In the following TPR exclusive, former Ventura City Manager Rick Cole defends CEQA against both those who would reform it, and those defending it in its current state, suggesting misinterpretation of the act, and the procedures developed in response, have twisted CEQA in opposition of the very projects that share its goals of sustainability and environmental stewardship. Cole calls for collaboration in addressing the misuse and cumbersome bureaucratic hurdles that prevent CEQA from fulfilling its true purpose.
"It’s not the law that has failed. It’s the overreach and misinterpretation of CEQA’s goals that has created a cumbersome, controversial and counter-productive legal and bureaucratic nightmare." -Rick Cole
Is reforming the California Environmental Quality Act (CEQA) “the Lord’s work” as Governor Jerry Brown characterizes it – or “an attempt to gut the protections of our clean air, clean water and clean soil” as one Palo Alto environmental activist recently branded it?
The law is 43 years old. But what really needs reform is not the law, but the vast accumulation of court-made law and the labyrinthine compliance procedures that have arisen to avoid (or at least withstand) court challenges.
Which is why it is important to focus on the problem: it isn’t CEQA that needs reform, it is CEQA abuse.
The law itself is brief and eloquent, in the way laws passed today simply are not. The policy goals are straight-forward:
(a) Develop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.
(b) Take all action necessary to provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise.
(c) Prevent the elimination of fish or wildlife species due to man's activities, insure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history.
(d) Ensure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions.
(e) Create and maintain conditions under which man and nature can exist in productive harmony to fulfill the social and economic requirements of present and future generations.
(f) Require governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality.
(g) Require governmental agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs, in addition to short-term benefits and costs and to consider alternatives to proposed actions affecting the environment.
Notice that there is nothing in here about traffic, parking or density – the driving forces behind most CEQA battles. The law was designed primarily to protect California’s natural heritage – and allow our growing population to live in “productive harmony” between “man and nature.”
Laudable goals. There is absolutely no question that the adoption and enforcement of CEQA has produced dramatic improvements in California’s environmental quality: cleaner air, cleaner water and better environmental practices.
Conversely, there is absolutely no question that it has been shamelessly misused and distorted to stop, delay or make hellishly expensive the infill development that is California’s only alternative to suburban sprawl.
The law has frequently been hijacked to protect the narrow economic interests or personal preferences of well-heeled interest groups. That’s what needs reform. It’s not the law that has failed. It’s the overreach and misinterpretation of CEQA’s goals that has created a cumbersome, controversial and counter-productive legal and bureaucratic nightmare.
The State “handbook” for abiding by the law has grown to 1000 pages. A lot of trees get cut down to print voluminous Environmental Impact Reports, but despite their length, these frequently contribute little to understanding the real environmental trade-offs for public decision makers.
The most glaring flaw in the current model for preparing these reports is that the “baseline” is always the status quo. Any project (whether public infrastructure or private development) is compared against doing nothing. Yet in the real world of 38 million Californians and the ninth largest economy in the world, doing nothing is seldom the default. During the last 43 years, the vast majority of new development and the public infrastructure built to support it came in the form of . . . suburban sprawl . . . with all its staggering adverse environmental impacts. And perversely, this was made easier by the absurd formula for CEQA “compliance” that has made infill development prohibitively expensive while doing little to halt the continued erosion of farm land, open space and sensitive habitat.
This is what drove then-Mayor Jerry Brown to advocate for and win limited exemptions to CEQA for infill development in Oakland. With his focus on bringing 10,000 units of housing back into the core of that struggling city, he was forced to find a way around the CEQA compliance minefield.
Which illustrates why it is environmentalists who should be at the forefront of “CEQA reform.” Sure, those of us who are suspicious of developer lobbyists worry that genuine CEQA protections might be gutted in the Sacramento legislative sausage factory. But it is precisely for that reason that we should switch from the defense to the offense.
Circling the wagons around the symbol of CEQA, rather than acknowledging the reality of its misuse, leaves environmental interests on the outside looking in when the deals are cut. We have SB 375 today because key environmental players were willing to work with the Building Industry Association and the League of California Cities. That landmark regional planning legislation may not be perfect from the standpoint of any of the key players who came together to support it – but it is the first breakthrough in two generations for sustainable development in our state.
There is a window of opportunity for a similar breakthrough via “CEQA reform.” Governor Brown has shown resilient skill in achieving his goals. Many doubted his ability to take on redevelopment or pass a tax increase. Many still question his prospects for high speed rail or a delta water project. But on CEQA reform Brown is not alone. Coming out of a crippling recession with lingering unemployment, business and local government are clamoring for “CEQA reform.”
The focus should be on distinguishing between infill and sprawl, between the auto-dominated past and the more balanced set of transportation options we’ll need in the future. Most environmentalists now understand that in urban areas, all development is not “bad.” Most environmentalists have come around to the idea that sensitive infill development can actually enhance the overall environment by redirecting development pressures back into older areas that need investment and away from ag land, open space and wildlife habitat. CEQA needs to be clarified to acknowledge that distinction and level the playing field for infill.
By taking the initiative to shape CEQA reform, environmentalists can separate themselves from the well-heeled opponents of infill who are quite comfortable with sprawl because it takes place somewhere else. Unless environmentalists decisively choose between protecting the environment vs. protecting opponents of transit, mixed use and affordable housing, they will find themselves on the wrong side of demographic history. That’s not just bad for environmentalists – it would be disastrous for the environment.
California’s next generation want and deserve economic opportunity, livable communities and “the high quality environment” that CEQA was adopted to protect. When CEQA compliance gets in the way of those goals, those who support those goals should all roll up their sleeves and get in the game. If they don’t, those who don’t share those goals will be driving the agenda.