How an Environmental Law Is Harming the Environment 

California's signature environmental law needs to be reformed because NIMBYs are using it to block smart growth.

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And while many Republicans still claim that climate change is a hoax, a new study released last week revealed that global temperatures are higher now than at any time in the past 4,000 years. Even Wall Street is betting on the fact that climate change is going to unleash serious impacts on the environment. Last week, Bloomberg Businessweek reported that Wall Street hedge funds and other firms are pumping loads of cash into financial ventures that hope to profit from the severe effects of global warming.

Locally, Berkeley has played a role in making climate change worse. The city historically has been plagued by a housing shortage, and so the overwhelming majority of people who work in Berkeley must commute from somewhere else. According to recent research conducted at UC Berkeley, only 17 percent of the jobs in the city are filled by Berkeley residents. And if you exclude employment on the Cal campus, the percentage of people who live and work in the city drops below 10 percent, said Dave Fogarty of the city's economic development division. Many UC Berkeley faculty members, he noted, prefer to live close to the university.

But CEQA, because it was adopted more than four decades ago, is not designed to adequately address the multiple threats on the environment posed by climate change. The Parker Place project, for example, does not receive proper credit for supplying housing close to jobs so that people can walk, bike, or take mass transit to work. Instead, the law, and the anti-growth activists who use it to block smart growth, still treat all development — be it urban, suburban, or rural — as essentially the same.

"The fact that development can be done that is environmentally beneficial is a new paradigm," noted Madsen of Greenbelt Alliance, which supports modest reforms to CEQA to encourage more smart growth.

Over the years, CEQA has become perhaps the most important law in California. State and local public agencies must adhere to it when making nearly every type of decision — even when cutting bus service, building bike lanes, or changing the configuration of city streets. For development, CEQA requires a comprehensive review that analyzes numerous potential environmental impacts for each project and proposes offsets, or mitigations, for impacts found to be "significant."

CEQA also provides opponents of a project with a smorgasbord of opportunities to file lawsuits, challenging nearly every aspect of it. From an environmental perspective, that makes sense if the project in question threatens endangered species or would worsen carbon emissions. But many anti-growth activists in urban areas are still using CEQA as they would have in 1970, blocking all development they don't want for their communities.

According to a recent study by the law firm Holland & Knight, 59 percent of the development projects challenged under CEQA in state appellate courts or the California Supreme Court from 1997 to 2012 involved infill development. In addition, the prospect of spending years in litigation sometimes prompts developers to just give up on their projects — which is exactly what people often referred to as NIMBYs (for Not In My Backyard) want to happen.

Compounding the problem is that many CEQA regulations are legally vague and open to varying judicial interpretations. As a result, smart-growth developers and city officials can't know for sure whether they'll win or lose when they walk into court. Since CEQA became law, development opponents have won 43 percent of the CEQA lawsuits that resulted in published appellate or Supreme Court decisions, according to a 2011 study conducted by the law firm Shute, Mihaly & Weinberger.

"The law has become so dysfunctional," said Jennifer Hernandez, an attorney for the Holland & Knight firm and a Berkeley resident who advocates for broad reforms of CEQA. "To call this environmental protection anymore ... it's really about quality-of-life" issues.

Indeed, according to several East Bay city officials interviewed for this report, anti-growth activists in Berkeley and Oakland most often challenge transit-oriented development for reasons that have much more to do with protecting their quality of life than the environment. Take so-called "traffic impacts." NIMBYs often contend that adding new city residents will worsen traffic in their neighborhoods, but ignore the fact that urban dwellers tend to have a substantially smaller carbon footprint than people who live in suburban or rural areas.

And in an equally Orwellian argument, smart growth is now sometimes attacked for supposedly producing too many greenhouse-gas emissions, officials say. Anti-growth activists use CEQA to object to the number of "truck trips" that will occur during construction of a smart-growth project, while failing to acknowledge that suburban sprawl results in far more car trips in aggregate, and thus is much worse for the environment.

The California Legislature has approved minor reforms to CEQA during the past decade in an effort to spur smart growth. But CEQA still allows anti-growth activists to pervert environmental law. For example, the group that sued to block Parker Place contended that the city's environmental study was "inadequate," essentially because the project involves the cleaning up of polluted soil and groundwater.

Yes, you read that right. A project that would not only help fight climate change, but also would clean up contaminated soil and groundwater in downtown Berkeley has been blocked in court thanks to a law that's supposed to protect the environment.

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