In the pantheon of developer complaints about the California Environmental Quality Act, perhaps the most common one is that it's too easy to use it to file crazy lawsuits purely for the purposes of gumming up the works.
Which is maybe why the building industry and property rights advocates have spent so much time lately filing CEQA lawsuits apparently designed to gum up the works.
It's hard to know exactly how seriously to take these lawsuits – especially in the context of endless and unsuccessful efforts at CEQA reform, which are stymied in large part by citizen activists and labor unions that often use CEQA as leverage over the developer or the retail business attending to construct a new project. Nevertheless, the building industry does appear to be trying to use CEQA, increasingly, to attack environmental protections. This appears to be especially popular in the Bay Area.
Exhibit No. 1 is the recent lawsuit by the California Building Industry Association, using CEQA to attack the creation of significance thresholds, which any lead agency must create in order to comply with CEQA. The case challenged the creation of significance thresholds by the Bay Area Air Quality Management District, which CBIA said required a CEQA analysis.
You can read the details of the case here, but the bottom line is that CBIA attempted to persuade the courts that CEQA should apply to CEQA. The First District Court of Appeal didn't buy the argument, saying the 7,000-page administrative record was probably sufficient.
Exhibit No. 2 – also from the Bay Area – is the Pacific Legal Foundation's lawsuit against One Bay Area, the region's sustainable communities strategy prepared by the Metropolitan Transportation Commission and the Association of Bay Area Governments pursuant to SB 375. In that lawsuit, filed in July, PLF claimed that – hold on to your hats – MTC and ABAG should have included in the EIR an alternative proposed by PLF's client, Bay Area Citizens. The BIA's Bay Area affiliate filed a separate lawsuit with a variety of separate CEQA arguments.
Not surprisingly, the PLF lawsuit has a more ideological, value-laden tone than the BIA lawsuit. It calls One Bay Area "wrongheaded" and repeatedly calls the approved scenario "low-performing," meaning that the proposed rail transportation projects will cost a lot of money without generating very many riders. Claiming that One Bay Area should have discounted emissions reductions from the Pavley bill and other state measures before crafting the land use scenario, the lawsuit claims:
"The upshot of the Final Report's [EIR's] use of a higher-than-actual greenhouse gas baseline is to create the false impression that especially draconian land-use measures are needed to meet the region's SB 375 targets. Thus, the Final Report's approach is irreconcilable with CEQA' s requirement that the environmental baseline normally constitute existing physical conditions, not a hypothetical condition or legal fiction."
The lawsuit's bottom line is that MTC and ABAG should have considered Bay Area Citizens' alternative, which included such action as "insist that local communities be informed of the public subsidy costs of affordable housing before the assignment of regional housing needs assessment allocations" and "insist that local communities be informed of the unfunded mandates involved with the obligation to provide affordable housing before that obligation is accepted."
To be honest, the lawsuit overall is pretty repetitious. But the bottom line is clear: ABAG and the MTC didn't use CEQA to do what the Pacific Legal Foundation wanted, so PLF sued.
The BIA lawsuit against One Bay Area is more reasoned – not surprising considering the lead counsel is Mike Zischke of Cox, Castle & Nicholson, probably the state's most skilled CEQA lawyer on the development side. (Though it's true that Zischke was also the plaintiff's lawyer in the "CEQA-doesn't-apply-to-CEQA" case.)
Zischke's lawsuit claims that MTC and ABAG basically didn't follow CEQA in adopting One Bay Area. The lawsuit claims that the agencies diligently followed CEQA up to a point and then – caving to environmentalist pressure to limit housing in the Bay Area – essentially adopted a plan before doing the environmental impact report. The adopted plan, BIA claims, will require the exporting of 100,000 units of housing out of the Bay Area to the Central Valley and other locations.
This last lawsuit at least has some logic to it. CEQA practitioners often struggle about the project level versus the plan level. At the project level, obviously a development project in a particular location is going to have some impact on that location. But at the plan level, it should be possible to examine the relative impact of development at different locations. If Plan Bay Area doesn't plan for enough housing, that'll push the housing elsewhere, and that'll have an environmental impact.
That argument, of course, can lead to the eternal chicken-and-egg argument that seems to afflict CEQA: Does more housing supply respond to demand, or does suppressing supply suppress demand? These questions are almost impossible to answer, which is one of the reasons why CEQA analyses can be so frustrating.
Which, of course, raises the bottom-line question: If the building industry and property rights advocates are so frustrated by CEQA's bottomless-pit structure, then why do they keep trying to use it so aggressively?
In a way, I suppose, it's kind of like campaign finance: If you're going to reform campaign finance, you have to win election and re-election to public office, and that means you have to raise a lot of money under the system you want to reform. Similarly, I guess, if you want to try push the building industry's agenda in the regulatory maze that is California planning, you have to use whatever tools are available to you – even if you are simultaneously trying to reform or kill those same tools over in Sacramento. Still, it doesn't seem to me that "kill CEQA before I use it again" is a strong lobbying argument.
