JEFF GRITCHEN
A 7-acre vacant lot on Newport Avenue in North Tustin north of 17th Street was approved for senior housing. Amidst a legal battle, Orange County supervisors rezoned the property and it remains vacant.
(JEFF GRITCHEN, Orange County Register)
A North Tustin senior housing project got derailed. Affordable housing for low-income residents in Orange was waylaid for several months. A water pipeline for south Orange County has been held up for four years.
And a Santa Ana homeless shelter ended up going elsewhere.
All four projects — serving the elderly, the poor, the homeless and the thirsty — ended up in court facing accusations they were potential environmental threats.
The would-be environmentalists in these cases included neighboring businesses, neighborhood associations and a mining company serving the oil and gas industry.
They are just some examples of how so-called “NIMBYs” and businesses use the California Environmental Quality Act, or CEQA, as a pretext to block housing and other types of needed development, the co-author of a recent study maintains.
“Because this keeps getting fought in the name of the environment, all bets are off,” said San Francisco attorney Jennifer Hernandez, who has reviewed hundreds of environmental suits filed in the past six years as part of the study. “Never mind about common decency.”
Not true, say CEQA’s defenders, which include environmentalists and civic and public health groups.
Because of CEQA, California’s air is cleaner, there’s less congestion, living here is more desirable and places like Newport Harbor are sewage-free.
In a competing study, a pro-environmental group pushed back at the notion that CEQA is impeding growth and driving up home prices.
“There have been a lot of assertions. There has not been a lot of robust, quantitative research to back that up,” said Jessica Hitchcock, vice president of BAE Urban Economics, which conducted the rival litigation study released this month.
“We found that the litigation is quite low. It’s fewer than one in 100 projects in which lawsuits were filed,” Hitchcock said. “I would say CEQA is not the reason why the cost of housing is so high in California.”
Californians have been skirmishing over CEQA reform for over a decade.
The state’s signature environmental law was back in the limelight this year after Gov. Jerry Brown sought to spur affordable-home construction by allowing certain projects to win approval “by right,” bypassing local reviews.
The plan sparked protests around the state, with opponents maintaining it would bypass CEQA. Demonstrators appear to have won the day.
A spokesman for state Assembly Speaker Anthony Rendon said that negotiations over Brown’s proposal are deadlocked.
While Brown’s “by right” proposal may be dead for now, past calls for reform have been rampant and are likely to continue — perhaps for years to come.
Here are answers to five key questions about the measure Gov. Ronald Reagan signed into law 46 years ago.
1. What is CEQA?
The law requires state and local agencies to identify significant environmental impacts of major construction and other projects and avoid or mitigate those impacts.
But those reviews can be lengthy and complex.
Reviewing government agencies are required to determine if a project could have significant environmental impacts and conduct further levels of review if it does.
If the agency finds that significant effects may occur, then an environmental impact report, or EIR, must be prepared to determine what those impacts will be and how to reduce or eliminate them.
2. What’s wrong with CEQA?
Detractors — including developers, business leaders and economists — complain that CEQA increases the time, cost and uncertainty involved in getting housing projects approved, so that homebuilding failed to keep up with growth. The housing shortage, in turn, leads to California having some of the highest home prices and rents in the nation.
In a March 2015 report, the state’s nonpartisan Legislative Analyst’s Office said California’s 10 largest cities averaged 2 ½ years to approve housing projects that required an EIR.
“Only four other states have comparable requirements,” the state report said.
Critics say CEQA is used by NIMBYs (“not in my backyard” forces) to block unwanted construction, by businesses to block competition and by unions to gain pay concessions.
3. Are CEQA lawsuits frivolous?
Two reports by international law firm Holland & Knight — which represents CEQA defendants — found that CEQA is responsible for frivolous litigation that’s harming rather than protecting the environment — a conclusion CEQA supporters dispute.
After reviewing 575 CEQA lawsuits filed from 2010 through 2012, the law firm concluded that nearly half target taxpayer-funded projects and that transit is the most frequently challenged type of infrastructure project.
Eighty percent of the suits aimed at construction targeted urban projects (rather than those that consume open space outside cities). The most commonly targeted industrial developments were renewable-energy projects.
“CEQA litigation abuse by parties seeking to advance non-environmental interests is widespread,” the report said.
In one case, an anti-abortion group invoked CEQA to block a South San Francisco Planned Parenthood clinic, arguing that its movement’s protests would have a disruptive impact. The suit delayed the clinic by at least 18 months.
In another, a mining company used CEQA to block the Cadiz Valley Water Project, a San Bernardino County water venture in which the Orange County-based Santa Margarita Water District is a lead partner.
The mining firm — which needs the water to dissolve minerals it sells to the oil and gas industry — lost its case in May after delaying the water project for about four years.
4. What’s right with CEQA?
The BAE Urban study, sponsored by Oakland-based Rose Foundation for Communities and the Environment, found that CEQA lawsuits are rare.
An average of 195 suits a year were filed since 2002, involving fewer than 1 percent of CEQA reviews, the BAE Urban study said. Direct costs of CEQA reviews amount to less than 0.5 percent of a development’s total budget.
The study also concluded there’s no evidence CEQA curbs prosperity.
Despite CEQA, the study said, California’s job growth ranked fifth in the nation, manufacturing added 38,000 jobs in the past three years and California had the ninth-highest median household income.
“Is it really true that we’re doing really worse than other states? The answer is, no, we’re not,” said Sean Hecht, a UCLA environmental law professor who participated in the study.
Hitchcock, BAE Urban’s vice president, also disputed that CEQA alone accounts for California’s high housing costs.
“Prices are derived from a lot of inputs,” she said, noting that excessively high land costs are a factor, as are the costs of labor and construction. A state cost study of low-income housing found that construction accounted for 69 percent of development costs, she said.
While CEQA can be abused, that’s true with all litigation, Hecht added. There’s always a cost-benefit tradeoff.
“I think CEQA also has played an important role in preserving the environment,” he said. “Obviously, without it it would be easier to build in California. But is it worth it considering all the benefits of CEQA?”
5. What reforms are sought?
The pro-reform CEQA Working Group maintains that the law is outdated as it was passed before a number of other environmental laws took effect.
“It’s time to modernize CEQA so that it is used to protect the environment, not to protect hidden agendas that have nothing to do with environmental protection,” the group’s website says.
A number of reforms have been adopted in recent years, while many other attempts have fallen by the wayside.
The Holland & Knight report backs three proposals:
Eliminate anonymous lawsuits: Under CEQA, suits can be filed anonymously, the report said. Disclosure of who’s funding a lawsuit is not required. The report says that an anonymous filer could be a “bounty hunter” seeking a quick financial settlement.
State Sen. John Moorlach, R-Costa Mesa, authored one of two bills this year to end anonymous filings. Both died in committee.
The anti-reform CEQA Works website argued that forcing organizations to disclose their members and donors violates the First Amendment.
“People must be free to exercise their legal rights and associate freely without the chilling threat of public disclosure,” the website said.
Eliminate duplicative lawsuits for which an EIR has been certified: Some projects require approval from multiple agencies, and each review can spawn a separate lawsuit. Hence, some projects face the same legal issues over and over.
Playa Vista, an aircraft factory redevelopment in Los Angeles, has been sued under CEQA over 20 times, the study said.
Don’t halt projects without proof they’ll cause “irreparable harm” to the environment or public safety: This is needed to curtail lawsuits aimed at stopping projects rather than protecting the environment.
“It’s hard for me to see that any of those gut CEQA,” Hernandez said. “I think CEQA is a great law and has a great purpose, and we should get back to its original purpose of protecting the environment, and not for extortion and delay.”
But UCLA’s Hecht — who represents groups filing CEQA lawsuits — disagreed that lawsuits need to be curtailed.
Without the public’s right to sue, “CEQA would not have any teeth at all,” Hecht said.
“It’s a remedy for everyone,” Hecht said.
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Orange County CEQA cases
More than 40 Orange County court cases have been filed since 2009 under the California Environmental Quality Act, or CEQA, according to Holland & Knight’s two litigation studies.
Here are descriptions of a few of them.
The Springs at Bethsaida: Three North Tustin neighborhood associations sued Orange County in 2011 after the Board of Supervisors approved new zoning for a 153-unit senior housing project on a vacant 7-acre lot on Newport Avenue owned by the Catholic Diocese of Orange.
Supporters cited the need for senior housing. But residents objected, calling it a commercial development in an area surrounded by a sea of single-family homes.
“It doesn’t belong in this area,” a homeowners group leader said.
Three years into the legal battle over zoning and CEQA issues, new supervisors were elected, and the board rezoned the property. The land, owned by the diocese for a half-century, remains vacant.
200-bed homeless shelter: The Board of Supervisors was on the verge of solving one of the area’s most pressing problems: giving Orange County its first publicly run year-round emergency homeless shelter.
But the county abandoned plans to buy a 23,000-square-foot building in Santa Ana after two neighboring landowners filed a lawsuit saying the shelter could increase traffic, crime, drug use, noise and even be “to the detriment of the future homeless individuals and families” who would live there.
Two former supervisors said, however, that while the
CEQA lawsuit was a factor in their decision to abandon the plan, it was not the main reason. Citizen outcry against the shelter prompted the Santa Ana City Council to withdraw its support.
A year later, the county purchased a building in north Anaheim and hopes to open the shelter there sometime next year.
Lemon Grove: A former Orange councilman and the Orange Taxpayers Association sued to stop an 82-unit affordable-housing complex in Orange, arguing it lacked adequate parking and that they would suffer “irreparable harm” if the project didn’t go through an environmental review.
The case eventually was settled, but the project — now under construction — was delayed for at least several months.
Cadiz Valley Water Project: The Santa Margarita Water District and other water agencies plan to capture billions of gallons of Mojave Desert groundwater that’s lost when it flows into dry lake beds and evaporates. A 43-mile pipeline would divert the water to the Colorado River Aqueduct.
A mining company that benefits from the water’s flow sued under CEQA. The company depends on the water flow for brine mining, extracting minerals dissolved in the water for vegetable production, canning and the oil and gas industries.
Emerald Bay traffic light: A group sued to get an environmental impact report filed for a left-turn signal at Pacific Coast Highway and Emerald Bay’s main entrance in Laguna Beach, citing increased noise and other potential environmental impacts.
A judge denied the group’s request a year later.
Contact the writer: 714-796-7734 or jcollins@ocregister.com
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