Is the California Environmental Quality Act finally on the verge of major reform?
Or will CEQA's defenders succeed in limiting the reform to just nibbling around the edges, without attacking the law's basic structure?
Up until the resignation last month [link to blog] of Senate Environmental Quality Chair Michael Rubio, D-Bakersfield, it sure looked like major reform was a possibility. A conservative Democrat from a pro-growth (and oil-producing) region, Rubio had been pushing hard since last summer [http://www.cp-dr.com/articles/node-3254] for major reform that would alter CEQA's fundamental framework. Though Rubio backed down last August when challenged by Senate leader Darrell Steinberg, D-Sacramento, [http://www.youtube.com/watch?v=_hki4AcmRtw], he appeared likely to make a serious run at reform this year. Instead he quit in the middle of his term to take a government relationsh job with Chevron.
With Rubio gone, Steinberg quickly introduced a placeholder bill. Though short on specifics, SB 731 would seem to suggest a much less aggressive approach to reform. Meanwhile, CEQA's hardiest defenders – including the Planning & Conservation League, other environmental groups, and unions that often use CEQA litigation to challenge non-union retail stores – rallied support around the existing law.
Traditionally, the debate over CEQA reform in Sacramento have broken down along partisan lines. Pro-business Republicans, including the homebuilders and the Chamber of Commerce, would say CEQA needed to be repealed or significantly weakened because it put California at a competitive advantage compared to surrounding states. Pro-environment Democrats would hold the line, saying CEQA protected both the environment and the right of citizen and neighborhood groups to protect their interests. As a result, there has been little CEQA reform in the Legislature over the years.
But the CEQA fault lines have shifted in recent years, as some Democrats have begun to call for major reform. Since becoming governor again two years ago, Jerry Brown – an unfettered environmentalist in his first gubernatorial stint 35 years ago – has become a significant critic of CEQA, proposing that the law be streamlined for both infill and renewable energy projects. Brown expressed considerable disappointment at Rubio's resignation.
Now the pendulum seems to be swinging back toward the CEQA status quo, at least in the Legislature. So, with Rubio gone, Brown on the warpath, and CEQA advocates on the defensive, what's likely to happen?
It would appears as though CEQA reform could take three directions: the Rubio approach, a greenfield/infill split, or incremental reform.
The Rubio Approach: One aspect of CEQA that has always driven critics crazy is the fact that its practitioners can apply shifting and inconsistent standards of environmental protection, which often don't line up with the standards contained in substantive environmental laws, such as the California Endangered Species Act. Rubio had proposed revising CEQA so that if environmental standards in the substantive laws are met, no CEQA analysis is required. On the surface this idea makes sense, though it would probably require the state to revise the standards in other environmental laws so they are consistently strong. But CEQA defenders oppose this idea, partly because it would reduce their ability to use CEQA as a hammer on developers.
The Greenfield/Infill Split: A second emerging idea – one that was discussed at the beginning of the Brown Administration – would be to create two separate CEQAs, one for greenfield projects and one for infill projects. Infill advocates such as Gov. Brown are often steamed that good projects in infill locations get hung up because of CEQA traffic analysis and other procedural CEQA hurdles. A separate infill law could limit the scope of CEQA analysis and make it more difficult to oppose such projects. CEQA defenders don't like the idea of limiting citizen power over infill projects, especially in environmental justice situations.
Incremental Reform: This appears to be the approach Steinberg wants to take in SB 731 and, if Steinberg sides with the CEQA defenders, it may be the only approach that is politically feasible. As Steinberg introduced it, SB 731 calls for statewide significance thresholds on noise, aesthetics, parking, and traffic levels of service as well as land use impacts. The bill also calls for a variety of procedural changes, including limiting "late hits" and "document dumps," defining "new information" more specifically, and directing trial judges to focus only on inadequate portions of environmental documents rather than remanding the entire document for review.
All these would be welcome reforms – especially more consistency in significance thresholds, which CEQA critics have argued in favor of for the last 20 years. But they wouldn't fundamentally alter the law. CEQA would still be a procedural law, and even the simplifying changes would be implemented in context of a complicated set of procedures. As the debate over implementation of SB 226 has shown [http://www.cp-dr.com/articles/node-3279], how helpful this is depends a lot on your perspective. If you're a down-in-the-trenches CEQA practitioner, you probably think anything helps. But if you believe that the complicated procedural nature of CEQA is the fundamental problem, then you probably think these changes don't amount to much.
At the core of this debate is the basic role that CEQA plays. By proposing that CEQA re-focus on standards of environmental protection, Rubio had put his finger on the thing that people either love or hate about CEQA: It's basically a ‘70s law, focused on process rather than substance. As CEQA lecturers (including me) have had to explain endlessly, the primary goal of CEQA is not to protect the environment. The primary goal is to foster a vigorous debate about the environmental consequences of governmental decisions and fuel that debate with lots of information. The secondary goal – one almost as important to the CEQA diehards – is to empower citizens to challenge their government whenever they think it is appropriate to do so.
Over the past 30 years, in California and elsewhere, we have seen a gradual shift away from this mindset in many situations, as politicians and policymakers alike have placed greater emphasis on "getting things done" while substantively protecting the environment and less emphasis on procedure and analysis. Brown, Rubio, and other Democrats would still like to move in that direction. But with Rubio gone, the CEQA diehards appear to have the upper hand for now.
The CEQA fault lines have shifted in recent years, as some Democrats have begun to call for major reform.