"How an Environmental Law Is Harming the Environment," Feature, 3/13
A Fundamental Misstatement of Fact
Your story on the California Environmental Quality Act (CEQA) included a fundamental misstatement of fact, asserting that every state other than California requires that environmental lawsuits be filed only by bona-fide "environmental groups." Gammon should have considered his source, which in this case was an attorney at a law firm specializing in advising developers in coping with the CEQA approval process. Or he could have simply checked Michigan, where the grandaddy of such laws, the Michigan Environmental Protection Act, enacted more than four decades ago, remains in effect and useable by anyone at all. (Or he could have called its author, Dr. Joe Sax, who now teaches at UC Berkeley.)
Having swallowed the Kool-Aid, Gammon goes on to prescribe exempting from CEQA "all smart growth — urban transit-oriented development projects ...." This ignores the very real likelihood that such a blanket unqualified exemption would give a pass to plans concentrating affordable housing right up against freeways and freight movement corridors that have been found by state and regional environmental agencies to be primary drivers of airborne cancer risk in California.
It is unfortunate that "smart growth," as well intentioned as it started out, has become yet another playing field on which vested interests and attorneys exploit the very legitimate community needs for jobs, housing, transportation, and public health in ways that play these needs off against each other rather than addressing them in a fair and balanced way. CEQA may be sometimes abused, but it is not the problem here. And the rush to scoop up hundreds of millions of state and federal funds being showered on all this good-sounding stuff should not, once again, leave already disadvantaged and environmentally overburdened communities and populations living right in the most environmentally hazardous conditions. There is a balance possible and CEQA, rather than being scapegoated, should be seen as a tool for finding that balance.
Richard Grow, Berkeley
Robert Gammon Responds
In a 2004 decision, the Michigan Supreme Court greatly restricted the rights of citizens and non-environmental groups to file suit under the Michigan Environmental Protection Act. In 2011, the same court reaffirmed its 2004 ruling.
Your claim that CEQA is harming the environment — because it forces developers to fully consider all the environmental consequences of their developments — is ludicrous.
As you mistakenly admit in your article, building anything, including the infill that you're so in love with, causes substantial environmental harms. The truck trips that you identify are only one problem with any development; consumption of "resources" for building materials (more accurately and honestly described as killing plants and animals, and destroying ecosystems) and creating toxic chemicals and compounds for those materials are two others off the top of my head.
But the bigger issue here is whether we should weaken CEQA in order to allow infill that may or may not reduce air pollution from long commutes. I stand with Center for Biological Diversity and the more conservative Sierra Club in saying no! Being on the front lines of environmental protection, these groups know far better than an urban newspaper's writers whether amending CEQA as you propose would cause more environmental harm than good.
Specifically, your proposal to eliminate the "fair argument" standard should be summarily rejected. You mischaracterize the standard as giving "anti-growth activists a potent weapon to challenge smart-growth development" by failing to fully describe the law. While your claim seems true on its face, the fact is that all the standard does is allow people challenging a project to use their own qualified expert to show that an environmental impact report (EIR) should be prepared. What you hopefully don't get (I say "hopefully," because the other alternative is that you're in bed with developers) is that the so-called experts hired by developers and governments are often little more than lackeys for those who hire them. You unfairly denigrate anti-development experts as "someone with some initials after their name" (quoting Andrew Sabey), but assume that pro-developer stooges are saints. Nothing could be further from the truth. Furthermore, any developer who can't or doesn't want to prepare an EIR for anything larger than a very small and totally harmless project should not be allowed to develop it.
Even worse is that elimination of the fair argument standard for infill would open the floodgates to elimination of the standard for all development, most of which is the sprawl that we all hate. This slippery slope effect is already happening in Congress with the removal of wolves from the Endangered Species Act. First it was just supposed to be groups of wolves that had supposedly recovered from near extinction (which was a lie, none of them are close), then it spread to the entire country, with blood-thirsty hunters in states like Wyoming killing wolves at will.
If anything, CEQA needs to be strengthened to strictly prohibit projects that are shown to have substantial negative environmental impacts. There are too many loopholes in CEQA as it currently exists, and bad projects like building on open space still take place. This is what you should be advocating for if you claim to be pro-environment, not the weakening of CEQA.
Moreover, the project you are cheerleading provides parking, which means that the residents and shoppers using Parker Place will be driving, so its (and your) transit claims are baloney. Any project that is supposed to get people on transit should not provide any parking. The so-called "green" certifications for this project are just lipstick on a pig, so to speak. I realize that your position is that it's not as bad for people to commute short distances rather than longer ones, but this milquetoast attitude will not fix the problem, which is use of oil in any amount.
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