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Our society is made up of “haves” and “have-nots.”
The disparity is glaringly evident in the legal profession. Just ask ordinary people about how much they incurred in fees and costs when they needed to hire a lawyer. Like other aspects of life, the wealthy can and do use the legal system to their advantage. Wealthy people sue not-so-wealthy people and large companies sue small companies, knowing full well that their resources give them an advantage in a system that requires you to pay to play.
It’s with this recognition that I have to wonder about what I see as a steady stream of complaints about CEQA abuse. First off, let’s be clear about one thing: I don’t think most people making these complaints are really concerned about the effects of CEQA itself. It isn’t like “elder abuse” or “spousal abuse” – the people complaining are normally trying to reduce CEQA’s reach (if not gut it entirely). In other words, the ones complaining don’t seem to have CEQA’s health on their agenda.
The complainers challenge the motives of those who file CEQA cases, claiming some are merely motivated by money or other non-environmental concerns. It’s as if there’s some altruism requirement to filing a CEQA case. But who’s to decide what motivations are altruistic enough?
I once represented some folks affiliated with a small business who were concerned that a competitor had received approvals without the same type of air and water quality controls they had to install. My clients saw the issue as one of basic fairness; are we to say their concerns were not sufficiently “environmental” in nature and therefore no suit should be possible?
The complainers also critique the high cost of CEQA compliance. This critique is particularly rich. I have seen several authors of environmental documents bend over backward to try to avoid stating the obvious – that whether or not the project is a good idea, it’s going to exact a high toll on the environment.
CEQA is an environmental disclosure statute. It is refreshing when a CEQA document actually acknowledges the impacts of a project, and it takes far fewer pages (and less consultant costs) to describe the impact and appropriate mitigation than it does to contort like a pretzel to avoid admitting these impacts.
Frankly, I don’t think the complainers are worried about CEQA abuse at all. I think they don’t like the fact that CEQA turns the normal system on its head – not-so-wealthy people and nonprofit groups can sue agencies and wealthy companies to ensure that the conversation about a project is a little more honest.
In that sense, CEQA allows ordinary folks (often branded by the PR firms of those wealthy companies as “NIMBYs”) to fight City Hall. And perhaps that’s what has these complainers really up in arms – how dare the “have-nots” actually challenge the “haves”!
Everett DeLano is a partner with the Escondido law firm of DeLano & DeLano. DeLano’s commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.