Why Dueling CEQA Studies Talk Past Each Other
- William Fulton
- Jun 25, 2023
- 4 min read
Based on two recent reports coming from different quarters, it’s a little difficult to figure out what’s going on with litigation under the California Environmental Quality Act these days. But the bottom line appears to be that where you stand depends on where you sit.
One study was published by the environmentally oriented Rose Foundation and the other by the Chapman University’s law review. Both are followups to previous reports by the same folks, and not surprisingly they reach different conclusions about the impact of CEQA litigation. The Rose Foundation report, which can be found here, finds that “CEQA moves California forward in its efforts to advance environmental justice, combat climate change, and protect its most precious natural areas and monuments.” The Chapman University article, which can be found here, finds that “CEQA today is about protecting the status quo by stopping housing, and ‘those people,’ and all the infrastructure ‘they’ need.”
Which, if you think about it, are not mutually exclusive conclusions, but there is little room in either study to accommodate that idea.
The authors of the two reports – each expert in their discipline – could not be more different. The Smith-Heimers are real estate economists with long experience conducting quantitative analysis. (Janet Smith-Heimer was the found of the firm now known as BAE.) Jennifer Hernandez is a highly respect – if very aggressive – Bay Area developers’ lawyer with the law firm of Holland & Knight. Indeed, the formats were very different as well, with the Smith-Heimer report looking like a conventional economics report and the Hernandez study published as a law review article (though it was based in part on previous Holland & Knight studies that were more quantitative).
So, not surprisingly, the Smith-Heimers use more quantitative analysis and Hernandez uses more individual case studies. The Smith-Heimers criticize Hernandez for relying too much on “anecdote.” But they too draw broad qualitative conclusions using case studies, for example providing individual examples to back up their assertion that CEQA often leads to safer and more environmentally friendly housing projects.
On one basic fact, the Smith-Heimers and Hernandez agree, which is how many CEQA lawsuits are filed each year. The answer is somewhere between 170 and 200 on average. The Smith-Heimer report did a long view on the frequency of lawsuits and found that the number has not fluctuated much over the past 20 years. (They also compared the number of lawsuits to the state’s population, though the chart in their report somewhat disingenuously alters the axis scale for population but not for the number of lawsuits.) Between 2019 and 2021, the two reports agree, slightly more than 500 lawsuits were filed, or about 170 per year. The Smith-Heimers count 508, while Hernandez counts 512.
