Governor Newsom’s CEQA Bills Could Be a Modest Step within the Unsuitable Direction
Governor Newsom’s CEQA trailer bills probably won’t do much. But his heavy-handed rhetoric foreshadows a bigger anti-CEQA push that ought to worry communities that depend on California’s premier public participation statute.
Talking to Ezra Klein in late June, Governor Gavin Newsom hearkened back to the California of the Fifties and Sixties: “Individuals are losing trust and confidence in our ability to construct big things. People take a look at me on a regular basis and ask, ‘What the hell happened to the California of the ‘50s and ‘60s?’”
Governor Newsom spoke to the Latest York Times columnist as part of a bigger media push to advertise his package of 11 trailer bills––submitted alongside his proposed budget for California––ostensibly designed to expedite infrastructure development, meet California’s climate goals, and capitalize on the wealth of federal dollars available through recent infrastructure bills. Because the Legislature debated the merits of the package, the 2 bills that received essentially the most attention were amendments to the California Environmental Quality Act (CEQA). The first of those bills reduced the time allotted for CEQA litigation to 270 days for certain energy and infrastructure projects. The second amended CEQA’s administrative record provisions by reducing the time for record preparation from 90 to 60 days; allowing project proponents (moderately than CEQA petitioners) to seize back the appropriate to arrange the record; and excluding from the record communications between agency staff members that didn’t reach the final word decision-makers. Just last week, Governor Newsom signed an amended version of this package into law, with the CEQA bills passing through largely untouched. (Notably, environmental groups were pleased to see the “Fully Protected Species Trailer Bill,” which our Deputy Director Julia Stein wrote about back in May, receive significant amendments).
But when the governor’s tone in that opening quote got here off as defensive, that’s probably––no less than partially––since the CEQA bills generated controversy on either side of the reform conversation. Environmental and environmental justice groups, and certain members of the Legislature, took issue with each the substance of the bills and the expedited process through which they were adopted. But proponents of CEQA reform criticized the bills as overly technical, duplicative, and usually unambitious.
So which group is correct in regards to the bills?
Each are, to a point. As a professed CEQA Truther, I agree in principle with a lot of the points that environmental and environmental justice groups made in regards to the problems raised by each trailer bills. The judicial streamlining provisions mean tighter litigation timelines in CEQA cases, which can inequitably disfavor less well-resourced CEQA litigants. These disfavored litigants will often be the environmental justice groups and low-income or BIPOC communities that regularly depend on CEQA resulting from their regular exclusion from siting and permitting decisions. These same communities experience cumulative environmental burdens attributable to a racist history of land use siting practices. While the judicial streamlining bill doesn’t directly affect CEQA’s environmental review provisions, an expedited litigation timeline could still put smaller, community-based organizations at an obstacle.
I even have deeper concerns with the executive record provisions. The executive record generally makes up the universe of evidence available to the parties in a CEQA case; and this record can find yourself being very long. Consequently, cutting down the length of time for parties to arrange the record may result in the exclusion of relevant documents. More critically, exempting internal agency emails not reviewed by decisionmakers from CEQA’s record requirements runs counter to CEQA’s fundamental principles of transparency and accountability. Even where internal communications never make it to decision-makers directly, those emails may inform the agency’s public discourse and environmental review, shape staff recommendations to decision-makers, and supply a window into underlying agency motivations and conduct. Furthermore, because the executive record streamlining bill authorizes agencies and project proponents to retake control of the record preparation process, those agencies have greater latitude to choose and select which documents are included within the record. As noted in Golden Door––a recent CEQA case that the executive record bill now overturns––allowing agencies to find out what does and doesn’t belong within the record can “enable an agency to prune the record by deleting unfavorable internal agency communications.”
Despite these valid concerns, the actual effect of the CEQA trailer bills will likely prove less dramatic than the strong rhetoric they’ve generated. Courts largely have discretion to find out whether to follow the expedited schedule. In truth, the 270-day timeline specified by this trailer bill dates back to 2013, when Senate Bill (SB) 743 (Steinberg) fast-tracked CEQA lawsuits on Environmental Leadership Development Projects, a segment of projects including clean renewable energy projects, clean energy manufacturing projects, and––as later amended by SB 7 (Atkins, 2021) and SB 25 (Caballero, 2019)––infill housing and LEED-certified developments. Like these streamlining bills, the judicial streamlining trailer bill requires courts to resolve cases inside 270 days only “to the extent feasible,” without imposing any penalty longer review periods. As such, cases subject to 270-day judicial streamlining are often not resolved inside the allotted time period, despite the fact that all CEQA cases already receive calendar preference under existing law. Much more fundamentally, the judicial streamlining bill doesn’t touch on housing, which is commonly essentially the most contentious piece of the CEQA debate.
And despite my stronger concerns regarding the executive record trailer bill, I’m unsure how often project proponents and agencies will actually invoke this bill. Project proponents availing themselves of the chance to arrange the executive record may have to pay the (sometimes expensive) cost of record prep themselves, no matter end result. And CEQA petitioners will often find a way to review documents regarding the project through the California Public Records Act and resolve disagreements on what belongs within the record through record disputes. Further, where the 60-day timeline provisions for record certification turn out to be overly burdensome, they could be prolonged by court order or stipulation of the parties, which already occurs with some regularity, even under the 90-day timeline (although the trailer bill provides that courts may only extend this window “for good cause”).
I’m still wary of the provisions excluding internal agency communications from the record, which can likely be most consequential where agencies support their decisions with post hoc or pretextual reasoning, or otherwise act in bad faith. As an example, previously, agency emails have revealed agencies’ awareness that a project could be larger in scope or impact than considered in an environmental impact report (EIR). And while these concerns are legitimate, I’m not convinced that they shall be relevant as often as others have argued, since most CEQA disputes are evaluated solely on the standard of publicly released environmental review documents, not on agencies’ internal deliberations.
In truth, my ultimate takeaway from these bills is one in all only a few times I even have found myself in modest agreement with Ezra Klein, who called the infrastructure package as a complete “a group of mostly modest, numbingly specific policies.” But when I even have such tepid feelings in regards to the substance of those bills, why did I dedicate a Legal Planet post to this infrastructure package?
Back To the Opening Quote
Governor Newsom’s quote was telling. “What the hell happened to the California of the ‘50s and ‘60s?” I don’t think it’s a coincidence that he refers to those many years and that the California Legislature passed CEQA in 1970.
As a vigorous, longtime advocate for significant CEQA and permitting reform, Klein appeared to express sympathy for Governor Newsom. But for me, the “big things” of those many years––like expansions of California’s water system, freeways, and university structure––signify economic growth on the expense of California’s most vulnerable groups. During those many years, constructing “big things” in California often meant displacing and contaminating communities of color. These infrastructure projects meant constructing networks of freeways cutting through Black and Mexican-American neighborhoods in East and South Los Angeles, displacing 1000’s and subjecting people who remained to noise, pollution, and the continued encroachment of industry. On that note, the Fifties and Sixties saw infrastructure projects supporting incredible expansions of port operations on the Ports of Long Beach and Los Angeles, helped along by expanded goods movement corridors, which have contributed to cancer risk, pregnancy complications, and respiratory illness for a lot of many years. Sticking to the Los Angeles area, the Battle of Chavez Ravine––wherein the City of Los Angeles forcefully evicted the Mexican-American communities in Chavez Ravine to make way for Dodger Stadium––took place within the Fifties and Sixties, and will surely be classified as a “big thing.”
So why invoke the (often deeply unjust) projects of those many years for a set of overall modest reforms to CEQA? It might be because most agree that larger CEQA and permitting reforms are on the horizon and Governor Newsom is setting the stage for a much messier battle.
California is within the midst of a housing crisis; it’s facing a backlog of energy and infrastructure projects to satisfy its climate goals; and it’s seeking to capitalize quickly on federal infrastructure dollars being awarded to states under the Inflation Reduction Act, the Bipartisan Infrastructure Law, and the CHIPS Act. In Sacramento, there’s been a stream of successful legislative proposals ostensibly designed to streamline CEQA review for each market rate and reasonably priced housing; and the Little Hoover Commission (an independent, bipartisan state oversight agency) recently held its fifth hearing considering recommendations on potentially broad legislative reforms to CEQA, during which critics and supporters of CEQA went forwards and backwards on CEQA’s role within the housing crisis, decarbonization, equitable constructing policy, transportation, and so forth. (Thoughtful and informative written testimony was also submitted by law professors/Legal Planet contributors Richard Frank, Eric Biber, and former UCLA Law professor Sean Hecht).
Empirically, there isn’t much to be said that wouldn’t be repeating the identical few studies that often arise within the CEQA debate. Several studies conclude that CEQA is decidedly not a primary driver of California’s housing/infrastructure backlogs and that political barriers, labor and materials costs, and exclusionary zoning are the true culprits. Perennial CEQA-haters Holland & Knight put out seemingly annual studies claiming the alternative (which, as has been identified here previously, depend on dubious data and methodology).
Environmental justice groups have every reason to be concerned by the growing cottage industry of anti-CEQA commentators. Rhetorically, the dialogue connecting housing, infrastructure, and CEQA is driven by a neoliberal/libertarian hybrid of shallow supply-and-demand economics. On this growing movement, any multi-family housing development is an unquestioned good and anything which will stop or slow development is necessarily a cudgel wielded by NIMBYs. (I’m also skeptical that giving developers carte blanche to construct market-rate housing will do much, if anything, to alleviate competition for deeply reasonably priced housing unless it’s paired with very strong affordability set-asides and anti-displacement measures, but that’s best saved for one more post).
Even though it’s possible that NIMBYism (particularly in wealthy, majority-white communities) contributes in some option to California’s reasonably priced housing shortage or infrastructure troubles, CEQA isn’t the first or only tool used to oppose these projects. And pointing fingers at CEQA––which I see often in terrible op-eds and Twitter takes, but in addition in policy forums like Little Hoover––often deeply discounts CEQA’s value and necessity to environmental justice communities. CEQA is regularly the one tool that permits fenceline communities to make their voices heard through the project planning process. It serves the twin purposes of informing the general public and decisionmakers of the environmental impacts related to a project, and of requiring agencies to mitigate those environmental impacts to the extent feasible. CEQA is key to the principals of environmental justice, which emphasize stepping back and allowing overburdened communities to talk for themselves and promote community-led planning processes.
Julia identified in a post last 12 months (one other response to Klein, coincidentally) that those that point the finger at CEQA often frame infrastructure-related injustice as an artifact of the past, akin to racial covenants. They argue that this injustice is why the Legislature passed CEQA in the primary place. But now, California has the admirable goals of promoting decarbonization and mass public transit, addressing water scarcity, and constructing dense housing. And California ought to be expediting projects that further these goals, not smothering them in environmental review and potential litigation. But having spent my first job out of law school working for a community-led environmental justice organization in Huntington Park and Wilmington, I can say unequivocally that harmful and discriminatory project proposals are still around, and housing and schools are still being proposed on contaminated and toxic land. Likewise, even today’s “green” infrastructure projects still risk turning overburdened communities into sacrifice zones. It’s tough to point to a more apt example of this than Ford’s $5.6 billion electric truck plant construction project, for which Tennessee used eminent domain to seize land from a gaggle of Black farmers, allegedly for a fraction of its value.
So, to the extent that Governor Newsom’s lofty references to California’s ‘50s and ‘60s and his comparatively modest CEQA bills are a stalking horse for larger CEQA reform, environmental justice groups are clever to attract a line within the sand here and now.