The inequalities of the California Environmental Quality Act – Advice Eating

The litigation over a state environmental law highlights both potential abuses and opportunities for reform.

In recent years, a California law has been used to crack down on homeless shelter construction, block dense urban housing, delay solar projects and contest a public transit proposal designed to benefit more than 52,000 daily drivers.

Earlier this year, the same state law made headlines when it banned over 3,000 new students from enrolling at the University of California, Berkeley.

Legislators originally intended this law — the California Environmental Quality Act (CEQA) — to benefit people and the planet. But in the fifty years since California introduced CEQA, its environmental assessment requirements may also have been used by non-environmental groups to combat sustainable and equitable development. Increasingly, some critics insist that reforms are needed to return CEQA to its original intent.

The passage of CEQA in 1970 was buoyed by a national environmental movement that also spawned the US Environmental Protection Agency and federal environmental legislation. CEQA requires state and local authorities to analyze and publicly disclose the environmental impacts of proposed projects. Similar to its federal analogue, the National Environmental Policy Act, CEQA also encourages project planners to take mitigation actions for such impacts.

In 1978, the California Supreme Court ruled that both private and government projects require impact assessments because CEQA offers “the broadest protection of the environment.” If affected individuals or organizations believe that the environmental assessment of a project under CEQA is deficient, they can sue the government agency responsible for directing the assessment process.

Many environmentalists argue that CEQA promotes environmental oversight with relatively little legal drama. An analysis of 54,000 projects submitted for CEQA review found that “only 0.7 percent faced litigation — an average of fewer than 100 proposed housing developments per year.” Legislative changes to CEQA that have aligned the review of projects to increase housing density, improve public transportation, or otherwise with state goals may also have eased the burden of the law on cities and businesses.

But while some environmental groups claim that CEQA “promotes sustainable development,” others argue that CEQA has been armed in litigation by non-environmental groups to further their own ends.

A study by law firm Holland & Knight LLP found that over a three-year period, only 13 percent of CEQA lawsuits were filed by pro-environmental groups. Such lawsuits are viable because CEQA grants legal standing to almost any individual, group, or entity that has a “beneficial interest” in a project. Courts have established that those affected can also assert a “public interest in the quality of the environment”.

This broad requirement allows unexpected litigants to mount CEQA lawsuits. For example, in 2011, the California Supreme Court ruled that a coalition of plastic bag manufacturers was entitled to challenge a local plastic bag ban under CEQA based on the coalition’s vague claim that “public rights are at stake.”

The state’s permissive approach to standing under CEQA stands in stark contrast to the federal courts’ approach to litigation under environmental laws such as the Clean Water Act and the Clean Air Act, which require plaintiffs to show that they have suffered harm “actually or directly” to the environment Activities.

In court, many non-environmental groups insist they use CEQA to combat urban sprawl and protect open green spaces. But CEQA filings show that “CEQA litigation is predominantly used in cities.” Eighty percent of anti-development lawsuits filed under CEQA target infill projects that aim to increase housing in pre-existing urban areas through the development of vacant lots or derelict neighborhoods.

Critics also claim that abuses of CEQA go beyond housing and land use issues. In recent months, the California Supreme Court’s request for CEQA to block student enrollment at the University of California, Berkeley has prompted a scrutiny of the law’s potential impact on educational equity.

In the lawsuit, an anti-development neighborhood group sued under CEQA to prevent the university from expanding its enrollments and increasing construction of faculty housing. A lower court agreed that the university’s environmental impact report did not address the proposed expansion’s impact on local traffic, noise, garbage and emergency services. As a result, over 3,000 students accepted into the university will not be able to set foot on campus this fall, and the school will lose an estimated $57 million in tuition. Earlier this month, the California Supreme Court denied the university’s motion to stay the lower court’s decision.

The Berkeley lawsuit has sparked the latest attempt to reform CEQA, in which state legislatures are proposing legislation that would exempt public universities from CEQA requirements.

However, the school-specific nature of this proposal highlights a crucial aspect of CEQA reform efforts to date: they have been piecemeal and reactive.

For example, when groups began suing under CEQA to block homeless shelters, the state legislature passed a strict law that now exempts such centers and similar projects in the city of Los Angeles from CEQA consideration. Likewise, in response to the state’s housing crisis, lawmakers have passed carveouts that allow for limited scrutiny of pro-density projects. Lawmakers have also granted ad hoc exemptions for specific reasons, such as when they exempted the Sacramento Kings basketball arena from CEQA to prevent the sports franchise from leaving the state.

But few, if any, CEQA reforms have gone beyond targeted exceptions to address what some observers call the root causes of CEQA abuse: the fundamental elements of CEQA that do not support the law’s environmental goal, such as: B. How the Statute allows non-environmental groups Interests can sue under the law.

A proposed reform would appeal to groups formed in direct protest against a particular project. Under this reform initiative, such groups would only be eligible to sue under CEQA if all of their members met the individual standing requirements under the law. This would amount to them being directly affected by the project they are questioning; Moreover, changing the nebulous “public interest” doctrine spearheaded by the plastic bag coalition would set limits.

Another proposed reform would require all companies filing CEQA lawsuits to fully disclose “their identity” and financial interests, allowing courts to consider whether groups are motivated by purely non-environmental goals.

Due to the political challenges faced by any attempt at legislation in California and the complex nature of CEQA itself, comprehensive reform remains elusive. However, to preserve the integrity of CEQA as an environmental protection measure, state legislation should perhaps focus on addressing CEQA’s role as an entry point into the legal system for non-environmental groups.

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