"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.
As I said in a previous letter, the problem that you want to solve with development is really overpopulation and constant population growth. You should be advocating for people to limit their families to zero to one child, and stop being a shill for developers to bring ever more people into our cities and thereby denigrate the quality of our lives. To paraphrase someone commenting in the online environmental magazine Grist a long time ago, you don't fix the environment by harming the environment, and all development is harmful. If you want to fix the problem of too many people to fit in the current housing, reduce the number of people, and don't further harm the environment and our lives by building more harmful projects.
Jeff Hoffman, Berkeley
I write in response to Robert Gammon's "smart growth" screed. He says that Berkeley has historically been plagued by a housing shortage. Yes, historically it was. But the last ten years of frenetic multi-unit housing construction have changed that, and for-lease signs on oppressive, blocky housing projects are now omnipresent.
Gammon claims that only 17 percent of the jobs in Berkeley are filled by Berkeley residents. Obviously those employed in the other 83 percent of the jobs choose to live elsewhere! Otherwise they would simply move into one those big housing projects now displaying "for lease" signs.
As long as there are empty apartments in the existing block-housing that Berkeley workers choose not to inhabit, building more of the same is environmental insanity. Needlessly consuming tons of concrete, glass, metal, and sheetrock, with all the pollution involved in the production thereof, is Dumb Growth at its most extreme.
Peter Schorer, Berkeley
Look at the Numbers
I was disturbed to see my work taken out of context in your recent mischaracterization of the battle over the California Environmental Quality Act. Robert Gammon appears to have accepted the story being pedaled by development interests that CEQA is in need of a massive overhaul. In fact, no such overhaul is necessary, as the statute is working to protect California's resources exactly as the legislature intended.
The article talks about "research by the law firm Shute, Mihaly & Weinberger," and yet Mr. Gammon never called the firm to verify the research he cited. My research was taken out of context by key proponents of weakening CEQA, and Mr. Gammon simply repeated their spin. The article implies that developers lose their court cases too often and therefore CEQA must be weakened. The statistic he cites, which refers to published appellate and Supreme Court decisions, deals with cases where important legal issues were at hand.
The fact that pro-environment forces win 43 percent of published cases does not suggest CEQA is broken. Rather, the opposite is true. In these cases, the courts held developers and public agencies accountable to provide the environmental protections that Californians count on. This statistic tells us that the law is working as it was intended, not that it is abused.
Hundreds of conservation organizations, including NRDC, Sierra Club, and the Center for Biological Diversity, have united to stand strong behind CEQA. The article barely mentions the views of these groups. While it provides extensive quotations from those seeking to gut CEQA, it provides almost no information from the other side; only the Center of Biological Diversity is quoted, but that statement is buried at the end of the long article.
Mr. Gammon did East Bay residents a disservice by telling only one side of this story.
E. Clement Shute
Co-Founder of Shute, Mihaly & Weinberger, LLP
Everything Has Impacts
Even green projects have impacts. But are they significant? Can they be mitigated enough to use a [negative declaration]? The city took a risk in a litigious society. A good [environmental impact review] could have been processed, revised, reprocessed, and certified, and the project could have been completed by now.
Bob Chioino, Berkeley
"Density development" without honest, affordable transit options, unrelated to mandated open space, accommodating mostly high-end tech workers rather than addressing the crisis in low-income housing, is not green. It's fake environmentalism that tilts against sunlight; quiet, natural landscapes and horizons; historic buildings; and respect for neighborhoods while lining developers' pockets.
Our politicians and planners are supposed to be working with and for the people who voted for them, not the people who can pour the most money into their campaigns and keep them in power whether they reflect our wishes or not. Former Berkeley Mayor Shirley Dean was proud to oppose poorly remediated brownfields development for the obvious reason that our watershed deserves honest respect not only for our sakes, but the planet's.
It should surprise none of us when developers control politics at the local and state level. But it should shock us when otherwise intelligent reporters go right along with it.
Carol Denney, Berkeley
As a Berkeley resident concerned about climate change, I'm dismayed to see the Express fall for the bait-and-switch PR campaign against the California Environmental Quality Act. Big developers' attorneys are using "smart growth" infill projects as a Trojan horse for their effort to gut California's landmark environmental quality law.
We do need smarter growth to combat global warming. But CEQA isn't the problem. According to California's Attorney General, only 0.3 percent of CEQA projects in San Francisco — hardly a NIMBY-free zone — ever end up in court. The litigation rate in LA is only 1.5 percent. And in a recent statewide survey of planning directors, fewer than 5 percent ranked CEQA as the primary barrier to infill —infrastructure constraints, zoning issues, lack of funding and general economic malaise beat CEQA hands-down.
Besides, the legislature has already streamlined CEQA for "smart growth" projects multiple times in the last few years. The ink is hardly dry on the latest pro-infill guidelines, yet developers keep coming back for more — which shows this isn't really about infill.
The developers' lawyers quoted in the Express piece want to dismantle the law entirely. Their proposals would turn thorough environmental studies into meaningless checklists while allowing officials to ignore the law without fear of being sued. If they get their way, both our environment and open government will suffer.
The Express rightly notes that this bedrock environmental law has protected our air and water, our coastline, our wildlife, our open spaces, and our health for more than forty years. Climate change shows we need it more than ever.
The law's twin goals — ensuring our elected officials honestly and publicly assess the impacts of projects, good or bad, and take feasible steps to reduce significant harm — are producing smarter, less carbon-intensive projects. We shouldn't throw that away because of a few disgruntled neighbors.
Senior Attorney, Center for Biological Diversity
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