Reporting

January 22, 2013 by Justin Ewers

Middle ground exists on CEQA reform - Environmental attorney


Rendering of high-speed rail at Altamont Pass (Photo Credit: California High Speed Rail Authority)

Jim Moose wrote the book on CEQA. Literally.

Along with several colleagues, Moose is the co-author of the Guide to the California Environmental Quality Act, currently in its 11th edition, a book regularly cited by California courts as one of the premier tools for navigating the state's environmental law, in all of its byzantine complexity.

Seem like a good person to be involved in the CEQA reform debate in Sacramento? He thinks so, too.

That's why Moose, a senior partner at the law firm Remy Moose Manley, joined a group of CEQA experts who came together several years ago to begin the painstaking work of drafting the language that could make the state's 40-year-old environmental law, as he puts it, "less burdensome but still effective."

The group, known as the Enhanced CEQA Action Team (ECAT), has spent the fall refining this set of legal ideas, producing a legal toolkit, of sorts, lawmakers can use to update the law in ways large and small. (A small sampling of ECAT's proposals, along with some proposed amendments Moose has drafted independently of the group, can be found at the bottom of this page.)

"We're a bunch of wonky environmental consultants and planning directors and a few attorneys who have the same perspective," says Moose, who also serves as outside counsel to California's two biggest infrastructure projects, high-speed rail and the Bay Delta Conservation Plan—two projects that are already facing years of CEQA challenges.

A view from the trenches

"In ECAT, we're in the trenches, we like the law, we're up to eyeballs in it, and we think we have some insights about how to make it work better while still protecting the environment. Our hope is that we can participate in the upcoming discussions and be a voice in the middle."

Though some environmental leaders maintain that CEQA is not the bogeyman it's made out to be, pointing to studies showing only 3 out of every 1,000 CEQA lawsuits end up in court, Moose believes the problem of CEQA abuse is real.

"I continue to be sympathetic with the general thrust of CEQA, the idea of greater public participation and this general legal mandate to mitigate significant environmental effects where feasible. That strikes me as good public policy," says Moose. "But over the years, it's been abused more and more. We're spending an awful lot of money on gold-plating documents, fighting off litigation. Most of our resources are flowing to consultants and attorneys and not so much to mitigation. Even though I'm a beneficiary of that to some degree, I'm conscious that money would be better spent on teachers and firefighters."

Moose has watched with interest as this point of view has taken hold among several high-profile Democrats—not usually the group most eager to tackle CEQA. "Traditionally, it's the Republicans that do this, and they have draconian solutions that never went anywhere," says Moose. "Democrats have always just worked on the margins, never passing anything labor unions didn't like."

That changed last summer with Sen. Michael Rubio's (D-Bakersfield) aborted bid to comprehensively reform the law, which drew the ire of environmentalists and was shelved by Senate leaders, who promised to take up the debate again this year. 

"The bill Sen. Rubio had last summer is interpreted differently by different people," says Moose. "I think some good drafting has to happen before a compromise can be reached on that subject."

The root of the problem

Moose believes that work should aim at what he views as CEQA's primary issue—the length of time the law allows projects to be tied up in court.

"My primary belief is that the sheer amount of time it takes to get through court is a huge part of the problem. A neighbor [who files suit against a project] can count on holding it up a minimum of 2-3 years and possibly 5-6 years with an appeal, even if they are ultimately unsuccessful," he says. "If the court process could be shortened to just a year or two, a lot of that leverage would shift, and the uncertainty [for business] would be more tolerable."

He points to the two major efforts he has advised the state on—high-speed rail and the Delta water project—as examples of CEQA's impact on projects California needs. "These projects are so important for the state. They are on balance good for the environment, even though they have a footprint, but the deck is stacked against them," says Moose, who is careful to state that he is not a spokesperson for either project and is only offering his personal views.

"With high-speed rail, we have the president, the U.S. Senate, the governor, and the Legislature behind it," he says. "Billions of dollars have been given to California that could be lost if the thing goes awry in court. Under those circumstances, if one farmer finds one flaw with the [state's Environmental Impact Report], they shouldn't be able to kill the project—that seems like an undemocratic result to me."

Moose believes it's time to alter the law to avoid the proliferation of lawsuits, speed up the legal process, and prevent litigation abuse.

"It seems like the standards are impossible to meet under the current approach. My own feeling is California is so wound up in knots, it's an open question about whether we can do any new infrastructure now," he says. "Look around the state: Sacramento, where I live, would be uninhabitable without the great water and flood control projects. We're not reciprocating for future generations—in part because we're too cheap, and in part because we've tied ourselves up so much we can't do it."

So what can be done?

Moose and the Enhanced CEQA Action Team have developed a range of solutions for remedying this situation. Three of their many proposed amendments to CEQA can be found below:

1. Avoid lawsuits in the first place: Right now, CEQA has a relatively low bar for requiring projects to complete a full Environmental Impact Report, the costly review process required by the law. If someone can make a "fair argument" that there is substantial evidence the project may have a significant impact on the environment, an EIR is required. This drives up project costs. Indeed, the tens of thousands of dollars an EIR costs often nips many cash-strapped projects in the bud.

Moose proposes adjusting that standard by creating CEQA "safe harbors," where projects can avoid preparing EIRs if they voluntarily propose strict mitigation measures consistent with broader environmental goals. As Moose puts it, this might involve mitigating "impacts to air quality, habitat, and agricultural land to less than significant levels by funding programs that offset air pollution, preserve and enhance offsite habitat, and preserve offsite agricultural lands."

Moose also says lawmakers could eliminate the "fair argument" standard when it comes to the aesthetic impact of a project in an urban area—which some consider an obstacle to infill development—when the project is already subject to a local design review process.

2. Speed up the process: When a CEQA violation is found, courts today often require agencies to go back and redo their entire environmental analysis. This can add several years—and millions of dollars—to the project. Moose's proposed amendment would give courts more discretion to allow "particularly important or compelling projects" with only "harmless errors" to proceed while their minor CEQA violations are addressed.

3. Raise the stakes by charging attorney's fees: Moose has proposed an amendment that would require defendants (a developer trying to build mixed-use housing, say) to pay attorney's fees when they lose an EIR challenge only for the time their challengers spent on making "meritorious arguments." Today, losing defendants pay the full cost of their opponents' legal bills—giving plaintiff's attorneys a financial incentive to try every imaginable legal argument and drag out the process as long as possible.

Moose also proposes an amendment that would allow courts to conduct discovery on the anonymous "citizens' organizations" that often file CEQA suits to determine if they are fronts for what he calls "deep-pocketed economic interests." (For example, a business competitor, as opposed to a group with a legitimate environmental concern.) If so, he thinks the court should be able to order those interests to post bond and, if they lose, to pay the winning party's attorney's fees.


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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