CEQA: With The Passing Of Its Legislative Author, What’s The Status?

Last month former California assemblyman John T. Knox passed away at 92. He was a progressive Democrat from Contra Costa County in the East Bay who was the driving force behind the 1970 California Environmental Quality Act (CEQA). The East Bay Times has more on his life.

His passing is an opportunity for reflection on the state of CEQA, California’s bedrock environmental law. It’s a perennially controversial topic. Big businesses hate it because they get sued under CEQA and have to build in the litigation uncertainty into their projects as a result. Labor unions love it because it gives them leverage to sue non-union project proponents unless they agree to hire unionized workers. And traditional environmentalists and NIMBYs love it because it gives them leverage over basically any proposed project in the state.

As someone who is motivated to address climate change and boost sustainable housing growth in the state, I’m personally mixed on CEQA. I don’t like its negative effects on infill housing, but I like the basic concept and how CEQA applies to environmentally destructive projects, from certain timber harvesting plans to oil and gas exploration.

On the housing front, here are some truths worth acknowledging:

  1. CEQA is overblown as a reason for the state’s housing shortage.  Developers and their advocates like to blame CEQA for the state’s significant undersupply of housing.  But the evidence simply isn’t there that it’s a major cause for suppressing production.  For example, the Governor’s Office of Planning and Research survey of planners around the state in 2012 indicated that CEQA was not the prime factor in stopping infill, compared to barriers like local zoning, lack of infrastructure, and public antipathy to new development.  And the 2016 survey showed that over 40% of cities and counties in California have successfully used CEQA streamlining for infill projects that might have been subject to the law.  Meanwhile, a recent report from the Rose Foundation (on which I served as an adviser) put CEQA litigation in context and found it to be rare.  Only 195 CEQA lawsuits on average are filed each year in the state, and fewer than 1 out of 100 projects that aren’t already exempt from CEQA are subject to litigation.
  2. CEQA does kill or maim a lot of important infill housing developments. Despite the overblown nature of the CEQA claims discussed above, there is still plenty of anecdotal evidence that CEQA has taken out some badly-needed infill projects.  The law certainly isn’t designed to help promote more infill housing, and one of the negative aspects not discussed in the Rose Foundation report is the defensive project siting and design that CEQA encourages.  And that’s why I’d favor far more limited CEQA review for housing in transit-oriented infill areas.
  3. CEQA is politically very hard to change at the state level right now.  The combination of labor union and traditional environmentalist support for CEQA means that wholesale change at the state level is unlikely to happen soon.  Rather, progress will be marked incrementally, such as through SB 743, which essentially removes transportation as a CEQA impact for infill projects near transit and simultaneously requires rigorous analysis for outlying sprawl projects.

Knox left this state an important legacy on environmental protection.  But just as courts have vastly expanded CEQA’s reach, a new era of housing shortage and climate change mitigation will require updates to the law to address these modern challenges.  As we think through policies needed to boost infill housing, policy makers will need to consider options to streamline CEQA further for these priority needs.