CEQA – Environmental Protection or Principal Constraint to Housing Production?

Timothy L. Coyle
Consultant specializing in housing issues

”The California Environmental Quality Act (CEQA) has been turned on its head, becoming a full employment act for lawyers and their client neighborhood groups.

The result is that CEQA has become not a protector of the environment, but a promoter of sprawl, pushing the housing market away from existing neighborhoods and onto farmland, where the cows don’t sue.”

Those are the words of the Sacramento Bee which on several occasions both before and after this editorial appeared in 2003 has spoken critically of the state’s premier environmental law, CEQA.  That’s because rather than protecting Yosemite and the coastline, CEQA intervenes in every development project – especially housing – from downtown Oakland to suburban San Diego.

Signed by Governor Ronald Reagan in 1970, CEQA exists to assess and mitigate environmental impacts of development.  CEQA says:  “It is the policy of the state to . . . take all action necessary to provide the people of this state with clear air and water, enjoyment of aesthetic, natural, scenic and historic environmental qualities.”  The statute goes on to direct all public agencies “to develop standards and procedures necessary to protect environmental quality.”

Yet, CEQA is the most deliberate and often-used means to stop or seriously delay a development of any kind.  The tales of CEQA stifling housing production are legion.  But consider an environmental impact report (EIR) done in 2011 to bless a solar plant, no less, in San Luis Obispo County.  Before they were done, development skeptics – using CEQA – demanded, among other things, analysis and mitigation of the project’s aesthetic, agricultural, biological, cultural, geological, public service, transportation and water-use profile.  The final report was several hundred pages long.

Indeed, the ambiguities of the law coupled with the broad interpretations of its meaning made by judges and plaintiffs over its 46-year history leaves Californians with an environmental law occupied less with accomplishing its substantive goals and more with how the “process” of CEQA can be used to trip up development and extort concessions from its sponsors.

To housing developers, CEQA is a nightmare.  No other local policy is as menacing as CEQA.  For $175, anyone can file a court action against a housing development – of any scope or size – using CEQA.  What that means to a developer:  lawyer up, and an endless delay.  What that means to the neighborhood:  temporary but often welcome relief from the housing that was planned years ago.  What that means to the host city or county:  leverage, to extract some additional compensation or other concessions from the developer.

To environmental activists, CEQA is the Holy Grail.  In public forums advocates display a manifest devotion to the law and assert its protection from fowl water quality to the impacts of global warming on society.  When only modest changes are proposed to the CEQA, those changes – no matter how insignificant – they are characterized as blatant attempts to “gut” the law.  In a letter last year to Governor Brown, opponents to his modest, well-meaning reform of CEQA shrieked “it would be a disaster for local government, local communities, the environment and the citizens of California”, even if it did mean more lower-income housing would be built.

To politicians, CEQA is the third rail.  Every Governor since Regan has tried to reform the law with no success.  Legislators’ similar efforts have been less sincere.  No one has the political will, or stomach, to make real change.  They talk a good game but in the end they won’t touch even narrow efforts to overhaul the CEQA for fear of getting cross-wise with powerful environmental interests.  Said one state lawmaker, “they bark loudly, and they bite too.”  Said another more recently – and reluctantly – “I think there’s more than the usual amount of politics around that issue.”

No matter how you slice it, CEQA has become the preeminent land-use policy in California. No one gets by CEQA.  And all this talk about solving the state’s housing crisis is just talk – until CEQA is fixed.

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