CEQA Was Meant to Serve Us, But Unintended Consequences Have Turned It into a Nightmare
CEQA litigation by unhappy neighbors is not the only challenge. The process has been weaponized by various special interest groups that block projects for reasons completely unrelated to the environment.
The California Environmental Quality Act was passed in the 1970s as a way for the public to be given information on projects, and that information has allowed for the public to have a level of control over California’s development that is unprecedented in much of the country.
Essentially, it requires disclosure and evaluation of all types of potential environmental impacts of a proposed project and any plan to mitigate such impacts. The public has a period of review and comment, and ways to appeal or challenge the information and mitigation measures. I am a huge fan of the intent of CEQA, but it is the unintended consequences that have made CEQA the nightmare that it is today.
A highly regarded and frequently cited 2018 study by the law firm Holland and Knight published in the Hastings Environmental Law Journal, found that 87 percent of statewide CEQA litigation challenged projects are located in infill areas where development has already occurred and not greenfield development where development is occurring for the first time.
In plain English, 13 percent of CEQA litigation was aimed at sprawl development, while the bulk are aimed at projects in areas that are already developed. Climate change is real and must be confronted. The best way to do this is with increased density in urban areas, especially along transit and our freeways because this takes advantage of existing infrastructure, reduces greenhouse gas emissions by allowing for shorter car trips or eliminating car trips entirely by making transit and alternative transportation like bikes feasible.
Unfortunately, the vast majority of CEQA litigation is brought by NIMBYs, a term for people who simply do not want more housing in their neighborhoods. Currently CEQA litigation has been brought or is threatened against two infill projects in San Diego, the Junipers in Rancho Penasquitos, a 55+ community with 455 for sale homes and townhomes and 81 affordable rental homes, and the Trails in Carmel Mountain Ranch, which proposes 1,200 market rate units and 180 affordable housing units. Both projects are replacing abandoned golf courses, are located in heavily developed areas, and are convenient to Interstate 15 and MTS Bus Rapid Transit. These are just two examples of projects that we should be encouraging, but where CEQA is weaponized in an attempt to delay or kill these critical projects by current residents.
In the seminal land-use textbook “Guide to California Planning” by William Fulton and Paul Shigley, the authors devote an entire chapter to CEQA. They state that “CEQA’s procedural requirements are so broad, so malleable, that virtually any CEQA document can be challenged in court.” Further, we know that just the threat of CEQA litigation is enough to cause developers to reconsider or abandon projects. When a project is subject to CEQA it adds years and hundreds of thousands of dollars to the project cost; time and money which is required to retain the various consultants to study the project and any impacts, and if needed to create an environmental impact report. After incurring those cost and time impacts, having a project challenged in court can add additional years of delays, so that even if the developer prevails the cost of the project is increased substantially. And these costs are always going to passed on to the end users in higher sales or rental prices.
CEQA litigation by unhappy neighbors is not the only challenge. The CEQA process has been weaponized by various special interest groups by filing lawsuits to block projects in order to strongarm commitments completely unrelated to the environment. It is a frequent tactic of labor unions to threaten CEQA litigation unless a developer is willing to enter into a project labor or operating agreement. Regardless of how you feel about unions, the use of an environmental law in this way was clearly not the intent of the legislature when the law was created. CEQA is also used by neighbors, competing businesses and others to shape the land-use process, prevent competition and to protect property value by promoting scarcity. None of these are environmental issues.
I support studying a project’s environmental impacts and making information on those impacts and any mitigation available to the public. But just like we give each citizen a voice and a vote, but not a veto, we should not allow an environmental law to prevent the types of smart infill projects required to protect our environment, affordably house all San Diegans and to keep our economy and way of life strong.