Read: How climate change will affect where you live
As incidents like the one at First and Lorena multiply, CEQA has emerged as an unexpected impediment to California’s going green. Across the Golden State, CEQA lawsuits have imperiled infill housing in Sacramento, solar farms in San Diego, and transit in San Francisco. The mere threat of a lawsuit is enough to stop small projects—especially housing—from starting in the first place. Indeed, one of the main effects of CEQA has been to exacerbate the state’s crippling housing-affordability crisis.
How did such a conservative institution take root in one of America’s most progressive states? And what can California leaders do to get environmental review out of the way of saving the environment?
CEQA as we know it today is a bit of an accident. Adopted in 1970 under the auspices of then-Governor Ronald Reagan, the bill rode to passage on a wave of nationwide environmental consciousness. With environmental disasters such as the Cuyahoga River fire and the trauma of highway-construction-related urban clearances fresh in the American mind, the concept was straightforward: The government should consider and mitigate the environmental impacts of public projects. Fifteen other states joined in with their own environmental-policy acts, most modeled on California’s approach.
The acts work like so: For any public project, the state must conduct an initial environmental study, considering a range of possible effects relating to issues such as air quality, noise, and protected natural areas. If a project crosses certain thresholds—say, by encroaching too much on wetlands or generating too much stormwater runoff—the agency must conduct an environmental-impact report (EIR), extensively documenting all possible harms, setting out potential alternatives, and organizing public hearings for feedback. In this sense, CEQA’s purpose is strictly informational: Legislatures and agencies are always free to go forward with a project, as long as they acknowledge, disclose, and mitigate its impacts.
In the early days, initial studies and EIRs were generally quite short, and covered only truly public projects. But in 1972, the California courts interpreted a “public project” to include any private development that required governmental approvals. In cities such as San Francisco and Los Angeles, where almost nothing can be built without some form of discretionary permit, this effectively meant that every apartment building and office tower in the state now had to conduct an environmental assessment. Notably, no other state applies its environmental-policy act in this way.
This mandate wouldn’t have been such a problem if bringing a CEQA suit weren’t so easy. As a “self-executing” statute, CEQA is enforced by aggrieved parties requesting that a court mandate either a full environmental review—in cases where none was initially deemed necessary—or heavy revisions to an existing EIR. Litigants can even file these lawsuits anonymously. In theory, the system was meant to protect those most affected by proposed projects. In practice, it has made CEQA the preferred lever of California’s infamously litigious NIMBYs (Not-in-My-Back-Yard-ers). Anyone with a few hundred bucks can drag developers to court, forcing projects to undergo years of delays and to pay hundreds of thousands of dollars in legal fees.