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- Title
In the Name of the Environment Part III: CEQA, Housing, and the Rule of Law.
- Authors
Hernandez, Jennifer
- Abstract
This is the third study of all state court lawsuits filed under the California Environmental Quality Act (“CEQA”); this Study examined lawsuits filed statewide over three years, between 2019 and 2021. All three studies identified housing as the top target of CEQA lawsuits challenging agency approvals of private projects. California’s housing crisis has caused the state to have the worst housing-adjusted poverty rate in the United States; California also continues to have the highest rate, and highest number, of unsheltered homeless residents. Housing production has remained essentially flat (at about 110,000 housing units per year) notwithstanding the enactment of more than one hundred new housing laws since 2017; the state still needs about three million more homes. Although CEQA’s status quo defenders assert that CEQA is not a material factor in housing production, this Study confirms that, in 2020 alone, CEQA lawsuits sought to block approximately 48,000 approved housing units statewide—just under half of the state’s total housing production. Many housing laws also mandated that local and regional agencies adopt and implement plans to accommodate more housing. CEQA lawsuits filed during the study period challenged agency housing plans that allowed more than one million new housing units. Non-housing projects to accommodate housing and population growth, such as transportation and water infrastructure, are also a major target of CEQA lawsuits. CEQA lawsuits (and lawsuit claims) relating to climate change, including greenhouse gas emissions (“GHG”) and vehicle miles travelled, a top topic of CEQA lawsuits, even though California already has the lowest per capita GHG in the nation and has enacted scores of GHG and climate change laws and regulations. The study includes data, and examples, of all CEQA lawsuits filed during the study period, to explain how CEQA works today—not historically, and not rhetorically. The study also examines how the unpredictability of CEQA lawsuit outcomes has created a de facto, low-cost, no-risk strategy for project opponents to preserve the environmental status quo and block even benign and beneficial projects until litigation (inclusive of appeals) is completed—typically about in four to five years. This judicial outcome uncertainty has made lenders, investors, and grantors unwilling to fund projects while CEQA lawsuits remain pending, thereby allowing CEQA petitioners to avoid the judicial preliminary injunction process, in which they must persuade a judge that they are likely to prevail on the merits, and will suffer irreparable harm unless the project is halted. A judge can also require petitioners to post a bond to cover delay damages if their lawsuit is ultimately determined to be meritless. Judicial uncertainty in CEQA lawsuits has, in practice, meant that judges can only stand by for the eighteen to twenty-four months of delay that petitioners obtain by the simple act of a filing a lawsuit and paying a small court filing fee. CEQA lawsuit outcome uncertainty is also a profoundly influential factor in how much time and money is spent on CEQA compliance (especially for projects more likely to be sued, such as housing in wealthier communities, as was shown in the second of this CEQA study series). The study examines CEQA jurisprudence in contrast to the administrative jurisprudential factors typically applied to statutes and regulations, and explains the practical consequences of judicially-imposed expansions of CEQA—and judicially-rejected enacted legislation imposing, by statute, interpretive and remedy constraints on judicial outcomes in CEQA lawsuits. One potential explanation for this judicial rejection of the plain language of statutes, such as prohibiting courts from imposing a CEQA remedy to stop construction of a legislative office building in Sacramento unless the office building caused health or safety harms or adversely affected a previously-unknown significant tribal resource; notwithstanding this statutory language, the appellate court stopped this construction project based on historic resource and aesthetic concerns. This Article notes that CEQA lawsuits are also filed as “writs”—not ordinary civil lawsuits—which have a long history and tradition of vesting extraordinary discretion in the judiciary, which acts as a separate and co-equal branch of government and has an independent role in enforcing the Rule of Law, including through use of its equitable authorities. Courts enforce statutes all the time, however, in both writ and non-writ proceedings, and the key attributes of the Rule of Law—including knowing in advance what the law requires—have not constrained many judicial decisions that expand CEQA well beyond what is required by any clear, discernable compliance mandate in CEQA statutes or implementing regulations. Legislative reform of CEQA, unless acceptable to powerful special interests such as certain labor and environmental organizations, remains mired in Sacramento’s politics. The actual pattern of CEQA lawsuits, reflected in this and the prior two studies, should give pause to CEQA’s status quo defenders, who— like this author—often personally profit from CEQA’s unbounded costs and schedules. CEQA’s most visible status quo defenders assert their allegiance to the environment and “environmental justice” (though not other civil rights); they have been buoyed by special interests who wield CEQA as a sword to protect proprietary (and often economic) interests. CEQA’s statutory bias is to preserve the status quo, even when the status quo is causing ongoing harms to people (including hard working families who never voted to abandon the California Dream of homeownership but have been priced out by the housing crisis), or the environment (which needs change to prevent forest fires and catastrophic floods, and achieve massive change to energy production and climate adaptation). With multi-year studies followed by an over four-year litigation slog, CEQA’s foundational prioritization of procedural perfection undermines solving urgent housing, civil rights and environmental priorities. California has enacted thousands of environmental laws and regulations since CEQA was signed into law in 1970. CEQA’s extended adolescent fixation on process over progress—inclusive of unpredictable, grandiose, and chaos-inducing behaviors and outcomes—needs to grow up. This Study makes the same three CEQA reform suggestions as prior studies, and adds one more. First, end anonymous CEQA lawsuits: parties filing CEQA lawsuits need to identify who they are, and show that they are suing to protect the environment, just like they’ve always had to do when suing under federal environmental lawsuits. Second, end duplicative CEQA lawsuits: once a project or plan has completed the CEQA process, no new CEQA lawsuits can be filed as the project is constructed and plan is implemented—progress must occur and process must end. Third, match the remedy to the crime: if an agency made a mistake and didn’t study an impact enough, then the appropriate judicial remedy in CEQA—as already prescribed in the CEQA statute itself—is for a judge to require more study and mitigation, without rescinding project approvals and requiring agencies and applicants to re-do the CEQA process for another two years, followed by another six years of litigation after that. Housing delayed in housing denied, and a deficient traffic study shouldn’t result in a six year re-run of CEQA processing. Fourth, and new for this Study: this author’s plea for the judiciary to return to the norms of administrative law jurisprudence, and cannons of statutory construction, when deciding CEQA cases. Simply: no Legislative reform will be effective without judicial outcome predictability consistent with the Rule of Law.
- Publication
Chapman Law Review, 2022, Vol 26, Issue 1, p57
- ISSN
2381-3237
- Publication type
Article