Reporting

January 16, 2013 by Justin Ewers

CEQA reform isn’t what it seems to be - Law professor’s perspective


Freeway construction in California. (Photo Credit: Luke Jones/Flickr)

Until last summer, Sean Hecht had high hopes for CEQA reform. As the longtime executive director of UCLA's Environmental Law Center and onetime deputy to the California attorney general, Hecht has seen wave after wave of efforts to streamline the California Environment Quality Act—a longtime bone of contention between business and environmentalists and again a target of reform in Sacramento this year.

By and large, Hecht has shared reformers' stated goals of making the CEQA process go faster and more smoothly--especially if it meant ensuring the law doesn't become a roadblock to the vital infill development projects that are helping cities combat urban sprawl. 

"Some of the main arguments [for reforming] CEQA have always been that the law is preventing us from doing 'good things,'" says Hecht. "In the past, 'good things,' just meant economic growth. Lately, it has shifted to focusing on CEQA impeding things that even environmentalists would want to support." 

But, the professor is questioning the timing and motives of the latest round of reform, arguing that talk of CEQA loopholes and abuse is a cover for an effort to dismantle the law’s core.

Like many CEQA experts, Hecht watched approvingly as the state passed a series of bills over the last decade aiming to do just that. Most recently, this included SB 226, a 2011 law requiring the state to create a set of performance standards that will allow urban infill and renewable energy projects to move more quickly through the CEQA process. And like many experts, Hecht has been eagerly awaiting the state's release of those regulations this year.

Which is why he found last summer's attempt by State Senator Michael Rubio (D-Bakersfield) to push through a far-reaching set of CEQA reforms just before the end of the legislative session so disconcerting. 

"A lot of my reaction to this debate has come from looking at that proposal," says Hecht. "I used to be more optimistic about what CEQA reform might look like. But when I saw [Rubio's proposed language], I was quite shocked at how aggressive it seemed to be."

Motives for reform

While Rubio's bill left many components of CEQA in place--its environmental review process, disclosure process, and informed public debate--the legislation would have prevented opponents of future projects from filing CEQA lawsuits when those projects comply with other local, state, and federal environmental laws. Hecht agrees with environmental leaders who said this provision would have "essentially gutted" CEQA, taking away the only hammer the act provides communities to minimize projects' impact on the environment.

Ultimately, Rubio's bill was shelved under pressure from legislative leadership. Darrell Steinberg, the Senate President pro Tem, has promised the take up the debate again this year. But for Hecht, its legislative language serves as a cautionary tale about CEQA reformers' true motives. 

Hecht is disturbed by what he views as a disconnect between would-be reformers' goals, which increasingly tout the virtues of infill development, and Rubio's proposal.

"I'm puzzled about the relationship between the identified problem and solution," says Hecht. "I know the people who've promoted these ideas have backed away from them, and everything they're saying now is very squishy. But the one concrete thing all these lawyers worked on and handed to Rubio--that's the actual proposal. That's what I'm focusing on."

That bill's aggressive approach to changing the law—and the fact that it still appears to be the foundation for future reforms—has led him to question the relationship between infill and CEQA reform. "My impression is that saying CEQA is to blame for problems with renewable energy siting or infill may just be a red herring," he says. "Certainly CEQA adds some challenges to those processes, but there are a lot of other challenges out there." 

Hecht spent the early 2000s working in the state attorney general's office, where part of his job was to use CEQA to ensure local governments did what they could to lessen the environmental impact of the Inland Empire's building boom. "A lot of stuff got built in the late 1990s and early 2000s, and CEQA didn't look any different then than it does now," Hecht says.

Infill development does bring its own array of challenges, he acknowledges. Expanding housing developments into the Inland Empire a decade ago largely impacted the desert ecosystem (sage scrub, in particular), which developers could find ways to mitigate for. But as a recent study shows, infill developments tend to be increasingly taken to court by opponents who focus on impacts like traffic congestion and aesthestics—a much tougher nut to crack.

Excuses, excuses

Still, Hecht is wary of using this as an excuse to push for what he considers misguided reform. "Even if issues of parking and traffic are what's wrong with CEQA today, I'd think that would lead us to a different set of solutions than what SB 317 presented," he says. "There's nothing in their proposal that would treat those impacts. The truth is, if Chevron wants to expand a refinery or KB Homes wants to build out into the desert, they'd get every benefit from these proposals. It's been disappointing to see infill builders and others jumping on that bandwagon. I think their concerns can be addressed in other ways." 

The timing of these efforts, too, troubles Hecht. Why, he wonders, is CEQA reform in the name of infill development moving forward when SB 226's regulations are finally being rolled out? 

"It's puzzling to me that after passing a bill without giving it a chance to work--or providing any opportunity see the output of the regulatory process--that they'd move back and use infill as a reason to do further CEQA reform," says Hecht. 

(Critics of SB 226, for their part, maintain that the law, along with several others passed in the last decade, is too complex to be useful. The law firm Holland & Knight has illustrated this with a byzantine flowchart showing what it would take for a development to qualify for its exemptions.)

"I don't know if 226 will do a ton to improve infill or not," says Hecht. "I do know the Legislature voted for it, and the Office of Planning and Research did a careful job of providing regulations that are quite balanced." Hecht says SB 226's regulatory review process documents are full of positive remarks from a range of infill builders and other developers who provided input on the law's standards. "But now Rubio says those same people think 226 will have no value to them," he says.

Why reform now?

Hecht believes a review of SB 317's language last summer by the American Planning Association, a professional organization for city and regional planners, reveals what's truly driving the reform effort. 

"They pointed out there are all kinds of ways CEQA has been streamlined [over the years.] But [those processes] are rarely used by local governments," says Hecht. "Developers have put a lot of pressure on locals to say 'Why don't you use these streamlining mechanisms?' Well, at some point, they became fed up and realized they didn't have much control over what local governments do." 

The result, in Hecht's view, has been a new push for reform at the state level—one with intentions he doesn't quite trust. "People talk about loopholes and misuses of CEQA and all that," says Hecht. "But I don't really think that's what this is about. I think it's the core of CEQA that's disliked. [Reformers] always say that's not the case. They always say it's a great law that goes too far. It's hard to see how that argument makes sense."

"I've not seen anybody really credibly explain why CEQA is a greater threat to economic growth now than in all the other boom times in California," says Hecht. "It's easy in time of recession to point the finger."

Who's pointing that finger—and what their intentions are when it comes to CEQA—will be revealed as the debate in Sacramento continues.

CEQA in the 21st Century -- a series of news stories and individual perspectives designed to educate and spark dialogue on CEQA as the California Legislature revisits the role the environmental law will play in the future of our economy.

Categories: CEQA

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