CEQA-gutting bill threatens California’s public health, communities

The balance between the environment and business, image by petrmalinak

Repeated efforts by developers to gut the California Environmental Quality Act sometimes seem like a hydra — cut off one head and two more grow in its place. Even when one anti-CEQA bill is defeated, profit-driven interests put forth more bills to weaken our state’s landmark environmental law and the critical protections it provides to our communities and ecosystems.

This year is no exception. The most recent CEQA attack is AB1633, a blatant giveaway to developers and one of the gravest threats to the environment and public health that California has seen in years.

AB1633 limits the ability of petitioners to recover attorneys’ fees even when they win their cases against developers. This limitation would have a chilling effect, discouraging important CEQA lawsuits that enforce environmental justice and protect public health. Many environmental justice groups would effectively be prevented from enforcing environmental regulations in their communities, for example, blocking or mitigating the harmful effects of housing projects proposed in toxic areas.

In addition, currently the law prohibits lawsuits until a project is approved, but AB1633 would allow developers to sue state or local agencies over their CEQA review even before the close of the administrative process. And the bill would allow developers to recover their attorneys’ fees from public agencies if they win.

Somehow this outrageous bill has made its way to the Senate floor. If it becomes law, a flood of developer-initiated lawsuits would likely result, increasing the burden on state courts. And those courts would be operating without any administrative record, since state and local planning departments would not yet have done the work required to approve or deny the project.

The California Department of Finance opposes AB1633 because of the legal and fiscal fiasco that would result.

Furthermore, just the threat of litigation from developers and the prospect of paying attorneys’ fees if they lose could cause agencies to approve CEQA exemptions for projects that should require environmental review. This would be especially harmful for small- and under-resourced cities and counties.

This bill would be a boon for developers but would grossly undermine CEQA’s core purpose — to protect Californians and our state’s spectacular landscapes and wildlife by making sure environmental harms from proposed projects are disclosed and mitigated.

Here’s an example of the damage it would cause. In San Francisco, Chinatown-based community groups recently made a successful case that a residential project proposed on a site contaminated with highly toxic chemicals should be required to undergo a CEQA review. That review wouldn’t halt the project but would ensure the site contamination is properly remediated.

If AB1633 had been the law, the developers could have sued the city to challenge the environmental review requirement, before any analysis was completed.

As if that wasn’t enough, under AB1633 developers could also avoid public scrutiny of their projects. If developers are required to conduct an environmental review but then sue to avoid it, the whole matter could be handled with minimal public notice, which means neighbors, community groups and environmental organizations would have no ability to weigh in.

Often it’s people who live nearby who alert government officials to critical public health and environmental issues surrounding a proposed development. Under AB1633, they won’t have a voice, and neither will environmental justice organizations. These groups depend on the protections and processes of this landmark law to keep low-income communities and communities of color healthy and safe.

Supporters justify this bill by citing one isolated housing project in San Francisco. But this project was an example of CEQA working as it should: A better project was ultimately built because of the environmental review the city required.

For more than 50 years, CEQA has protected California’s people, lands, waters and wildlife. It has required officials to closely study and limit the impacts of projects proposed in extreme wildfire zones, on Indigenous burial grounds and on toxic waste sites.

This bill would eviscerate CEQA. Our legislators owe it to the next generation not to let that happen.

J.P. Rose is a policy director and senior attorney at the Center for Biological Diversity. He lives in Los Angeles.

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