Rethinking CEQA

The California Environmental Quality Act, or CEQA, recently had been enacted when I entered law school in 1971. In my 39 years of practice as a land use and environmental lawyer, little in the fundamentals of CEQA's scheme has altered, although much of the state's landscape, demographics, socioeconomics, regulatory regimes and fiscal infrastructures have.

A thorough re-examination and evaluation of CEQA's premises now are in order. This is not because CEQA has not done a good job in carrying out its original mission ("to develop and maintain a high-quality environment now and in the future"). Rather, because in its 40+ year existence CEQA has revealed its limitations in being able to effectively carry out its mandate into the future. Moreover, CEQA has revealed its vulnerability to exploitation for purposes other than environmental protection.

Unfortunately, CEQA has evolved from a regime designed "to provide the people of this state with clean air and water, enjoyment of the aesthetic, natural, scenic, and historic environment qualities and freedom from excessive noise" to an expensive, inefficient and burdensome mechanism for maintaining the physical "status quo," no matter how environmentally damaging maintenance of such "status quo" may be. Moreover, CEQA affords misplaced comfort to local governments and their constituencies that "maintenance" of existing local environmental conditions is sufficient to ensure long-term environmental quality.

I offer these perspectives, not because they are "right," but because we need to reframe the CEQA dialogue - to reexamine the "fundamentals" as to how we conduct environmental review in California, when such review is triggered, what is its appropriate scope, which agency takes the "lead" and in what context, when review is "complete," and what are the appropriate parameters for judicial review. Pending legislative efforts to reform CEQA only threaten to burden this increasingly dysfunctional legislative scheme. It is time to take CEQA apart to determine what works in terms of securing true environmental protection and what does not. In this examination, we must overcome the special interests of those who exploit this scheme's provisions to advance causes other than the environment.

Finally, we should hold true to CEQA's fundamental tenet: only through public participation and appropriate disclosures to the decision-maker will informed environment decisions be made.

There are many reasons why CEQA has lost its effectiveness over time. Here are but a few.

Environment creep. As originally conceived, CEQA had a more limited resource/habitat orientation. In Chapter 1, Policy, you find references to resources such as air, water, fish, wildlife, coexistence of man and nature. The definition of "environment" itself (Public Resources Code Section 21060.5) specifically enumerates the following physical conditions - "land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetics." As CEQA evolved, the domain of physical conditions expanded to include a host of conditions arising from impositions on human habitats, as much as nature, such as traffic (vehicular, bicycle and pedestrian), shadows (on sidewalks, streets and open spaces and parks), and wind (urban wind sheer). As the definition of "environment" expanded, the scope, scale, expense and time of the accompanying review expanded exponentially.

System analysis failure. In the 40+ years since its inception, the severe shortcomings of CEQA's causal, linear environmental analyses have become more evident.

Let's take a simple example, traffic. Most communities accept the proposition that increased traffic congestion is an environmental impact. A typical mitigation, imposed on an offending project, would be traffic flow improvements, ranging anywhere from dedicated turning lanes, to additional traffic lanes, to new interchanges. But mitigations which increase capacity simply "invite" more traffic.

Most environmental documents fail to account for the capacity enhancing "impacts" the mitigations themselves impose. Automobiles also give off air contaminants and greenhouse gases while in operation. Thus, increasing capacity aggravates existing health and climate change conditions. Finally, new capacity increases impervious surfaces, affecting water quality and hydrological conditions.

Moreover, mitigation, which incrementally accommodates more and more traffic, fails to encourage alternative transportation modalities, particularly mass transit. Such capacity-enhancing mitigations remain the norm because transit modalities are regional in nature and beyond the capacity of individual jurisdictions to initiate or maintain.

Resource/reviewer misalignment. California's most precious environmental resources are part of complex ecosystems. Such systems generally extend well beyond the jurisdiction of the lead reviewing agency. While other agencies are empowered to fully engage, and contribute to, the environmental review of a project affecting a multijurisdictional resource, rarely do they have the time or manpower to significantly influence local decision-making. Consequently, environmental resources are lost on an incremental basis, as local jurisdictions make provincial impact/mitigation decisions, which affect the greater resource. The most effective response to this provincialism, in the past, has been legislative enactment of "super agencies," such as the Bay Conservation and Development Commission, the California Coastal Commission, or the Tahoe Regional Planning Agency, whose mandates extend to resource protection, above and beyond local government.

Data failure. The public and decision-makers seem to find great comfort in data. Numerical representations of seconds added to intersection delay, increased exposure to carcinogens in parts per billion, increased metric tons of greenhouse gases, bolster decision-maker confidence. But data presents a fundamental problem. It does not tell you what it hides. Most data relies on modeling assumptions. What they are and why they are made often is beyond the reach of the reviewing agencies and their decision makers. One of my clients recently spent over $1 million in working with a local jurisdiction to establish a workable greenhouse gas impact model. There are an extraordinary number of assumptions made in creating such a model. And, in all likelihood, as the science advances, such "sophisticated" models will become obsolete.

Even traffic data, frequently the center of environmental controversy, is capable of a wide range of outcomes, depending on what variables are included in the model. For example, a project's traffic impacts, when considered in a recessionary economy, will be decidedly different than the same project's impacts, when evaluated in burgeoning economic times.

Environmental mercantilism. One of CEQA's most profound shortcomings is that it frames the "project" as the agent responsible for potential environmental degradation. This framework forces battle lines, reminiscent of the Western European colonization in the 16th century. Mercantilism maintained that there was only so much global wealth. Those countries controlling more "globe" would be the wealthiest.

CEQA sustains the same mindset of limitation. There are only may so many resources; they must be marshaled sparingly; failure to do so will forever damage quality of life.

Mercantilism was invalidated when those engaged in economic activity came to recognize that the "wealth pie" could be grown. We are beginning to understand the same of our environments. Environments are capable of more than "protection." They also can become the objects of "restoration," or even "regeneration."

But it is very difficult to engage in the needed dialogue amongst the environmental communities, business and government, when the presumption is that the agents of change are the "enemy." A reframed CEQA has to move beyond the tired notion of "sustainability" to rewarding collaboration and creativity in growing the "resource pie."

Palliative, not cure. CEQA, by focusing only on new projects, as the provocateurs of environmental degradation, falsely implies to local decision-makers and their constituencies that rigorous enforcement of CEQA is "good enough" for environmental protection.

But CEQA is a palliative, not a cure for past degradation. The kinds of environmental mitigations (e.g., water conservation, energy demand reduction, sustainable building materials, recycling practices and transportation demand management) being incorporated into new structures, and their operations, signal the future for all of us, not just project sponsors.

Exactions source. There is no doubt that Proposition 13 forever changed the fiscal dynamics of local communities. CEQA, unfortunately, has become an instrumentality, through the use of disproportionate exactions (denominated as "mitigations"), to access revenues. Many types of "infrastructure" including roadways, sidewalks, parks and recreation areas, and the like are being funded through CEQA mitigations. Some communities have gone so far as to reduce their "thresholds of significance" for traffic, water and sewer related impacts so as to ensure the exaction of such fees.

CEQA hijacking. The structure of access to the courts, and the applicable standards of review, under CEQA pose a special problem. The number of CEQA actions filed for purposes unrelated to environmental protection are legion. Organized labor, business competitors, "no change" advocates, all have accessed the courts, under CEQA, anticipating that the delay, cost and uncertainty of outcome will drive the project proponents to abandon or modify their projects, or resort to outright "buy offs" of challengers, irrespective of their environmental bona fides. This is probably the thorniest of all the CEQA issues. The unintended consequences to communities and project proponents for this type of abuse are hard to quantify. On the other hand, speedy remedies for CEQA noncompliance are critical for the law to function.

Disclosure's end. The courts have had more to do with the evolution of CEQA than the Legislature, state and local bureaucrats, or scientists combined. Something about CEQA's structure and the political prominence of the litigated projects makes for judicial activism. The unforeseen consequence of the annual litany of CEQA decisions has been to convert Environmental Impact Reports, or EIRs, from vehicles of education and disclosure to encyclopedic composites of formulae and tropes, designed to satisfy applicable court decisions and survive legal challenge. The documents have become so expansive and contrived as to become inaccessible to the general public and too burdensome to decision-makers. Rarely can an EIR, with appendices, be found at fewer than 500 pages, with more than 1,000+ pages becoming the norm for larger projects.

Cost/benefit. The "CEQA industry" is annually a multibillion-dollar enterprise. I have never seen a report quantifying aggregate annual dollars spent on its administration in the private and public sectors. But such information might prove elucidating as we weigh the CEQA's future. The number of habitat restoration projects, investments in ecological research, and environmental education programs that might have been funded, with only a small percentage of the dollars wasted on CEQA's inefficiencies, is hard to imagine.

I am coming to the conclusion that CEQA has been undermined by a desire to have it accomplish too much, not only with respect to the environment, but other local policy and fiscal pursuits. There is, embedded in CEQA, sound policy, effective process, and the potential for extraordinarily sound decision-making. But CEQA has become overburdened with other agendas, unrelated to the environment.

It will take collaborative and creative engagement to effectively restore CEQA, just as it will take that same engagement to restore the environment.

I will address some ideas for this engagement in my next column.