CEQA REFORM
The California Environmental Quality Act (“CEQA”) has been misused to stop projects to increase California’s supply of energy and water even after all reasonable concerns have been addressed. We welcome suggestions to make our proposed examples of CEQA reform as effective as possible.
There is currently a proposed ballot initiative, referred to as Californians for Homeownership, cleared for circulation on November 13, 2023, that will enact significant reforms to CEQA. The California Attorney General’s title and summary are shown below. Proponents of this measure will need to collect a minimum of 546,651 petitions signed by registered voters by May 13, 2024 in order for it to appear on the November 2024 state ballot.
1967. (23-0025A1)
LIMITS ENVIRONMENTAL LAWSUITS CHALLENGING NEW HOUSING CONSTRUCTION. CAPS DEVELOPMENT FEES ON NEW HOUSING. INITIATIVE STATUTE.
Summary Date: 11/13/23 | Circulation Deadline: 05/13/24 | Signatures Required: 546,651
Proponent(s): Stephen Hilton
Prohibits private parties from filing lawsuits challenging new housing construction based on alleged non-compliance with the California Environmental Quality Act (CEQA). Authorizes only district attorneys to file such lawsuits, as well as the Attorney General if the project is located in multiple counties. Caps fees that local and state agencies may impose on builders for construction of new homes and related infrastructure. Caps do not apply to regulatory costs authorized by statute, school district fees, bond repayments, or costs of providing utility service and roadway access to new homes. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Reduced local government development fee revenue, likely at least hundreds of millions of dollars per year, and potentially exceeding $1 billion per year. Uncertain, but potentially significant, savings to state and local governments as a result of lower project costs due to fewer CEQA lawsuits being filed against public projects
OTHER POTENTIAL CEQA REFORMS
Here is a list of additional potential modifications to CEQA that could be enacted either by a citizen ballot initiative or through legislation:
1 – Eliminate all exemptions. Anyone wanting an exemption is speaking just for their special interest.
2 – End anonymous lawsuits; require environmental standing to sue. Accept only environmental criteria for litigation. Only allow standing to people directly impacted on environmental grounds. For example, NEPA does not give standing to labor.
3 – Clarify the conditions under which if a development conforms to a county’s standing environmental impact report for that category of project, then it is not subject to further CEQA review.
4 – Allow applicants to rely on previously approved EIR. If a proposed project is consistent with the county’s specific general plan, community plan. and zoning, eliminate the requirement for additional environmental review.
5 – Make reviews of housing projects ministerial, or, make review of any project – including energy development – ministerial.
6 – Require the loser in CEQA lawsuits to pay the prevailing party’s legal fees.
7 – End duplicative lawsuits; once a plan or project is approved with CEQA it can be challenged in a lawsuit once but not multiple times for each subsequent agency approval.
8 – Do the CEQA process just once, with all involved agencies operating together, not sequentially.
9 – Change the timeline for notifying agencies of the objections to EIRs. Designate a final review step in the CEQA process after which further litigation is prohibited. This is already a provision of NEPA. As it is, objections including litigation are filed at the last possible moment, often in the final public hearing before approval of a project.
10 – For all private proposals, eliminate the requirement that the EIR include an evaluation of alternative sites for the project.
11 – Impose a maximum time limit on how long an agency has to respond to an initial or revised environmental impact report.
12 – Expedite the process so problems identified in an EIR review can be fixed right away by the developer. As it is every time the process is restarted there is potential for new claims.
13 – Match the CEQA remedy to the CEQA deficiency. Specify that while a court can order more CEQA analysis and mitigation, it cannot block a project or rescind a project approval unless there is a significant adverse health or safety impact if the project is constructed.
14 – Flaws found in EIRs are often extremely technical and it is often questionable whether or not a particular technical deficiency would prevent the project from being approved in its current form. Therefore if there is a technical flaw but it is not prejudicial and will not really make a difference, a harmless error standard should apply, such that if the project would be approved anyway notwithstanding the technical deficiency that should not be a basis for denying the EIR.
15 – Judicially enforce California Public Resources Code PRC § 21083.1. Judges should not require anything more than what is expressly required in CEQA statutes and guidelines. Doing this would make CEQA more predictable, which would improve the law and its effect on development.
16 – Replace the right to appeal with the right only to a writ of mandamus. This way if the court of appeal believes the appeal is frivolous they can deny the writ and hence avoid a full briefing, oral arguments, and having to write an opinion. A writ of mandamus can be evaluated within months. If an appellate court does think an appeal has merit, they can approve a writ of mandamus and then it becomes treated like an appeal. The reform language can include a provision that if there is a “likelihood” the petitioner is right, the appellate course must accept the writ.
17 – If a project is approved, that approval shall remain recognized for a set number of years even if rules are subsequently updated.
18 – Repeal CEQA entirely. Rely on NEPA and other environmentalist legislation to protect the environment from developments that may have a significant impact.