CEQA Makes Us Lazy
We’re pretty sure at this point that the California Environmental Quality Act does not apply to itself. (www.cp-dr.com/node/3395). But we’re still not quite sure whether CEQA applies “in reverse.” Does it require developers to consider not just their projects' effects on the environment, but also the potential effects on their projects from environmental hazards like landslides, earthquakes, or rising sea levels?
By appealing the same case that concluded, “CEQA does not apply to CEQA,” the California Building Industry Association (CBIA) is hoping to resolve that issue once and for all.
And if it doesn’t, then we might have to go back to actually planning.
Of all the bizarre feedback loops built into CEQA, the idea that the law might apply to itself is certainly one of the weirdest of all. The First District Court of Appeal knocked that idea down last summer in California Building Industry Association v. Bay Area Air Quality Management District, 218 Cal.App.4th 1171, by ruling that the Bay Area air district’s significance thresholds are not subject to a CEQA analysis. But in so doing, the First District ducked the other bizarre CEQA question we’re all facing today: Namely, does CEQA apply “in reverse”? CBIA appealed the First District ruling to the Supreme Court – which took the case primarily to resolve that issue.
“CEQA-In-Reverse” simply means this: We all know that CEQA is supposed to apply to a project’s impacts on the environment. But does it also apply to the environment’s impact on the project? That is, if a project would place people in the way of harm because of a pre-existing environmental problem – or, more to the point, a potential future problem – does the CEQA analysis have to cover that? Do applicants have to mitigate that possible problem? Can projects be turned down on that basis?
We all thought we knew the answer: No. In maybe the most important CEQA case in the last few years, the Second District Court of Appeal ruled in 2011 that CEQA does not require an analysis of the environment on the project. In Ballona Wetlands Land Trust v. City of Los Angeles (www.cp-dr.com/node/3121), 201 Cal.App. 4th 455, the First District ruled that the CEQA analysis of the Playa Vista project near Venice did not have to include an analysis of sea-level rise, for the simple reason that sea-level rise isn’t caused by the project.
In Ballona Wetlands, the court specifically took the state to task for the language of CEQA Guidelines Section 15126.2(a), which said that if a project was proposed to be constructed on a previously identified earthquake fault – thus putting people in harm’s way – the potential danger had to be addressed in the CEQA analysis.
In concept, Ballona Wetlands makes sense. It’s a pretty well-established constitutional principle that you can’t make developers mitigate more than their fair share of the problems they create. So it stands to reason that they should have no responsibility for problems that they have nothing to do with.
Except why would you deliberately put people in harm’s way by building a project in a dangerous location? Surely, if there is any purpose to planning at all, it is to eliminate the possibility that people will be harmed or killed because a development project is washed away or crumbles to the ground because of an earthquake.
Indeed, this was the reason why – in the end – Los Angeles County eventually won the infamous First English Lutheran Church case back in the 1980s. Sure, it was possible, as the Supreme Court said (at 482 U.S. 304), for regulation to create a temporary taking. But in the end, L.A. County prevailed because rebuilding the First English church camp in Tujunga Canyon wasn’t safe.
Concern for public safety was also why CEQA practitioners around the state were having trouble with Ballona Wetlands – it went against their basic understanding of why we do planning at all. Nevertheless, it appeared to be settled law – at least until the CBIA v. BAAQMD case came along and implicitly (though not explicitly) reversed it. We’ll see what the Supreme Court does.
So, on the face of it, the end of “CEQA-In-Reverse” doesn’t make sense. But no matter what the Supreme Court says, the truth of the matter is that it’s a perfectly reasonable position to take under CEQA. And it might remind us that we’re fundamentally in the business of planning, not CEQA analysis.
In California, we often use CEQA analysis as our default method of getting a developer to do something – as if we have no other way of doing it. (In this way, CEQA’s kind of like redevelopment used to be – the catch-all tool that we think is required to solve absolutely all problems.) So if we don’t want a developer to build a project in an earthquake zone, or a place where sea-level rise is predicted to have an impact, then the most obvious thing to do is hit the developer with a significant impact under CEQA and take it from there.
But Ballona Wetlands is right in one sense: Sea-level rise or an earthquake fault isn’t the developer’s fault. So if we are going to stop a developer from building in those locations, we can’t do it under CEQA. We have to use actual planning.
There is, for example, the Alquist-Priolo Act, which permits local governments to restrict development around earthquake faults. As the ultimate outcome of First English reminded us, there’s also public health and safety, which in that case – and many others – ultimately trumped the landowner’s property rights. The public health and safety power also means that planners can use zoning – for example, to restrict housing development near sources of air pollution.
Sea-level rise is a trickier question, because there is no existing law to protect against it and the extent of it is pretty speculative. This is why, with Ballona Wetlands on the books, local planners are anxiously awaiting the Coastal Commission’s guidance on sea-level rise. But existing regulatory mechanisms – such as health and safety findings – might give planners an important tool to protect against sea-level rise.
As California planners, CEQA drives us crazy. But it also makes us lazy. Because we’re so afraid of how it works, we also tend to try to use it for everything. If “CEQA-In-Reverse” doesn’t survive, that might actually be a good thing. Because it might force us to actually use planning in order to plan.