Reporting

January 09, 2013 by Justin Ewers

CEQA is a safety net: Environmental attorney’s perspective


Container terminal at Port of Long Beach (Photo Credit: John Guenther)

The first time Douglas Carstens encountered the California Environmental Quality Act, he literally saw it all around him. Carstens was a law student 15 years ago when the Port of Long Beach was sued under CEQA by two Long Beach homeowners groups over its plans to build a new container terminal on the grounds of the former Long Beach Naval Station. Neighbors worried about exhaust at the new terminal—which would bring a million diesel trucks a year through their neighborhoods—along with the destruction of historic navy buildings.

The community groups' claim was simple: Before the Port moved ahead with the project, they wanted to know how much it would harm public health and the environment, and they wanted reasonable action taken to reduce that harm.

Carstens had heard of CEQA, but this was the first time he'd seen it in action—and see it he did. Because of CEQA's requirement that the environmental review process be fully open to the public, Carstens found himself sitting in the middle of large public hearings, surrounded by hundreds of community members eager to hear city officials examine the proposal.

"People would come from miles around. That's what really struck me," remembered Carstens. "It wasn't the mountains of documents—the hundreds of thousands of pages of reports that go with a CEQA case. It was the way CEQA allowed the public to face their elected officials. That mobilization aspect of it to me was awe-inspiring. It stays with me to this day."               

CEQA's strengths

Carstens is now an environmental and land-use attorney at Chatten-Brown & Carstens in Hermosa Beach, where he has become a respected expert on CEQA and a skilled proponent of the law. (His firm claims a 90 percent success rate in reported CEQA lawsuits.) And as the State Legislature gears up to take another look at streamlining the law this year, Carstens remains cautious about how this can be done without undermining what he views at CEQA's strengths.

"Whenever there's an economic downturn, there is a rebirth of ideas about what to do to change environmental regulations," says Carstens. "Usually, those fall away when the economy comes back."

Carstens acknowledges what many critics of CEQA continue to point out: Because it was passed in 1970, CEQA predates dozens of other laws designed to protect the environment, including both the Clean Air Act and Clean Water Act, among many others.

He believes CEQA, however, still plays a vital role in California's legal landscape: "Sure, it's big and comprehensive, but that's its strength—it's a safety net. A lot of other laws have been enacted since, but we still need something backstopping the other laws when projects fall through the cracks of other processes."

In his view, CEQA in its current form is needed now more than ever. "In a lot of ways, this law was way ahead of the times. Our population is booming, it's even more necessary that long-term planning be done," he says. "CEQA is about informed self-government. It's about giving people a voice in decisions the government is considering. There's a tendency to believe the regulatory community will solve everything, but there's a lot of malfunction there, and you can't rely on the government to guarantee all good and wise outcomes. You need public participation. CEQA does that very well."

Love it, hate it, it works

Carstens believes the CEQA process, cumbersome as it may be, is effective the vast majority of the time. He points to a 2005 study by the Public Policy Institute of California which found that only 3 out of every 1,000 CEQA lawsuits actually go to court. The study also found that more than 90 percent of projects are required to undergo the most minimal level of environmental review.

Only the largest projects—with the most substantial potential impacts on the environment—are forced to complete a comprehensive Environmental Impact Report (EIR), the costly and time-consuming review process he witnessed firsthand during the debate over the Long Beach Naval Station.

"To me, this shows CEQA works really well most of the time without causing much of a fuss," says Carstens. "You can identify an anecdote here or there of some bad outcome, but when you place that in the context of thousands and thousands of good outcomes, that means the law is doing its job."

In Carstens' view, few of the reforms currently being discussed in Sacramento would improve the law without substantially harming it at the same time.

This includes an effort to make CEQA cases more transparent by requiring anyone who contributes more than $100 to a CEQA suit to disclose their name. "That would hurt the very people in the community who rightly fear retribution from their government," says Carstens.

He's also wary of attempts to integrate CEQA into more recent land-use law. "All of those laws were passed knowing CEQA existed; they were written with the presumption CEQA applied and was already out there," says Carstens. "Those laws all do a lot of different things, but CEQA is the only one that's all-encompassing."

A happy CEQA ending

Carstens does support efforts to improve the accessibility of the administrative record in CEQA suits—which would make it easier for everyone from neighbors to other public agencies to find information about developments in their communities. For him, this type of reform would be true to the vital democratic role he's seen CEQA play ever since his initial encounter with the law at the Long Beach Naval Station.

The hearings Carstens attended 15 years ago ultimately resulted in a settlement agreement that created a $50 million air quality fund to support the neighborhoods around the Port of Long Beach. It also led to the construction of the first green container terminal in the world, which allows ships to "plug in" to shoreside power, massively reducing the air pollution created by running their engines.

Though the historic buildings on the base were ultimately demolished as part of the agreement, Carstens still views the case—and CEQA's role in it—as an outstanding success.

"As a lawyer, I recognize it was a good outcome. It was a compromise where a law allowed a number of different points of view to be served," Carstens says. "Not all buildings can be saved, but they shouldn't all be destroyed, either. CEQA facilitated a compromise. You take away the CEQA process, you have a situation where only one side is going to have a say. It's usually the side with the money."

That, in his view, is something would-be reformers must be careful to avoid.

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