‘Job killer’ bill could increase CEQA litigation

CEQA_process_chartApril 26, 2013

By Dave Roberts

There has been discussion by Sacramento politicians in the past year about the need to reform the California Environmental Quality Act in order to remove litigious roadblocks to new development, thereby boosting the state economy. But so far, the Democrats who control the California Legislature are moving in the opposite direction, making CEQA even more of a lawsuit magnet.

Assemblyman Tom Ammiano, D-San Francisco, won support last week from the Assembly Committee On Natural Resources for AB 953. It would expand CEQA’s mandate from the current standard of examining and mitigating the potential impacts of a project on the environment to include the potential impacts of the environment on the project.

The California Chamber of Commerce has dubbed AB 953 a “job killer.”

The Chamber asserts on its website that the bill:

“invites more litigation over CEQA projects by overturning a recent court decision and allowing project opponents to challenge environmental impact reports (EIRs) that don’t adequately evaluate and mitigate impacts related to conditions and physical features in the environment like sea-level rise and fault lines…. [It] dramatically expand[s] CEQA’s requirements at a time when the Legislature should be more appropriately focused on updating the 43-year-old law to address legitimate concerns about unnecessary litigation while reinforcing the existing statute’s core purpose of environmental protection and public review.”

Reversing a court ruling

That, of course, is not the way Ammiano sees his bill. He believes it corrects an unjust ruling in 2011 by the Second District Court of Appeal in Los Angeles.

That case, Ballona Wetlands Land Trust vs. the City of Los Angeles, concerned an Environmental Impact Report challenge to the second phase of the Playa Vista development, which is in West Los Angeles two miles inland from the ocean. The project includes 2,600 homes, 50,000 square feet of office space, 195,875 square feet of retail space, 40,000 square feet of community-serving uses and 11 acres of parks and trails.

The development has cultural and historical significance. It’s a former Tongva Indian sacred burial site; about 1,000 Native American remains were exhumed during construction of phase one. It’s also where Howard Hughes had a private airfield and constructed his Spruce Goose at the end of World War II.

The Ballona Wetlands Land Trust, an environmental group seeking to protect the nearby wetlands area, challenged Los Angeles’ approval of the development on a number of environmental grounds. One of those was the contention that global warming would cause the sea level to rise so much that it could flood the La Playa development. It based that in large part on a 2009 report by the California Climate Change Center“The Impacts of Sea-Level Rise on the California Coast.”

Los Angeles officials countered with an engineer’s report asserting that the CCC report represented an extreme worst case scenario, relied on a faulty methodology, and overstated the flood risk, according to the court ruling. The CCC report failed to account for the project site being two miles from the ocean and unlikely to be affected by wave action, elevated land between the project site and the coastline that would act as a barrier, and the topography of the project site and building elevations.

Effect of environment is irrelevant

But the significant issue, as far as the court is concerned, is that it’s irrelevant under CEQA whether purported sea level rise would or would not affect a proposed development.

“[T]he purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project,” the appeals court ruled.

The court cited a couple of precedents. In 2009, the court rejected Long Beach’s attempt to challenge the construction of a new high school based in part on the contention that student health would be affected by emissions from nearby freeways. The court wrote, “We held that the EIR was not required to discuss the impacts on staff and student health of locating the project near the freeways.”

And in 2011, the court rejected a challenge to a Dana Point residential development that was based on the potential impact of noxious odors from a sewage plant on future residents.

Contrary to CEQA guidelines, which allow an EIR to analyze the effects of bringing people to hazardous areas, such as building a subdivision on an active fault line, floodplain or wildfire risk area, the court ruling states, “[W]e hold that an EIR need not identify or analyze such effects.”

And that’s what bothers Ammiano. He told the committee on April 15:

“CEQA is the primary state law requiring public officials to understand and consider the environmental consequences of their decisions before they make them. EIRs have historically taken into account the effects on the natural environment on the project as well as the effects of the project on the natural environment. The Ballona Wetlands decision unravels the specific purpose of CEQA to reduce the negative impacts of development on people and the environment. While we agree that reform must happen to CEQA, Ballona reforms just don’t make sense.

“AB 953 does not change CEQA. The Ballona Wetlands decision changed CEQA. And AB 953 re-establishes and clarifies what has been done for CEQA prior to that decision. Environmentally sound developers agree that fixing the Ballona decision is consistent with good planning principles, as developers don’t want to take the responsibility of building in a polluted air zone, a flood plain or coast line with measured sea level rise. AB 953 makes the process clearer, avoids costly litigation and protects people and the environment.”

Ammiano was supported by Roger Moore, an attorney who said he’s been litigating CEQA disputes in all parts of the state for 20 years. Moore asked:

“Should CEQA be understood to deprive decision makers and the public of information about dangers to health and safety stemming from locating the project at a dangerous site? Until recently the answer to that question has been a resounding no. And it remains that way under CEQA, except for the decision that Mr. Ammiano referred to. Because of this change, it is now essential to have a legislative recognition … that humans are a key part of the environment that is to be protected.”

Expanding CEQA will cut jobs

But Mira Guertin, representing the California Chamber of Commerce, countered that the proper place to consider the potential impacts from the environment on a proposed development is in the land use process before a project gets to the EIR stage. She said:

“Just to give you an example of how this works: When Hurricane Katrina devastated New Orleans, there was a big conversation that opened up about whether we wanted to rebuild the city where it is, knowing that it is below sea level and it’s going to be vulnerable to hurricanes like this in the future and all of the considerations that go along with that. That conversation happened, and there is no CEQA in Louisiana. So that conversation can continue to happen in California without making that conversation a part of CEQA.

“One of the reasons the business community wants CEQA reform is because increasingly CEQA is used as a tool to stop development or extract conditions that are not necessary to protect the environment. Those people could be competitors. They could be neighbors who just don’t want busier streets. They can be unions trying to extract contract concessions. Or even environmental groups who don’t believe in any development in the state.

“Expanding CEQA under 953 would give one more tool to those opponents to challenge any project, saying that the EIR did not consider every possible impact, didn’t consider the appropriate way of calculating sea level rise. And therefore they didn’t mitigate far enough, perhaps they didn’t implement enough mitigation measures. This will cause dramatic cuts to jobs, it will decrease development. And it will not do one thing to help the environment. For this reason we oppose AB 953 as a job killer.”

Won’t cure cancer

Also opposed was Cassie Gilson, representing the California Building Industry Association. She said:

“I say this only a little bit jokingly, but I think there is an attempt and people want CEQA to cure cancer and bring peace to the Middle East. Any time there is a shortcoming in anything, the idea is CEQA is where we have to put it in. But it is not by any means the only law we have to deal with. In fact, we’ve structured CEQA together with a very robust body of other laws that gives project proponents, whether its Caltrans or a home builder, a clear set of requirements. If you are building anything in the vicinity of an earthquake fault, here is what you have to do. If you have air emissions in areas of the state where there is significant air quality issues, here’s what we have to do.”

Gilson argued that the Ammiano’s bill would actually hurt California’s goal to reduce greenhouse gas emissions by discouraging development of infill lots in urban areas, forcing development to suburban and rural areas.

AB 953 was approved by the committee 5-3, and has been referred to the Assembly Committee on Appropriations. Similar legislation, SB 617, is scheduled to be considered by the Senate Environmental Quality Committee on May 1.

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