In the past week there has been an emerging coalition of environmental justice and mainline environmental groups opposing the CEQA revisions of SB375. Communities for a Better Environment (CBE) and the Center for Biological Diversity (CBD) have come out against the bill.  The Sierra Club and the Planning and Conservation League have withdrawn their support.  Other environmental justice groups – spearheaded by California Communities Against Toxics (CCAT) are also mobilizing to oppose the bill. I am not affiliated with any of these groups.

The nut of their argument is that SB375 creates a two tier CEQA process – with urban communities receiving less review and protection than suburban and rural ones. As such, it privileges wealthier and whiter suburban areas at the expense of the working class communities of color in the inner cities.  

The details are of course more complex than this simple one paragraph explanation.  Follow below the fold to read an EJ analysis being circulated by Jane Williams of CCAT.  

SB 375 and Environmental Justice, Jane Williams

SB 375 has the laudatory goal of encouraging transit oriented development.  The bill contains measures to encourage such development, such as providing additional funding for certain transit projects, and requiring regional planning that reduces vehicle miles traveled .  

However, SB 375 seeks to reach its goals by severely limiting the public’s right to review  projects under the California Environmental Quality Act deemed to be transit priority projects.  In so doing, the bill reduces the level of environmental rights and protections for urban communities while preserving the existing levels of environmental rights and protections for rural and suburban communities.  This has obvious environmental justice implications.  

The bill contravenes a bedrock principle of CEQA jurisprudence, namely, that all projects can be made better through public review.  Even urban in-fill projects can be improved through public review.  Existing provisions for the public review of projects has resulted in project improvements such as requirements for car-share pods, electric vehicle charging stations, solar panel installation, low-flow water fixtures, low-water use landscaping, cool roofs, additional site-cleanup of toxic contamination, and countless other improvements.

The bill undermines a bedrock democratic principle that members of the public have a right to review and comment on all projects that will affect their communities.  

We believe there should not be one set of legal rights that applies to people living in the suburbs and a weaker set of legal rights that apply to people living in cities. These legal rights are used by communities to protect the health and wellbeing of their residents by requiring developers to adopt mitigations which reduce air pollution. Air pollution, which according to the California Air Resources Board, is having a devastating impact on the health of those communities.

Environmental justice communities deserve “equal protection” of the rights conferred under state law.  SB 375 would create two standards in law: one that applies to predominantly white, middle class suburban communities and one that applies predominantly to urban, low-income communities of color.

To be specific, the bill creates a new statutory CEQA exemption which would exempt from CEQA review projects that are deemed to be transit priority projects if they meet a long list of criteria.  To qualify as a transit priority project, the proposed project must be consistent with a sustainable communities strategy developed by regional planning bodies, and must be within one-half mile of a rail or ferry corridor, or within one-quarter mile of a bus line.  This would cover much of California’s urban areas, such as San Francisco, Los Angeles, San Diego, and Sacramento.  To receive the CEQA exemption, these projects would have to meet a long list of criteria, such as not harming endangered species, not impacting wetlands, not having more than 200 residential units, not exceeding 8 acres, meeting heightened energy efficiency guidelines, and a number of other conditions.  

Thus, for example, a 199 unit residential development one-half mile from a train station could be exempted entirely from CEQA review if it is deemed a transit priority project and meets the listed requirements.  Thus, the community would be precluded from arguing in favor additional greenhouse gas mitigation measures ranging from solar panels, to car-sharing, additional environmental controls to reduce diesel exhaust from construction emissions or measures that would limit asbestos that may be released from the destruction of old buildings, or raising site contamination issues that may not have appeared on Phase I environmental assessments (a situation that is very common), or even from raising aesthetic concerns related to projects that may be far out of scale with their surrounding communities.  

Furthermore, even for larger projects, SB 375 creates a “streamlined” CEQA process called a “sustainable communities environmental assessment.”  Any residential or “mixed use residential” project that “is consistent with the use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy,” “shall not be required to reference, describe, or discuss (1) growth inducing impacts; or (2) any project specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transportation network,” or “reduced residential density alternatives.”  (Pub.Res.Code sect. 21159.28(a).)

Thus, even for large projects, if they are located near transit, and comply with the sustainable community strategy will receive streamlined CEQA review that exempts them from analyzing growth-inducing impacts and transit-related global warming impacts.  This could allow some very large sprawl developments to proceed with streamlined CEQA review and avoid global warming mitigations.  

For example, the City of Concord is currently considering the largest development in the Bay Area for over a decade at the Concord Naval Weapons Station.  The development may house up to 30,000 people.  The City is considering seven different project alternatives ranging from sprawl (houses spread across the entire weapons station) to “smart growth” (transit-oriented, multi-family housing clustered in walking distance to the BART station located at the edge of the property with vast areas preserved as open space).  Under SB 375, the project could be deemed a transit priority project since it is located near a BART rail station, and if it is consistent with the sustainable communities strategy, the City would not have to consider the fact that the smart growth alternative reduces pollution emissions drastically compared to the sprawl alternative.  This seems to undermine the very goals that SB 375 set out to address.  

In addition to removing growth-inducing impacts and transit-related greenhouse gas from consideration, the environmental assessment need only address issues that were not adequately addressed in a prior CEQA document.  The agency’s determination in this regard would be subject to the “substantial evidence” test.  Thus, if any agency has any evidence to support its determination that impacts ranging from hazardous waste left onsite, contaminated drinking water, vapor intrusion of toxic chemicals, toxic air emissions from nearby industrial sources, emissions during construction, and others, were adequately addressed in a prior CEQA document, then those issues would not have to be analyzed or mitigated again.  (See, 21155.2.(b)(7) (“The lead agency’s decision to review and approve a  transit priority project with a sustainable communities environmental assessment shall be reviewed under the substantial evidence standard.”)

In short, SB 375 reduces the legal remedies for low-income communities already heavily burdened by pollution, while preserving those protections for rural and suburban communities.  

The fundamental question is whether the goal of this bill should be pursued by depriving environmental justice communities equal protections to rights enjoyed by others.  Rights which help them reduce deaths and disability in their communities caused by air pollution.

(always great to have DMI cross-posting their stuff here from Tort Deform. – promoted by Julia Rosen)

California is pressing on in its challenge against the EPA for turning down its proposed emissions rules, adopted by 12 other states and supported by three more as well. ( NYT, BBC) The proposed standards would provide tighter protections to the public against the harmful effects of vehicle emissions on the environment, an issue screaming in its relevancy these days.

From the New York Times:

“An analysis released by state air regulators showed their 2004 tailpipe regulation would be faster and tougher than the federal fuel economy rules… By 2016, California’s standard would reduce the amount of carbon dioxide that vehicles produce by 45.4 million metric tons a year in California and the 12 other states that have already adopted the rules. That’s nearly double the 23.4 million metric tons the report forecast would be cut under the federal fuel-efficiency standards, according to the analysis, which was based on EPA air pollution modeling.”

But the EPA said “no thanks” to this proposal, preferring its apparently looser standards to California’s plan. This is the EPA’s “first time denying California a waiver under the Clean Air Act since Congress gave the state the right to obtain such waivers in 1967,” according to the NYT.

The EPA’s decision has been described as a victory for the auto industry. Automakers opposed the California rules as too strict, saying they would “reduce their selection of vehicles and raise prices in states that adopted California’s standards.” So in other words, it’s better to have a ton of cheaper cars to choose from, regardless of how badly they’re polluting the air we breathe.



Now if that ain’t like driving off a cliff in a brand new beemer, I don’t know what is…

For formality’s sake, here are some (I hope, not too annoyingly obvious) thoughts on why this lawsuit a) is important and b) further demonstrates the importance of our civil justice system as a means for checking corporate/government cronyism and the bad policies that are produced as a result:

Tort “reformers” argue that if aggrieved individuals and groups want things to change, they should change the rules of the game through legislation. First they say, “So sue me!” But if they actually get sued, they insist that the issue is better suited for the legislature than the courtroom. They paint this picture of whiney, attention-seeking plaintiffs making an overblown fuss about corporations letting off a wee bit too much smoke for their overly sensitive, air-greedy little lungs. (Geez, people can get so dramatic about their ability to breathe.)

But here’s what’s interesting in this scenario: there are clearly no whine-bags here. Here we have a bi-partisan effort, which legitimately went through the legislative process and was signed by the Governor. We have standards that have the support of at least 15 other states. Yet this effort was obstructed by the government agency charged with protecting our environment, although in the past the EPA has granted California’s waivers to impose stricter environmental standards.

This situation demonstrates clear as day how important it is to have a strong civil court system dedicated to administering justice to the public. In addition to the legislative process, we need our civil justice system as a means of providing public oversight of the federal government when its decisions conflict with the public’s interest and/or with our cherished democratic process.

According to the NYT, Schwarzenegger said that EPA officials ”are ignoring the will of millions of people who want their government to take action in the fight against global warming.” This lawsuit is California’s way of saying “We refuse to lose something we need and treasure–a right to a healthier environment–without a good fight.” Several other states are expected to join California in its claim.

Well I say sue on, Cali. Your day in court is ours, too.