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 The Sierra Club and the Planning and Conservation League have withdrawn their support.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.