Where things stand on CEQA: Steinberg still pushing for reform
Senate President pro Tem Darrell Steinberg speaking at the Planning and Conservation League's annual symposium.
(Photo Credit: Angel Cardenas)
Five months after State Sen. Michael Rubio's eleventh-hour bid last summer to reform the state's 40-year-old California Environmental Quality Act (CEQA), one question still hangs over the state's landmark environmental law.
"Everybody wants to know – what the heck's going on with CEQA?" Darrell Steinberg, the Senate President pro Tem, said in a speech this weekend at the Planning & Conservation League's annual symposium.
Well, if Steinberg's own remarks about the law are any indication—including the tough love he was willing to give a group of committed environmental advocates this week about the need to "update" CEQA—quite a lot of reform may be on the table.
Steinberg promised to revisit CEQA this year after shelving Rubio's legislation in 2012—a proposal Steinberg now says "in my opinion was not the right bill."
When both lawmakers returned to their corners this fall, groups outside the capital turned up the heat: Business interests have rallied around reform, collecting horror stories of CEQA litigation abuse and arguing that sustainable development projects like infill and public transit are increasingly being caught up in the CEQA net. Environmental advocates, meanwhile, have pushed several substantive fixes to the law that would make changes on the margins but leave the law mostly intact.
Before his remarks this weekend, Steinberg himself has sent mixed signals about his where he stands: He seemed to show his willingness to tackle major reform in September by appointing Rubio chair of the Senate Committee on Environmental Quality, where a CEQA bill is likely to originate. But then a few months later, the Senate leader packed the same committee with at least five environmentally-friendly lawmakers, enough to outnumber Rubio.
Reading the tea leaves
"So people have asked – 'What's going on here?'" Steinberg said this weekend at the Planning and Conservation League's annual symposium. "The composition of the committee…is in some ways intentional because I want a situation where all sides are forced to confront the issue—and have an incentive to actually come together to try to improve the statute."
"The statute is 40 years old," Steinberg went on to say. "If you believe that even the great laws—and CEQA is a great law—are always in need of updating and improvement, then we shouldn't fear honestly grappling with it."
He pointed to his credentials as the author of SB 375, the state's landmark, land-use law, and his role leading the passage of an $11 billion water bond in 2009 as indications of how he planned to approach updating CEQA.
In both cases, Steinberg said he was "tired of the Legislature being badgered about not being able to accomplish something big." To get the laws passed, he had to cut deals, bringing together what he calls "the coalition of the impossible" by finding common ground between the competing interests of cities, affordable housing advocates, builders, and environmentalists. In the end, though, he says both efforts are now "viewed as a very positive step."
"The moral of that story is, for me, I'm willing to get roughed up a little bit—and we all need to get roughed up a little bit," he said. "I want to make sure we do our very best to update this statute in the right way with a broad support of the moderate business community and the environmental community, and I want as a condition of that end result to be the declaration of a peace treaty on this issue."
What would Steinberg support?
While environmentalists have argued that cases of CEQA abuse are relatively few and far between—and that the law doesn't really need to be tinkered with all that much—Steinberg seems to disagree. He and Sen. Rubio planned to meet this week to narrow down the list of areas they agree need fixing and then to begin a conversation about solutions.
"Why has this become an issue?" Steinberg said this weekend. "It's become an issue because the… process is set up in some way to play gotcha, there are a lot of litigation hunts, [and] the process itself takes too much time to get through….It just takes too darn long."
Steinberg seems to view litigation abuse, in particular, as a major problem."This is the secret that's not a secret," he said. "[The law] is used too often by competitors or by organized labor or by others to try to gain other goals…unrelated to air quality and water quality." (The Economic Summit's CEQA Action Team has spent the last year bringing together a broad group of stakeholders who have called for a statewide discussion on this very issue.)
Steinberg's framework for reforming the law appears to include two basic approaches:
Speeding up the CEQA process: "It would be one thing if we had the technology, the machine to be able to look inside of somebody's head and say 'You have the wrong motive, and therefore you can't sue.' We don't," Steinberg said.
Instead, he is looking for what he calls "litigation hooks" that will move the CEQA process along faster—perhaps by building on his own efforts in 2011 to pass AB 900, which allows CEQA suits against a certain class of green projects to skip straight to an appellate court. He also mentioned creating "CEQA courts," possibly staffed by specially-trained CEQA judges, as another way to move "this kind of complicated litigation more expeditiously."
Changing CEQA standards: Steinberg also took on one of CEQA's most sacred cows by saying he would consider reexamining the rules around CEQA's environmental standards—perhaps exempting some projects from the current legal process. "Senator Rubio has not been afraid to be provocative about the issue and to his credit, he wants to do the right thing," Steinberg said.
"It may be appropriate where there's an issue around whether or not a state standard has been met or is a legitimate standard; there may be reason to say 'separate that from CEQA and take that claim up against the enforcement agency as opposed to the lead agency.'"
Steinberg did shy away from substituting standards "wholesale" for CEQA analysis, acknowledging that he didn't want to take away CEQA's ability to look at a project's cumulative impacts. "But there may be room there," he said, "to lessen the litigation hook by using a standards approach in a real way without sacrificing the sense of what CEQA does."
Steinberg was less forthcoming on his timeline for getting this done, though he did say he wants to get something passed before his term runs out in two years. "We don't have to be in a hurry here," he said. "I want to make sure we do our very best to update this statute in the right way."
Call it "updating." Call it "reform." The Senate leader appears to be committed.
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.