How the California Environmental Quality Act Fails the Environment 

Critics correctly blame the law for making it too easy to block housing construction. But it also fails far too frequently to protect wildlife habitat.

click to enlarge New housing developments frequently rely on habitat restoration under the act that doesn’t accomplish its stated objective.

Ken Lund CC

New housing developments frequently rely on habitat restoration under the act that doesn’t accomplish its stated objective.

The owl had probably flown over much of West, migrating over deserts and mountains, pastures and green valleys. It eventually settled in Fremont, in an urban neighborhood where it presumably had wintered before.

Burrowing owls often nest in the same rodent burrows year after year. But for this particular owl, its familiar home was now gone — paved over months before to accommodate the vehicles of shoppers at Walmart.

"It was standing in the parking lot," recalled Marcia Grefsrud, an environmental scientist with the California Department of Fish and Wildlife.

For at least a year after that incident, burrowing owls maintained a presence in a tiny patch of unpaved scrub adjacent to the big box store, said Grefsrud, who works on plans to preserve or restore animal habitats in exchange for habitat loss related to Alameda County development projects. Finally, though, the tiny raptors seemed to disappear for good.

Burrowing owl habitat is vanishing around the Bay Area, even though a key environmental law is supposed to prevent this incremental loss. The California Environmental Quality Act, (or CEQA, which is pronounced "see-kwah"), requires agencies overseeing development projects to watch for potential environmental impacts and mitigate them with carefully tailored actions. Such measures might include providing shelter for wild animals, supporting impacted hillsides to prevent erosion, replanting trees when others are cut down, or preserving wildlife trails through new housing tracts. Often, developers preserve one parcel of land in trade for permission to develop another.

Enacted in 1970, this acclaimed environmental law theoretically ensures that economic development doesn't compromise the environment. Mitigation measures are the lynchpin of the law.

But many scientists, environmental activists, and attorneys specializing in CEQA say the act's techniques for protecting natural resources often fail. Its many flaws and shortcomings are veiled from public sight by complex bureaucracy, arduous documents, and dense thickets of legal and technical jargon.

The East Bay's imperiled burrowing owl population presents one clear example of CEQA's broken promise. Much of the animals' underground habitat has been lost to development — largely new homes in the hills and valleys surrounding Dublin, Pleasanton, and Livermore — and the state considers the species one "of special concern." Many housing tracts in this area have been built on the condition that developers buy an undeveloped parcel elsewhere through a habitat banking system.

But the notion that this new land is similar to the habitat that was destroyed is an illusion. Owls evicted by a development project are not given a new place to live.

"They aren't creating habitat — just preserving it somewhere else," Grefsrud said. "That's a net loss, and that makes me uncomfortable."

It's not just burrowing owls. Spotted owls, Alameda whipsnakes, tiger salamanders, and salmon and steelhead trout, among other species, are all feeling the pinch of habitat loss — due in part to weak CEQA reviews.

The law falls short in other ways, too. Potential impacts of a project are often overlooked. Other times, mitigation measures are simply too flimsy, ignored by developers, or not enforced by the government agencies that typically oversee such projects.

"There's a lot of cutting corners on mitigation measures," said Oakland resident and environmentalist Ralph Kanz.

He has closely watched public agencies for years, becoming one of few citizens with the time, skills, and wherewithal to understand the CEQA process and follow the legal intricacies of complex development projects. Kanz contends that agencies consistently fail to carry out mitigation measures on development projects unless hounded by CEQA-savvy citizen watchdogs like himself.

"Biological resources tend to get the short end of the stick," Kanz said.

Numerous sources interviewed for this story described city- and county-level officials failing to enforce the implementation and long-term maintenance of various mitigation measures. Erosion-control systems fail and are eventually abandoned. Fencing meant to protect animals from traffic or industrial activity is neglected. Replanted trees simply die.

"It's pretty difficult to get that part of CEQA enforced," said Alan Levine, of the Coast Action Network, an affiliate of the Redwood Coast Watersheds Alliance. Completing a project's mitigation measures often becomes a low priority for property owners, Levine said, especially as time goes by following a project's completion.

"The community usually needs to be on their ass to make them do it," he said.

Another serious flaw in CEQA's design undermines its efficacy: The reports that establish potential environmental impacts are written by private consultants hired by the developer. In this process, potential impacts of a project may be slyly downplayed, to make mitigation easier or cheaper.

"It's a huge conflict of interest to have the developer paying the consultant who's writing the report," Kanz said.

CEQA is currently under fire from development interests who argue that the law makes it too easy for NIMBY-type citizens to sue and block development projects, including housing projects. This camp of CEQA critics correctly observes that use of the law to fight urban infill development is aggravating suburban sprawl and its environmental impacts, such as traffic. They are calling for CEQA reform.

This push has environmentalists, even those concerned about CEQA's weaknesses, generally standing by the law. David Keller, a former Petaluma city councilman, said California's landscape as we know it wouldn't be the same in the absence of CEQA.

"It's produced very substantial accomplishments," he said. "There's no doubt whatsoever that this law has set a framework that is extremely important."

CEQA guides just about every large development project in the state. In the East Bay, a housing complex proposed for Point Molate in Richmond is now going through the process. So is a planned FedEx distribution center in Livermore. Dublin's Zeiss Innovation Center jumped through the hoops and is now being built. The wind turbines at Altamont Pass were built after CEQA review. So was the fourth bore of the Caldecott Tunnel. 


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