Opinion, Berkeley Blogs

CEQA reform 2013 holds promise for improving the environment

By Ethan Elkind

Governor Brown recently signed into law this year’s version of California Environmental Quality Act (CEQA) reform, which as my colleague Eric Biber noted was decidedly stripped down from what it could have been. SB 743 (Sen. Darrell Steinberg) got a lot of negative attention for giving the Sacramento Kings basketball arena proponents accelerated environmental review and immunity from injunctive relief unless the project is found to jeopardize public health, safety, or archaeological resources.

In exchange for these benefits, the new stadium must meet strict environmental performance measures, including net-zero greenhouse gas emissions from passenger trips to the stadium, LEED Gold certification, and compliance with the sustainable land use plan for the region under SB 375. In short, basically the same performance standards required for $100 million projects under AB 900 (2011).

Eric bemoans the special interest carve-out; personally I don’t think it’s a big deal. Despite the backroom nature of the bargain, it’s the same one that AB 900 projects got in 2011, and the legislative language was hardly snuck in unnoticed. There has been plenty of media attention on it, it’s a high-profile project, and the streamlining provision wound its way through Sacramento for months.

What’s more, it’s hard to imagine CEQA litigation resulting in better mitigation measures than what’s contained in the law. To me, a more subversive carve-out happens when industry sneaks in rules and regulations that few people realize are specifically meant to benefit a narrow class of projects. In this case, the public got about as much daylight on this carve-out as we could expect, given the circumstances.

But more importantly, environmentalists and infill advocates got a huge win with the destruction of the dreaded “LOS” metric that prioritizes autos over pedestrians, transit riders, and bikers, in favor of something broader that accounts for multi-modal travel and greenhouse gas emissions in infill areas. The Governor’s Office of Planning and Research has authority to go even farther and destroy LOS for good everywhere (of note, local governments can still keep their precious LOS if they really want to). The law also removes parking and aesthetic impacts as areas of analysis under CEQA for infill projects – yet another huge win.

Year by year, Governor Brown and the legislature are finally bringing CEQA in line with the state’s pressing environmental and land use priorities. Of course, by not going further they are antagonizing members of the business community who want to gut the law and its burdens on business. I don’t expect them to go quietly, and I wouldn’t be surprised if they try to bankroll a ballot initiative to roll back CEQA protections in the near future, now that they see that Sacramento will not do their bidding.

But for now, supporters of better urban environments and land use patterns in the state should be pleased with this victory.

Cross-posted from the environmental-law blog Legal Planet.