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Reform of California’s Environmental Quality Act Has Greens Split

Enviros agree that landmark act needs an overhaul, but some worry that bill has gone too far

When it was passed in 1970, California’s Environmental Quality Act (or CEQA) was hailed as a landmark achievement, a precursor to the federal law that established the EPA and a baseline for environmental protection. More than 40 years later, however, environmentalists complain that some parts of the law have become counterproductive. Their biggest concern is that CEQA may be inhibiting smart growth in the state.

Parking lot near Golden GatePhoto by Ingrid TaylarThe bill eliminates removal of parking as grounds for legal challenges against development near transit stops. Some environmentalists worry that that CEQA may be inhibiting smart growth in the state.

The question over how (or whether) to reform CEQA came to a head in the recent legislative session as Senate President Pro Tem Darrel Steinberg (D-Sacramento) rushed a measure through the legislature to tweak CEQA — and grease the wheels on a plan to build a new basketball stadium in the state capital. The resulting bill (Senate Bill 743), which Governor Jerry Brown’s signed on Friday, leaves environmental groups uncertain about whether they have just won a victory or suffered a serious blow to CEQA’s provisions for public participation and citizen enforcement in environmental review processes.

“The big issue that was driving the conversation this year was this idea that CEQA inhibits infill development and smart growth,” says Kevin Bundy, a senior attorney with the Center for Biological Diversity. “I think there is a lot of agreement that smarter development is necessary and that we need to be building in a way that isn’t car dependent. Where the disagreements come in is how the law approaches what smart growth really is, and whether the best way to support smart growth is to cut the public out of the process.”

The bill eliminates removal of parking as grounds for legal challenges against development near transit stops. It also removes the Levels of Service (or LOS) metric for evaluating transportation impacts under CEQA. Many environmental groups have criticized LOS because it measures the transportation impacts of new development projects based on car congestion alone, ignoring other considerations such as the number of additional car trips generated by a project, or the number of pedestrians using an intersection.

Examples of the problems with LOS are not in short supply. Consider a project to build a new sidewalk, which boosts the walkability of a street and could discourage car use. Under CEQA, if the sidewalk replaced a car lane, and as a result increased car congestion, the plan could trigger costly environmental review and mitigation. As Amanda Eaken, deputy director of NRDC’s Sustainable Communities, Energy and Transportation Program, explains: “We just found it ironic that CEQA [was] a barrier to promoting walking.”

Or consider a downtown office development that would concentrate workers and, in the short term, increase commuter traffic. (Though in the long run it might increase the viability of mass transit.) Under CEQA’s mitigation requirements, the developers might be required to expand local roads to mitigate traffic impacts. According to Eaken, “The problem with LOS is that in the name of environmental quality, [it] has been promoting perverse mitigations such as road-widening.”

SB 743 begins to address these problems by mandating the California Office of Planning and Research to develop new guidelines for evaluating transportation impacts under CEQA. But is the bill really a victory for the environment?

Although most environmental advocates support LOS reform, groups are divided on whether several CEQA exemptions included in the bill outweigh its positive elements.

For example, SB 743 carves out a CEQA exception for the Sacramento Kings’ new basketball arena, streamlining environmental review for the project. Many environmental groups say this exceptionalism unfairly favors special interests, with potentially negative consequences for the environment. “Why does one law apply to rich stadium owners, and another to everyone else?” says Kathryn Phillips, director of Sierra Club California. “Environmental review is important.”

“[SB 743] also appears to provide a broad exemption from review for infill projects,” says the Center for Biological Diversity’s California climate policy director, Brian Nowicki. Although infill development can support smart growth goals, the full impact of this exemption remains to be seen. “Depending on how this gets applied, it could be a sweeping new exemption,” Bundy says, and “not just for the types of projects most people consider smart growth.”

So does SB 743 represent a fair trade? LOS reform in exchange for the exemptions to the Kings’ arena and infill projects?

Not according to the Sierra Club’s Phillips. Referring to CEQA guidelines issued by the California Office of Planning and Research, Phillips explains: “cities have the ability to not use LOS. You don’t need legislation [to accomplish this reform.]” Recent efforts in San Francisco and San Jose validate her point. In the absence of statewide LOS reform, both cities have taken steps to scale-back and replace LOS requirements to encourage smart growth.

It’s hard to say where SB 743 leaves us. No one seems to be arguing that LOS reform is a bad thing. And maybe statewide clarity and consistency regarding LOS will be a boon to smart growth, regardless of whether legislation was truly necessary to bring reforms. What is less certain is whether the tradeoff was worth it, and how the broader CEQA exemptions included in the bill, and the precedent of exceptionalism for high profile construction projects, will impact environmental protection efforts throughout California.

Zoe Loftus-Farren
Zoe Loftus-Farren is is a contributing editor at Earth Island Journal. She holds a J.D. from the University of California, Berkeley, School of Law, and and writes about climate change, environmental justice, and food policy. Follow her on Twitter @ZoeLoftusFarren

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