More Environmental Litigation Likely If Pending Senate, Assembly Bills Pass
(May 10, 2013) Two California Chamber of Commerce-opposed “job killer” bills that increase litigation under the California Environmental Quality Act (CEQA) are being actively considered by the Legislature.
AB 953 (Ammiano; D-San Francisco) invites more litigation over CEQA projects by overturning a line of court decisions, thereby allowing project opponents to challenge environmental impact reports (EIRs) that don’t evaluate and mitigate impacts related to conditions and physical features in the environment like smog and fault lines.
In other words, it would require project applicants to evaluate and mitigate for effects of the environment on their projects, not just the effects their projects might have on the environment, expanding CEQA and adding costs to the project approval process.
AB 953 passed the Assembly Appropriations Committee this week and will be considered next by the entire Assembly.
Similar legislation, SB 617 (Evans; D-Santa Rosa), was approved last week by the Senate Environmental Quality Committee, and is scheduled to be considered May 13 by the Senate Appropriations Committee.
Both AB 953 and SB 617 would expand 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.
Complying with CEQA imposes considerable costs on project proponents.
By expanding the range of factors that must be considered and mitigated for under a CEQA analysis, AB 953 and SB 617 increase the cost of performing analyses of proposed projects and the cost of the projects themselves.
In addition, both bills would provide new opportunities for litigation, allowing project opponents to challenge the adequacy of an EIR for a host of new reasons.
For example, in Ballona v. City of Los Angeles, one of the cases these bills would overturn, the plaintiff claimed that the EIR failed to analyze the impacts of sea-level rise on the project, which was located two miles from the coast. If either AB 953 or SB 617 passes, that would give opponents of projects the chance to challenge any project near the coast for the same reason.
The bills would also open projects up to challenges for failure to adequately consider the effects of earthquakes, wildfires, flooding, smog and other physical conditions in the environment, or for failure to mitigate for the speculative harms those conditions could create for a project.
Given the range of physical conditions to be considered, virtually every project in the state could be affected, and because litigation is so expensive and can take years, this could add millions in costs for businesses and state and local governments each year, and considerably slow down projects.
Attack on CEQA
AB 953 and SB 617 are an attack on the core of CEQA, namely, that CEQA requires consideration of the impacts of a project on the environment, not the other way around.
A variety of other California laws and regulations already address issues such as floods, fire hazards, and earthquakes (for example, natural issues that may have an impact on projects).
Both bills ignore these robust bodies of law and inject into CEQA further uncertainty and increased litigation costs for projects ranging from affordable housing and hospitals to schools and infrastructure.
Courts have repeatedly held that CEQA is not concerned with the effect of the environment on proposed projects. As a 1995 appellate court ruling commented, consideration of the effect of the environment on the project is “beyond the scope of CEQA.”
The same appellate court noted in a 2009 decision that the 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 review and approval of proposed projects in California are governed by a host of laws to ensure the health, safety, and environmental protection of Californians and the communities in which they live. AB 953 and SB 617 ignore these laws and assume CEQA is the only law in the land.
Ironically, one of the results of AB 953 and SB 617 would be to drive development away from infill sites and toward the urban fringe—a dynamic that flies in the face of SB 375, the 2008 law aiming to reduce greenhouse gas emissions from the transportation sector, and a host of smart growth policies throughout the state.
Both bills duplicate existing laws that are more effective than CEQA.
SB 617 passed Senate Environmental Quality on May 1, 7-2.
Ayes: R. Calderon (D-Montebello), Corbett (D-San Leandro), Hancock (D-Oakland), Hill (D-San Mateo), Jackson (D-Santa Barbara), Leno (D-San Francisco), Pavley (D-Agoura Hills).
Noes: Fuller (R-Bakersfield), T. Gaines (R-Rocklin).
AB 953 passed Assembly Appropriations on May 8, 11-5:
Ayes: Gatto (D-Los Angeles), Ammiano (D-San Francisco), Bocanegra (D-Pacoima), Bradford (D-Gardena), I. Calderon (D-Whittier), Campos (D-San Jose), Eggman (D-Stockton), Gomez (D-Los Angeles), Pan (D-Sacramento), Quirk (D-Hayward), Weber (D-San Diego).
Noes: Harkey (R-Dana Point), Bigelow (R-O’Neals), Donnelly (R-Twin Peaks), Linder (R-Corona), Wagner (R-Irvine).
Absent/abstaining/not voting: Hall (D-Los Angeles).