Tuesday, December 4, 2012

CEQA Clips: SF Biz Times Editorial and Tom Elias Column

San Francisco Business Times, Editorial, November 30, 2012


Our View: Reining in CEQA would be major benefit for San Francisco

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For major projects, San Francisco’s planning approvals process is famously capricious, convoluted, perilous and political.

The city’s anti-development activists prefer it that way, for such unpredictablility is their friend. Even when they are few in number, those who find something to dislike in virtually every major development proposal are highly experienced in bending the approvals enterprise to their will, knowing which bureaucratic buttons to push and levers to pull to induce delay. Indeed, in the right (or wrong) hands, delay is not just the outcome, it’s the objective. As months drag into years and the developers’ costs steadily mount, any but the most committed and well-financed may decide or be forced to forget the whole idea.

No weapon in this arsenal of delay-making has become more fearsome than CEQA. California’s landmark environmental statute is routinely lobbed, grenade-like, late into development deliberations, with the certain knowledge that it will blow up progress on other matters until environmental documents have been subjected to a separate, laborious review.

So the overwrought caterwauling from anti-development types over changes just proposed to how the city administers its responsibilities under CEQA is encouraging. Not because such complaints are valid — they aren’t; there is no attempt afoot to gut CEQA, eliminate public input into development decisions, or anything of the sort — but because it shows how afraid they are that the changes might in fact reduce the most cynical misuses of CEQA as no more than a blocking tool.

As the city currently applies CEQA, any single member of the public may at any time prior to a project’s final approval of by the Board of Supervisors file an appeal against its Environmental Impact Report, or against a determination by city officials that an EIR is not required. In practice, such appeals are launched Hail Mary style, typically at the last after nearly all other administrative and legislative avenues have been exhausted. Nevertheless, once an appeal has been lodged, all other deliberations — no matter how advanced — are halted while separate hearings are scheduled and convened regarding the adequacy or otherwise of the EIR, and a decision reached. In the hands of a resourceful development opponent with the time to pick apart a bulky document line by line, it’s relatively easy to manipulate this into added months or even years on the approvals process.

The reforms put forth by Supervisor Scott Weiner represent a significant improvement. They would require opponents wishing to appeal an EIR to do so early in the process rather than later so that the matter could be considered alongside others as part of the approvals process. They also streamline some other administrative matters so that as far as possible, CEQA operates as it should: As a safeguard against environmental degradation, not as a club with which to beat down development routinely.

Further improvements to CEQA are urgently needed at the state level — a task from which our legislators have so far shied. With 40 years of court decisions and administrative “guidelines” laid on top of a statute that was well-meaning but impossibly vague to begin with, there is a need for far greater clarity on what CEQA should be used to prohibit and what it should allow, and to greatly reducing the bureaucratic effort and expense in reaching a decision one way or the other.

In the meantime, city reforms should aim to once again make the planning approvals process a mechanism for achieving a timely decision. Not a vehicle for delaying one.

Syndicated Columnist, Tom Elias, December 4, 2012


Tom Elias: Expect CEQA changes next year

Written by Tom Elias

No law annoys California developers more than the California Environmental Quality Act and they figure to win at least some changes to its strict 42-year-old rules next year.

They almost sneaked through a major softening of the state’s premier environmental law last September in the waning moments of the last legislative session, but were forced to back off in the face of heavy objections to softening the law without any public hearings.

CEQA requires sponsors of a building project or development to write an environmental impact report assessing the effects. Signed in 1970 by Gov. Ronald Reagan, the law was to supplement the National Environment Policy Act of 1969 requiring an environmental impact statement from federal agencies.

The national law, for example, is why the U.S. Navy cannot practice gunnery on the west side of the San Clemente Island without first making sure it won’t affect migrating whales.

The state law has been used by environmentalists to obstruct countless projects, with legal challenges to the EIRs adding months and years to the planning cycle of projects such as sports arenas and apartments.

Development interests maintain they respect CEQA. Effects measured by EIRs include everything from public health — would a new freeway create health risks from vehicle exhaust? — to increased traffic and potential danger to wildlife. Once identified, adverse impacts must be mitigated, often adding to project costs.

No governor since CEQA passed has seemed more receptive to loosening its requirements than Jerry Brown.

Among the alteration attempts likely to return next year is an exclusion from CEQA for projects that already comply with local land-use plans previously certified as consistent with CEQA.

Brown’s turnaround on this law stems from his experience as mayor of Oakland from 1999 to 2007, when several projects aimed at bettering blighted areas were stymied by challenges under CEQA.

In his first year back as governor, Brown signed one bill fast-tracking legal review under CEQA for a proposed football stadium in Los Angeles and another speeding up projects (costing at least $100 million) that incorporate high environmental standards.

The picture dismays environmental leaders and excites development interests. “It would be devastating for California and the rest of the nation for the kind of precedent this would set,” said Jena Price, legislative director of the Planning and Conservation League.

On the other side, the CEQA Working Group, a coalition of business, labor and affordable housing interests, claims that other laws like the Clean Air Act, Endangered Species Act and anti-smog laws make CEQA partially redundant, forcing developers to spend time and money going over similar sets of facts in excessive paperwork. This outfit maintains it wants to eliminate duplication and provide even wider environmental disclosure than CEQA now does.

But environmentalists point to a 2005 study by the Public Policy Institute of California indicating only one project in every 354 is ever delayed by CEQA-related actions. They claim business interests don’t want to modernize CEQA, they want to gut it.

Changing CEQA should not happen in secrecy, but with plenty of public input.


Email Thomas Elias at tdelias@aol.com.

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