September 13, 2012

Is CEQA "Fixed"- Do Infill CEQA Reforms Help or Handicap Your Project?

Jennifer L. Hernandez

California's Legislature passed the California Environmental Quality Act in 1970 (Pub. Res. Code § 21000 et seq.)("CEQA") to establish a process for lead agencies to analyze and mitigate potential environmental impacts resulting from planning and new development. In the more than four decades since its adoption, CEQA has been a magnet for controversy, in part because it fuses planning with public input with science. Because of its wide-sweeping range of substantive topics, project opponents frequently leverage CEQA litigation as a tool to obstruct, if not altogether halt, projects - and to negotiate non-environmental concessions in settlements. The result is a vast body of case law, now fraught with inconsistency and ambiguity, interpreting CEQA requirements and the Guidelines for CEQA (14 Cal. Code Regs. §§ 15000-15387). The CEQA litigation risk has created a morass of uncertainty in terms of costs, timing, and requirements for compliance for project applicants and lead agencies. Experienced representatives of the public and private sectors can cite countless examples of CEQA abuse, with lawsuits filed to derail projects or settle for non-environmental concessions (and fees).

The Legislature has periodically responded by attempting to create "streamlined" process for projects that are presumptively environmentally beneficial, such as infill projects. We invite you to review these reforms and test whether they help or handicap your project - or whether they are simply inapplicable, and thus irrelevant. Recent legislative efforts on CEQA infill include:

  • SB 1925 (Sher, 2002)
    SB 1925 created a statutory exemption for residential infill development. A project must satisfy over 20 pre-conditions to qualify for this exemption. Because of the exclusionary effect of all of the pre-conditions, to date there have been no confirmed instances of the use of this statutory exemption, although it remains in CEQA - prompting some to call it CEQA's "unicorn" - much discussed, never seen.
  • SB 375 (Steinberg, 2008)
    This bill, designed to limit greenhouse gas ("GHG") emissions from vehicles through thoughtful design of regional land development patterns, links transportation funding to “Sustainable Communities Strategies,” that will effectuate GHG emissions reduction targets. SB 375 also streamlines CEQA review for certain transit-oriented projects. To date, there have been no confirmed instances of the use of these streamlining provisions.
  • AB 900 (Buchanan and Gordon, 2011)
    AB 900 allows lawsuits brought against designated types of projects that have been accepted into the AB 900 process by the Governor and Legislature to bypass trial court review and proceed directly to the Court of Appeal. Judicial review for these projects skip the trial court, and go directly to the appellate court. The Planning and Conservation League recently challenged the constitutionality of AB 900. No projects have enrolled in the AB 900 process.
  • SB 226 (Simitian, 2011)
    SB 226 streamlines the CEQA process to facilitate development of certain urban infill development and renewable energy projects that meet qualifying criteria, including performance standards to be developed (after CEQA review) by the Office of Planning & Research. SB 226 cannot be used until these performance standards are developed, which is anticipated to occur by the end of 2013. Because AB 226 is not yet available for use, no projects have used the AB 226 process.

These infill project CEQA provisions have sparked controversy and concern from all stakeholders - environmental advocates, public and private sector project sponsors, NIMBYs, environmental and neighborhood activists, organized labor, and private sector competitors. Some stakeholders decry the CEQA reform efforts as virtually worthless and opine that they do not result in any meaningful reform - and actually increase litigation risk. Others claim that reform efforts have diluted CEQA's effectiveness and will lead to environmental harm.

We encourage you to draw your own conclusions by tracking your project's eligibility for these reforms in the attached flowcharts, and then to judge whether - if your project is eligible - the reforms would provide (or would have provided) meaningful relief from challengers using CEQA for non-environmental purposes. Also please consider completing the attached questionnaire to share your results as the debate about CEQA reform continues.

For more information on CEQA reform and CEQA compliance practices, please contact Jennifer Hernandez or Melanie Sengupta.

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