By: Caroline Lavenue
04/12/2018
I. CEQA—Admirable Goals, Bad Reputation
It is no surprise that the people most calling for CEQA reform are the developers, contractors, and those whose goals are impeded by the complex CEQA process. CEQA, like any law, is in place to dissuade potentially illegal action. It is procedurally complex, demanding time and labor in order to navigate. But is the fact that it is costly or time-intensive a reason for the law to be dropped? Is the fact that potentially fraudulent companies dislike the Sarbanes-Oxley Act because of the added cost of auditors a reason to reduce compliance measures?
CEQA holds developers accountable for their actions which, whether directly or indirectly, affect us all. It has objectively good goals; it was passed in an effort to balance policy considerations. It is a preventative, information-forcing statute that informs decision makers and the public about the potentially significant environmental effects of proposed projects before those projects are approved. For this reason, it is nearly inarguably and substantively good. Ideally, one should be able to refer to CEQA as a consistent guide to environmentally-conscious development because CEQA’s inherent goal of reducing impacts is beneficial.
Procedurally, however, it is problematic. CEQA procedural requirements come from three sources: implementing regulations, case law, and statutes. All three sources have begun to recognize the need for procedural change. Some examples are the ability of the Office of Planning Resources (OPR) to change guidelines because of Court of Appeal decisions, very short statutes of limitations (either 180 or 30 days) to file suit, the lack-of-compliance-requirements for ministerial approval, and–the ultimate white flag–approval despite environmental impacts by adopting a statement of overriding consideration.
II. Areas for Improvement
While steps have been taken to trim the headache that is CEQA, more can be done. All three procedural sources have areas for improvement.
A. Too Many Accountability Parties and Varying Exemptions
The CEQA process requires three distinct agencies with different roles: a lead agency, a responsible agency, and a trustee agency. While this serves to enhance accountability, it also creates regulatory burdens, for each agency has different roles and responsibilities.
The Lead Agency is the public agency that has the primary responsibility for carrying out or approving a project.[1] A Responsible Agency is a public agency with some discretionary authority over the project.[2] A Trustee Agency is a State agency having jurisdiction over natural resources for the public trust.[3] The Trustee Agency and the Responsible Agency roles should be collapsed into one. This will diminish confusion—communication between agencies requires time and resources–and reduce barriers to entry for proposing, lead agencies.
An added complication comes in the form of various exemptions. In regard to agencies, there are categorical exemptions prescribed by the Secretary of Resources.[4] Further complicating the matter is that there are exceptions to the exemptions. These categorical exemptions are in addition to statutory exemptions set by the Legislature. These layers of exemptions lead to variability and confusion. For this reason, there should be one list of statutory exemptions without waverability (except in extreme circumstances), and they should all be held to the same procedural requirements. In the case of a necessary exception to an exemption, the Legislature should provide courts with a concrete protocol to decide the matter.
B. Inconsistent Court Decisions and Two Standards of Review
Courts’ decisions are inconsistent, and there is widespread abuse of CEQA lawsuits for non-environmental purposes.[5] Courts should implement a uniform, high-threshold standard of review that would emphasize the Trustee/Regulatory Agency’s (see above) ultimate substantive authority; thus, the substantial evidence standard. Courts should only use CEQA as a way to achieve the requirements stated in statutes and guidelines. This would substantially diminish variability in the court system.
As a preventative measure, courts should impose strict sanctions on plaintiffs for bringing frivolous NIMBY lawsuits. The positive results of this will be seen as sanctions are implemented.
C. State-Wide Regulations from the Legislature
The above-mentioned areas for improvement can be solved with increased legislation surrounding CEQA. The Legislature must carve out more exceptions to CEQA to accommodate the categorical exemptions provided by the Agencies (see above).[6] Other suggestions include: different punishment for procedural versus substantive mishap delays; a pro/con net point valuation for projects that would result in a zero-sum game overall; different requirements for entrepreneurs versus giant corporations (based on size and/or anticipated profits); and assumption of property right guarantee before project commencement. There should be tiers of CEQA compliance and exceptions with information about potential environmental degradation being the priority.
III. Conclusion
CEQA was enacted to protect the environment and ensure that voters are given all necessary information when casting a vote. In this way, the substantive goals and concept are simple; but bureaucracy has made the procedural process exceedingly difficult. There is work that needs to be done, but an efficient CEQA process is within sights if the legislature steps up and creates the necessary changes. All in all, California would rather have than have not, for the goals of CEQA are exceedingly important.
[1] CEQA Guidelines 15367.
[2] CEQA Guidelines 15051.
[3] CEQA Guidelines 15386.
[4] Pub. Res. Code § 21084(a).
[5] Jennifer Hernandez, California Environmental Quality Act Lawsuits and California’s Housing Crisis, Hastings Environmental Law Journal 24 (2017).
[6] CEQA Guidelines 15260-15285.