It’s possible to argue that the California Environmental Quality Act (CEQA) has done more to harm the lives of hard-working Californians than it has done to help the environment. The act has increased the costs of living and doing business in the state and is one of the reasons residents and employers flee to other states like Arizona and Texas.
Zoom out from the specifics, though, and look at what it reveals about how government, even in the bluest of blue communities, actually works. Why was it so easy for a few local homeowners to block U.C. Berkeley’s plans, over the opposition of not just the powerful U.C. system but also the mayor of Berkeley and the governor of California? The answer, in this case, was the California Environmental Quality Act — a bill proposed by environmentalists and signed into law in 1970 by Gov. Ronald Reagan that demands rigorous environmental impact reviews for public projects and that has become an all-purpose weapon for anyone who wants to stymie a new public project or one that requires public approval.
There are laws like this in many states, and there’s a federal version, too: the National Environmental Policy Act. They’re part of a broader set of checks on development that have done a lot of good over the years but are doing a lot of harm now. When they were designed, these bills were radical reforms to an intolerable status quo. Now they are, too often, powerful allies of an intolerable status quo, rendering government plodding and ineffectual and making it almost impossible to build green infrastructure at the speed we need.
As blowback to the Berkeley case mounted, some political leaders took concrete action. State Sen. Scott Weiner, a Democrat, told Politico, “CEQA is the law that swallowed California.” State Sen. Weiner introduced a bill that would exempt student and faculty housing from CEQA. The Los Angeles Times reported:
When CEQA recently threatened thousands of young Californians’ admissions to the state’s flagship public university, legislators had enough. They introduced a bill to let the students enroll, passed it unanimously, and Gov. Gavin Newsom signed it all within four days.
But CEQA needs to be permanently reformed for more than just student housing. CEQA needs to be reformed for all physical infrastructure such as housing, transportation facilities, and hospitals.
CEQA was passed in 1970 and signed into law by Ronald Reagan just as the federal government was enacting the National Environmental Policy Act (NEPA). CEQA goes further than NEPA, requiring more public input and comprehensive analysis.
When it was passed, CEQA was designed to study the effects of new roadway construction on the environment. Yet, state legislators have expanded CEQA’s jurisdiction to include almost any new type of construction. Major amendments to the act were passed in 1972, 1976, 1978, 1984, 1989, 1993, 2010, and 2019. Additionally, small changes are made to CEQA almost every year.
As a result, today, CEQA evaluates change from the existing conditions, short- and long-term impacts, direct and indirect changes, cumulative changes, and local and regional plans for both county and state governments. State and county governments need CEQA attorneys on their staff just to explain how to interpret the new rules.
For example, simply determining the required type of CEQA review is challenging. Certain types of projects can be exempt; governments have lots of discretion. And governments interpret the statutes in wildly different ways. A project to convert high occupancy vehicle (HOV) lanes to high occupancy toll (HOT) lanes may be exempt from CEQA in Los Angeles County but not in San Francisco.
Further, the CEQA review process is not linear. Governments move through CEQA’s six stages at the same time often ping-ponging back and forth. For example, to widen I-15 in San Bernardino County, the California Resources Agency (CRA) determined an environmental impact report was necessary. Caltrans determined the scope and then moved on to the initial study. Yet after that initial study, CRA required Caltrans to go back and broaden the scope of analysis.
Finally, groups that are not affected by an infrastructure project often use CEQA as a type of log-rolling activity to prevent projects they oppose. For example, NIMBY groups often use the act as grounds to oppose the construction of any multi-family housing projects in places like San Francisco, even though they and their property would not suffer any harm from the proposed project.
As bipartisan calls to fix CEQA grown, what can California do?
First, the state could exempt housing projects from CEQA. New housing, desperately needed in many parts of the state, is not a major contributor to greenhouse gas emissions.
Second, the state should limit changes to CEQA statutes to every 10 years. Environmental review laws were never designed to be changed every year and preventing the incremental overreach that has plagued the state would be wise.
Third, California could introduce quantitative valuation metrics, and remove unclear qualitative evaluation metrics currently used, to guide these reviews and policies. The act could mandate major infrastructure projects undergo a benefit/cost analysis with a requirement of 1.5 or higher benefits-to-costs needed to build. CEQA analysts need to detail the exact benefits of the proposed project, such as 100 hours of reduced congestion along with the trade-offs and exact costs, such as a 10-decibel increase in noise for 10 houses.
Finally, California could raise the bar for filing citizen-driven CEQA lawsuits. Since CEQA lawsuits prevent needed infrastructure and often lead to a wasteful loss of time and money, lawsuits should be limited to California Circuit Courts. Plaintiffs should be required to have a vested interest in the case doing away with the current problem of people in places like Napa County suing to stop a construction project in Orange County. The lawsuit should also be required to be environmentally related. For example, people should not be allowed to use an environmental law as the pretense to stop a project because they want to force the groups involved to use labor unions or pay union wages.
A lot of policymakers now recognize many of the California Environmental Quality Act’s flaws and how it is being abused in ways that contribute to the state’s growing housing and infrastructure problems so there’s growing hope for finally fixing it.