2013

May 15, 2013 UrbP 236

Wong and Ross

Christopher Adams, Kenneth Rosales, Natalie

Dean, Stephen-Patrick Nester

[POLICY ANALYSIS: CEQA REFORM]

EXECUTIVE SUMMARY

There is discussion in Sacramento, California that the California Environmental Quality Act (CEQA) may be reformed in the

coming year. There is a call for CEQA reform because it is claimed the law is being used for delaying or stopping projects for reasons un-

related to the environment and for many other reasons outlined in this report.

This report analyzes possible policy alternatives for reforming CEQA to prevent the law from being used incorrectly. The identified

problem is because the California Environmental Policy Act (CEQA) does not have a "standing" doctrine similar to National

Environmental Policy Act, its enforcement mechanism is only through the citizen suit, its standards vary across jurisdictions and is missing

a cohesion between state, regional, and local environmental policies, developments/projects are allowed to be challenged (stalled/stopped)

by a wide array of groups that are not impacted by the project at hand and use their political leverages to proceed with their own political

gains outside the intents and purposes of CEQA.

To determine a policy, the report defines the problem by exploring the problem through research, determines evaluation criteria by

identifying stakeholders and interested parties, identifies alternative policies through lexicographic and satisficing matrices, evaluates

alternative policies, selects the preferred policies, and determines how to implement and monitor the preferred policy.

The top policy is the Senate Bill 731, the Streamlining Act. It is concluded that this alternative should be further researched. For

example, a comprehensive study should be performed to determine updated costs behind CEQA processes.

INTRODUCTION Background on the California Environmental Quality Act

The California Environmental Quality Act (CEQA) is a law enacted in 1970 that came to life consequentially from the National

Environmental Policy Act (NEPA) involving the requirement between “state and local agencies to identify significant environmental

impacts of their actions and to avoid or mitigate those impacts, if feasible.”1 The verbatim use of ‘actions’ in this quote is in regards to

projects/developments that “may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in

the environment.”4 Through the “discretionary approval” process, a lead governmental agency of any action/project/development that

may have an environmental impact has the authoritative power to reject any requested permit from public or private developers.4

Any identified project that is considered a “non-exempt” suggests environmental impacts are rooting from its activities. Once

justified, the project must endure preliminary environmental review processes known as the Initial Study.2 If a development does not meet

the Initial Study standards under CEQA, the preparation of an environmental impact report (EIR) is mandatory and must be completed in

one year in order to find further impacts and create feasible alternatives, mitigation, and monitoring measures. With valid reasonable

explanations, a time extension is permitted, but is limited to one extra year.4 Several sections constitute the Initial Study and EIR, they

include: Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural Resources, Geology/Soils, Greenhouse Gases,

Hazards and Hazardous Materials, Hydrology/Water Quality, Land Use/Planning, Mineral Resources, Noise, Population/Housing, Public

1 California Environmental Resource Evaluation System, “Frequently Asked Questions About CEQA,” http://ceres.ca.gov/ceqa/more/faq.html#who (accessed February 26, 2013). 2 California Environmental Resource Evaluation System, “CEQA Process Flow Chart,” http://ceres.ca.gov/ceqa/flowchart/ (accessed April 15, 2013).

Services, Recreation, Transportation/Traffic, Utilities/Services Systems, Mandatory Findings of Significance.2 After rigorous review, the

sections are determined to either have no impact, a less than significant impact, a less than significant with mitigation incorporated, or a

potentially significant impact. 2 Most importantly, a 45 day public review period is embedded in the CEQA/EIR process and its only

“enforcement mechanism” is through the citizen legal suit. 3

The Current State of CEQA: Leading Up to the Problem Statement

On January 25th, 2013 Jerry Brown announced that CEQA is in need of reform, “We also need to rethink and

streamline our regulatory procedures, particularly the California Environmental Quality Act.’4 ‘Our approach

needs to be based more on consistent standards that provide greater certainty and cut needless delays.’”

However, his exact intentions are unknown, but stakeholders involved in the California High Speed Rail (CHSR)

process–expected to be built and activated by the year 2022–feel that it has to do with expediting the legal

barriers (such as CEQA) of completing the CHSR on time.5 Brown’s most recent update on CEQA reform was

on April 16, 2013 where he stated “this is not something you get done in a year, but I believe before I depart this

3 Elisa Babour, and Michael Teitz, “CEQA Reform: http://www.ppic.org/content/pubs/op/OP_405EBOP.pdf (accessed May 15th, 2013). 4 Ellis, John, Valley Legislators Cheer Brown’s State of the State Cal for CEQA Reform,” http://news.fresnobeehive.com/archives/1139 (accessed May 15th, 2013).

5 Mike Rosenburg, “Gov. Jerry Brown Plans To Fast-Track High-Speed Rail Through Courts,”http://www.mercurynews.com/california-high-speed-rail/ci_20761210/gov-jerry-brown-plans-fast-track-high-speed (accessed May 15, 2013).

California Governor Jerry Brown

Photo Credits: http://www.tokeofthetown.com/2010/06/jerry_brown_just_says_no_to_legal_marij

uana.php

stage we will see reform in CEQA.”6 Brown has one more year left as Governor for the State of California and seems to be highly

dedicated in changing CEQA, however, the change is not yet known to be positive or negative, but he does have a historical record of

being one of the “greenest” governors in the country.7

6 KQED, Jerry Brown Says CEWA Reform Unlikely This Year,”http://blogs.kqed.org/newsfix/2013/04/16/jerry-brown-says-unlikely-to-pursue-ceqa-reform-this-year/(asscessed May 15, 2013). 7 Josn Richman, “Gov. Jerry Brown Calls for Greener World, Jabs GOP ‘Declinist,’http://www.mercurynews.com/green-living/ci_22011869/gov-jerry-brown-calls-greener-world-jabs-at (accessed May 15, 2013); Green Towns, “The 5 Greenest and Least Green Governors,” http://www.greentowns.com/about/green-ratings-of-governors (accessed May 15, 2013).

Since Governor Brown’s announcement on CEQA reform, there have been about 19 CEQA Reform

bills introduced in 2013.8 Comments were quickly publicized by state legislators for CEQA Reform including

Democratic State Senator Michael Rubio, Republican State Senator Anthony Canella, and Republican State

Assembly Member Kirsten Olsen. Republicans yearned to ease business and developers’ constraints through

CEQA reform, while Rubio had announced more of a concern on projects being delayed and stopped with a

proposed solution of providing “consistent standards that provide greater certainty.”9 Rubio’s intentions were

also not clear for he has recently left his position as state senator (and ex-chair of the Senate Environmental Quality

Committee) to be a “government-affairs” official or simply a lobbyist for one of the biggest petrochemical

companies in the United States, Chevron.10 Rubio was the leader in striving for CEQA reform and had even introduced SB 317 which

called for a “standards-based approach” where it “would allow a standard set by other federal, state, or local ordinances to override CEQA

when they came into conflict” 11 The Planning and Conservation League (PCL) –a major organization leading the way in protecting CEQA

8 Planning and Conservation League, “PCL Position on Current Slate of CEQA Bills,” http://www.pcl.org/projects/ceqabillpositions.html (accessed May 15,2013). 9 John Ellis, “Valley Legislators Cheer Brown’s State of State Call for CEQA Reform,” http://news.fresnobeehive.com/archives/1139 (accessed May 15, 2013). 10 Patrick McGreevy, “California Lawmaker Rubio Leaves Legislature for Chevron Job,” http://articles.latimes.com/2013/feb/22/local/la-me-state-senate-20130223 (accessed May 15, 2013). 11 Andrew Ross, “ CEQA Reform Bill to Be Just Online,” http://www.sfgate.com/business/bottomline/article/CEQA-reform-bill-to-be-just-an-outline-4299076.php (accessed May 15, 2013).

Ex-State Senator Michael Rubio Photo Credits:

http://huntersquared.com/?p=1148

from “bad” reform laws and ensuring that, if changed, it becomes “stronger,”– opposed SB 317 because it would weaken CEQA’s intent

and commended Senator Pro-Tem Darryl Steinberg for “killing” it.12 PCL is part of a coalition called CEQA Works where they are making

an “effort to shield California's landmark environmental law from "reforms" that would limit public

input into land use planning, threaten public health, and weaken environmental protections.”13 CEQA

works has other major environmental organizations on their sides such as the Sierra Club, the

National Resources Defense Council, and the Center for the Biological Diversity.

Local decision-makers such as San Jose Mayor Chuck Reed, Los Angeles Mayor Antonio

Villaraigosa, San Francisco Mayor Ed Lee, Sacramento Mayor Kevin Johnson, and Santa Ana Mayor

Miguel Pulido all believe that there should be CEQA reform or “modernized” where responsibility is

upheld by local decision-makers where they are “ensuring the economic vitality of our communities,

12 Planning and Conservation League, “With Standards Approach Shelved Thanks to Steinberg’s Leadership, Indications Point to Keeping CEQA Strong, http://org2.democracyinaction.org/o/5056/t/0/blastContent.jsp?email_blast_KEY=1239212 (accessed May 15, 2013); Andrew Ross, “ CEQA Reform Bill to Be Just Online,” http://www.sfgate.com/business/bottomline/article/CEQA-reform-bill-to-be-just-an-outline-4299076.php (accessed May 15, 2013). Planning and Conservation League, “Senator Rubio Resigns, Senate Pro Tem Steinberg Introduces CEQA Reform Bill What Does it All Mean?” http://org2.democracyinaction.org/o/5056/t/0/blastContent.jsp?email_blast_KEY=1238672 (accessed May 15, 2013) 13 Steven Williams, “Press Release: Coalition Launched to Protect CEQA,” February 6, 2013, http://www.psr-la.org/press-release-coalition-launched-to-protect-ceqa/;http://ceqaworks.org/ (accessed May 15, 2013).

San Jose Mayor Chuck Reed

Photo Credits:

http://www.sjpdhomicide.com/politics/san-jose-mayor-chuck-reed-makes-mark-with-

pension-reform-421/

while also preserving our natural treasures. 14 Further, the group of mayors feels that “today CEQA is too-often used by those who simply

seek to disrupt or complicate projects, oftentimes for reasons that have nothing to do with protecting the environment.’ ‘These lawsuits

and the threat of lawsuits are sometimes used to stop exactly the type of

growth that we as local officials are trying to promote–infill development,

expansion and improvement of public transit and bicycle facilities,

affordable housing, schools, hospitals, and all manner of public works.’”

An organization known as CEQA Working Group resonates with

the concerned mayors on CEQA reform with their mission –“It’s time to

modernize CEQA to preserve the intent of the law – environmental

protection and public participation – while limiting abuses of CEQA that have

stopped responsible community improvements that benefit the economy and

environment – sounding similar to their outcries.15 CEQA Working Group is also a coalition, like CEQA Works, filled with popular names

such as the Silicon Valley Leadership Group, California Small Business Association, American Institute of Architects California Council,

and a plethora of realtors, chamber of commerce organizations, contractors, and corporations. On their website they have a multitude of

14 Antonio Villaraigosa and Chuck Reed, “Antonio Villaraigosa and Chuck Reed: Fix the California Environmental Quality Act Now,” Daily News, April 25, 2013, http://www.dailynews.com/ci_23108148/antonio-villaraigosa-and-chuck-reed-fix-california-environmental?IADID=Search-www.dailynews.com-www.dailynews.com [accessed May 15, 2013]. 15 CEQA Working Group, “Case Studies,” http://ceqaworkinggroup.com/;http://ceqaworkinggroup.com/category/case-studies (accessed May 15, 2013); CEQA Working Group, “Reform Principles,” http://ceqaworkinggroup.com/reform-principles (accessed May 15, 2013); CEQA Working Group, “About Us,” http://ceqaworkinggroup.com/who-we-are (accessed May 15, 2013).

Moes’ Stop Gas Station in San Jose Photo Credits:

http://blog.pacificlegal.org/2012/competition-is-not-a-negative-environmental-impact/

case studies of CEQA being abused, just from this year, they have reported 11 cases of projects either being stalled or halted costing

developers millions of dollars in CEQA processes and court costs, interest rates in loans, and opportunity costs. One of the popularized

case studies is in San Jose where a competing gas station, Andy’s BP, used CEQA to stall or even terminate the expansion of another gas

station, known as Moe’s Stop, where they wanted to include three gas dispensers on their property.16

The day after the Planning Commission voted to approve the Moe’s project, the owner of Andy’s BP appealed the decision to

the City Council arguing that the addition of three new gas pumps would result in increased traffic…Andy’s BP then filed a CEQA

lawsuit against the City of San Jose.

This time he alleged that a full Environmental Impact Report (EIR), rather than the previously adopted Negative Declaration

was required to properly assess the traffic impacts… Moe’s Stop was ultimately required to prepare an EIR, which was done at

considerable expense and delay…The City subsequently denied Andy’s BP’s claims and approved the Moe’s project

Two days later, Andy’s BP appealed the certification of the Final EIR, but the City Council rejected the appeal and upheld the

approval…Andy’s BP filed a lawsuit with the Federal District Court against the City of San Jose and Moe’s Stop alleging violations of

the 14th Amendment for unfair competition and interference with economic advantage. The Court denied Andy’s claim and granted the

motion to dismiss.

16 CEQA Working Group, “Case Studies,” http://ceqaworkinggroup.com/;http://ceqaworkinggroup.com/category/case-studies (accessed May 15, 2013); CEQA Working Group, “Reform Principles,” http://ceqaworkinggroup.com/reform-principles (accessed May 15, 2013); CEQA Working Group, “About Us,” http://ceqaworkinggroup.com/who-we-are (accessed May 15, 2013).

Another case study not provided by CEQA Working Group, in which

developers greatly fear, are attacks by union organizations using CEQA as

their weapon such as in the Santa Cruz La Bahia project. 17 Located on the

beach in Santa Cruz, the La Bahia is an existing historic building that originally

was a hotel. The building is currently in poor condition and is being used as

low cost residential space. A developer, Seaside Compnay, acquired the La

Bahia to “expand the La Bahia Hotel into a 74 feet tall hotel/conference

center right next to the beach” with the stated attention of renovating and

keeping the historic building, but later deemed cost prohibited. Seaside was going

to tear down most of the building and increase the height and size of the existing

structure.18

Seaside stated that they were unwilling to hire 100% Union Labor for the construction of the project.19 Seaside went on to say that they

would hire 10% Union labor for construction, and was not opposed to the maintenance staff unionizing once the project was completed.

17 Radio Trabadajora, “STOP La Bahia Expansion and Takeover!” http://www.indybay.org/newsitems/2008/08/25/18529888.php (accessed May 15, 2013); J.M. Brown, Another Chance for La Bahia: Santa Cruz Seaside Co. Officials Submit New Plans for Hotel Project,” http://www.santacruzsentinel.com/localnews/ci_23173308/another-chance-la-bahia-santa-cruz-seaside-co (accessed May 15, 2013); Santa Cruz Wiki, “La Bahia, https://scruzwiki.org/La_Bahia (accessed May 15, 2013). 18

Radio Trabadajora, “STOP La Bahia Expansion and Takeover!” http://www.indybay.org/newsitems/2008/08/25/18529888.php (accessed May 15, 2013); J.M. Brown, Another Chance for La Bahia: Santa Cruz Seaside Co. Officials Submit New Plans for Hotel Project,” http://www.santacruzsentinel.com/localnews/ci_23173308/another-chance-la-bahia-santa-cruz-seaside-co (accessed May 15, 2013); Santa Cruz Wiki, “La Bahia, https://scruzwiki.org/La_Bahia (accessed May 15, 2013).

La Bahia Project Protest by Union Organizations

Photo Credits:

http://www.indybay.org/newsitems/2008/08/25/18529888.php

The Union rejected this proposal, demanding that 100% Union Labor be attained. Some outreach was attempted with the Union members

showing up in force to the meeting. Little was accomplished since the Union members disrupted the meeting by shouting down the

speakers. Largely motivated by the Union, the EIR filed was challenged, holding up the projects for years until it was terminated with

iteration that “the project was doomed by insufficient historic preservation and height that exceeded regulations.”20

The Public Policy Institute of California (PPIC), however, found that less than 1 percent of CEQA processes make it to the courts,

which puts into question if CEQA really needs reform at all. However, the numbers the PPIC found are old, dating back to 1996, which

gives this analysis of the problem difficult to put a number on. The PCL posed a few important questions after Rubio’s resignation21:

1) Who will be the leading spokesperson/advocate for CEQA reform with the departure of the influential and outspoken legislator

2) Who is really behind the CEQA overhaul effort – infill and ‘green project’ proponents as the reform advocates would have you

believe, or major developers and dirty businesses who want to avoid environmental safeguards; and

3) What’s next for CEQA this session.

19 Radio Trabadajora, “STOP La Bahia Expansion and Takeover!” http://www.indybay.org/newsitems/2008/08/25/18529888.php (accessed May 15, 2013); J.M. Brown, Another Chance for La Bahia: Santa Cruz Seaside Co. Officials Submit New Plans for Hotel Project,” http://www.santacruzsentinel.com/localnews/ci_23173308/another-chance-la-bahia-santa-cruz-seaside-co (accessed May 15, 2013); Santa Cruz Wiki, “La Bahia, https://scruzwiki.org/La_Bahia (accessed May 15, 2013). 20 Radio Trabadajora, “STOP La Bahia Expansion and Takeover!” http://www.indybay.org/newsitems/2008/08/25/18529888.php (accessed May 15, 2013); J.M. Brown, Another Chance for La Bahia: Santa Cruz Seaside Co. Officials Submit New Plans for Hotel Project,” http://www.santacruzsentinel.com/localnews/ci_23173308/another-chance-la-bahia-santa-cruz-seaside-co (accessed May 15, 2013); Santa Cruz Wiki, “La Bahia, https://scruzwiki.org/La_Bahia (accessed May 15, 2013). 21 Planning and Conservation League, “Senator Rubio Resigns, Senate Pro Tem Steinberg Introduces CEQA Reform Bill What Does it All Mean?” http://org2.democracyinaction.org/o/5056/t/0/blastContent.jsp?email_blast_KEY=1238672 (accessed May 15, 2013);

Nonetheless, the problem may be complex or simple. The PPIC found that there are several interpretations of the problem. They

range from (Note a-g are from the same source): a) “Threat of litigation” from “‘NIMBYs’ (‘Not in My Backyard’) and “phony

environmentalists” such as the Moe’s Stop case study,22 b) Extensive CEQA processes (usually from EIRs) stemming from “large projects,

projects that

generated significant traffic problems or threatened open space, projects in communities where

growth was contentious, and projects that seriously threatened air or water quality or endangered species habitat,” c) Ease of litigation from

anyone in general though “CEQA’s only enforcement mechanism,” the citizen legal challenge, d) CEQA being a “paper tiger” with

“extensive and unclear requirements” that are “inconsistent” in terms of “alternative analysis, cumulative impacts, recirculation of

documents, significance thresholds, and substantive evidence standards,” e) “The law itself –in particular its flexible and vague standards

regarding substantive objectives” such as “determining ‘significance’ of effects to be mitigated” and “what constitutes an appropriate

mitigation,” f) Inconsistent “control and discretion” of CEQA laws across local jurisdictions, g) “The lack of” coordination between “state

and regional growth and environmental policies, ” and h) The lack of a “standing doctrine” similar to what the National Environmental

Policy Act has.23

22 Elisa Babour, and Michael Teitz, “CEQA Reform: http://www.ppic.org/content/pubs/op/OP_405EBOP.pdf (accessed May 15th, 2013). 23 Repository Citation

Timothy Belevetz, The Impact on Standing Doctrine in Environmental Litigation of the Injury in Fact Requirement in Lujan v. National Wildlife Federation, 17 Wm. & Mary Envtl. L. & Pol'y Rev. 103 (1992), http://scholarship.law.wm.edu/wmelpr/vol17/iss1/6

PROBLEM STATEMENT

Because the California Environmental Policy Act (CEQA) does not have a "standing" doctrine similar to National Environmental

Policy Act, its enforcement mechanism is only through the citizen suit, its standards vary across jurisdictions and is missing a cohesion

between state, regional, and local environmental policies, developments/projects are allowed to be challenged (stalled/stopped) by a wide

array of groups that are not impacted by the project at hand and use their political leverages to proceed with their own political gains

outside the intents and purposes of CEQA.

DETERMINING EVALUATION CRITERIA

With the problem in mind, the next step was developing criteria on which to evaluate the policy alternatives. The following are

all the evaluation criteria along with descriptions for each.

Effectiveness

Determine if policy alternative will:

Reduce the total number of appeals projects undergo after completion of CEQA processes?

Expedite CEQA processes so that developments do not bare costs (interest loans, permitting costs, CEQA process costs, opportunity costs, and decrease in benefit:cost ratio) from banks while maintaining CEQA's integrity?

Not compromise/weaken environmental review processes?

Political Acceptability

Determine if policy alternative will:

Make developers happy due to efficiency in moving forward with projects

Make businesses happy due to the acquisition of opportunity [from developer's site suitability]

Make advocates happy that their ability to appeal is enhanced

Make the General Public happy that their ability to appeal has not been constrained.

Economic Cost

Determine if policy alternative will:

Reduce total costs from both the private and public sectors.

Legality

Determine if policy alternative will:

Increase the number of lawsuits to developments

Direct effect on an existing law

Either amend, add, substitute, and/or terminate

Potentially drive a group to challenge its interpretation or constitutionality

Equity

Determine if policy alternative will:

Have an equal balance of positive/negative effects between stakeholders:

Developers- Provide businesses and general public a place and space for a variety of goods, services, and economic prosperity

Organizations- Voice for the environment and general public.

Businesses- Opportunity for acquisition of profit and provide goods and services

IDENTIFYING POLICY ALTERNATIVES

Policy alternatives were identified with the goal of finding a mechanism for stopping CEQA challenges by parties with interests other than

environmental. Methods used to identify possible policy alternatives were:

Considering the experience of others (legislators, attorneys, and others who want to reform CEQA)

Checking the opinions of experts (stakeholders, advocates, legislators, etc.)

Considering affected groups (developers, cities, residents)

Considering the political context of the problem (how affected groups would react to the policy if implemented)

Creation of alternatives

After developing alternatives based on the above methods and how the players (experts, affected groups, politicians, etc.) are addressing

the problem, the proposed alternatives were:

In order to challenge a developer, stakeholders must be a certified California resident and directly impacted by the project.

Stakeholders may not explicitly and primarily use reasoning that contributes to personal political leverage/gain outside of the intents and purposes of the law. Also, if a party has something to gain, economically or otherwise, they should not receive standing. (Ex. A union group stops a developer from moving forward because the establishment is not 100% unionized). 24 (See Plastic Bag Coalition v. Manhattan Beach.25 The coalition was made up of plastic bag manufacturers and local business owners who distribute the bags to customers.)

Non-environmental groups must present a case that is at least 75% environmental (as something measurable).

Increase public comment periods to give stakeholders more time to develop standing. (This alternative could allow for more challenges to EIRs, increasing costs to developer prompting them to leave the project and disappointing city officials, as well as see the Los Altos Town Crier.26 This alternative would give project opponents more time to organize and form a powerful coalition to either stall the project for long periods, or to bring the project to a halt.)

Enhance public outreach methodologies and increase public outreach funding and efforts to include a wider-range of local stakeholders who may have legitimate standing. (Similar to b. this alternative could increase challenges to an EIR, Negative Declaration, or Mitigated Negative Dec)

A case with such a plaintiff should receive priority to move through the legal process as quickly as possible. No delays, extensions, etc. should be permitted by the court.27(Document dumps and late hits are obstructed from occurring.)28

Those filing lawsuits must reveal their financial interests and who is paying the legal costs. There is also debate on whether to extend those transparency requirements to the local planning process as well so decision-makers know whether a protest is being lodged out of genuine concern for the environment or if there is a profit motive. (This is similar to the Save the Plastic Bag

24

Trabajadora Radio, “STOP La Bahia Expansion and Takeover!” SF Bay Indymedia (August 25th, 2008.) http://www.indybay.org/newsitems/2008/08/25/18529888.php [accessed March 2, 2013]. 25

“Save the Plastic Bag Coalition v. City of Manhattan Beach,” RMM, http://www.rmmenvirolaw.com/2012/01/save-the-plastic-bag-coalition-v-city-of-manhattan-beach/ [accessed May 11, 2013]. 26

San Antonio Area Growth Prompts Residents To Ask City To Slow Down, Town Crier Staff Report, 13 March 2013, http://www.losaltosonline.com/index.php?option=com_content&task=view&id=45730&Itemid=198. 27

Arthur F. Coon, “Bare-Bones” CEQA Reform Bill (SB 731) Introduced By Senator Steinberg; Senator Evans Proposes Legislation to Further Expand CEQA http://www.jdsupra.com/legalnews/bare-bones-ceqa-reform-bill-sb-731-i-58238/ 28

Ibid.

Coalition v. City of Manhattan Beach case where it was shown that the plaintiff was found to have standing because the Supreme Court places corporations and natural citizens on equal footing.29 Unless the law changes, this should have no impact on the number of suits filed under CEQA.)

If you are using it for political or financial gain or to promote your agenda outside of scope of CEQA your case is dismissed or you will not have standing. (If it was legal to dismiss a case filed by such a plaintiff, it would be very effective in stopping CEQA litigation by plaintiffs who are only looking to protect their financial interests. This alternative would limit CEQA challenges to cases filed on the basis of protecting the only environment. This would be greatly in favor of developers. It would not stop NIMBYs that are genuinely concerned about their environment, e.g. open space, noise, air quality, etc.)

A legal challenge could not be filed against a project for failing to adequately address an impact as long as the developer has complied with umbrella state or federal laws that cover the impact, such as the Endangered Species Act, the Clean Air Act and the Clean Water Act.30

SB 73131 (1) Updating CEQA to encourage and expand infill developments to reduce urban sprawl. This will help jump start the state’s housing market while promoting development consistent with state climate and planning laws like SB 375. 2) Expedite the CEQA process, without compromising underlying public disclosure or environmental protection, for new investments in clean energy, bike lanes and transportation projects that help California meet its renewable energy, clean air, jobs, and transit goals. 3) Modernize CEQA and its implementing regulations to set clear minimum thresholds for impacts like parking, traffic, noise and aesthetics to allow local agencies to standardize mitigation of those impacts. This change would preserve local control to set more stringent thresholds where communities choose to do so. 4) Reduce duplication in Environmental Impact Report filings by expanding the use of “tiering.” This streamlines and limits further paperwork whereby local land use plans that have sufficient detail and recently completed EIRs can be used by people building projects within those plans. 5) Where Environmental Impact Reports have been successfully challenged, allow the courts to send back for repair only the portion of the EIR that is found to be incomplete or lacking required specificity. This would eliminate the need for the entire EIR to be recirculated for public comment which can create additional delays. 6) In those cases where project developers and agencies haven’t made any substantive change to a project and the public has already had time to comment on it, limit or prohibit so-called “late hits” and “document dumps” designed solely to delay projects late in the environmental review process. 7) Appropriate $30 million in new funding to local

29

James M. Moose and Jennifer S. Holman, “Save the Plastic Bag Coalition v. City of Manhattan Beach,” Remy, Moose, & Manley, http://www.rmmenvirolaw.com/2012/01/save-the-plastic-bag-coalition-v-city-of-manhattan-beach/ [accessed May 11, 2013]. 30

Nathan Donato Weinstein, Silicon Valley Business Journal, Builders push for CEQA reform http://www.bizjournals.com/sanjose/print-edition/2012/09/21/builders-push-for-ceqa-reform.html?page=all. 31 Arthur F. Coon, “Bare-Bones” CEQA Reform Bill (SB 731) Introduced By Senator Steinberg; Senator Evans Proposes Legislation to Further Expand CEQA http://www.jdsupra.com/legalnews/bare-bones-ceqa-reform-bill-sb-731-i-58238/

governments to update their general, area, and specific plans so that they can be better used to “tier” and streamline environmental review of projects built pursuant to those plans.32

Strengthening Thresholds of Significance and Reasons behind Rational for choosing alternatives.

Increasing the use of mitigated negative declarations by strengthening the mandatory findings of significance/substantial evidence (which determines to prepare an EIR or not). Further, the courts should rely on remedies other than blocking projects and should defer to lead agencies on what constitutes substantial evidence.

The following are the proposed policy alternatives along bullets generally explaining how each measure up to the evaluation criteria.

POLICY ALTERNATIVE #1

In order to challenge a developer, stakeholders must be a certified California resident and directly impacted by the project.

• The policy would prevent projects being blocked by out of state interests. • One must be a resident of California, and be directly impacted by a project. • Impacts are already defined in CEQA. • Direct impacts also should include but not limited to cultural, historical, and environmental sites not in the area of the one being impacted. • Politically this policy is problematic. It would invite significant challenges from other states or from organizations that focus on environmental issues. • Policy would prevent some lawsuits, but does not prevent lawsuit from taking place with motives outside the scope of CEQA. • It is not clear what if any economic impact there is from this policy. • This policy is feasible, as it would be simple to determine if the suit is brought up on behalf of a out of state party.

32 “Steinberg Introduces Bill to Modernize the California Environmental Quality Act,” Senate Pro Tem Daryl Steinberg, February 22, 2013, http://sd06.senate.ca.gov/news/2013-02-22-steinberg-introduces-CEQA-modernize-bill [acessed May 12, 2013].

POLICY ALTERNATIVE #2

Stakeholders may not explicitly and primarily use reasoning that contributes to personal political leverage/gain outside of the intents and purposes of the law. (Ex

A Union group stops a developer from moving forward because the establishment is not 100% unionized). To put a number on this, for example, non-

environmental groups must present a case that is at least 75% environmental (as something measurable)

• The purpose of this policy is to prevent suits from going through where the motivation does not fall under the scope of CEQA. • Will not solve the problem of preventing lawsuits with motives outside the scope of CEQA. • It would be difficult to enforce. • Economically the policy will have little impact because it would just be included into initial phase of a trial. • There may be significant backlash because if the law was successful it would dramatically impact Unions.

ALTERNATIVE # 3

Increase public comment periods to give stakeholders more time to develop standing.

This alternative only partially addresses the solution to the problem statement.

It works well when appended to another alternative that limits the “accessibility” in filing a CEQA lawsuit in opposition of a development.

There are cases where political groups may use CEQA for their own political leverage outside of concerns to the environment. For example, one of our alternatives, particularly alternative #2, explains “non-environmental groups must present a case that is at least 75% environmental.”

In this case, alternative #3 will still give this group some chance, or most importantly a local group, to make a claim against a development.

Depending on the circumstance, with this alternative equity may be increased due to limitations imposed from another alternative by increasing the number of days or even months an organization can establish standing (i.e. with alternative #2, environmental standing) during the public comment period (or after) to file a CEQA lawsuit.

Since the California Environmental Quality Act (CEQA) is a state law, this alternative will directly affect any current established mandate or policy. Therefore, an amendment or substitution to the law may have to be established.

This alternative complements and shapes the effectiveness of other CEQA reform alternatives that may be eliciting barriers to challenging developments by adequately increasing the amount of time for groups (or person) to form a legally sound case/opposition.

POLICY ALTERNATIVE #4

Enhance public outreach methodologies and increase funding and efforts to include a wider-range of local stakeholders who may have legitimate standing.

Prior to applying for a permit with lead agencies, developers should conduct extensive public outreach to inform communities and stakeholders that may be affected by the proposed development.

The public outreach should be conducted via mailings, public meetings, website information, and/or canvassing in order to enhance opportunities for stakeholder involvement.

Such processes allow developers to use the information gathered from public outreach to revise project proposals before the applications are submitted to lead agencies.

Developers must demonstrate outreach efforts through revisions made to projects when applying for permits.

Enhanced public outreach may prevent public opposition to projects, when stakeholders have opportunities to provide input on developments. This may create delays in investment opportunities to push projects forward.

Lead agencies benefit from reviewing fewer development proposals that are problematic and unrefined, given that developers already have taken into consideration acceptability, appropriateness, responsiveness, and equity revolving around the project. However, excessive public involvement could inhibit a council from achieving development goals outlined in their general/comprehensive plan.

Acquiring input from stakeholders regarding potential projects before submitting permit applications to lead agencies informs officials of possible economic constraints that the project may pose on the community.

This poses additional costs for developers if they are to provide extensive public outreach before the permit process. Further, decreased developments may put constraints on economic development from lost opportunity costs businesses and revenue for cities.

Enhanced public outreach should be demonstrated in development proposals upon application, not requiring further administrative actions. However, this may require developers to acquire more administrative staff to provide outreach services which also ties into a burden of costs.

ALTERNATIVE # 5

A case with such a plaintiff should receive priority to move through the legal process as quickly as possible. No delays, extensions, etc. should be permitted by the

court.

This alternative refers to persons or groups that make a CEQA case against a development that is not primarily bounded by an environmental plea. Since a case is not being made on environmental grounds, then there should be no special treatment to the plaintiff since standing in the subpoena is low and, thus, the judicial process should move quickly to not stall or halt a developers’ processes.

Since the California Environmental Quality Act (CEQA) is a state law, this alternative will directly affect any current established mandate or policy. Therefore, an amendment or substitution to the law may have to be established.

This alternative may move CEQA lawsuit cases a lot quicker than before, especially if the court finds that a person or groups has no standing, which is the crux behind reforming CEQA.

This may create an outcry from organizations because it directly affects their capability of challenging a project they deem inadequate, especially if a judge has discretionary powers that may favor one over the other, for example, when a judge is “pro-business” or “anti-union.”

POLICY ALTERNATIVE #6

Those filing lawsuits must reveal their financial interests and who is paying the legal costs. There is also debate on whether to extend those transparency requirements

to the local planning process as well so decision-makers know whether a protest is being lodged out of genuine concern for the environment or if there is a profit

motive.

The transparency of the party filing the suit may influence whether they file in the first place as their true motivations will be revealed to the courts.

Having the ulterior motive of financial gain in a court case may also negatively impact their reputation in the business, organization, or professional community.

This alternative may be effective if action is taken to stop the group or person from suing if the suit is based on financial gain. Results should be measurable, for example, the number of suits dismissed could be quantifiable. Suits that are thwarted would be harder to quantify.

For politicians who have constituents who want to take advantage of CEQA for gain, they may not like the policy. For example, if a politician is pro-union and his constituency is made up of many blue-collar union workers or residents who want to keep out big-box retail and want to use CEQA to do it, the politician may not like it.

This alternative is politically contentious as labor opposes it.

Could affect tax revenues if the financial gain from filing the suit would contribute to a general fund or a state tax. It really depends on what kind of project is being considered under CEQA.

This could add a significant extra time to the lawsuit since investigation may be required, in addition to extra steps added to the process of litigating the case (e.g. time taken to do background checks, verifying standing, etc.).

POLICY ALTERNATIVE #7

If you are using CEQA for political or financial gain or to promote your agenda outside of scope of CEQA your case is you will not have standing.

This alternative could be very effective at stopping suits. But is it legal? Would this alternative also stop meritorious cases?

This could be politically contentious. Environmental groups, for example, could be put off by the limits such an alternative imposes as far as anyone being able to sue when an environmental impact is identified.

This alternative could have relative impacts on the local economy. For example, one party’s loss is another’s gain. If the big-box goes in, small business loses, and vice versa.

This could add a significant extra time to the lawsuit since investigation may be required, in addition to extra steps added to the process of litigating the case (e.g. time taken to do background checks, verifying standing, etc).

POLICY ALTERNATIVE #8

A legal challenge could not be filed against a project for failing to adequately address an impact as long as the developer has complied with umbrella state or federal

laws that cover the impact, such as the Endangered Species Act, the Clean Air Act and the Clean Water Act.

Could be ineffective as other, less global, impacts are not included.

Environmentalists and labor may oppose. NIMBY’s would oppose greatly. Local officials may opposed or approve depending on their constituency and platforms.

This alternative could impose tighter, more restrictive guidelines for project approval. For example, measures for mitigating impacts could kill projects that could improve local economies. Such projects could be killed because rules are more focused on air, water, and protecting endangered species.

After developing the alternatives and during preparing to move to the next step of evaluating the proposed alternatives under set criteria,

the problem statement was revised to reflect findings made from sources found that were related to the problem. It was determined that a

significant part of the problem was standing. The problem statement was changed:

Because the CEQA does not have a "standing" doctrine (similar to NEPA), development/projects are allowed to be challenged (stalled/stopped) by a wide array of groups that are not impacted by the project at hand and used their political leverages to proceed with their own political gains outside the intents and purposes of CEQA.

EVALUATING ALTERNATIVES AND DEALING WITH MULTIPLE CRITERIA

Several criteria were used to evaluate of each proposed policy. Two methods were used for evaluating the alternatives: lexicographic

ordering and satisficing. These methods were chosen because there are many policy alternatives proposed. Also, the methods allow

qualitative data to be used as values. For example, it was difficult to come to a quantitative amount for the level of effectiveness an

alternative would have on a project subject to CEQA.

Using Lexicographic Ordering-Pre-sort

For the lexicographic ordering method, five criterions were used to evaluate each alternative: effectiveness, political acceptability, economic

cost, legal, and equity. Each alternative was given a grade according to how it would work under the different criteria. For example, State

Senate Bill 731 was given a grade of A for effectiveness. The standards based approach, where CEQA becomes aligned with existing

environmental laws was given an A for effectiveness, but given a D grade for political acceptability.

Grading each alternative was based on the criteria and the sub elements. See Table 1 for the results of the lexicographic ordering method.

Table 1. Lexicographic ordering method for evaluating alternatives for CEQA reform.

Because the CEQA does not have a "standing" doctrine (similar to NEPA), development/projects are allowed to be challenged (stalled/stopped) by a wide array of groups that are not impacted by the project at hand and used their political leverages to proceed with their own political gains outside the intents and purposes of CEQA.

Complex Issue, Pass/Fail Resolution

CEQA Reform Lexicographic Ordering

Alternatives/Criteria Effectiveness Political Acceptability Economic Cost Legal Equity

SB 731 (Steinberg) A A C A C

Transparency A C B A A

Strengthen thresholds A C B A C

Stop the use of CEQA for Political/financial gain

A D D C C

If plaintiff has interests other than enviro- expedite

A D B- C D

Standards based A D D D D

Increase public comment periods/outreach

B A B A A

Mitigated Neg Decs and court remedies B C A B C

Must be California resident to sue under CEQA

C A A C B

Eliminate/already got it n/a n/a n/a n/a n/a

Attached to 3

ESTIMATING IMPACT OF POLICY METHOD

Hypothetical Project

The following is a hypothetical project that was used in order to calculate Net Present Values for each alternatives in the form of the Economic Cost

evaluation criterion.

30 Unit Apartment Complex in Sunnyvale California o This project is large enough that it would likely need an EIR, but is not so large that it is overwhelming.

Cost of Land, Permits, and EIR = $3,000,000

Cost of Construction is =…...$3,600,000 o (30 units) x (800sf) x ($150 per sf)=3,600,000 o Construction payments will be broken up into two sums, at the beginning of construction and when half completed.

Total Income from rentals…….$583,200 o Average rent ($1,800 a Unit)x(30 Units)x(12 months) o Average Occupancy rate 90%

Rent yearly increase per unit………$20

Yearly upkeep cost…………-$100,000

Each policy was compared to the hypothetical project that has been designed above. The average length of time that is estimated for a typical

project completion is estimated to be seven years. This seven years estimate is based on my undergraduate studies at the University of California, Santa

Cruz. Time will be added to, or subtracted from the project based on the perceived impact of each policy. The amount of time that is added or

subtracted will be based on two criteria.

The first factor to be considered is how the policy impacts the permit process, in particular the length of time to complete it. The Permit

Streamline Act (§65920 et. seq) (PSA) sets limits on time allowed to State and local government for processing a permit. This process starts at the time

of a submitted application and all together can take up to a year for final decision. If the project is not processed in the allowed time, and there are no

grounds for an extension, the project will be automatically approved.33

Separate from the time given to government to process the application, is time for the Environmental Impact Report (EIR). One year is

provided to complete a EIR if the project is determined to not qualify for a negative declaration (Pub Res C §21151.5(a)(1)(A)). Both the permit and

EIR process can be extended if it is determined that there are reasonable circumstances to do so. Between all of the required steps, and with no

extensions, it takes up to two years to complete the permit and CEQA process. This of course does not take into account if the project is challenged.

When estimating the impact of a proposed policy on the permit process, it is important to remember that the maximum length of time is

already confined. That is one year for the permit, and one to complete the EIR. Not all of the permit process is dedicated to the CEQA process, and a

negative declaration may make an EIR unnecessary. It is also unlikely that it takes an average of a year to complete an EIR. For these reasons I will

assume that the seven years to complete a project does not reflect a full two years to complete a permit process. To calculate the average impact it takes

to complete the permit process I will assume that currently it takes one year average to complete. Six months will be added to the average time it takes

to complete both the permit process and the EIR if policy makes it more difficult to get a negative declaration. This means that one year will be added

to or subtracted from the seven years depending on how the policy impacts the project.

33 California Permit Stream Line Act: (Govt C §§65920 et seq.), 1977

The second criterion that is to be assessed is if there is a challenge to the likelihood a CEQA challenge happening to a project. With a

understanding of how long the average time CEQA case is will help in gauging the impact of a increased level of project Challenges. Unfortunately

current data on the average length of time it takes to complete a CEQA case seems to be unavailable. Some information can be found in articles on

individual cases, but not enough to develop reasonable estimates on time impact of challenging a case through CEQA.

To address this issue I was forced to make assumptions on the length of time that would be added to the average of a project if a project was

challenged. I estimated that there will be one year added to, or subtracted from the project if there was going to be an impact on a project being

challenged. This number assumes that the original seven years average it took to complete a project include adjustments for CEQA challenges. With

this in mind, the hypothetical project will be impacted by one year if there is impact on challenges to a project.

All together this means that a max of two years can be added to or subtracted from a project. That is one year for an EIR and permit process,

and a second year if the difficulty of challenging a project is impacted. With this model my hypothetical project can take a minimum of five years to a

maximum of nine years to complete.

Cost Analysis

It is difficult to find data on the current financial impact of CEQA case. In 2006 the San Francisco Planning and Urban Research Association

(SPUR) adopted a report that did cover some of the financial implications of challenges to projects under CEQA (Sedway).34 Unfortunately much of

their data was on results of a study done in 1996 that reviewed CEQA cost that happened between the year 1971 to 1990. The SPUR report estimated

that the current total cost of CEQA throughout the years was about one billion dollars. Unfortunately there are doubts about the legitimacy of this

number.

The first issue with the current estimate of a billion dollars of cost is that it assumes that CEQA cost followed a linear path that could be easily

adjusted for inflation. It is doubtful that an accurate number which reflects cost can be gained by simply adjusting for interest. Over the years CEQA

has been required to address an increasing number of impacts. For example in 2009 SB 97 (Section 21083.05) was added to CEQA which required

greenhouse emissions to be considered. 35This would indicate that expenses outside of the measurement of inflation exist. Second, without knowing

how many projects have been challenged over the years, I am unable to make any realistic estimation on the financial impact of taking a single project to

court. For these reasons I am rejecting the available data that has been found.

For reasons of simplicity, it is assumed that the project developer has enough money to complete the project with no help from the bank. As a

result it is unnecessary to calculate the impact of interest on the project. Any impact that a policy will have on a project will be represented in the

amount of time it takes to complete a project and will directly reflect on when rent can start being collected.

34 Seway.Paul, “Fixing the California Environmental Quality Act.” San Francisco Planning and Urban Research Association: (2006)

35

California Senate Bill No. 97, 21083.05 (2009)

Policy Analysis

1. Infill Based Policy: The definition of what qualifies as infill will be expanded. Infill projects that take advantage of mass transit, along with

other sustainable building practices will exempt from CEQA, or have reduced CEQA requirements.

Time/cost impact:

This policy will have the effect of both is reducing the time in the permit process and the likelihood of a challenge to a project going trial. This naturally

will reduce the overall cost to completing a project. A second benefit of this policy is that adds additional incentives for local governments to take

advantage of SB375.36

We estimate that this policy will have a two year reduction on the time required to complete a project (See Appendix D).

2. Transparency Policy: Those filing lawsuits must reveal their financials and reveal who is paying the legal costs. There is also debate on

whether to extend those transparency requirements to the local planning process as well so decision-makers know whether a protest is being

lodged out of genuine concern for the environment or if there is a profit motive.

36

California Senate Bill No.375, “Sustainable Communities and Climate Act.” (2008)

Time/cost impact:

As this policy is written it will have little to no impact on cost or time in a court case. Where it does potentially bring to light the motives behind a

CEQA challenge, it does not change anything. It does not provide grounds to reduce standing or how a judge is to consider the information that

provided.

We estimate that this policy will have little to no impact on time or cost to a project (See Appendix D).

3. Increased Thresholds Policy: Strengthening thresholds of significance and reasons behind rationale for choosing alternatives.

Time/cost Impact:

As I understand this policy it will increase the likelihood of a challenge to a project under CEQA. Even if the challenges to projects through CEQA do

not increase the likely hood that the case will go forward to trial will increase. With more trials there will be an increase the average time it takes to

complete a project, and the cost.

Estimate an increase of two years on the average time to complete a project (See Appendix D).

4. Stop Politics in CEQA Policy: Stakeholders may not explicitly and primarily use reasoning that contributes to personal political leverage/gain

outside of the intents and purposes of the law.

Time/cost Impact:

As I understand this policy it will have a dramatic impact on reducing the likelihood of a challenge to a project Under CEQA. Still it may be hard to

prove the motivations behind a trial, and so it may be difficult to enforce. If this policy works as attended it will prevent several CEQA challenges from

going forward. I am going to assume that this will reduce the average time it takes to complete a project.

Estimate a shortening of one year off the average of time it takes to complete a project (See Appendix D).

5. Suit Streamline Policy: A case with such a plaintiff should receive priority to move through the legal process as quickly as possible. No delays,

extensions, etc. should be permitted by the court.

Time/cost Impact

This policy will not prevent challenges to projects. It will reduce the average time that a CEQA challenge is in the system, reducing the average

time/cost for projects.

Estimate a shortening of one year off the average time it takes to complete a project (See Appendix D).

6. Standards Based Policy: A legal challenge could not be filed against a project for failing to adequately address an impact as long as the

developer has complied with umbrella state or federal laws that cover the impact, such as the Endangered Species Act, the Clean Air Act and

the Clean Water Act.

Time/cost Impact:

This will have a dramatic impact on the length of time that the process of CEQA takes. It will reduce the time it takes to complete an EIR by

standardizing what is to be considered. It will likely reduce the standards that have to be met by law. For example Federal standards may be lower than

California standards. With reduced standards comes the reduced likelihood of a challenge under CEQA to a project.

Estimate a shortening of two years off the average time it takes to complete a project (See Appendix D).

Satisficing Matrix: Final CEQA Reform Preferred and Recommended Alternatives

With the Satisficing Matrix, criteria were chosen to calculate the overall impact on the final six policies that were chosen. The criteria that the

policies were to be judged by were effectiveness, political acceptability, economic cost, equity, and legality. Each of these categories was divided into

sub-categories so that the impacts could more accurately be reflected.

Effectiveness was divided into three categories which were, number of appeals reduced, expedites CEQA Processes, and does not

compromise/weaken environmental review process. The scores were calculated in a range of 1 to 100. The higher the score, the more effective the

policy would be at meeting the criteria given. In reducing the numbers of appeals the Streamlining, and Standards Based policies where the highest

scored. For the Expedites CEQA processes criteria, once again the Streamlining and Standards Bases policies were scored the highest. For the final

effectiveness criteria on compromising the review process, all policies except Strengthening Thresholds had a fairly large impact.

This basic formula was applied to each of the sub categories giving a score to each of the policies. With each policies score, judgments could be

made on how effective each of the policies would be at addressing the needs of the problem statement. This allowed final selections to be made on the

top three policies.

Results show that the final top three preferred policies are (Table 2):

1) Alternative # 9- Streamlining Act (SB 731), with all satisficing criteria passing.

2) Alternative #6- Transparency of Financial Interest/Concern for Environment, with all satisficing criteria passing, but not minimum

NPV (economic cost). 3) Alternative #5- Expedite Case if Implications Not Fully Environmental, with all satisficing criteria passing, but the public was not at least

considered (equity).

Table 2. Satisficing Matrix showing the results of the top alternatives under the Satisfactory Column.

IMPLEMENTATION AND EVALUATION OF PREFERRED POLICIES.

Immediately after a preferred policy is implemented and all of its functions are in action, analysts must monitor and evaluate the

policy or program to assure that the policy was implemented as it was designed. Policy monitoring includes recording any qualitative

and/or quantitative changes that take place in the policy or program after it is implemented. Monitoring and evaluation should take place

as soon as any solid qualitative and/or quantitative data is available to record. This evaluation is to avoid any potential flaws during the

implementation process of the program or policy. An initial evaluation could save time and money further down the road, while mitigating

the anything that could cause the program or policy to fail. Subsequent monitoring and documented evaluations should continue every 2-4

years, which will help to clearly identify any positive or negative effects that are being made by the preferred policy or program.

In the case of preferred policies for CEQA reform, listed below are changes to monitor and document, in order to ensure the

policy was properly implemented:

(a) Comparing the number of developments that were introduced before and after the preferred CEQA reform policy was

implemented.

(b) Comparing the number of developments that have been appealed by a CEQA process before and after implementing

the CEQA reform policy.

(c) Comparing the number of developments that have been stalled and/or stopped due to a CEQA process.

(d) Comparing the average lengths that projects are being delayed before and after implementing the CEQA reform

process.

(e) Comparing costs of CEQA processes for developers before and after CEQA reform.

(f) Comparing costs of CEQA processes for the public sector before and after CEQA reform.

(g) Carefully reviewing environmental reports for developments streamlined by CEQA reform processes.

(h) Comparing those reports with reports surrounding earlier projects of similar magnitude to determine any change in

environmental quality.

(2) Similar to AB 939, goal-oriented policy requiring cities to implement waste management plans in order to reduce the

volume of waste in landfills37, the CEQA reform policy identifies the goal of reducing the total number of lawsuits

revolving around CEQA processes by 50% over the span of 10 years, requiring cities to adopt new environmental review

policies. The above findings will provide the analyst with the data needed to perform various evaluation methods

determine the efficacy of the preferred CEQA reform policy.

37 CalRecycle, “History of California Solid Waste Law, 1985-1989,” http://www.calrecycle.ca.gov/Laws/Legislation/calhist/1985to1989.htm

(accessed May 15, 2013).

(3) If the public is skeptical of implementing a policy of this magnitude, a temporary alternative could be implementing a pilot

program in a specified locale, such as the city of Pasadena, and comparing findings from the evaluation with a city of similar

size, economic growth, and environmental quality, to determine how the implemented pilot program has affected the

surrounding environment and development process.

(a) Gather data from the criteria described

(b) Distribute and collect public opinion surveys for each of the evaluation criterion based off of the findings collected

from the pilot program to gain political acceptance.

FURTHER STUDIES

The following are recommendations on what needs to be further studied since this entire policy analysis, we feel, is incomplete. A

lot of the data we found was outdated, hypothetical, and simply put, more familiarity of CEQA is needed in order to find more adequate

information and data.

1) It is recommended to perform further studies in the future to assist with determining quantifiable data in connection to many of

the proposed evaluation criteria that made it difficult to for analysts to estimate the outcomes for many CEQA reform policy

proposals. Difficulty in finding total number of appeals for projects, latest reports show 1996 data.

2) A rigorous review of the NEPA doctrine in order to make the proposed policy more compatible with CEQA.

3) A number of projects or laws that have been required to undergo an initial study (although existing studies show reduced

environmental impacts) by an outside entity that may have been attempting to delay certain project for it’s own personal, economic,

or political gains.

4) Locate sources that may clearly define what is considered an economic or political gain.

5) Considering a problem statement that may not necessarily reflect the actual law itself is the problem, but instead include the

possibility that many developers and agencies are not conducting a "good-faith" effort in reducing their environmental impacts.

6) It is often difficult when dealing with environmental issues are not affecting the local public, while many times projects may only

affect other parts of the country, or world, such as air pollution or water pollution. Scenarios such as these may make it difficult to

measure who it is that will be directly affected by certain projects.

CONCLUSION

Through the exploration and analysis of CEQAs initial purpose, processes, successes, and conflicts, this report aims to identify the problem initiating

CEQA reform. The findings show that the problem does not start where CEQA is used or abused, but stems from a deeper origin. CEQA fails to

provide a doctrine clearly defining “standing,” allowing un-affiliated parties to abuse the policy that was designed to be inclusive to public involvement

in the decision-making process for environmental-related issues.

The criteria were placed into a lexicographic matrix, which sorted alternatives according to the ranking of the evaluation criteria. The top six alternatives

from the lexicographic matrix were then entered into a satisficing matrix, eliminating the least desired alternatives. These mechanisms assisted in

determining the top three alternatives: Alternative # 9- Streamlining which exempts infill projects from CEQA the establishment of

uniform thresholds of significance, and help to avoid duplicative review. Alternative #6- Transparency of Financial Interest only

allowing parties to appeal through CEQA if they have true “standing,” or legitimate concerns for the environment. Alternative

#5- Expedite case if implications not fully environmental.

The preferred policy is Alternative #9- Streamlining the CEQA process, but it is recommended that further research is performed to reduce the risk of

negative outcomes for the CEQA process in order to ensure environmental protection in the State of California.

APPENDIX A

Role Report: Stephen-Patrick Nester, Policy Analyst

My role in the group was the policy analyst. As policy analyst I tried to gauge the impact of the various policies. There was

difficulty finding current research that I felt accurately reflected the impacts of the impacts of CEQA abuses, I decided to create my

own model to measure impacts. Overall the model and my assessments of the results had a fair amount of influence on the

assessment of the policies.

After the first group of policies was created I was able to provide my assessment to the group from my interview on the

policies we had designed. The information I provided did not have much impact on how any of the policies were revised. Still, what I

learned at my interview did serve to eliminate a few of the possible policies.

My largest contribution in the analysis was in the creation of an assessment model and hypothetical project to measure

impact of each policy. Natalie and I were then able to use the information from my model to form the Net Present Value (NPV)

calculations. With the NPV completed Kenneth, Natalie and I were able to combine that information with information from my model,

and other inputs to complete the Satisficing Matrix. With the Satisficing Matrix, the final three policies were able to be singled out.

I did not have much difficulty with trying to get my views or assessments into the policies. I provide my position and findings,

they would be reviewed, and then added normally it would be included into the assessment. My assessments were often not the

deciding factor, and only contributed to the final decision. Everyone had their own input on weighing the qualities of each policy.

This is not to say that there were not difficulties within the group. CEQA is a subject that people tend to have strong opinions

on. CEQA is also a very complicated law, and there was some disagreement on its role. This lead to a lot of back and forth debates

on the outcome on policies. As a result of this back and forth some of our meetings were not as productive as they could have been.

These strong opinions about CEQA and related issues I felt also strongly influenced assessments of policies. It also seemed to me

that at times a policies effectiveness would be given more weight based on the views of someone in the group than that policy

deserved. I believe the main cause of a lot of the difficulties is that there seemed to be disagreements on role of CEQA. Where this

disagreement on the role of CEQA was not specifically talked about, over the course of the project its impacts became noticeable. By

not having a clear agreement on CEQA’s role, there was unnecessary disagreement on how to analyze each policy. If I had to make

a suggestion on how future groups could improve their effectiveness it would be; if you proposing reforms on a existing law make

sure there is a agreement in the beginning of the project on what the role of that law is.

Interview Summary

For my interview portion for the project I met with Ada Marquez. Ada Marquez has twenty years experience working in the EIA

field. In that time she has worked for the City of Milpitas and the California Department of Transportation. She has also been a

consultant for non-profits, local government, and neighborhood associations. Along with that Marquez has sat on multiple committees

and councils such as the SCVAS Environmental Act Committee and the Conservation council for SF Bay Area. Finely she has done

research and given presentations at the Ecological Society of America Conference.

Over the course of the interview it was clear that Marquez did not agree that there was a problem with CEQA, at least

in the way that would require reforms that would benefit developers. If anything, Marquez felt that there were areas that CEQA

needed to be strengthened. With my questions formed in a way that made it clear that I was proposing pro-developer reforms,

Marquez came across as a little hostile at times. Still despite her flat rejections of many of my questions, the information she provided

was very helpful.

Often the questions I asked would be answered with a dismissal, and then stating how expensive it is to challenge project

based on CEQA. Marquez did not agree with the problem statement as I had presented it. She did give good feedback on the need

to clarify and better define the problem statement. The strongest point she made was that it did not matter what the motivations of a

challenge to a project was. If there was not a legitimate grounds to challenge the project under CEQA, then the lawsuit would be

dismissed.

Much of the conversation that I had with Ada Marquez revolved around the difficulty there was in creating in challenging a

project using CEQA. Marquez stressed several times throughout the interview on how expensive this process is. If someone was

going to challenge the EIR process then they must submit a comment during the comment period. If they have made the comment

during this period then they can start to prepare a case. To gather the appropriate information would cost money, and the expenses

would just add up from there. Once the case was completed the losing side would likely be liable for the court cost.

Marquez was somewhat dismissive on the subject of how often projects are challenged by motives outside of CEQA, and if

people out of state challenged projects. She did not see that challenges to projects under CEQA to be a problem. She stated that

only 0.02% of court cases in California are CEQA cases. The low number of cases combined with the high cost of filing a suit made it

unlikely that cases with an alternative motive was a serious concern. For my questions on how common is it for people outside of the

California to challenge a project under CEQA, Marquez has never heard of it happening.

Much of what I learned in the interview was not helpful to the project with how the problem statement written. With Marquez’s

approval of CEQA, I was not able to use what I learned to expand on the policies as they were written. Still, the information that

Marquez provided gave new insight when looking over what policies we did have. Some of our proposed policies, such as the policy

to restrict out of state law suits, could be thrown out.

My interview with Marquez expanded my understanding of how a CEQA challenge to a project took place. With what I

learned from the interview, combined with research it inspired, I was able to more effectively evaluate our policies. As a result I was

able to create a model to gauge a possible impact of CEQA reform policy on time to completion of a project.

Interview Questions:

What is your professional and educational background?

I have been in the EIA field for about 20 years: I have experience working for city government (City of Milpitas), state government

(CA Department of Transportation), and as a consultant for non-profits, local government, and neighborhood associations. In

addition, I have done research/presentations at The Ecological Society of America Conferences about four times, thus far,

received research grants, and serves on several committees and councils (SCVAS Environmental Act Committee and the

Conservation Council for the SF Bay Area).

How significant of a problem is people carrying out lawsuits that are not motivated by CEQA?

o Define who “people” are. o It is very hard. You have to make comment during comment period to have standing. o Must pay to get documents to make case o Typically loosing party pays court cost o Only 0.02% of all California cases are CEQA related

o From talk given by Erin Chalmers, Shute, Milaly, & Weinberger

Has there ever been an attempt to create a policy to limit the ability for people out of state to challenge CEQA? o No examples “don’t worry about it” o Does not really happen o Often it is other cities who bring up CEQA suits o If someone is going to bring a Suit then Just Gathering the information Required is expensive o The losing party is often on the hook for the court costs

Is it legal to prevent an out of state stakeholder from challenging a project under CEQA who is being impacted by a project being carried out in California?

o Depends o The only way they would have to sue is by making a comment during the coment period

What kind of impact do you see a policy having that prevents lawsuits from happening that are outside of the scope of CEQA? For example, will this policy have unintended consequences on groups such as environmental groups, neighborhood rights organizations, or any other group who’s overall goals may not always have to do with CEQA?

(Did not ask Question)

Do you believe that this policy will make it too easy to block lawsuits, and ultimately weaken CEQA to the point of being ineffective?

(Did not ask Question)

What kind of political backlash do you see from creating a policy to limit that can bring suits under CEQA, and do you see anyways of mitigating this impact without weakening the attention of the policy being proposed?

(Did not ask Question)

Do you have anything Else you would like to add? o Even if someone is motivated by a political or financial agenda there still must be a reason for the suit to go to trial.

There must be a comment made during the comment period, and there must be cause to challenge the project.

APPENDIX B

ROLE REPORT EXPERIENCES: DECISION MAKER

By Kenneth Rosales

As the Decision Maker in the group, I had to emulate Jerry Brown, Michael Rubio, and Darryl Steinberg. However, with Michael Rubio’s

resignation, I had to become more like Brown and Steinberg. Steinberg has taken much of the lead in ensuring “good quality” CEQA Reform bills get

passed with the example of killing Rubio’s SB 317 Standards Approach Bill while Brown wants to expedite CEQA processes for projects without

compromising CEQA’s “teeth” and upholding his “green record” of being a progressive environmental decision maker. Much of my role draws from

newspaper articles and reports about these decision maker’s actions, decisions, and statements. The only chance I had to really push my agenda forward

was during the consensus of the problem definition and through the creation of matrices for determining which alternatives are most suitable.

Unfortunately, my interview with a decision maker did not occur until a half a week after our group gave a class presentation on our findings.

Nonetheless, it’s described below.

Approach on Defining Role with Group

Inclusiveness was key in my role. The advocate centered on either keeping CEQA the same or making its thresholds stronger, and thus, more

difficult for developers to push through their projects. I had to constantly remind the advocate that this may also deeply affect sustainable projects as

well and if we are to achieve more climate-friendly projects and infrastructure such as infill, high density housing, or transit oriented development,

collaboration and understanding is needed between them and the developers and consequently, businesses.

The approach I took with the advocates is similar across all other roles that partook in this analysis. The developer was mainly interested in

conserving and increasing profit margins and I had to reiterate the main intent of the CEQA: to avoid, reduce, or mitigate environmental impacts. The

analyst, however, was more anxious to get the analysis finished and turned in to me with the available funds and time we had to complete the analysis.

Whenever there was a collaborative effort to analyze the complexity of the problem and I would attempt to be considerate of all parties, I can tell the

analyst was getting irritated. At some point, the analyst even stated “we have the problem statement down and its time to move forward, if not, we’ll be

stuck on this step throughout this entire process, all of our funding will be wasted, and we spent all this time and money to come up with no feasible

alternative.”

Challenges in Making Role’s Influence

The biggest hurdle was considering all the stakeholders involved in CEQA processes. My job was to make sure that I was being comprehensive

of the issue, but many times the roles conflicted. Since everyone felt so strongly about their positions, brining everyone together while moving forward

for the analyst was difficult, which kept clouding the actual problem statement. Unfortunately, some of the other group members claimed that I was a

“know it all,” at some point, but it was because I was taking into account of “all of you!” Also, I was not scared to give my own opinion, while being

diplomatic, since decision makers usually do this in “really life.”

City of San Jose Planning Commission Interview: Brian Ohalloran (APPENDIX__)

Brian Ohalloran is a City of San Jose Planning Commissioner, is the Vice President of CH2MHill a global engineering, consulting and

construction firm, and a graduate from UC Berkeley where obtained his BS in Economics with a minor in History and then a masters in City Planning.

After graduating, he was involved in preparing EIRs and EISs for about 90% of his professional career. He currently volunteers at Washington

Elementary where he teaches for the GATE program. Mr. Ohalloran provided me with rich information. He mentioned that the reason why there is

such a big scandal on CEQA reform is because of the recession. He thinks this is ridiculous because this is not the biggest problem California is facing

and it is not the main cause of economic downturn.

Brian Ohalloran believes the biggest problems with CEQA are the “late hits” and “data dumps” organizations bring with their own concerns

outside the environmental scope. He used the example of a biomass project (location unknown, San Jose perhaps?) he had been involved in where

union organizations did just this by hiring expensive lawyers. Further, the unions disguised themselves as “Concerned Citizens on Biomass” when they

did not care for any environmental impact. But he followed up with saying that 90% of the time, concerns are legitimate and they are very collaborative.

He used a current example in San Jose’s Zanker Material Processing Facility Rezoning Mitigated Declaration where the Silicon Valley Audubon Society

worked with the City to come up with effective monitoring processes to make sure the Saltwater Mice, an endangered species and thus under the

Endangered Species Act, is not impacted. These considerations were put into the document with full deliberation and cooperation from the Audubon

Society.

Ohalloran believes that CEQA is too “centrist,” too many self-interested parties exist, but instead it should be more strict about the analysis of

alternatives like NEPA since CEQA does not. Further, Ohalloran believes CEQA’s documents should be a lot shorter where the level of analysis are on

the impacts themselves.

When I asked him about NEPA’s standing doctrine and if it should be applied to CEQA, he agreed and thought it was a great idea. But either

way, he thinks CEQA is here to stay because Californians do not want to be like Texas, they care about their health, resources, and longevity of their

future and children, and therefore, disagrees with San Jose Mayor Chuck Reed’s recommendation of becoming more like Texas (I did not know he

made such statement). Ohalloran also stated that he has full faith in Jerry Brown because of his environmental history and is sure that he will not allow

any poor quality CEQA reform bill get through.

Recommendations for Next Semester Students

Get someone to interview early on, I recommend doing this before the second time you meet with your group and conduct some research on

your topic of interest before every meeting: class, group, interview, etc. Do not take too many units while taking this course, it will hinder your potential

of fully learning the tools, techniques and principles of policy analysis. I would also recommend reading the book as much as you can if you have the

time. It is somewhat “dry,” but it’s straightforward and provides a rich set of examples for understanding your role. Policy analysis is not always an easy

subject to grasp in general, therefore, visit your professors to aid you.

DECISION-MAKER INTERVIEW Q&A: BRIAN OHALLORAN

Brian Ohalloran- City of San Jose Planning Commissioner:

Undergraduate Degree in Economics and Minor in History, Masters in City Planning, both at UC Berkeley

Studied CEQA the most, prepared EIRs and EIS for most of his professional career.

Works at CH2MHill

Volunteers at Washington Elementary

1) What historical events have shaped the political current political fate of CEQA? In other words, what has happened in the past that has made

policymakers push for CEQA reform?

Recession

Jerry has a great historical record of being “pro CEQA”

Reed said that CEQA is too strict, we should look at Texas as a model-Blasphemy, too many environmental impacts there!

Right now, CEQA Reform is all political

CA is going overboard on this issue, it is not the most significant problem in CA right now

However, there is a problem

o Biomass Project, 20 years ago- These problems still go on today

Attorneys did a “late hit” and “data dumped” for union jobs

No concern for the environment, but dubbed themselves as “Concerned Citizens on Biomass.”

But! 90% of public concerns are reasonable.

CEQA processes vary by city staff and decision makers, if they don’t care for the environment, then they are more likely to get a suit

and run into trouble

o For example, Zanker Material Processing

Silicon Valley Audubon Society warned CSJ about an ESA issue- the saltwater mice

Instead of blocking, they wanted CSJ to put into the monitoring process, which they did- See? It really

depends on the city as a whole.

o Thus, CEQA forces developers and cities to think about mitigations.

Enironmental Review Processes are great, they keep records- CEQA and NEPA

2) Would you happen to know the ratio between stalled projects and non-stalled projects and/or halted projects (through courts) and non-halted

projects in California? If not a ratio, the percentage of occurrences in each since CEQA’s establishment?

No

3) What is the current political environment of CEQA reform? More specifically, which alternatives presented are feasible? Who are influencing

these bills, who has the most power? How does your bill differ/stand-out from others?

Centrist: Too much self-interest from different parties

NEPA requires full analysis of alternatives, CEQA doesn’t, but it should

Reduce document size to appropriate level of analysis and on actual impacts

Standing Doctrine is a good idea

Doesn’t know too much about all the bills

4) What do you think is the fate of CEQA? Projections, forecasts of any sort?

It’s here to stay, CA does not want to be like Texas, they care about their health, resources, and longevity of their future and children

o Reasonable reforms will get through, Brown would not let terrible get through.

5) Are there any materials or documents you can provide me on the topic of CEQA reform? Any contacts? Can you refer me to websites or

groups?

Rocketship Brilliant Minds Academy and Zanker Material Processing Facility Rezoning Mitigated Negative Declarations

APPENDIX C

Natalie Dean: The Stakeholder’s Role as Represented in the

Analysis Process

Stakeholder’s influence on the analysis was significant. In the context of the problem, the developer as stakeholder is the one who

stands to gain if the problem is addressed by an effective policy. The problem statement was that development projects are being

impeded by litigation under CEQA where the plaintiff is using the environmental law to protect their business interests rather than the

environment. The policy objective is stopping CEQA lawsuits brought by plaintiffs with interests other than environmental.

When a CEQA lawsuit is filed against a project, the project cannot proceed. The delay caused by litigation costs the developer time

and money. The faster a developer can build a project they faster they can start earning on rents. The longer the project is delayed by

an extensive environmental review, the more likely it is that investors who are financing the project may leave, interest on loans will

increase, and the developer will experience significant business losses.38

The problem was based on eliminating, as well as possible,

this obstacle to quick development of projects.

The stakeholder was defined in this policy analysis by pointing out what the stakeholders gain or lose from CEQA as it stands

currently. Other stakeholders considered through analysis were the resident, the union member, and sometimes the local jurisdiction

where the project is being proposed.

The interests of the stakeholder were promoted by discussing the impacts of CEQA to society as a whole. The advocate presented

studies that revealed that CEQA is not as obstructive to development as some development stakeholders may believe.

Common ground was found with other roles. Some cases of CEQA litigation and opposition to big construction projects show that

CEQA, as it stands, can be important to discovering environmental impacts that can be very harmful to residents, construction

38

Richard B. Peiser and Anne B. Frej, Professional Real Estate Development (Washington D.C.: Urban Land Institute, 2003): 238.

workers, etc. if CEQA was not otherwise in place.39

In addition, “studies indicate that the threat of litigation does exert a strong

influence on CEQA implementation, the actual number of lawsuits is low—perhaps about one lawsuit for every 350 or so project

reviews (Binger and McBride, 1991; Landis et al., 1995).”40

The fact that CEQA is useful in examining environmental impacts and protecting society from harmful effects of construction it is a

challenge to figure a way to eliminate the time-consuming nature of CEQA. It is time-consuming to conduct the environmental

studies. If a project opponent sees that an impact was not addressed, another study is required costing time and money to the

developer. It should be required that all potential impacts should be anticipated and studied thoroughly. This may be expensive, but it

will protect society and the environment.

It is a challenge to convince people that you companies survival is important in comparison to a human being’s environment. SB 375

may be based on protecting the environment by reducing sprawl but the law is new and implementation of Sustainable Communities

Strategy can’t happen overnight. For example, extensive study is required to ensure impacts from construction projects are properly

mitigated.

Recommendations for students next semester who take on the role of stakeholder would include, keep it in mind that realizing the

perspectives of other roles can be a humbling experience.

Interviewing Stakeholders

Jennifer Hernandez of the Law Office of Hawkins & Knight is a lawyer who represents developers in CEQA cases. Ms. Hernandez

has conducted studies of CEQA litigation dating from 1997 to 2012. She finds that 60 percent of CEQA cases arise from infill

projects. The development of infill in the San Francisco Bay Area is a part of the regional plans to curb greenhouse gases. If CEQA is

deterring such projects, sprawl will occur if developers go elsewhere where coalitions and citizens are not likely to sue under CEQA.

39

CEQA: Milpitas case shows how the rush to reform is unwise By Richard Drury, 04/08/2013 http://www.mercurynews.com/opinion/ci_22943320/ceqa-milpitas-case-shows-how-rush-reform-is 40

Elisa Barbour and Michael Teitz, “CEQA Reform: Issues and Options,” Public Policy Institute of California, April 6, 2005, http://www.ppic.org/content/pubs/op/OP_405EBOP.pdf

The legality of the proposed alternatives was discussed with Ms. Hernandez. For example, one alternative is related to standing and

says: If you are using it as a political or for financial gain or to promote your agenda outside of scope of CEQA your case is dismissed

or you will not have standing. Ms. Hernandez was asked if taking this approach would be legal. She replied that it is constitutional to

dismiss a case if the parties’ interest is for political or financial gain and has no nexus to the environment. She referenced a federal

case for unions suing in a NEPA case. The case was dismissed for a lack of an environmental nexus. However, she said that under

CEQA “allows access to business and property owners to protect their interest.” She referenced the case Plastic Bag Coalition v.

Manhattan Beach.41

Understanding the future without CEQA as it is currently exists was also a topic of discussion with Ms. Hernandez. For instance, if

CEQA is reformed so that it is skewed toward business interests, would California residents end up with excessive development at the

expense of our natural environment, environmental aesthetic, and quality of life? In response, she mentioned that what needs to be

understood is that people need to live in California. The issue is that entities that do not need to be here- water, venture capital- are

subsidized but the state has done nothing to get jobs. “Development,” she said, “if left with no locational choice, goes to areas where

developers will not get sued- the result is sprawl in orchards.” She said that it is not about streamlining CEQA but fixing it. She

recommends integrating environmental review for development projects with other laws. The Endangered Species Act, the Clean

Water Act, the Clean Air Act, should operate parallel to environmental review, not juxtaposed and separate as it does currently.

In addition to Ms. Hernandez, Eire Stewart, Development Property Manager at J.P. DiNapoli, LLC (a developer existing since San

Jose was still a contributor to the agricultural economy), was also interviewed. J.P. DiNapoli, LLC is deeply rooted in San Jose and

has had extensive experience developing in the city.

When asked about the companies experience with CEQA, Ms. Stewart explained that her firm has never been sued under CEQA.

However, she said that another developer in San Jose is experiencing a CEQA challenge from residents who do not want a

McDonald’s fast food restaurant in their neighborhood. It is a good case because trips generated by the restaurant increases

greenhouse gas emissions. She said her firm had been closely monitoring the case.

Ms. Stewart said that J.P DiNapoli, LLC has experienced consultants who work with the firm to mitigate environmental impacts from

development. Projects her firm develops are always issued a Mitigated Negative Declaration in the CEQA process.

41

“Save the Plastic Bag Coalition v. City of Manhattan Beach,” RMM, http://www.rmmenvirolaw.com/2012/01/save-the-plastic-bag-coalition-v-city-of-manhattan-beach/ [accessed May 11, 2013].

Interview Questions for Jennifer Hernandez: 1. Can a case be dismissed if the plaintiff has interests other than environmental?

It is constitutional to dismiss a case if the parties interest is for political or financial gain and has no nexus to the environment- see

unions in NEPA case, you can file an amicus letter and you have to disclose who you are- if no environmental interest, case dismissed.

Only CEQA allow access to biz and property owners to protect their interest.

2. In your own experience, how often is a project delayed, stalled, or stopped due to a suit being filed and litigated under CEQA?

Four years.

3. Based on your experience, how do you think the various interested parties would react to changes caused by a policy to reform

CEQA?

Parties may still have no environmental concern but would still object.

4. Looking toward the future, how do you predict that a policy that inhibits the obstruction of development will evolve over time? For

example, do you think the business of development will become too competitive? Do you think we will end up with bad development

at the expense of our natural environment, environmental aesthetic, quality of life, etc.?

What needs to occur in California, with respect to CEQA, is that people need to live in the state. Most forms of utilities, grids, schools,

hospitals, etc., can’t go to another state; development activity is left with no locational choice, so it goes to areas where won’t get

sued- sprawl happens in orchards.

5. Are there benefits to streamlining CEQA review projects that are consistent with regional plans? Doesn’t this already happen for

city plans?

The issue is that entities that do not need to be here, e.g. water, venture capital, etc. are subsidized but California has done nothing to

get jobs for making the technology. So if CEQA is more predictable (2 v 4 year time span) and we know how to do it right, that would

be better. It is not about streamlining but fixing. Integrate w other laws species, water, air clear but op in parallel.

6. Going forward, what resources do you suggest using for further analysis and understanding of the proposed policy to stop the abuse

of CEQA?

See Plastic Bag Coalition v. Manhattan Beach. Also, see NEPA case involving unions.

Also, CEQA Working Group- looks at case studies.

Interview Questions for Eire Stewart 1. What is your experience with CEQA?

We do not get involved in projects that could be subject to CEQA litigation. Costs would go up for leasing, design, and we would lose

the tenant.

2. How do you manage not being sued under CEQA?

In the General Plan there are studies. If a project conforms to the General Plan, it is less likely to be hit with CEQA. For example, if a

project is not near a neighborhood, less of a risk for being sued under CEQA.

3. What other strategies do you use?

Consultants help us mitigate impacts and we are issued Mitigated Negative Declarations. It costs $1,500 to object to a Negative

Declaration. So it is an expensive process for anyone to take on a project using CEQA.

APPENDIX D

Net Present Value: Base Value/No Action

Net Present Value: Streamline Alternative

Net Present Value: Strengthening Thresholds Alternative

Net Present Value: Lawsuit Standing Must be At Least 75% Environmental

Net Present Value: Expedite Case if Implications Not Fully Environmental

Net Present Value: Standards Base Approach