In CEQA fight, ‘modernize’ is the mantra of spin

California’s landmark Environmental Quality Act — the brainchild of Republican lawmakers trying to woo a then-new voting bloc of “environmentalists” — turns 43 this year.

Critics, led by developers and business interests, say CEQA’s requirements are too cumbersome. It subjects all commercial and residential projects – regardless of environmental merit — to costly delays, killing potential jobs and further tarnishing California’s warranted-or-not reputation for discouraging business.

And, critics say, the law allows routine manipulation by unions, business rivals and environmental activists for political and economic gain.

Their solution is to “modernize” CEQA.

“Think of what the world looked like in 1970,” says Carl Guardino, president of the Silicon Valley Leadership Group. “Since then, 120 really strong state and federal environmental protection laws have been passed and CEQA hasn’t really had an update of any substantive kind.”

The “modernize” chant began late in the last legislative session, although back then “reform of CEQA” was the phrase of choice.

“Reform” efforts fizzled when Senate President Pro Tempore Darrell Steinberg, a Sacramento Democrat, and a cadre of environmental groups swatted down a business-backed overhaul of the law by then-Sen. Michael Rubio, a Shafter Democrat.

Rubio resigned in February to become a government affairs executive for Chevron Corporation.

This year, “reform” is out and “modernize” is in.

Five months into the legislative session, Democratic lawmakers still say CEQA needs modernization. Republican legislators couldn’t agree more.  Modernizing CEQA is wholeheartedly endorsed by the California Chamber of Commerce, their business allies, any number of developers and some environmental groups. The governor says he backs modernization too – at some point.

The problem is  “modernize” — like “reform” – is defined differently by whoever is using the word.

GOP Sen. Tom Berryhill says the aim of his bill, SB 787, is to modernize CEQA.

Berryhill would change state law so that, generally, if a proposed project meets the requirements of other environmental laws like the Endangered Species Act, the Clean Air Act or local emission restrictions then that would constitute CEQA compliance in those areas.

“(My bill is) an approach which simply acknowledges that newer – sometimes stricter – environmental and planning laws exist,” Berryhill writes in a March opinion piece in the Fresno Bee.

“SB 787 would integrate those laws with California’s CEQA review process. This would eliminate the ability to challenge already adopted environmental standards or endlessly re-challenging approved plans through frivolous lawsuits.  No more gaming CEQA for non-environmental purposes.”

Steinberg is also carrying a CEQA bill. More accurately, as of May 1, Steinberg is carrying the CEQA bill. The Sacramento Democrat says his measure, SB 731, modernizes CEQA – even though its provisions share nothing in common with Berryhill’s measure.

“The essential benefit of CEQA is to not only analyze a project’s impact on the environment but the cumulative impact of a project,” Steinberg told Capitol Weekly.

Translated, that’s a rejection of Berryhill’s approach. Central to Steinberg’s bill is additional encouragement of in-fill or transit friendly projects, which are already favored under CEQA because of their smaller environmental footprint.

Steinberg’s measure also attempts to speed legal challenges to projects, hasten approval of renewable energy projects and allow less scrutiny if a project meets recently approved local planning and growth rules.

“(My bill) sets the framework to encourage smart, environmentally sound growth by streamlining the environmental review process without compromising the quality of life Californians deserve and expect in our communities,” says the Sacramento Democrat.

That seems to be supportable by environmentalists.

“There are procedural things that can be fixed and make the process move more quickly and smoothly,” David Pettit, Natural Resources Defense Council Southern California Air Program director, told Capitol Weekly.

“Substantively, we’re interested in making sure renewable energy projects and urban landfill projects are treated fairly and in a reasonable way.”

For several months, Steinberg has said that whoever wants to see changes made to CEQA this year must do it with his blessing.

“What are the other games in town when it comes to CEQA?” he asks rhetorically.

As of May 1, there aren’t any. Of significance anyway.

The same Senate committee that on May 1 approved Steinberg’s CEQA bill and two more modest CEQA measures by Sen. Noreen Evans, a Santa Rosa Democrat, torpedoed Berryhill’s effort the same day.

“It’s clear the Legislature is interested in tinkering around the edges but not in enacting real reform,” Berryhill grumped in a press release after his measure’s demise.

“The approach I brought forth has been the center of CEQA reform discussions for the past few years. To ignore it when crafting a so-called solution is an insult to the hard-working people trying to get through a process that is totally broken.”

In a press release after the committee vote, Steinberg touted the bipartisan backing his bill received from environmentalists, unions and business groups, like the California Chamber of Commerce.

That support – even if tepid — recognizes Steinberg does in fact own this year’s CEQA monopoly and that his bill has a ways to go before being enthusiastically embraced by business interests.

“While this is just the beginning of the conversation, we are pleased to see so many important issues on the table and appreciate your leadership in this area,” writes the Chemistry Industry Council, National Federation of Independent Business and the California League of Food Processors in an April support letter for Steinberg’s bill.

Berryhill’s proposal would have been voted down somewhere else if it wasn’t defeated in the Senate Environmental Quality Committee.

A Legislature with two-thirds Democratic majorities in both houses means Democrats in competitive districts can decide not to vote on a potentially controversial issue like CEQA and a solid, liberal-dominated majority-plus-one still remains.

That majority-plus-one bloc of Democrats, the threshold needed to approve CEQA legislation, won’t approve any bill lacking both some environmental buy-in and a Democrat’s name as the author.

Another reason Steinberg is the last CEQA “modernizer” standing is the cachet of being the Senate leader – particularly the handpicking-members-of-each-committee part of the job.

Over the years, Gov. Jerry Brown has been all over the map on CEQA.

During his first eight years as governor, Brown using the relatively new law to advance his slow-growth agenda. He complained about CEQA’s restrictions when mayor of Oakland. As Attorney General, he filed lawsuits to require any analysis of environmental impact to include the effect on greenhouse gas emissions.

Overhauling CEQA is “the Lord’s work,” he said last year, adding that he’d never met a CEQA exemption he didn’t like.

In his January State of the State speech, the Democratic governor said California must “rethink and streamline our regulatory procedures, particularly the California Environmental Quality Act.”

But on his April trip to China the Democratic governor – to Steinberg’s consternation — told reporters an overhaul of the law this year was “unlikely,” to quote from the Sacramento Bee’s headline.

Brown said CEQA “is supported by some key groups within the Democratic Party, and I think it would be difficult for the Legislature to move that process forward. The appetite for CEQA reform is much stronger outside the state Capitol than it is inside.”

Then Brown added: “This is not something you get done in a year.”

Asked about the governor’s comments, Steinberg replied: “I’m not sure why the governor would say that.” And then proceeded to move his bill through committee. Brown is still eager to recast the 43-year-old law, administration officials insist.

“I think the governor concurs it’s time to take a serious look at things we can do better while preserving CEQA’s basic function to make the environment relevant to government decision-making,” Ken Alex, director of Brown’s Office of Planning and Research told Capitol Weekly.

Irrespective of Brown’s remarks, whatever happens on CEQA most likely won’t happen soon – despite the eagerness of some groups to make large-scale changes to the environmental quality act.

At its core, CEQA demands that state and local agencies identify the major environmental impact of actions they are proposing to take and either avoid or mitigate those impacts.

“That’s the part that’s working,” Alex says. “Californians take for granted that whenever a government entity makes a decision it has to think about the environmental

consequences and the public has a right to participate in the process.”

When it passed the Republican majority Assembly in 1970, the prevailing view was that CEQA applied only to government projects.

That changed two years later when Justice Stanley Mosk penned the California Supreme Court’s decision in Friends of Mammoth v. Board of Supervisors of Mono County.

“In an era of commercial and industrial expansion in which the environment has been repeatedly violated by those who are oblivious to the ecological well-being of society, the significance of this legislative act cannot be understated,” Mosk wrote in declaring that CEQA mandated an environmental review of all private projects or activities requiring government approval.

Mosk and the rest of the court’s majority predicted little change would come from their ruling.

“Common sense tells us that the majority of private projects for which a government permit or similar entitlement is necessary are minor in scope — relating only to the construction, improvement or operation of an individual dwelling or small business — and hence, in the absence of unusual circumstances, have little or no effect on the public environment,” Mosk said.

“Such projects, accordingly, may be approved exactly as before the enactment of the (act).”

That’s been anything but the case for the past 40 years. Environmental reviews of all sorts of projects have grown in scope.

Depending on the size of a project, analyses – even determinations that a full-blown CEQA assessment isn’t needed — can run into the many thousands of pages, require the hiring of costly “experts” and take several years to complete.

Unlike 43 years ago, projects now can be challenged on aesthetic grounds. In what critics call “greenmail,” some unions have filed CEQA challenges to secure a work agreement from a project’s backers. In return, the lawsuit is dropped.

Steinberg’s bill makes it harder to challenge projects based on aesthetics.

During the more than four decades since Mosk’s decision, calls for recasting, simplifying, strengthening, expanding, streamlining, gutting or abandoning CEQA have been repeatedly made.

However, measures to expand or strengthen the law rather than curtail or reconfigure it have been the most common legislation approved.

“No one is talking about gutting CEQA,” said Jennifer Hernandez, a longtime land use lawyer with Holland & Knight, who is assisting the CEQA Working Group,  a large coalition of business and housing groups.

“The rhetoric notwithstanding, this isn’t a debate about weakening standards or public disclosure. It isn’t about streamlining. It isn’t even really about compromising. It’s really about integrating.”

But is that going to “modernize” CEQA too much or too little?