another fact left out of the Rose Report: California has among the lowest per capita GHG emission rates in the nation (a rate that continues to fall under the state’s climate policies). Keeping more people – including the hundreds of thousands of college graduates and families who have departed from California in recent years – here instead of continuing to export both to far higher per capita GHG states like Texas and Nevada is a ‘win-win’ for people and climate change. People need housing, transportation solutions, infrastructure, and services – and the high quality jobs that provide families with economic stability, and state and local governments with reliable tax revenues.

So please, no more pretending that CEQA litigation abuse doesn’t matter – let’s not let economic abuse of CEQA litigation derail real projects that help people, and let’s stop the endless debates that keep too many of us mired in decades of costly “process” while squandering the financial investments that should be made in tangible “progress” toward building the California of the 21st Century.


Willie Brown: http://www.sfchronicle.com/bayarea/williesworld/article/Rose-Pak-bounces-back-gets-a-street-in-her-name-7238197.php

United Way Report: https://www.unitedwaysca.org/realcost

H&K Social Equity: http://www.newgeography.com/content/004868-california-social-priorities-a-new-report

Bay Area Council “Inconvenient Truth” – CEQA blocking housing climate goals: http://www.bayareacouncil.org/economy/new-report-housing-crisis-threatens-ca-climate-change-goals/

Art Coon: http://www.ceqadevelopments.com/2016/08/12/holland-knight-scag-update-report-ceqa-litigation-abuse-hurts-infill-housing/