Stuck Under the Green Thumb of the California Environmental Quality Act

A construction site in Los Angeles on July 30, 2018. Lucy Nicholson/Reuters

Commentary

If Californians haven’t already, they’re bound to hear much more about CEQA—pronounced “SEE-kwuh”—or the California Environmental Quality Act, in the coming days.

Viewed as the Holy Grail of environmental policy, CEQA was signed into law by then-Gov. Ronald Reagan in 1970 in an attempt to allow public input into large government projects. However, a half-century later, numerous lawsuits and ever-evolving legislation have metastasized into a matrix of dizzying regulation and “green tape,” as it were. CEQA is now a major roadblock to building anything in the state, including houses, businesses, hospitals, schools, and factories.

At its core, the law requires state and local agencies to identify significant environmental effects of a project and to avoid or mitigate those effects, if feasible. However, these regulations’ costs often outweigh their benefits and cannot be justified in a business plan. It makes building or rebuilding anything larger than a lemonade stand impossible without navigating endless bureaucratic gobbledygook that may not improve environmental outcomes.

People should absolutely be good stewards of the world around them but not if it means denying people places to work and live. Indeed, it’s possible to have a thoughtful process to mitigate harmful environmental effects without subverting human flourishing. CEQA was made for man, not man for CEQA.

Four-term California Gov. Jerry Brown once called CEQA reform “the Lord’s work”—a task he left unfinished when he retired to his ranch in Colusa. Even so, most families who have recently lost their homes amid burning bushes across the state, including the Los Angeles tragedy in January, are looking for more miracles and less sermonizing if they are ever to return home.

Environmental impact reports (EIRs) are required for most projects under CEQA, even if only to prove that a project is exempt from the law. Starting at $150,000 and increasing in costs the bigger the projects are, EIRs can take at least 18 months to complete, rendering many projects financially unfeasible before a single shovelful of dirt turns.

Developers frequently face CEQA litigation threats that force them into delaying or killing projects, even when their EIRs are approved. The courts have also exacerbated the problem when judges delay hearings, require unnecessary documentation, or give standing to outside agitators.

CEQA’s litigation threat isn’t limited to developers. Organized labor frequently uses CEQA as “greenmail” to pressure contractors into union agreements. NIMBY (not-in-my-backyard) activists exploit CEQA to stop projects they oppose, hiding behind environmental rhetoric. Affordable housing, gas station expansions, and urban infill projects have all been targeted.

“BANANA” (build absolutely nothing, anytime, near anything) activists use CEQA as their cudgel of choice simply because they are the last people to move into the neighborhood. These modern Luddites leverage the law with coordinated astroturfing campaigns and frivolous lawsuits.

One of the state’s preeminent land-use attorneys, Jennifer Hernandez, warned that while CEQA is “not the only obstacle” to solving the housing crisis, “nothing has worked as spectacularly well as CEQA in delaying or derailing approved housing.”

CEQA reform remains elusive because influential groups in Sacramento—environmental organizations, labor unions, and NIMBY activists—block even modest changes. These groups rely on CEQA’s ambiguous standards and litigation threats to control development decisions. Even minor attempts to simplify CEQA are treated as mortal affronts to environmental integrity. The majority party risks alienating powerful allies if they support reform.

The Legislature can no longer hide in the policymaking margins when it comes to environmental review laws. It’s possible to conserve our environment without abiding by outdated Byzantine regulations by better integration of technology, using newer and proven environmental processes, protecting property rights, and creating markets for negative externalities. The Legislature can create broader exemptions, provide master plan reviews that cover future development, allow more ministerial authority for approving projects, and expedite legal appeals. The state may also want to consider a loser-pay model for those who bring frivolous lawsuits.

And it’s not like reducing CEQA’s power would make our state any worse off. Only 16 states have enacted their own versions of CEQA or its counterpart for federal projects, the National Environmental Policy Act (NEPA). Yet none of the 34 other states without Little NEPA laws are in perilous ecological degradation. Far from it. In fact, those states are seeing more population growth than states with strict CEQA-like laws. People are migrating to places where they can flourish, not flounder.

California’s housing shortage, infrastructure deficiencies, and economic stagnation will persist if the state refuses to address CEQA’s role in obstructing development. Reforming CEQA isn’t about gutting environmental protections—it is about stopping the law from being abused as a political weapon.

CEQA reform will remain politically impossible unless courageous legislators are willing to do the demanding work that their predecessors shirked. Without it, Los Angeles and other parts of the burned-out state will never be rebuilt in our lifetimes.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.