For the second time this year, we've been reminded that the California Environmental Quality Act is not a set of tablets brought down from Mount Whitney. It's just a state law, and it can be changed whenever the Legislature and the governor can agree on changing it – especially during bad economic times.
The latest reminder is AB 81X3, signed by the governor the other day, which exempts the proposed football stadium in Industry from CEQA – and even from several pending CEQA lawsuits. This law comes only a few months after the state budget deal, which truncated or eliminated CEQA review on several highway projects that Gov. Arnold Schwarzenegger wanted to get moving.
At least you could argue that the highway projects are in the public interest. It's much harder to make the same argument for the stadium in Industry, whose exemption appears to be mostly the work of powerful lobbyists on behalf of a powerful developer, Ed Roski, and a small but powerful city. It saves the stadium project not only the trouble of doing an EIR, but also the trouble of getting into picayune fights in court with stadium opponents over things like whether the stadium is a project under CEQA. With the economy still sluggish, you have to wonder how many other cities and developers will come out of the woodwork seeking similar exemptions.
For example, Sam Farmer of The Los Angeles Times suggested the other day that it would be impossible now for the state to deny the same exemption to football stadiums in San Diego and the Bay Area. This could especially become an issue in San Diego. How can the city expect to keep the Chargers when it has to build a "CEQA Stadium" and Industry – trying to lure the Chargers away – does not? You can see how, in theory at least, the whole CEQA house of cards could come tumbling down quickly.
Given that almost 40 years has elapsed since CEQA was first adopted, it's kind of surprising that this kind of thing hasn't happened more often. Public Resources Code Section 21080 contains a long list of "statutory exemptions" – things the state has given a pass on CEQA – but by and large they are not individual private development projects. Remarkably, for all the battling over CEQA, only very rarely has heavy-duty lobbying for a powerful developer such as Roski come into play.
As mayor of San Francisco, Willie Brown famously manipulated CEQA to move along the expansion of San Francisco International Airport. He did it not by exempting the project but by having the Legislature pass a bill specifying what the mitigations would be. As mayor of Oakland, Jerry Brown got the Legislature to pass truncated CEQA review of infill projects in downtown Oakland.
But a hard-charging developer hiring several big-ticket lobbyists to get his project exempted in Sacramento, as Roski did? Despite all the bitching about CEQA over the years, I can't ever remember that happening before. The CEQA debate in the Legislature each year is pretty much confined to the homebuilders and the enviros arm-wrestling over whether or not to streamline arcane and time-consuming CEQA practices.
So it'll be interesting to see whether Roski and Industry have opened a new line of attack on CEQA. Up to now, CEQA has been known as the law that launched a thousand environmental consulting firms. Will it now become known as the law that launched a thousand lobbying firms as well?
– Bill Fulton