By Benjamin M. Reznik
In terms of land use regulations that have far-reaching effects on development in California, the application – or misapplication – of the California Environmental Quality Act (CEQA) is near the top of the list. CEQA, when first implemented, certainly had a well-intentioned purpose: to protect the environment. But too often, CEQA is used as a Trojan horse by development project opponents to delay or ultimately thwart construction, increasing costs along the way. One of the most egregious examples of this took place in San Francisco, where a CEQA lawsuit even delayed the construction of environmentally-friendly bike lanes.
As Gov. Jerry Brown put it in his 2013 State of the State address, “We…need to rethink and streamline our regulatory procedures, particularly the California Environmental Quality Act. Our approach needs to be based more on consistent standards that provide greater certainty and cut needless delays.”
In the wake of the Gov. Brown’s remarks, 2013 began as the “Year of CEQA Reform.” Hopes were high for changes that would ultimately help construction projects move along more quickly, bringing along with them much-needed jobs and economic development for California. But the resignation of State Sen. Michael Rubio, who was as a champion for CEQA reform in the legislature, quickly deflated hopes for significant change. What had been meaningful CEQA reform legislation ended up being transformed at the end of the legislative session into a bill that primarily addressed issues relevant to the construction of a Sacramento sports arena.
2014 also saw some changes on the CEQA front. AB 52 is one of the most significant legislative changes to CEQA in recent memory. AB 52 aims to protect Native American tribal cultural resources, in addition to giving Native American tribes a larger formal role in the CEQA process. The legislation will ultimately impact any project that involves items of historical or archaeological significance to Native Americans.
But it became clear that in 2014, any other major changes to CEQA were more likely to come from the California Supreme Court than from the legislature. As outlined in this overview by Martha Bridegam in the California Planning and Development Report, cases ranging from involving infill exemption to if whether or not a CEQA analysis must include potential future environmental impacts on a project, a.k.a. “CEQA-in-reverse.” The Supreme Court did in fact make a major decision in 2014, maintaining that a voter-approved project is not subject to CEQA review, reversing an Appeals Court decision.
2015 is beginning on a carefully optimistic note in the legislature, with Sen. Hannah-Beth Jackson (D – Santa Barbara), Sen. Jerry Hill (D – San Mateo), and Sen. Richard Roth (D – Riverside) introducing legislation that seeks to alleviate some of CEQA’s unintended consequences by creating better access to CEQA documents, in addition to allowing a lead public agency to concurrently prepare documents during the CEQA process. Other elements of SB 122 will be worked out in committee, and we’ll have to see what comes out of those discussions moving forward.
Any of the California Supreme Court’s decisions will also help shape CEQA in the years to come, and we will be monitoring those legal developments very closely.
CEQA reform in 2015 and beyond is a long game – and it must involve both legislative efforts and judicial decisions that help move it forward. If your development project is encountering issues related to CEQA analysis or any related legal actions, JMBM’s Government, Land Use, Environment and Energy (GLUEE) practice gets results with effective advocacy, negotiation, and litigation. Contact us to discuss how we can help you see your project through to completion.
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Ben Reznik is the Chair of JMBM’s Government, Land Use, Environment and Energy Department. His practice emphasizes real estate development entitlements, zoning and environment issues, including frequent appearances before city planning commissions, city councils and other governmental boards and agencies on behalf of real estate development firms and various industries. Reach him at BMR@JMBM.com or 310. 201.3572.