Finally, a thorough examination of the impact frivolous environmental litigation has on California has been done. A legal team, headed by Holland and Knight lawyer Jennifer Hernandez of the firm’s San Francisco office, studied lawsuits filed under the California Environmental Quality Act (CEQA) from 2010 forward and published her findings in the most recent edition of the Hastings Environmental Law Journal. Here’s what she concluded:
Housing can be built, and it is politically supported by majorities of existing residents . . . However, CEQA lawsuits provide California’s anti-housing holdouts – the political minority of as few as one anonymous party – with a uniquely effective litigation tool to simply say “no” to change. By filing a CEQA lawsuit alleging that the (local) agency approving the project has made a mistake in analyzing one or more of the nearly 100 impact issues that must be addressed after nearly 50 years of evolving regulatory and judicial interpretations of CEQA, this political minority can slow projects or stop them all together.
In her report, a complete copy of which can be viewed at the link appearing at the end of this column, Hernandez reveals the following:
- 59% of CEQA lawsuits target housing, public service/infrastructure projects and agency plans/regulations.
- Most CEQA lawsuits target projects in urban population centers, not rural or remote natural preserve areas.
- The majority of CEQA lawsuits target infill projects in existing communities, not “greenfield” projects on undeveloped lands.
- Infill housing remains top target of CEQA lawsuits.
After reviewing roughly 1,200 lawsuits, Hernandez describes how not only does CEQA litigation – presumably filed to protect the state’s physical environment – make housing construction less viable and, therefore, more expensive, it holds down upward mobility and keeps poverty rates high. These lawsuits, she argues, even keep California from leading the way in combating climate change.
She also theorizes that the litigation’s effect on land use in the state, are discriminatory. Particularly by targeting high-density infill housing – which generally contribute to lower costs and to improving mobility for poor people – CEQA lawsuits are inherently discriminatory.
Hernandez relates the current “exclusionary zoning” effects of CEQA lawsuits to past practices of land-use discrimination – like when the City of Milpitas and Santa Clara County used zoning laws and high development fees back in the ‘40’s and ‘50’s to discourage African-American families from moving there after the Ford Motor Company relocated a Richmond-based plant. Then-restrictive zoning – large-lot, single-family only – coupled with discriminatory housing-finance practices of the time, which denied minority borrowers access to veteran’s benefits and other federal financing, kept African-Americans in Richmond and ultimately trimmed them from the ranks of the new factory workforce.
CEQA does the same thing, Hernandez argues. With the legal costs and delays associated with CEQA litigation, higher-density housing and like development in areas clearly desirable to minorities, prices and rents are placed way out of reach for lower-income households.
So, who’s to blame for all this litigation? Hernandez reports:
Using CEQA lawsuits over and over in the same communities, often for non-environmental reasons, remains fiercely defended by an alliance of NIMBY (“not in my backyard”) environmental advocates and building trade union leaders – both of which are backbone supporters of the elected legislators in the two-thirds majority Democratic Party in the (state) Assembly and Senate. This coalition has created an iron curtain of opposition to reforming CEQA lawsuit rules.
Hernandez, a Democrat, ends her thesis on an equally sour note. She reflects – in an unflatteringly way – on the well-worn biases of even her fellow partisans by referring to a 2016 fundraiser for Hillary Clinton she attended at the home of housing developer Phil Angelides in Sacramento:
In that crowd of Hillary supporters, I saw the silos, the walls we have created between the haves and have-nots, where many in the crowd – including the top-ranking environmental regulators in the Brown administration – stiffened with resistance to the notion that they bore any responsibility for creating or solving the suffering of so many. Instead, I saw in the crowd a shudder of rejection – “those people” and “those jobs” are at odds with our politically correct policy priorities, which are best addressed at tony conferences among the well-dressed and well-educated, where those people are tucked away discretely behind kitchen doors and valet stations.
Copy of the complete H&K report.