Following up on their 2015 report covering all CEQA lawsuits filed during the 2010-2012 period, Holland & Knight lawyers Jennifer Hernandez, David Friedman and Stephanie DeHerrera recently released a portion of the sequel – the 2013-2015 update – covering CEQA lawsuits targeting housing projects within the Southern California Association of Governments (SCAG) region. The document is entitled “In the Name of the Environment Update: CEQA Litigation Update For SCAG Region (2013-2015)” and can be found on Holland & Knight’s website at https://www.hklaw.com/publications/In-the-Name-of-the-Environment-Update-07-26-2016/. The accelerated release of findings for California’s most populous region – SCAG covers six counties and 191 cities – was prompted by Governor Brown’s controversial May 2016 proposal to require “by right” ministerial approvals of zoning-compliant multifamily infill projects meeting certain affordable housing and other criteria. (My post on the 2015 Holland & Knight study can be found here; my partner Bryan Wenter’s post on Governor Brown’s “by-right” proposal can be found here.)
The new study reports that the percentage of total CEQA lawsuits in the SCAG region that target approved housing projects is 33 percent, as compared to a statewide number of 21 percent, and that 99 percent of the approved housing units thus targeted were in “infill” locations as defined by OPR, i.e., occurring on “unused and underutilized lands within existing development patterns, typically but not exclusively in urban areas.” Moreover, of the CEQA lawsuits aimed at stopping housing projects in the SCAG area, 71 percent of these were aimed at higher density, multifamily residential projects.
The new study highlights the role of CEQA litigation in what it refers to as “heated policy disputes about the land use and transportation future” for SCAG’s established and evolving communities, i.e., the clash of visions between those seeking to preserve existing community character and those supporting increased density to reduce GHG emissions, conserve energy and water, and reduce VMTs. It concludes that CEQA’s “litigious structure … favors the wealthy and harms the poor,” resulting in an “insufficient housing supply and soaring housing prices that have doomed about nine million [Californians] to substandard and unaffordable housing, often located far from available jobs, and have caused an explosion in the State’s homeless population.” The new report also includes anecdotal evidence from news media sources to support its conclusions of CEQA litigation abuse and the need for reform.
For a rosier view of the way CEQA operates, readers can check out BAE Urban Economics’ August 2016 report entitled “CEQA in the 21st Century – Environmental Quality, Economic Prosperity, and Sustainable Development in California,” http://rosefdn.org/wp-content/uploads/2016/08/CEQA-in-the-21st-Century.pdf. The BAE report claims the number of CEQA actions filed has not materially increased over the years, and criticizes the Holland & Knight study for not comparing the quantitative litigation data “to the universe of all CEQA projects,” which it asserts actually reveals a “low rate of CEQA litigation” reflecting that less than 1% of projects not determined to be exempt are challenged under CEQA. It also “cherry picks” a handful of major CEQA projects (one litigated, and four not) which it describes to tout CEQA’s virtues, while pointing to economic indicators of California’s strong economy despite CEQA as evidence warranting dismissal of CEQA criticisms and calls for reform. Perhaps unsurprisingly, the BAE study does not directly address the Holland & Knight report authors’ specific reform proposals of (1) ending anonymous CEQA lawsuits; (2) ending duplicative CEQA lawsuits where projects comply with previously-approved and CEQA-reviewed plans; and (3) reserving the judicial remedy of completely setting aside project approvals for those projects that could actually harm public health or environmental resources, while preserving the remedy of requiring adequate study and mitigation but not halting other projects where a CEQA flaw is found.
In my view, there should by this point be no real debate over the need for meaningful CEQA reform. Fallaciously arguing that the state economy is doing just fine without it is a bit like saying we shouldn’t strive to cure cancer because most of the population doesn’t have it. A good but flawed law can be improved and made better. While CEQA is an undeniably valuable law that few would dispute has greatly improved the State’s environmental quality since its enactment, those who have seriously studied and documented the very real existence of litigation abuses aren’t calling for “throwing out the baby with the bathwater” – rather, they propose a limited (and, in my view, modest) set of specific reforms to address documented, real-world problems.
CEQA-savvy groups and organizations who currently exploit the State’s signature environmental law with litigation brought for their own non-environmental purposes are keenly aware of the problems documented in Holland & Knight’s new report, but just don’t care and will always oppose reform because it doesn’t suit their agenda. Others who genuinely believe CEQA “works just fine” are encouraged to read the Holland & Knight report and judge for themselves whether CEQA has problems that should be fixed.