CEQA at 40:Midlife Crisis or Mission Accomplished?

Presentation by Kip LipperOffice of Senate pro Tem Darrell SteinbergUC Davis King HallNovember 2011

Legislative Disclaimer

“The opinions expressed by the presenter

are his alone and do not necessarily

represent the views of the California

Senate, or any member of the Senate.”

Presentation Summary

Review key CEQA statutory law since 1970’s

Review key budgetary, policy, and political dynamics affecting CEQA

Preview emerging CEQA issues in legislative and executive branches

CEQA in Legislative Context

Little understood law in both executive and legislative branches (term limits, new Adm etc)

Often under attack—whether justified or not--particularly during bad economic times

Very few bills strengthen CEQA

In recent years, CEQA debates tend to be polarized and uninformed (exemptions versus status quo)

CEQA in Legislative Context

Environmental groups defend CEQA (though some try to work through issues)

Business, developer groups oppose CEQA (distressingly weak CEQA lobbying bar)

Administrations vexed by CEQA (ARB, Caltrans)

Business fights with itself on CEQA issues (LA stadium; gravel mines)

Organized Labor significant force, though hardly monolithic (laborers, carpenters v pipe fitters)

CEQA in Legislative Context

“Progressive” Democrats tend to defend, while “moderate” Democrats willing to amend. Policy Committees front lines of defense

Republicans uniformly support modifying CEQA except where business (or occasionally labor) oppose.

CEQA generally viewed as cumbersome and litigious. Little understanding of its benefits.

Governors and Administrations often set stage for CEQA debates

CEQA in 1980’s—Deukmejian Era

Prison construction boom--CEQA Exemptions “Plus”

EAS—”Environmental Assessment Study”

“Expert” Administrative Tribunal Review

Loma Prieta Earthquake Repairs

Further use of “tribunals” (Resources, BTH, Environmental Affairs Secretaries) to review environmental effects in lieu of CEQA review

CEQA in 1990’s—Wilson Era

Early 1990’s Recession hit State hard. Like today, jobs and economy were the issues.

Formation of “Californians Against Red Tape” CART (Labor/business coalition)

Various reports and recommendations submitted to Legislature urge CEQA Reforms (State Bar, Uberroth Report, Landis Report)

CEQA Reform Act of 1993 (MEIR, FEIR, streamlining for mandated projects, new standing and evidentiary rules, CEQA judges etc)

CEQA in 1990’s—Additional Developments

Military base reuse and renovation—need to bring federal and state processes together

Continuing conflict over certified regulatory programs (e.g. Forest Practices)

Inchoate but growing interest in climate change (AB 4420/1988, SB 1771—1999)

1996--First “stadium” Bill--Giants Stadium Legislation

CEQA in New Millennium

Increasing interest in climate change—lack of action at federal level—Enactment of AB 1493 (GHG vehicle standards)

Enactment of AB 32—Global Warming Solutions Act of 2006—identified GHG’s as significant effect on environment.

State Department of Justice, others bring actions under CEQA to enforce GHG mitigation for general plans, housing dev.

CBIA, major developers, local governments protest loudly

CEQA in 2000’s (cont.)

GHG CEQA litigation prompted Republican legislative backlash in budget process

SB 97 (Dutton—Chapter 185/2007)—closed the 2006 budget deal

Directed OPR/Resources to update guidelines to incorporate guidance on GHG mitigation.

Stated that failure to analyze or mitigation GHG’s under CEQA for certain infrastructure projects was not basis for litigation. (retroactive, 2010 sunset)

CEQA in 2000’s (cont.)

Increased interest in integrating regional transportation, housing, land use and GHG considerations.

Driven in part by enactment of major new infrastructure bonds passed in 2006, emerging GHG issue.

Early legislation: SB 832 (Perata), SB 303 (Ducheny)—both failed.

Final legislation—SB 375 (Steinberg)—passed in 2008.

2009-2010 CEQA Legislation—New Round of Exemptions/”Reforms”

Like early 1990’s, driven by “Jobs and economic development” imperative

Budget/CEQA Exemption Linkages: levee repairs, Transportation Projects (Hwy 50 HOV lane; Caldecott Tunnel 4th Bore; Doyle Drive)

SB 1456 (Simitian/Logue et al)—Tiering, pre-litigation mediation, AG expedited hearings, Sanctions for frivolous claims

AB 1581 (Torres)—CEQA Exemption for “big box” stores (failed passage)

2011 CEQA Legislation

New Administration, similar themes

First six months occupied with more Budget/CEQA linkages (Rep/business pkg), which ultimately failed.

Three Key Bills Emerged as 2011 Session Adjourned

SB 292 (Padilla et al)—LA Downtown Stadium

AB 900 (Buchanan et al)—Environmental Leadership Projects

SB 226 (Simitian et al)—CEQA scoping, Solar PV exemption, Infill streamlining, GHGs/categorical exemptions

Closing Thoughts….

CEQA middle-aged but still California’s bedrock environmental law

Regrettably, CEQA politics often supersedes serious policy discussion

Like taxes, size of government, few interests have any incentive to find middle ground on CEQA Reforms

Legislature reflection of state as a whole (want both clean environment, strong economy)

New Administration key (OPR, NR Agency, Gov himself)