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The Misuse of CEQA

David Berneman is Director at HR&A Advisors where he works on various real estate, economic development, financial feasibility, and public policy related tasks. He also serves on the board of directors for the Los Angeles Sustainability Collaborative.

In my experiences working as a real estate developer and consultant to some of the biggest investors and asset managers in the country, I have come to the realization that the California Environmental Quality Act (CEQA) no longer accomplishes what it was set out to achieve.

CEQA was passed by the California legislature in 1970 and was established to curb environmental degradation by enacting guidelines to make environmental protection a mandatory part of every local agency’s decision making process.  Since its inception 44 years ago, CEQA has slowly shifted away from its original purpose. It has become a weapon for legal teams and NIMBYs across the State, especially for those uninterested in seeing drastic change in their communities. Those challenging development projects are often less interested in protecting the environment and more interested in simply holding a project hostage and causing delay to keep their community status quo.

I don’t make this proclamation as an assault on CEQA, rather I wish to see the legislation used for its original purpose once again.  CEQA served as a vital tool to protect our environment from the 1970s to the 1990s, but unfortunately its purpose has been warped to benefit various interest groups.  This is unacceptable.  This goes against the original intent of the law.

CEQA was intended to protect our environment by requiring that all proposed local development projects undergo a rigorous environmental review process and to ensure the impacts of new projects on the environment are adequately mitigated.  This is a noble cause and should be continued.

Although I work in real estate development, a typically un-environmentally friendly endeavor, I hold the environment near and dear to my heart.  Because of this, it always upsets me when I hear about great development projects around the State being thwarted by NIMBYs or other opponents using the environment as a proxy.   There are likely thousands of examples of these actions taking place over the last decade.  For instance, a hotel (not to be named) located in Santa Monica went for development entitlements and conducted a full Environmental Impact Report (EIR).  The entire process took them almost three years from schematic design to finalizing the EIR.  Yet, a competing hotel (also not to be named), under the guise of CEQA, decided to sue the city and the hotel developer for producing an inadequate EIR.  Was there truly an inadequacy or was it merely a competitor finding a way to halt a project that could impede on their future revenue stream?  The ensuing battle cost millions in legal fees and simply delayed the inevitable: the development would come to fruition as designed only two years after the EIR was finalized.

There have been recent attempts to solve these kinds of problems.  Projects can now be designated by the Governor’s office as a California Environmental Leadership Development Project (ELP).  This designation, which was set forth by AB 900 in 2011, provides projects with a guarantee that any potential litigation will be resolved within 175 days, ensuring a timely manner to resolve issues brought forth by NIMBYs and other opponents.  One such recent project, which was designated with ELP status, was the 8150 Sunset development on the corner of La Cienega and Crescent Heights.

This assembly bill was a step in the right direction, but it has too many limitations and did not get to the heart of the problem.  State Senators Steinberg and Hill attempted an overhaul to CEQA in 2013.  Although the legislation died, SB 731, the CEQA Modernization Act would have allowed projects to move forward without additional and duplicative evaluation if they were consistent with local plans that already underwent environmental review.  It also would have reduced delays by streamlining litigation while preserving project opponents access to the courts.

I remain hopeful that State and business leaders will come together in the ensuing years to address this misuse of CEQA.  The environment, the economy and our overall quality of life as Californians will be better if CEQA is legitimately reviewed and modified to ensure no future interest group is allowed to use environmental regulations for the wrong reasons.



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