Holland & Knight's new study, "California Environmental Quality Act Lawsuits and California's Housing Crisis," found that litigation under the California Environmental Quality Act (CEQA) is worsening the state's housing crisis.
The study, which analyzed all CEQA lawsuits filed statewide between 2013 and 2015, revealed that housing remains the top target of such actions. It was published in the Winter 2018 edition of the Hastings Environmental Law Journal.
The new study uses the same methodology as Holland & Knight's earlier three-year study (2010-2012) of statewide CEQA litigation. All CEQA petitions must be sent to the California Attorney General's Office, and the firm was able to obtain copies under the California Public Records Act.
Housing projects were the top target of CEQA lawsuits in both studies, with an increase in the share of CEQA lawsuits shown in the new study. The study also includes a more detailed review of challenged housing projects in the Southern California region (Los Angeles, Orange, Ventura, Riverside, San Bernardino and Inyo counties):
"Given California's extraordinary housing crisis and the shame inherent in having the nation's highest poverty rate in one of the world's most successful economies, our latest research clearly demonstrates the need to update CEQA's litigation rules to bring enforcement of the law into alignment with the state's environmental, equity and economic priorities," said Partner Jennifer Hernandez, the head of Holland & Knight's West Coast Land Use and Environmental Group. "CEQA is one of the well-recognized culprits in California's housing supply and affordability crisis. The need to update CEQA litigation rules to end non-environmental abuse of this important California law is stronger than ever."
According to the latest findings, the disproportionate use of CEQA to target housing, especially apartments and condominiums, not only constrains supply, it also perpetuates land use segregation by race and class. California communities have a long history of resisting higher-density housing that is affordable to workers earning lower wages, especially workers from minority groups such as African-Americans, Latinos and Asians. CEQA elevates this legacy bias to the environmental "baseline" against which new housing proposals are all assessed as "impacts" to the environmental character of these communities. Under CEQA's existing lawsuit rules, anyone can sue – anonymously and repeatedly – to challenge new housing, transit, infrastructure, public service plans and projects that change existing neighborhoods.
The study recommends updating CEQA's lawsuit rules to help solve the housing and poverty crisis, while continuing to meet the environmental and climate policy objectives of encouraging higher density, transit-oriented communities. These reforms include:
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