May 18, 2022 - From the May, 2022 issue

Jerry Meral on The Potential for CEQA Reform Post-UC Berkeley Case

After a showdown in the courts, the California Legislature stepped in and concluded that a change in enrollment does not quality as a “project” under CEQA, creating a temporary fix to the potential of an enrollment freeze at UC Berkeley. In the wake of that decision, many are still wondering what can and should be done about the current state of the California Environmental Quality Act. TPR turned to an expert in the field, Jerry Meral, to opine on the outcome of the Berkeley case and what is next in store for CEQA. Meral asserts that CEQA, despite the workload it creates, has benefitted California’s environment and underserved communities, though he does recommend exemptions and other fixes to make small infill development and other minimal projects have an expedited process.


“I don't think, in any way, we should describe the CEQA implementation as a Boschian hell or any other kind of malware. CEQA has done more, I think, to protect the quality of life in cities and the countryside than probably any other statute.”

“I really don't think that we're going to see wholesale changes in the way CEQA works because a lot of people have benefited from it.”

A recent City Lab article about the Berkeley case inspired TPR to seek your comments and insights re its ramifications. The Berkeley case clearly revived long simmering questions about reforming CEQA. What is your read of that CityLab article and the significance of the Berkeley case on CEQA law going forward?

I'm not sure the Berkeley case has a huge significance because it's somewhat temporary. In other words, the plaintiffs still have some rights and still have some abilities to further litigate that question. I think the merits of the case raised some really interesting questions.

I will say that as a former Berkeley resident for quite a few years, the idea that the university can expand relentlessly the way Alta Bates hospital did in Berkeley, without really reflecting on the impact on the community is a little bit of a stretch. I think if the university wants to add students, which helps meet the needs of the state, then they need to add housing.

When I went to college, it was expected that you would spend your time at University of Michigan in the dorms for a couple years and then get an apartment. That was what a lot of people did. Now, it's not guaranteed. We have students living in their cars, living in very cramped quarters, and inappropriate places.

I think we have to recognize that the plaintiffs, while they were really just trying to protect their neighborhoods, were raising a good point. Did CEQA adequately address that point? No. CEQA was never designed to solve housing problems, obviously. The legislature should have required and funded the expansion of the school and the expansion of housing. Without that, CEQA was the only tool for getting at that problem. CEQA covers all discretionary governmental actions.

The legislature said that they never really intended CEQA to solve these kinds of problems, but the bottom line is the problem was real. It wasn't just a matter of the impact on neighborhoods. It was really the impact on students. This is a little off the subject, but I think we have an obligation to provide housing when we expand the schools. CEQA was not probably the right way to go about it, but that's the only tool they found they had.

A view of the case from the environmental point of view written by former PCL Executive Director Gary Patton can be found here

Much of the City Lab article reviewed the evolution of CEQA, its scope, breadth, details, and what it encompasses. The quote that TPR wishes you to comment on here is, “the authors of the CEQA didn't think about the Boschian hellscape we have today.” Do you have a response to the latter assertion? While you weren’t one of the authors, you certainly were close to the authors.

The author was Tom Willoughby, who was a consultant to Assemblyman John Knox. I knew Tom and Knox very well. They were modeling CEQA on The National Environmental Policy Act (NEPA). NEPA is not a substantive statute. NEPA is a procedural statute. Under NEPA, you have to consider the environmental impacts of something, but you can ignore them ultimately if you want to. No project has ever been permanently stopped by a NEPA case.

CEQA may have been intended by the authors only to deal with governmental projects. They may have thought that federal actions had NEPA, and state and local government actions had CEQA.

In the famous Friends of Mammoth case, the courts interpreted the law as saying approval of private projects by government is an inseparable part of government, so CEQA applies to all government actions.

I don't think, in any way, we should describe the CEQA implementation as a Boschian hell or any other kind of malware. CEQA has done more, I think, to protect the quality of life in cities and the countryside than probably any other statute. Some people say it's been misused, and that the unions use it to hold up projects to try to get a labor agreement. Also, that it's been used by NIMBYs to stop projects and so on and so forth. It's often the only tool that they have, and certainly in the labor case, it was never intended for that purpose.

I think, overall, CEQA's been of tremendous benefit to the state. The idea that somehow it's something that's awful and we should get rid of it is only appealing to developers or project proponents who really don't like that they have to go through that procedural hurdle. The legislature has repeatedly, rightly or wrongly, carved out exceptions for stadiums or in this case of UC housing and so on. The legislature has not ignored this problem.

The courts have narrowed CEQA to some extent. I think it actually functions really well. There is also an effort being done by the Planning and Conservation League, led by Kevin Johnson, who's a CEQA attorney in San Diego, to examine all of CEQA and see whether changes can be made that would be equitable to both the plaintiffs and defendants. This is an ongoing process and I think it will go on for a while longer.

The City Lab article went on to assert, “each year there are new statutory sections or case law, which build upon the body of the CEQA regime. It’s proliferated so much that California's leading policy priorities are frustrated, complicated, slowed, and sometimes entirely thwarted by CEQA. We're in a situation where California is at war with itself.” Your reactions to the latter assertion?

I think it's nonsense. California builds things. We have expenditures in the billions of dollars every year for transportation, housing--though inadequate--but still, you name it, it's there. As well there are many other public projects. The idea that somehow CEQA is a block to constructing things or implementing things is really not true.

In fact, the legislature is closely monitoring the implementation of CEQA. For example, a lot of practitioners of biological restoration projects over the last few years have been frustrated by having to go through CEQA just to do biological restoration. Last year, the legislature responded with a statute to basically exempt or greatly reduce the impact of CEQA. If you want to restore wetlands or a marsh or forest or whatever and you're not doing any other harm, you're pretty much going to be exempt from CEQA.

The legislature follows this closely. They have not let this descend into an impenetrable quagmire of Boschian hell. Those are terms that are simply used by people who don't want to go through the expense of CEQA, which can be significant but are actually a relatively small portion of overall project costs, or have their project stopped because of unmitigable environmental damage.

 Would you agree that the expense and the paperwork involved with CEQA reporting is considerable? Given that there have been serious efforts for decades to modify CEQA, typically related to housing density and “event” developments, most all have failed. Why?

There's no problem with reform. I think that in California, frankly, especially in the housing area, we throw up way more obstacles to housing than we need to or should and we don’t do enough to fund affordable housing. Therefore, we have a tremendous lack thereof.

There's an environmental effect of that, and that's homelessness, which has huge negative environmental effects. Reforming CEQA, especially in the affordable housing area, I think may be appropriate. The legislature has responded, and they've basically made infill housing subject to a much lower standard of CEQA review. Traffic does not have to be taken so much into consideration as it used to.

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It's an ongoing process to reform CEQA. More reforms are needed, and I would encourage them, but I also think we need to protect the environmental quality of the state, which is something our voters rank very highly and is often a public health issue. We don't want to damage CEQA so much that they have no way to defend the environmental quality of their neighborhoods or the state in general. For example, recent CEQA court cases are requiring climate mitigation to be carried out on the local level, greatly benefitting disadvantaged communities.

The Rose Foundation recently published a report describing the tremendous benefits CEQA has provided to people who live in California. The report emphasizes that very few CEQA lawsuits have been brought against housing projects, and the CEQA cannot be considered a roadblock to housing

The Berkeley case is one of many that have, as you insinuate, put blood in the water. The enemies of CEQA are rampant. Share your political assessment of what's going on re reform efforts.

Frankly, if it was just environmentalists who were trying to defend CEQA, and they certainly are, it would be a question about how well CEQA would survive. The idea that you can use CEQA to get a project labor agreement, which is something that the labor unions have used very effectively, makes it more of a fair fight. Politically, those groups are not going to easily give up that tool. The combination of the labor unions, environmentalists, environmental justice advocates, and the very heavily-dominated Democratic legislature will mean that some changes are made, but that CEQA is not going to be repealed or abolished or made terribly ineffective.

What might those changes include?

I think the projects that have minimal environmental impact need to be treated that way. The legislature recognized that when they did that reform of ecological restoration projects. To implement a marsh restoration, for example, you used to have to do sometimes a full environmental impact report, which, as you suggested, can be hundreds of thousands of dollars, if not more.

Through a new law that you've covered very thoroughly, which deals with the implementation of housing and zoning, if you're building a duplex or fourplex on a corner lot, I think that there should be a minimum review of environmental impacts. If you're building a 70 story high rise which could dramatically change the traffic patterns, air quality, shading, lighting, and all sorts of things, then a full environmental review is probably called for because the neighbors have a right to know what the environmental impacts are.

What struck many, including the Court, in the Berkeley case was that the university attempted to mask the significant growth in their student population had happened in the last decade by making what was built the floor without ever disclosing that growth. The Court essentially concluded UC’s failure to be transparent misled the impacted publics.

Yes. CEQA would be a way to get at that information. If the university either hid or inadequately disclosed that information, that would result in environmental impacts, so CEQA would bring that out. I'm not sure what other process would require the university to actually provide that information short of a legislative or LAO investigation.

Assessing the reaction to the Berkeley decision and the subsequent legislative fix, what's your call on what's likely to happen regarding reform of CEQA next year?

I'm really hoping that the PCL effort, which is being led by environmental attorneys who are working with the development community, will lead to some procedural changes to CEQA that will make it easier to implement. Perhaps, there could be additional exemptions or relaxations where, for example, instead of having to go through a full EIR, you simply have to do a negative declaration or a mitigated negative declaration for appropriate projects.

I think those kinds of changes would be welcomed, certainly, by the development community, and I think at least tolerated by the environmental community. I really don't think that we're going to see wholesale changes in the way CEQA works because a lot of people have benefited from it. As I said, the labor unions continue to see it as a benefit to them. But environmental justice communities have also been speaking out about how it has benefited their communities as well. 

Of course, some critics assert that CEQA is a continuing barrier to what needs to be done to seriously respond to climate change and permit significantly more affordable housing and supportive housing. Is CEQA really the problem?

If you're siting a large solar array, for example, and you're putting it out in the desert and you're going to impact wildlife habitat, then I think there's no other choice but to do a CEQA review to make sure that you minimize the damage. If there is avoidable damage, you mitigate that damage. I think that's a very appropriate use of CEQA.

However, today, I'm preparing to put on solar panels on my roof. I'm not having to do CEQA review. If CEQA tends to drive distributed distribution as opposed to heavily localized distribution, I think that that would be a benefit.

As far as housing goes, I do think that very large-scale housing, like whole new subdivisions and giant high rises, should be subject to full environmental review. From a climate point of view, we’ll minimize energy use by doing infill development. To the extent CEQA needs to be modified to favor that kind of development, I would be all for that.

 The argument that infill ought to be exempt CEQA has long been resisted in the Capitol. Why explains the politics to date?

I think to some extent there was resistance from neighborhoods to tell people to not put stuff into their neighborhood without a full environmental review. In the last 25 years, I think that things have really changed. If you look at the homeless problems that just are not going away, despite Mayor Breed’s and Mayor Garcetti’s very ambitious plans, we have got to do something,

There is a huge environmental impact from homelessness. You probably followed the efforts in the legislature to move homeless people out of river parkways and parks. That's for a reason and anyone who walks along the river can see it. I think the environmental community will be much more receptive now than they were 25 years ago to building the kind of affordable housing that will help relieve that problem.

 

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