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Explainers

CEQA Saga: UC Berkeley Housing Battle Puts Environmental Law in the Crosshairs Again

Written by Sarah WrightPublished Feb. 23, 2022 • 6:30am

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State Sen. Scott Wiener on Tuesday unveiled his second effort in one month aimed at helping housing and transportation projects navigate the gauntlet of environmental regulations embodied in the California Environmental Quality Act (CEQA.)

His latest measure was prompted by a judge’s order that could freeze enrollment at University of California, Berkeley while a CEQA lawsuit is resolved. Wiener wants to exempt student housing developments from some aspects of CEQA review, after earlier seeking similar exemptions for green transportation projects.

“Seequa,” as it is known to generations of California policymakers, is meant to block ecologically exploitative or irresponsible development—two ambitions commonly associated with the political left. But it’s now seen by many across the political spectrum as an impediment to much-needed housing and other critical infrastructure.

What is CEQA and why is it being targeted for ‘streamlining’?

The California Environmental Quality Act was signed into law in 1970 by then-Gov. Ronald Reagan. It requires any development project up for approval by local or state governments to take into account the project’s effect on the environment. That means anyone who proposes a new project—whether it’s an apartment building or a bike path—has to prove it won’t produce significant pollution or do harm to a protected plant or animal species.

However, some, including Wiener, argue that the law has been misused by special interests who care less about the environment and more about putting the brakes on projects they don’t like.

That’s why, just a few weeks ago, Wiener unveiled a bill to extend a current law that allows certain green transportation projects to proceed without a full environmental review. It’s also the impetus for his introduction yesterday of a bill that would make it easier to build student housing.

“Using CEQA to delay or halt student and faculty housing projects has greatly impacted California campuses, increasing the cost of living in and around campuses, pushing thousands of students and staff into housing insecurity or homelessness,” Wiener wrote in a press release. 

How did we get here?

This is far from the first time changes to how the law is applied have been proposed, said Tom Engels, a University of San Francisco adjunct professor and CEQA compliance consultant.

Signed on the heels of the National Environmental Policy Act, the California version of the law required that the environmental effects of new projects be considered and mitigated, but it didn’t say exactly how. 

Each year, the state rolls out a new set of guidelines for CEQA compliance. These guidelines include updated court decisions, bills passed by the legislature and information about what to focus on when implementing the law.

Inside the guidelines one will find a laundry list of “statutory exemptions” that range from allowing the Olympics to be held without a full environmental impact report to those that address rebuilding after a disaster. Wiener’s proposal, if passed, would create an exemption to parts of the law for student and faculty housing at California colleges and universities. 

Jennifer Hernandez, a partner at the law firm Holland & Knight, says the last few decades have seen greater abuse of the law. 

Because the law can so easily be invoked by its opponents (anyone who wants to can file a lawsuit alleging CEQA violations), it is most often used as a tactic specifically to stop housing projects, according to Hernandez. And she argues that judges have transformed the law into a weapon for redlining by protecting the status quo.

“CEQA was never intended to be weaponized as a tool against affordable housing, or for that matter, school housing,” Hernandez said. 

Why not just change the foundation of CEQA?

Lawmakers, including Wiener, have tried to change critical parts of the foundation of CEQA. But the political atmosphere makes substantive changes to the law itself difficult. It’s much easier to get blanket exemptions tacked on, which allow projects to get “ministerial” or automatic approval if they meet a set of criteria.

“Achieving things under ministerial approval, when it’s applicable, I think is the right move,” said Wiener’s Communications Director Catie Stewart. “I think it’s the only way it’s going to get done, to be honest.”

Hernandez is an advocate for some more substantive changes to the law, like a maximum of one round of environmental review per project and an end to anonymous lawsuits. 

But she says any major CEQA reform faces major barriers, including from labor unions that rely on CEQA to negotiate fair contracts and the strength of a 50-year-old industry in California built on litigating disputes and helping project planners navigate CEQA. As for Wiener’s strategy to author new bills that create CEQA exemptions, Hernandez is all for it. 

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“I don’t see it as circumventing the intent of law or its purpose,” Hernandez said. “I see it as legislation trying to narrowly chip away at some of the worst abuse.”

Meanwhile, not everyone agrees that CEQA is in need of reform. Environmental groups have spoken out in support of the law despite its occasional misuse. In a 2019 letter to Gov. Gavin Newsom, dozens of major environmental leaders wrote in defense of the law, saying its opponents wrongly blame CEQA for the state’s housing crisis.

“CEQA did not cause the housing crisis, and weakening CEQA will not solve it,” the letter reads. “Rather, if implemented properly, CEQA can be an effective tool in helping to address California’s housing problems by encouraging sustainable development.”

David Pettit, senior attorney for the Natural Resources Defense Council, is one signatory who defends the environmental law. He points to a study that estimated that less than 1% of housing projects were held up by suits and said that while lawsuits like the UC Berkeley one make headlines, they don’t represent the majority of the uses of the law. 

“Those are stories, not facts,” Pettit said. “The empirical facts are that CEQA is not a major impediment to building housing, particularly affordable housing, in California.”

What does this have to do with San Francisco?

CEQA appeals—or threats to appeal—come up time and time again in city politics. Last year, a nationally publicized CEQA controversy put the Board of Supervisors under the microscope for declining to approve an environmental impact report for a nearly 500-unit housing development at 469 Stevenson St., the current site of a valet Nordstrom parking lot.

Wiener tweeted his support for a state investigation into the decision and has piloted several high-profile laws that streamline housing approval in the state. 

As for how changes to the law may unfold in the future, even those on opposite sides agree that a total overhaul of CEQA isn’t likely.

“It’s kind of a remarkable thing that CEQA got passed, but it did, and here we are 50 years later,” Engels said. “I don’t see it going anywhere, that’s for sure.”

English

Sarah Wright can be reached at [email protected]




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