A broken environmental review system means change is coming – progressives should articulate their vision before one is imposed on them

As Brian explained yesterday a last-minute end of session gut and amend effort to change the California Environmental Quality Act will not move forward. But that doesn’t mean the effort to reform CEQA has come to an end, nor does it mean that the broken system of environmental review can be left to continue to rot. The same coalition that came together this month to push reforms will merely redouble their efforts ahead of a 2013 push to change CEQA. They’ve got the money and the momentum. I would not bet against them.

Many progressive groups across the state mobilized to block this specific reform proposal, charging that it would in fact carve out a series of loopholes to existing laws and help environmentally unfriendly things like offshore oil rigs avoid CEQA review.

These charges are very serious, and if true would indeed mean this proposal wasn’t the right way to reform CEQA. Surely it is the case, as the LA Times argued, that reforms of this importance should be carefully deliberated and not rushed. I agree with that assessment, and shoehorning this into the very end of a legislative session was not a confidence-building move.

But reform is still needed, and progressives would do well to get out in front by proposing a better way to not only review projects, but to ensure that state and regional planning is done in a way that meets 21st century needs of environmental protection and reducing carbon emissions. Unless progressives actively propose an alternative, however, I fear they will get steamrolled. In this post I explore some reasons for reform and what a progressive solution could look like.

The case for reform remains strong. CEQA reform is going to happen. Its backers have the money, and they have the momentum. They can point to any number of truly egregious examples of wanton CEQA abuse to make their case for them. One is the man who stalled the San Francisco Bike Master Plan for four years with a CEQA suit, on the charge that giving bikes more space on the roads would hurt the environment by causing traffic.

High speed rail advocates have seen CEQA used to delay the environmentally and climate friendly project, with well-heeled Peninsula NIMBYs filing lawsuits under CEQA they keep losing, aside from technical fixes that the project was easily able to make. CEQA has even been used to try and overturn a marijuana dispensary ban (and while I oppose such bans, I also don’t see this as a legitimate use of that law). It’s ridiculous things like that which make a mockery of the law and are simply not affordable in an era of climate crisis.

On the other hand, environmentalists have also pointed to a number of examples that showed how CEQA legitimately stopped environmentally damaging projects that other laws would have allowed. One friend described to me yesterday a pollution-spewing project that was permitted under loopholes in existing laws, only to be stopped by a CEQA suit.

My response was that showed the need for reforming not just CEQA, but California’s whole approach to environmental regulation. A new system is needed, because this one is broken. It doesn’t make sense that one should have to go to court to stop an oil refinery but that someone can use environmental law to stop an electrified passenger train that massively reduces carbon emissions. Something isn’t right here.

Others have reached similar conclusions. In 2006, SPUR issued a report titled Fixing the California Environmental Quality Act. They argued that CEQA has failed to meet its objectives, has actually made environmental problems worse, and that it should be replaced in urban and suburban settings with a statewide planning process:

In the absence of strong statewide planning and in the presence of weak local planning, stopping projects is what California does best. CEQA has become the tool of choice for stopping bad ones and good ones. SPUR has reviewed CEQA from the standpoint of sound planning and environmental quality. We contend that after the law’s 30-plus years of operation, the type and pattern of developments, viewed at citywide, regional, and state scales, are environmentally worse than before. Not all of this can be blamed on CEQA; it has improved individual project design in some cases. Yet viewed broadly, CEQA has contributed to sprawl and worsened the housing shortage by inhibiting dense infill development far more than local planning and zoning would have done alone. To re-form California, we must first reform CEQA….

Our neighbors to the north provide a dramatic model for change. At almost the same moment that California turned to environmental impact reports to protect its environment, Oregon turned to a strengthened planning program, requiring effective local plans and zoning by all jurisdictions. Oregon has protected and greatly improved its natural environment without review of individual projects, but with sound intergovernmental planning. The recent property-rights crusade that passed compensatory zoning at the Oregon ballot box does not lessen the fact that the Oregon environment remains one of the most pristine in the country.

California ought to be moving toward a system where we have statewide land use plans that have regional and even city specificity, emphasizing environmentally friendly projects and mandating carbon emissions reductions. That’s the goal of SB 375, and the basis of a lawsuit by Attorney General Kamala Harris against the San Diego Association of Governments plan which did not meet the state’s greenhouse gas reduction targets and instead favored sprawl. Governor Jerry Brown is very interested in these kinds of modernized plans and that’s good. Harmonizing CEQA with those kinds of state and local plans is smart – as long as those plans are modernized and up to date.

More fundamentally, the current CEQA process is not one that encourages thoughtful design or encourages democratic participation. CEQA relies on lawsuits as its primary enforcement mechanism. But many people in communities affected by the worst environmental impacts don’t have the money to go to court. The existing planning process is often described as “decide-announce-defend” where a government agency or private developer decides to do something, announces it, and then holds public meetings to defend it. A more inclusive process, one that would address environmental and social justice concerns, would still have the courts as a pathway but could rely on more democratic processes of engagement to develop regional general plans that meet statewide carbon reduction requirements and environmental rules. Of course, the details of how that might work matter a lot.

Further, CEQA is inherently biased in favor of the status quo. An existing oil refinery or a freeway doesn’t have to face the CEQA process, but a new wind farm or an electric passenger rail system does, making it harder and more costly to replace the polluting infrastructure with clean infrastructure. There’s got to be a better way – CEQA should help address climate change and clean up the skies, the waters, and the neighborhoods, not make it harder to do that.

Good reforms won’t create new loopholes or allow polluters to escape their responsibilities. Good reforms would preserve the key pieces of CEQA, including court enforcement, while also bringing it in line with laws like AB 32 and SB 375. It would favor green, carbon reducing projects while still holding them to environmental standards. It would not be something that people could abuse for purposes that aren’t related to protecting the environment or reducing carbon emissions.

As I’ve argued before, it won’t work to try and maintain the current status quo. CEQA does need reform and that the status quo isn’t acceptable. I wouldn’t want to see CA progressives wind up in a place of defending the current process from any kind of change.

Without reform, the legislature will keep finding ways to give projects whose backers are politically connected CEQA exemptions or expedited reviews. Farmers Field in LA got a bill passed to expedite their CEQA review thanks in part to those connections. I’m not convinced that’s the best way to reform CEQA, but we will see more of it in the absence of lasting fixes.

We need to close the loopholes but also modernize the law and harmonize it with our climate efforts, rather than letting it undermine those efforts. While this specific plan may be dead, others are out there. Eventually one of them will pass. The other side has a lot more money and they have a solution to a system that is broken. I would not bet against them. It is time for a progressive solution. There’s at least four months in which one can be crafted. I hope that work is now under way.