In the wee hours of the night, at the end of the last legislative session, language was added into a bill to push forward reforms to California’s 40-year old environmental policy, the California Environmental Quality Act.
The reforms were sponsored by the CEQA Working Group, a business-labor-government coalition. Intended to reduce frivolous environmental litigation and duplicative government oversight, the reforms ended up being part of a smoggy deal.
Before anyone could stop them, the Democratic leadership swooped in on the bill and changed it.
Because of California’s stringent environmental laws and project-killing local planning requirements, nearly all public and private projects in the state are legally challenged under CEQA, even when a project meets all other environmental standards of state law.
SB 317, co-authored by Sen. Michael Rubio, D-Shafter, a gut-and-amend bill, would not have actually changed CEQA, but instead would have introduced a companion law to dictate how CEQA is enforced. The new legislation would have restricted certain types of lawsuits, and would have exempted some projects from CEQA review, as long as those projects conformed with local planning and zoning codes.
It was essentially a tort reform bill just for CEQA, specifically addressing the act’s legal abuse.
CEQA is often called “the tort lawyer full employment act.” Most efforts for CEQA reform stem from the volume of frivolous lawsuits by opponents not always motivated by environmental protection. Most often, political and personal issues motivate the zealots who file CEQA lawsuits. They are willing to dramatically complicate and even halt development projects of all kinds, just because they can.
What is CEQA?
What started 40 years ago as a reasonable idea has transformed into one of the more putative forms of business regulation in the state.
The California Environmental Quality Act, enacted in 1970, requires that state and local agencies analyze the potential to harm the environmental of any development project, and identify measures to reduce that harm.
There are now 17 areas of environmental concern and 84 criteria in CEQA, including water, air quality, animal life, plant life, hazardous materials and even traffic.
Since CEQA’s 1970 passage, the Legislature has enacted more than 120 additional environmental laws. Most of California’s environmental laws are far more stringent than mandated by federal law, which SB 317 sought to address.
SB 317 claimed that federal laws are better at ensuring environmental compliance than CEQA. “Environmental laws and regulations identify compliance obligations that apply uniformly to similarly situated projects and activities … and thereby provide greater clarity than the project-by-project ad hoc review process that was created for CEQA in 1970,” the bill states.
SB 317 criticized CEQA duplicating environmental impact studies.
Even some in the Democratic Party want to see CEQA reforms, and acknowledge privately what a disaster it has been. But Capitol insiders say the political reality is that nothing is going to change because of a couple of powerful Capitol staff members who really control CEQA.
Often called the “41st senator,” Kernan “Kip” Lipper, Senate President Darrell Steinberg’s executive staff director, is the godfather of California’s environmental bills.
Lipper is officially classified as an “environmental consultant” to the state Senate. Any environmental bill that has come out of the Legislature in the last decade has only done so because Lipper allowed it, or because he made it happen. “Lawmakers used to jokingly ask whether a bill had been ‘Lipperized’ — and they still say that, only no longer in jest,” Capitol Weekly reported in 2010. When a bill becomes “Lipperized,” it is altered into a far different bill than the original. Or the bill will die in a committee upon Lipper’s orders.
“’He has more influence than some senators,” said state Sen. Tony Strickland, R-Thousand Oaks, “but that’s not necessarily a compliment,” the Los Angeles Times reported in 2009. ” ‘You can’t fault Kip for being good at what he does,” Strickland said, “but I personally believe the voters would rather that the power lies with the people they elected.’”
Gifts to friends
On Sept. 13, SB 317 appeared to have been “Lipperized,” as it was sent to a dark corner of the Senate closet. Simultaneously, Steinberg appointed Rubio as Chairman of the Senate Environmental Quality Committee.
The EQ committee “has jurisdiction over environmental quality, air quality, water quality, integrated waste management, toxics and hazardous waste,” a Senate press release said. “In upcoming weeks and prior to the beginning of the next legislative session, Senator Rubio will host several introductory roundtable meetings and hearings throughout California to learn from environmental groups, businesses and residents what environmental issues are of concern in their area.”
Oddly, the press release also said, “Senator Rubio also looks forward to working closely with all stakeholders to strengthen the core purpose of the California Environmental Quality Act to protect the environment, while eliminating abuses that inhibit economic growth in the state.” Could that have been a warning?
Many in the state say that CEQA reform is not possible given the existing unelected circumstances of legislative control. In the coming months, Californians will see if lawmakers’ talk of CEQA reform is more spin, or if California’s most stringent environmental law will be loosened to allow some economic recovery in the state.