Timeline: Lawyers for Developers Share Tactics to Blunt CEQA

By Kevin Stark : SFpublicpress – excerpt

Why the rush to build on the lowest levels of the bay?

In 1995, the Diablo Valley Ranch, a drug rehab facility in Contra Costa County, planned to expand. The problem? According to neighbors, the land it wanted to build on was contaminated with oil and toxic chemicals.

The company made what was then an obscure argument: The California Environmental Quality Act, known as CEQA, the state’s premiere environmental law, did not require developers to consider how the environment might influence its project, only how the project would affect the environment.

Today, developers are using the same reasoning to push back on the ability of Bay Area cities to regulate waterfront development and protect residents from rising sea levels, a product of human-caused climate change. Over the last two decades, as developers won over judges in more and more state courts, lawyers began peppering these phrases in environmental impact reports, lawsuits and responses to public comment…

November 2016: RULING

Mission Bay Alliance v. Office of Community Investment and Infrastructure; Golden State Warriors Arena LLC — The Court of Appeal rules in favor of the Golden State Warriors basketball team in its application for a $1 billion development including a sports arena and office complex. The legal challenge had focused on the effects on traffic and wind patterns, mentioning sea level rise only parenthetically.

Defendants argue correctly that CEQA does not require analysis of the wind impacts on the project. “[T]he purpose of an FSEIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.”

December 2016: ACTION

San Francisco’s Natural Resources Management Plan — The City of San Francisco, which owns a golf course and natural area in coastal San Mateo County, issues a wide-ranging parks management plan calling for keeping the level of wetlands artificially stable. In comments, the Sierra Club objects that the proposal “will lack any resiliency in the face of increased climate stress and inevitable sea-level rise.”

“The purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.”(more)

Regardless of how your feel about global warming and sea level rise, pay more attention to who supports the candidates if you don’t like these rulings.

Eye on the State: Environmental care part of smart housing policy

Op-ed By and : sfexminer – excerpt

Over the next few months, legislators will be debating new housing legislation — both state and local — to meet the pressing needs of California’s growing population. It is good that our legislators are facing the state’s affordable housing crisis head-on; having a decent home for everyone is critical. But as we work to meet that need, we must also ensure that the environment is not harmed.

Creating vibrant and complete urban communities requires a strong commitment to protecting and enhancing the quality of urban life. Some of the features shared by healthy urban communities include convenient public open spaces, parks, playgrounds and natural “unimproved” spaces. Creating these communities must also involve a commitment to preserving existing affordable housing, preventing displacement of low- and moderate-income residents, protecting cultural heritage, providing efficient public transit and sheltering existing communities from unreasonable economic and physical disruption.

It’s also critical that urban areas be non-polluting, so as to minimize our impacts upon this planet’s resources and environment.

When there is a lot of pressure for one set of needs — in this case, housing — there is the temptation to ignore other needs. There is a tendency to say that “just for this project” it is acceptable for the developer to ignore the need to carefully consider the impact on the environment.

One such short-sighted idea currently being discussed is to allow projects to be approved by-right and, in the process, to bypass environmental review now mandated by the California Environmental Quality Act…(more)

 

Time to pull the plug on VMT/Orcem

By Jeff Carlson : timesheraldonline – excerpt

A review of documents and communications related to the VMT/Orcem proposal reveal that the principals submitted an application before developing a viable project. The draft Environmental Impact Report prepared at great expense and circulated for public comment can no longer fulfill the legal requirements for sufficiency under the California Environmental Quality Act. Information recognized only after circulating the draft EIR exposed the fact that three quarters of the described operations will not be approved by a regional permitting authority. The project has now been reduced to a marine terminal with a slag cement plant tenant using only a quarter of the terminal capacity, without even the pretense of financial viability.

The major Vallejo Marine Terminal component of the project was described in the application, in the EIR, and in the applicant’s economic analysis as a break bulk cargo-handling operation. According to the applicants, this would “establish a key site of multi-modal and intermodal transportation and logistics, thereby enhancing Vallejo’s role in the regional and international trade economy.” Why they would think so is something of a mystery, since the cargo reports show demand for break bulk shipping has dwindled away to nothing, with the last activity recorded at any Bay port in 2006. VMT was always a business plan decades behind the times, and as it turned out not something that would be permitted by the Bay Conservation and Development Commission… (more)

Environmental Protection or Principal Constraint to Housing Production?

 : FoxandHoundsDaily – excerpt

”The California Environmental Quality Act (CEQA) has been turned on its head, becoming a full employment act for lawyers and their client neighborhood groups.

The result is that CEQA has become not a protector of the environment, but a promoter of sprawl, pushing the housing market away from existing neighborhoods and onto farmland, where the cows don’t sue.”

Those are the words of the Sacramento Bee which on several occasions both before and after this editorial appeared in 2003 has spoken critically of the state’s premier environmental law, CEQA.  That’s because rather than protecting Yosemite and the coastline, CEQA intervenes in every development project – especially housing – from downtown Oakland to suburban San Diego.

Signed by Governor Ronald Reagan in 1970, CEQA exists to assess and mitigate environmental impacts of development.  CEQA says:  “It is the policy of the state to . . . take all action necessary to provide the people of this state with clear air and water, enjoyment of aesthetic, natural, scenic and historic environmental qualities.”  The statute goes on to direct all public agencies “to develop standards and procedures necessary to protect environmental quality.”

Yet, CEQA is the most deliberate and often-used means to stop or seriously delay a development of any kind.  The tales of CEQA stifling housing production are legion.  But consider an environmental impact report (EIR) done in 2011 to bless a solar plant, no less, in San Luis Obispo County.  Before they were done, development skeptics – using CEQA – demanded, among other things, analysis and mitigation of the project’s aesthetic, agricultural, biological, cultural, geological, public service, transportation and water-use profile.  The final report was several hundred pages long…(more)

Audubon slams oyster project’s legality

by Paul Mann : MadRiverUnion – excerpt

EUREKA – Audubon California and EarthJustice, the San Francisco-based environmental law advocate, charge in a joint statement that the lawful certification of the Coast Seafoods Company’s expanded oyster farming project must be ruled out.

The reason: the Final Environmental Impact Report has not received “an adequate review” under the 1970 California Environmental Quality Act (CEQA).

In a nine-page letter submitted Jan. 18 to Jack Crider, executive director of the Humboldt Bay Harbor, Recreation and Conservation District, the two organizations acknowledged the series of modifications made to the 471-page environmental impact report in response to voluminous public comment.

But the two groups argued that “both the project and its impacts remain enormous and have yet to be fully analyzed and disclosed as required by the CEQA.”… (more)

It is our policy to track the media on these subjects. Please post comments on the source. Not sure this is a positive way to approach food production when there is a need to feed human beings and the interior department closed down a farm recently in California. People do need to eat and oysters clean the water, so this argument does not win me over, especially when the administration is threatening to cut imports of other foods by increasing import tax. We should perhaps increase local food production.

Q&A Gabrief Metcalf: Is the housing crisis too big to solve?

When Gabriel Metcalf suggested at a forum on affordable housing that cities should be penalized by the state for failing to build enough housing, he drew gasps from fellow panelists.

It’s not that the other panelists disagreed with Metcalf, who as president and CEO of SPUR, is one of the Bay Area’s better-known housing advocates. It’s just that no one else had been willing to make the suggestion.

We talked to Metcalf to discuss the region’s housing crisis and some strategies that might fix it. As the head of SPUR — the San Francisco Bay Area Planning and Urban Research Association — Metcalf is in the thick of the housing conversation. That makes sense: Over the decades, SPUR — which has offices in San Jose, San Francisco and Oakland — has helped catalyze some of the region’s critical policy moves, from the founding of BART to the preservation of the Golden Gate National Recreation Area… (more)

This is the beginning of the state-wide pitch for truly repressive legislation that will force communities to hand over their land to developers without any “right” to control it or protect them selves. Wiener is already at work on this in Sacramento.

This is why the country has new leadership. The public is wary of this sort of “sustainable” solution to “climate control” when there are many other ways to protect the planet. Clear cutting trees to make room for more towers and crowding people into cities is SPUR’s way of amassing greater wealth and power for the wealthy and powerful.

 

Clearing CEQA: Study vindicates California environmental law as having less impact on development than previously claimed

By newsreview – excerpt

1 Center benefited from recent Steinberg CEQA tweak

Environmental regulations may not strike most developers as a harmonious complement to their industry, but a new study indicates that stubborn criticism of the California Environmental Quality Act may be wrongheaded.

The study, “CEQA in the 21st Century,” concludes that the act does not significantly impede business—and ties projects up in litigation far less than its critics believe.

“I think it’s bringing a little more proportionality into the discussion,” said Ethan Elkind, director of the Climate Change and Business Program at the UCLA and UC Berkeley schools of law, who helped review the report. “CEQA isn’t just about litigation; it’s also about having to do … reviews on projects that have a significant impact on the environment.

“It’s really the state’s bedrock environmental law.”… (more)

CEQA: This law has done a good job

by Cesar Diaz and Kyle Jones : capitolweekly – excerpt

The California Environmental Quality Act has long been the punching bag of business interests and some policy makers. It has been blamed for everything from a dearth of affordable housing to a sluggish economy during financial downturns.

Yet, until now, precious little objective research has been conducted to understand the costs and benefits associated with this 46-year-old law…

Recently,  the Rose Foundation for Communities and the Environment commissioned BAE Urban Economics to draft an objective report to dig into this sticky question.

Leveraging a combination of rigorous quantitative analysis, a literature review of past research, case studies and a review of recent legislative changes to the law, the report found little evidence of economic harm inflicted by this landmark environmental law.

In fact, the report found that CEQA has done a good job of helping California to grow in an environmentally sustainable way. The state is relying more on increased density to accommodate a growing population and less on agricultural land and open space to accommodate new housing than it has in decades past.

California is now the 11th most densely populated state in the nation, up from its ranking of 13th in 1970. Nearly one-quarter of the most walkable cities in the US are now located in California.

It’s difficult to justify claims that this law impedes environmentally-sensitive development with these facts at hand… (more)

Full speed ahead, and damn the facts! CEQA in operation in Berkeley

OpeEd By Becky O’Malley : berkeleydailyplanet – excerpt

Last weekend I had two more lessons in how powerless the California Environmental Quality Act is to inform politically-based decisionmaking. One was at the Wellstone Democratic Club’s endorsement meeting and the other was the Superior Court hearing on the EIR for 2211 Harold Way.

It was disappointing, but not surprising, to hear both candidates for Berkeley’s District Five City Council seat who spoke at the Wellstone Democratic Club meeting on Saturday endorse the ongoing plan to cut down many of the blue gum eucalyptus trees in the East Bay Hills and kill off the stumps with Roundup. Coincidentally or not, both are trained as lawyers.

This is a controversy that has been going on for quite a while now, all over the country in many contexts. For my money, the best analysis of the politics involved, with a side of science cites, can be found in a story which ace reporter Andrew Cockburn wrote for Harpers Magazine last year: Weed Whackers: Monsanto, glyphosate, and the war on invasive species. It’s well worth reading end to end, and you can do it online for free.

A lot of environmental decision-making is mistakenly based on the Sesame Street principle: Which one of these things is not like the other? When the eucalyptus tree has been scrutinized, a lot of the analysis comes down in the end to personal preference: love ‘em or hate ‘em: natives good, introduced bad—or maybe it’s the other way round. Unfortunately, it’s not that simple.

We attempt, with inadequate data and cumbersome legalistic processes, to make decisions which are more properly scientific, or would be if the data existed. For a decent view of what facts we have, see Management of blue gum eucalyptus in California requires region-specific consideration in the January issue of California Agriculture.

As near as I can determine, the Achilles heel of the East Bay Regional Park/FEMA scheme is the promised “restoration” plan: what will happen in the park after the trees have been chopped down and the stumps nuked with Roundup. We just don’t know enough to be sure that the lovely native grasslands which preceded the trees can be sure to come back as before, and some park users might prefer woodlands to grass, an even more difficult goal. In situations like this one, the paper’s authors suggest, eucalyptus roots may have altered the soil in which they grow with persistent chemicals which kill other plants.

A professor of environmental studies of my acquaintance tells me that “restoration is a moving target, an evolving field”. It’s frequently a promised mitigation in an environmental impact study, but more often than not it just doesn’t happen as planned, either from unforeseen scientific impossibility or lack of funding. And sometimes it’s cynically promised by governmental bodies with no intention of enforcing compliance. In Santa Cruz there’s a “restored wetland” which was promised to mitigate a building project elsewhere that is routinely clearcut by city officials worried that criminal activity might thrive among those “weeds”.

Another manifestation of the flaws in our environmental decision-making was on view Friday in Oakland in the court of Superior Court Judge Frank Roesch, hearing the challenge to the environmental impact report on the project for 2211 Harold Way in Berkeley, which was approved on December 8 by Berkeley’s clownish City Council. Petitioners were citizens James Hendry and Kelly Hammargren, appearing individually on their own without benefit of lawyers, a Herculean task which they executed remarkably well, all things considered.

Next time you hear Governor Jerry Brown whining that his developer pals are suffering mightily under the heavy burden of the California Environmental Quality Act’s reporting requirements, please laugh out loud with me. Here we have a multi-million-dollar project to construct 18 stories of luxury apartments, tearing down in the process a film center which is a mainstay of the downtown Berkeley economy, tunneling under a historic building which is built on infill on a creekbed with a ceramic foundation.

(Some of you may have seen the reports of a building in San Francisco also built on fill which has started to sink…) .

Despite CEQA, we were in the last round on Friday, and the chances of two private citizens stopping the project were slim.

In the developer’s corner: the Manatt law firm, the great big one which has historically represented all the bigtime Democratic pols.

Representing the public interest: a retired nurse and an economist, doing their damndest to figure out what CEQA should have done to inform the decision-makers adequately.

Here again, it’s a matter of separating the weeds from the flowers. CEQA is supposed to do that, but it fails…

There is an election in November. A better city council might be the only way to prevent future travesties like this one…  (more)

The failure to protect valuable community spaces is seems to often be on the part of the politicians who are still buying into the Plan Bay Area theme that anything new and expensive that increases the value of the property is better than whatever it replaces. Some efforts to stem that reasoning are taking root in San Francisco as artists, cultural institutions and small businesses situated in post-industrial PDR (Production, Distribution and Repair) zones, fight back with Prop X. If you can figure out which candidates agree with your vision of your city you should vote for those people, especially the ones you send to Sacramento and Washington. That is where the damage is being done, as the author is finding out. There are so many bills aimed at tearing down CEQA it is hard to keep track of them. We try to track some of them here: https://discoveryink.wordpress.com/california-bills-2016/

Brown’s climate bill SB32 not ready for prime time

By Jim Nielsen : sfchronicle – excerpt

The California Legislature’s most contentious bill of the year, SB32, which attempts to establish far-reaching reductions in greenhouse emissions, is in the final stages of the legislative process. It miraculously moved out of a committee meant to hold the line on state spending with very little scrutiny or transparency.

Creating cleaner air is a noble cause. We all want clean air for our children, grandchildren and ourselves.

At issue is the blank check authority that SB32 hands over to faceless, unelected state bureaucrats at the California Air Resources Board. The board has repeatedly failed to produce basic performance reviews of its climate change programs.

The board’s self-proclaimed achievement has been so fuzzy that a bipartisan group of legislators has called for a state audit of its programs. Republican and Democratic lawmakers want to better understand what, if any, emission reductions the programs are achieving. Repeatedly, the board has failed to provide basic information to the Legislature. The audit request has stalled and will not be approved before this legislative session terminates at the end of the month.

No reasonable lawmaker will deny that the very fundamentals of good policy-making require evaluations of whether a program is working, based on sound criteria. When we see where a policy or program is failing or has not met expectations, we need to come to an agreed upon solution before expanding or renewing the program… (more)

The citizens of California deserve to see all the facts laid out in plain English. When this doesn’t happen, the legislature should NOT approve taking action on this measure. Clearly this is a controversial bill that needs a lot of public comment and debate. Sneaking highly controversial language into trailing legislation and last minute bills is dishonest and should also be brought to the attention of the voting public.

If it is a good idea, why are they hiding it from public debate?