Reporting

April 05, 2013 by Justin Ewers

CEQA Roundup: Reform now in three flavors before legislature


Senators Steinberg (left), Evans and Berryhill have three CEQA bills before the Legislature this session. (Photo Credit: Angel Cardenas and CalChannel; Capitol Building photo: Violeta Vaqueiro)

With lawmakers back in Sacramento after their spring recess, the CEQA debate picked up right where it left off this week—and all eyes have now turned to the committees where the initial fate of the more than two dozen CEQA bills introduced this year will be decided.

The most notable day for CEQA this month may be April 17, when the Senate's Environmental Quality committee will hold its first hearing. As the gatekeeper for any major reform bills, the Senate committee has been the focus of much of the political gamesmanship surrounding CEQA over the last six months.

What to watch for: Three major approaches

With so much different CEQA legislation on the table, experts are watching three bills in particular to gauge which way the political winds are blowing. Each represents one of the most prominnent approaches to updating the law:

  • Major changes - SB 787 The most far-reaching of the bills aiming to change CEQA, Sen. Tom Berryhill's (R-Modesto) legislation revives the approach proposed last summer by Sen. Michael Rubio. Berryhill's bill would exempt from CEQA lawsuits projects that already comply with all other local, state, and federal environmental laws.

  • Modest changes - SB 731: With a Democratic supermajority unlikely to support Berryhill's approach, Sen. Darrell Steinberg (D-Sacramento) has proposed a more modest piece of legislation that aims to provide more certainty for infill projects and speed up CEQA's legal process.

  • Minor changes - SB 617: Environmental groups are currently supporting ten CEQA bills, which propose a variety of minor changes to the law—but Sen. Noreen Evans's SB 617 may be the most comprehensive. Evans (D-Santa Rosa) would not only change the way CEQA records are kept (as many of the other bills would do), she proposes dramatically expanding CEQA's scope by resolving a legal question that resulted from the Ballona Wetlands case.

Is CEQA in danger of being 'gutted?'

As soon as the coalition of businesses, environmentally-friendly tech leaders, and local public officials began pushing for CEQA reform this year, they were accused them of trying to "gut" the law. (Reform champion Michael Rubio's resignation to take a job at Chevron didn't help matters.)

With the legislative rubber about to meet the road, is serious damage to CEQA a real possibility?

"Fears that the Legislature will gut CEQA this year appear to be overblown—precisely because some environmental and labor groups (the labor community is divided over whether to reform the law) fervently oppose such a plan," Robert Gammons writes in the Sacramento News & Review. "It seems far-fetched to believe that Democrats will vote for proposals that substantial portions of their two main constituencies don't want."

Gammons, though, worries that by dismissing any and all efforts to change the law—as some labor leaders appear ready to do—reform opponents could end up hurting the environment. He points out that the same vital urban infill projects that are necessary to combat climate change, after all, are increasingly being targeted by CEQA lawsuits. Says Gammons: "The only sensible solution is to exempt all smart growth—urban transit-oriented development projects that are designed for housing or a mix of retail or commercial space and housing—from CEQA lawsuits."

That's an idea the Economic Summit has discussed recently, as well. And while Gammons' proposal might go too far for environmentalists, Sen. Steinberg's scaled-down approach in SB 731 (which groups like the Planning & Conservation League don't currently have a position on), could be a good start.

The political context

As lawmakers hunker down for a month of negotiations in Sacramento, several major CEQA developments this week outside the capitol may also have an impact on what bills emerge:

  • Judge rejects recent CEQA reforms: Unraveling the CEQA knot has never proved easy, and a Superior Court judge showed why this week, shooting down a CEQA reform law passed in 2011 that aimed to speed up environmental approval of some major projects by allowing lawsuits to jump straight to the appellate court. Just last month, the governor certified a major solar facility under the law. Environmental groups praised the decision, which is likely to be appealed.

  • High-speed rail dodges CEQA: The last of the three CEQA challenges blocking the train's route through the Central Valley was dropped this week, when Madera County voted to abandon its high-speed rail lawsuit. Many have speculated that the governor's push for CEQA reform is driven in part by a desire to move major state projects like high-speed rail forward. The bullet train, at least, seems to be on its way without any major changes to the law.

  • Steinberg's Kings pitch: CEQA popped up in New York this week when NBA owners quizzed Senate leader Darrell Steinberg about Sacramento's proposal to hang onto its Kings franchise. The owners, according to the Sac Bee, seemed particularly concerned about the state's environmental laws. Steinberg assured them he was "prepared to do whatever it takes to avoid unnecessary delay."

Another policy option to consider?

While political pressure has caused the policy landscape to shrink dramatically in the last few months, attorney Douglas Aikins at the law firm Hopkins & Carley offers a reminder of what's not on currently on the table in this year's CEQA debate.

CEQA burdens businesses in several ways, Aikins points out—driving up costs by requiring extensive studies of a project's environmental impacts (even elements of the project that have already been studied), and then often landing developers in court for years at a time. Sen. Steinberg's reform bill aims to deal with some of these problems—largely by trying to standardize how agencies mitigate for environmental impacts.

Aikins, a member of the reform-minded CEQA Working Group, points out that there's another way to solve these same issues. Lawmakers could raise the legal standard in CEQA cases, which currently opens the door to legal action when someone can make only a "fair argument" that there is substantial evidence the project may have a significant impact on the environment. Here's Aikins:

A CEQA reform measure that strikes narrowly at litigation abuse…would not reduce the environmental information base on which projects get evaluated; it would only place CEQA litigation on the same footing—the same evidentiary standard—as all other administrative writ litigation…

[Changing the law] to overturn the line of appellate court cases that imposed the "fair argument" evidentiary standard, would eliminate the significant litigation advantage that CEQA project opponents now enjoy. The "fair argument" evidentiary standard was invented by the courts in the early days of CEQA, in order to encourage litigation as a means of policing CEQA compliance statewide. See Friends of "B" Street v. Hayward (1980) 106 Cal App 998.

Those days are past, and restoring the litigation balance between CEQA opponents and defenders in a difficult economy could substantially reduce the instances of CEQA litigation abuse, without reducing the public information base on which CEQA decisions are made. Eliminating the "fair argument" evidentiary standard would be the most effective amendment to any of the foregoing bills, as they move through the legislative process.

Will Aikins' idea make an appearance in any of the CEQA bills moving through committee? Stay tuned.

Categories: CEQA

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