This year, California Gov. Gavin Newsom issued an executive order temporarily suspending California Environmental Quality Act (CEQA) provisions to expedite rebuilding after the Southern California wildfires. This may be a prelude to broader CEQA reform, something that many have asked for over the 50 years since Gov. Ronald Reagan signed the environmental law.
Over the years, CEQA has proved effective for one thing: enriching lawyers specializing in CEQA lawsuits.
Are you a union looking for a better contract on a development project? Threaten a CEQA lawsuit over whether project impacts — including possible increases in the number of house cats — have been adequately studied.
Are you a plastic bag manufacturer looking for a creative way to fight single-use plastic bag bans? File a CEQA lawsuit demanding full environmental studies of plastic vs. paper bags that will run to hundreds of pages, millions of dollars and take months to complete.
The examples of CEQA operating to obstruct California’s environmental and housing goals are legion. CEQA lawsuits were filed against about 50% of California housing development in 2020 — 48,000 units — according to a 2022 study by the Center for Jobs & the Economy. In 2021, environmental attorney Jennifer Hernandez called California’s environmental laws “Green Jim Crow” in a study of the impact of these laws on civil rights and racial equity.
With a low bar for lawsuits, and making no distinction between apartment complexes and oil refineries, CEQA has become the premier weapon for blocking developments that reduce greenhouse gas emissions, such as multifamily housing, green electrical generation and mass transit. Perversely, CEQA now operates to oppose its own intended function.
The latest proposal to change CEQA, with the aim of jump-starting housing development, is AB 609 from State Assemblymember Buffy Wicks (D-Richmond). The bill categorically exempts certain types of high-density, urban residential construction from CEQA altogether. However, it doesn’t change any of the provisions of the environmental law.
This exemption applies to specific types of residential development projects where:
- At least 2/3 of the development is housing.
- The site is less than 20 acres.
- The site is within the boundaries of a city.
- The site is in a previously developed urban area, or next to an urban area.
- At least 75% of the site’s perimeter is urban.
- The project complies with general plans, zoning ordinances, specific area plan and local coastal programs, if applicable.
- The project is at least 15 units/acre in metropolitan areas, 10 units/acre in suburban areas, 5 units/acre in unincorporated areas.
AB 609’s effects could be dramatic.
“It potentially would make all urban developments — and even a very substantial number of suburban housing developments — exempt [from CEQA],” wrote UCLA professor Jonathan Zasloff in Legal Planet.
The proposal is far from becoming law. Similar proposals have been made, beginning with State Senator Scott Wiener’s (D-San Francisco) SB 827 in 2018. So far, none have become law.
Some might argue that AB 609 is unnecessary because 2017’s Housing Accountability Act (HAA) removes housing development approval from public officials’ discretionary authority. Housing projects either conform to “objective” requirements — general plan and zoning ordinances — or they don’t. Those that do are, by definition, approved.
However, the HAA doesn’t free local agencies from preparing environmental impact reports (EIRs). And that’s where AB 609 would likely have its greatest effect.
“If lead agencies must prepare CEQA documents when giving permits, then they can be sued on those documents,” Zasloff wrote. “Under current law, agencies must prepare documents that cannot change their decision but under which they face liability — and importantly, if the documents are legally inadequate, then the project approval is overturned.”
Santa Clara’s Assemblyman Patrick Ahrens is watching AB 609’s progress, although he isn’t on the committees considering the proposed legislation.
“As a new legislator, I’m working hard to balance the need to build new housing while protecting critical environmental laws,” Ahrens said.
“The bill, as I understand it, attempts to streamline the approval process for building new affordable housing that aligns with local development plans,” Ahrens continued. “I’m committed to working with the author, my legislative colleagues, and stakeholders to find a way to address the housing needs of our community while protecting our environment. I believe we can do both.”
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