A 138-page report, including 371 footnotes and a 30-page appendix listing all properly documented CEQA lawsuits filed in California over its 3-year study period (2010-2012), has been posted by its authors, Holland & Knight attorneys Jennifer Hernandez, David Friedman and Stephanie DeHerrera (the “authors”) on their firm’s website. The study is entitled “In the Name of the Environment” and subtitled “How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities – and Proposed Reforms to Protect the Environment From CEQA Litigation Abuse.” Based on my review, the study will be a valuable and interesting read for environmental and land use lawyers, consultants, and others regularly involved with or interested in the CEQA process. That said, its findings and conclusions will not come as any surprise to those on the front lines of CEQA litigation.
Some of the study’s key findings and conclusions include:
- CEQA’s political debate is not accurately described as a “business versus enviro” battleground – roughly half of the documented CEQA filings (compiled through public records requests to the Attorney General) challenged public agency projects (mostly infrastructure, plans and regulations, and water projects) for which there was no private sector “real party” acting as the project sponsor.
- Eighty percent (80%) of the CEQA lawsuits targeted “infill” – as opposed to “sprawl” or “greenfield” development. Leading the way as targets of the “infill” suits were public service and infrastructure (28%), residential (25%), retail (16%), schools (8%), commercial (7%), park (7%) and industrial (5%) developments. The low percentage of challenges to industrial projects – those, perhaps, traditionally associated with the type of environmental pollution CEQA was conceived to combat – may be a sign of the times. As the authors also observed: “For various reasons, including California’s consistently poor business rankings (generally attributed to high regulatory hurdles, CEQA litigation uncertainty, and other tactics), the post-recession resurgence of middle-class manufacturing jobs in the United States has largely bypassed California.”
- Housing and other types of projects that could, in theory, be located in either a “greenfield” or “infill” location are four times more likely to be sued if proposed at an infill location.
- Based on an earlier study of published decisions, the authors concluded CEQA plaintiffs prevail nearly 50% of the time overall – 43% of the time when challenging EIRs and 58% of the time when challenging Negative Declarations. The authors state their study shows that larger projects on which EIRs are prepared “get sued much more often than smaller projects” using Negative Declarations or exemptions as their CEQA compliance.
- Nearly two-thirds (64%) of CEQA plaintiffs are individuals or “other” organizations or associations, while only 13% are recognized state and national environmental advocacy groups, leading the authors to conclude: “CEQA litigation abuse is primarily the domain of NIMBYs and anonymous new unincorporated entities, including those using CEQA for non-environmental purposes.”
- While they found that construction trade unions were more likely to be identified as CEQA petitioners than other trade unions, the authors observed that “unions filing lawsuits typically did not identify themselves as a union” and added: “Labor tends to use CEQA litigation (and litigation threats) to gain control of project job allocations and wages, but also uses CEQA in [territorial] disputes with other unions.”
- The authors documented that in addition to targeting infill housing, CEQA plaintiffs – often for non-environmental reasons – also target green energy projects, thus fighting against the very types of projects necessary to combat the adverse effects of climate change, in contravention of state policy as manifested in AB32 and SB375. Per the authors: “Four percent of the CEQA petitions filed during the study period involved energy projects” with the greatest number of those (46%) challenging solar projects and the next highest number challenging wind projects.
In addition to its extensive breakdown and analysis of the raw CEQA lawsuit filing data, the report contains supporting anecdotal and media accounts of abusive CEQA lawsuits and their adverse impacts on agencies, developers, communities, and the environment through the loss of environmentally beneficial projects and jobs, and the squandering of scarce public and private resources on the CEQA “process.”
The authors conclude their report by observing how prior CEQA reforms have been illusory, useless, or worse, and they propose three legislative reforms which they believe would better address CEQA litigation abuse.
First, they suggest “[t]ransparency should extend to all phases of CEQA litigation” and that CEQA petitioners should be required at the outset of litigation “to disclose their identity and confirm that they are seeking to enforce CEQA for environmental rather than non-environmental purposes[.]” Per the authors, this would mean that “anonymous parties who seek to block improvements to underutilized neighborhoods parks, schools, apartment projects and libraries – and business competitors and NIMBYs seeking to protect their economic interests, and lawyers with sham or non-existent clients seeking “greenmail” financial settlements – would lose the right to continue to abuse CEQA litigation for non-environmental purposes.”
Second, the authors would curtail duplicative lawsuits by providing that “projects that comply with approved land use plans for which a lawful CEQA process was already completed [w]ould not be subject to repeated CEQA litigation by staunch plan opponents.”
Finally, the authors would modify judicial remedies for CEQA violations such that the default remedy would no longer be a writ voiding all project approvals (and effectively starting the CEQA process over) but, rather, an order requiring that any errors in the environmental study be fixed and ordering more mitigation if needed. They suggest that “modified judicial remedy reform” to “align CEQA litigation injunctive remedies with ordinary standards for injunctive relief – as was done for the Kings Arena project by special legislation – ” would “weed out abusive CEQA litigants by reducing their leverage from stopping or delaying an environmentally benign or beneficial project to requiring corrected studies and additional mitigation.”
While they are not fleshed out in terms of proposed statutory language, and there are certainly “devils in the details” of the legislative reforms the Holland & Knight authors suggest (see, e.g., “CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?” by Arthur F. Coon, posted December 12, 2012) and while (as the authors themselves appear to recognize) any meaningful CEQA reform proposals will face formidable political hurdles in California’s Democrat-controlled, labor-friendly legislature, the authors have presented a compelling case for CEQA litigation reform and focused on three areas where properly drafted reform could prove particularly effective.
Moreover, the empirical CEQA litigation data painstakingly collected and analyzed by the authors should – at the very least – give considerable pause to those who believe CEQA is “working just fine” and provide a significant boost to the cause of meaningful CEQA reform.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.