Little Hoover Commission’s Recommendations Undermine Fundamental CEQA Protections – Guest Article
The California Environmental Quality Act (CEQA) is again in the crosshairs. Wrongfully blamed for everything from the housing crisis to water shortages, CEQA is the go-to bad guy for the development community. In 2023, the state’s Little Hoover Commission decided to take on CEQA reform.
CEQA is California’s premier environmental and public process law. CEQA gives people the ability to voice their input on land use projects and requires applicants to do their fair share to protect California’s environment and our communities. By requiring discretionary land use projects to consider the environmental impacts, CEQA has helped promote sustainable development in California.
CEQA has helped safeguard the state’s lands, air, waters, and communities for over five decades. It has been instrumental in reviewing countless projects that would have spewed toxins into our air, contaminated our land, and poisoned our drinking water.
Because of CEQA, ordinary Californians have successfully protected our magnificent beaches, prevented congestion and sprawl, and safeguarded the health and well-being of their families and their communities.
PCL helped to draft CEQA and get it passed. Each year, however, numerous legislative bills are introduced, trying to bypass the CEQA process. PCL works relentlessly at the legislature to protect CEQA from such approaches and works with stakeholders across the state to keep CEQA as a vital tool for communities, all while trying to update CEQA to be more efficient, effective, and predictable.
The guest article below by PCL Board President Doug Carstens and Communities for a Better Environment’s Legal Department Co-Director Jennifer Ganata summarizes the Commission’s proposals and the merits.
The article below appeared in the Daily Journal on June 10th, 2024.
Little Hoover Commission’s Recommendations Undermine Fundamental CEQA Protections
By Jennifer Ganata and Douglas Carstens
The Little Hoover Commission’s recent report, CEQA: Targeted Reforms for California’s Core Environmental Law, proposes to amend the California Environmental Quality Act (CEQA) in six areas and recommends “in-depth studies” of several others. While Commission Chair Pedro Nava notes that California has “incalculably benefited from CEQA,” the report’s specific proposals would make fundamental changes to the law, dangerously undermining CEQA’s protections for communities and the environment.
The Little Hoover Commission is supposed to be a fact-finding body. Its charge is to perform the difficult task of collecting facts—hard evidence, verifiable data—to identify specific problems to be solved through legislative action. Here, the Commission failed to perform that function: not only are the report’s proposals to weaken CEQA unsupported by credible evidence, but in some cases, the report’s own facts and analysis contradict its recommendations.
The report characterizes its “reforms” as “targeted and limited,” measures that would “improve the functioning of CEQA … without sacrificing necessary environmental protections.” The public should not be fooled. The proposed amendments would dismantle key elements of CEQA, weakening environmental review requirements and threatening communities’ ability to enforce the law in court. Further, the report recommends these changes even while acknowledging “[o]ften CEQA’s protections have been most profound in the most disadvantaged in vulnerable communities, where negative environmental impacts have often been the greatest in the past.” Why would the Legislature choose to weaken CEQA when the state’s vulnerable residents most need its protections?
Five “reforms” exemplify the Commission’s determination to roll back longstanding CEQA protections.
First, the report proposes a new limitation on plaintiffs’ “standing” in CEQA cases, a restriction that does not apply to any other public interest litigation in the state. If adopted, this proposal would have a chilling effect on meritorious CEQA claims, closing the courthouse doors to many community members seeking to enforce law. Tellingly, the report includes no specific analysis or findings to explain the need for this drastic change.
Second, the report recommends an extreme proposal to restrict the public’s right to comment on environmental documents; the restriction would apply to any project, no matter how destructive. This proposal would undercut CEQA’s longstanding guarantee of public participation in the land use process—a hallmark of the law. Frontline communities already overburdened by pollution should not be prevented from speaking out against harmful developments. Their comments on environmental documents do not stop projects, but improve them.
Third, the report proposes a new, “simplified” exemption for all housing on sites that are at least three quarters surrounded by existing urban uses, “with no conditions or qualifications.” If adopted, this change would represent a radical departure from the Legislature’s previous approach to CEQA exemptions. Unlike previous legislation, this exemption would include no requirements to protect natural and cultural resources and no condition that some housing units be affordable. Nor would the exemption include any restrictions on the location or size of the project or any other safeguard against urban sprawl. Indeed, the “simplified” measure would be broader than any housing exemption ever enacted by the Legislature.
Remarkably, the report does not attempt to explain the need for this extreme measure. Instead, it concedes the Legislature has already adopted broad new exemptions for housing in 2023, and opines that “the state should wait to measure the success of recent reforms before embarking on major additional changes.” The Legislature should follow this advice, taking the time to assess how existing exemptions are working—and their possible pitfalls—before adopting new ones. They should also focus on the real impediments to housing production, such as high land and construction costs, high interest rates, market timing by developers, and lack of subsidies for affordable housing. Additional proposals to exempt housing from CEQA review will not solve the housing crisis because—as multiple experts have found—CEQA didn’t cause the crisis in the first place.
Fourth, the report recommends that the Legislature study a proposal requiring plaintiffs to post bonds when filing CEQA challenges to certain types of development projects. This extreme proposal would effectively do away with CEQA enforcement for such projects, as non-profit organizations, who already bear a heavy financial burden in bringing CEQA actions, could not afford the risk of paying the bond if they lose. Citizen suits are the primary driver behind CEQA enforcement, with the Attorney General bringing enforcement actions only rarely. Thus, where bond requirements are imposed, CEQA could be violated with impunity.
Fifth, the report recommends that the Legislature study a proposal that would permit lead agencies to “lock in” analytical models for “some reasonable period” regardless of any new scientific information that might emerge. This proposal is misguided. Allowing agencies to approve development projects based on obsolete science or discredited data undermines effective decision-making and threatens California’s environment. Again, the report provides no justification for this dangerous proposal. In particular, it does not document its claim that agencies must “throw out” analyses when new modeling options become available.
These proposals, long sought by the building industry, are not targeted “reforms,” but major alterations to CEQA’s essential components. If they are implemented, Californians will lose the vital protections that CEQA has provided for half a century. Projects that threaten public health and/or natural resources could go forward without transparency and mitigation—exactly the problem CEQA was designed to address. Environmental justice organizations and other vulnerable California residents would suffer the most. Because the report never makes a case for such a drastic transformation, the Legislature should view it with great skepticism.
Jennifer Ganata is Communities for a Better Environment’s (CBE) Legal Department Co-Director. CBE is one of the preeminent environmental justice organizations in the nation. Prior to becoming Legal Department Co-Director in 2024, Jennifer was CBE’s senior staff attorney since 2018.
Douglas P. Carstens is board president of the Planning and Conservation League and managing partner of Carstens Black & Minteer LLP. His law firm specializes in environmental, land use, municipal and natural resources law.
This article Originally Appeared in the Daily Journal on June 10th, 2024.