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Real Estate,
Environmental & Energy

Aug. 25, 2022

California’s environmental state agencies are converting CEQA’s anti-project Howitzer into a Neutron Bomb.

Take a sober look at California's worst-in-the-nation poverty rate and the shameful fact that the vast majority of our poor are Latino or Black, and question whether a climate cram-down meets anyone's criteria for racial justice.

Jennifer L. Hernandez

Partner, Holland & Knight LLP


Stanford Univ Law School; Stanford CA

In 2020, one of the many law firms specializing in filing lawsuits alleging noncompliance with the California Environmental Quality Act (CEQA), sued the City of Bakersfield for approving an outpatient medical clinic to serve veterans. (Progress for Bakersfield Veterans, LLC v. City of Bakersfield, Case No. BCV-21-100778). The petition alleged that the outpatient medical clinic, located in a warehouse/industrial neighborhood, would cause a shocking litany of "site-specific adverse environmental impacts," including "air quality, biological resources, tribal cultural resources and geology/soils, energy, greenhouse gas emissions, hazards and hazardous materials, hydrology/water quality, land use, noise, transportation/traffic, utility and utility service systems, including fire safety and drainage systems." ¶44)

Notwithstanding its sanctimonious name, "Progress for Bakersfield Veterans" is actually an existing medical clinic operator, and its CEQA lawsuit challenges a competing clinic operator as part of chasing a lucrative contract with the Veterans Administration ("VA"). "Progress" asserts it will be "irreparably harmed" (¶ 34) unless Bakersfield rescinds its approval of its competitor's project and complete an Environmental Impact Report (EIR), which takes a year or longer to complete - and if adopted can be challenged again in another CEQA lawsuit. Fighting the CEQA lawsuit at the trial court takes a year or longer, and a simple (aka cheap) appeal will take more than another year to be decided.

The VA hasn't, and can't, award a veterans medical services contract to a clinic paralyzed in three years of CEQA litigation, nor can it stand by for the City to do the massive EIR its competitor demands since "Progress" can simply file another lawsuit challenging the EIR.

Bottom Line: For the price of hiring a CEQA-abuse mill to churn out a complaint, Bakersfield veterans won't be served by a modern, new, competitive outpatient clinic.

No one should be surprised. CEQA protects the status quo (the existing environment) above all else, including veterans' health, and because the CEQA protectorate of lawyers and special interests have distorted CEQA into a racially-discriminatory (the majority of Bakersfield veterans, especially veterans of more recent wars, are Latinos, Blacks, or Asian-Pacific Islanders) anti-people, weapon. CEQA lawsuits kill projects with delays and dollars, which always - always - cause the most lasting damage to the people who need the medical services, housing, transportation, water, and public services that the vast majority of CEQA lawsuits attack.

None of this is hyperbole. We evaluated all CEQA lawsuits filed statewide over seven years. See In the Name of the Environment: Litigation Abuse Under CEQA and California Environmental Quality Act Lawsuits and California's Housing Crisis.

What is hyperbole are persistent claims that almost no CEQA lawsuits are ever filed. As we found in our latest report, covering 2020, CEQA lawsuits challenged about half (47,999 specific housing units in challenged projects, plus thousands more housing units in challenged local agency upzoning approvals), of the total housing units produced in the entire state in 2020.

The most cited alternative reality reported that only 3% of CEQA decisions were sued, but this number tallies up the nearly 40 categories of CEQA regulatory exemptions - and scores of legislated exemptions - that nobody notices, cares about, or gets any notice is even proposed.

The political challenges of legislating CEQA reform have been well chronicled. The story not told, however, is that California's environmental state agencies are converting CEQA's anti-housing Howitzer into an anti-people Neutron Bomb.

Let's return to the Bakersfield outpatient veterans clinic, in which the City is alleged to have: "fail[ed] to disclose the Project's Greenhouse Gas ("GHG") impacts, disputing the City's finding " [GHG] impacts of this project are not considered significant given the efforts made to reduce emissions of GHG from the project through design measures and standards, plus further mitigation accomplished at the statewide level through California Air Resources Board (CARB) regulations adopted pursuant to AB 32."

"Progress" disagrees, and asserts that the City's analysis violates CEQA because it fails to establish that residual project-level GHG emissions are "consistent with reaching the State's current GHG reduction goals" and failed to do so because the City "should have used the California Air Resources Board's 2017 Scoping Plan for guidance on interpreting it, instead of the outdated 2014 Scoping Plan". (¶ 45 (e) ).

Yep, "Progress" asserts that a medical clinic for veterans in Bakersfield will cause GHG emissions that may impair California's global climate leadership as embodied in a statewide "Scoping Plan" adopted in Sacramento in 2017. Through the magic of CEQA regulatory expansions adopted during the Brown Administration, the Scoping Plan first elevates into project-level mandates Scoping Plan provisions that the Legislature explicitly rejected, and then CEQA demands that 58 counties, hundreds of cities, and thousands of other local, regional, and state agencies figure out how to apply the Scoping Plan to specific projects - like outpatient medical clinics for veterans, or housing for everyone anywhere, or infrastructure (whether "green" or "climate resilient" or not), or - wait for it - LED lights on school or park playfields.

Our 2020 CEQA report isn't about a 2017 Scoping Plan, though - it's about the 2022 Scoping Plan which even CARB concedes is based on "hope" - but is also expressly intended to change how we work, live, and play. It's about a 2022 Scoping Plan acknowledged that more aggressive climate targets infeasible and harmful given the absence of technology, high consumer costs, and high job losses. And it's about an ambitious Governor seeking to cram down those technologically infeasible, high consumer costs, high job loss climate targets that even CARB's climate staff concluded couldn't be achieved at all - and would cause massive harms along the way to failure.

And it's about asking everyone to take a deep breath, remember laws enacted concurrently with CEQA - remember civil rights? Take a sober look at California's worst-in-the-nation poverty rate and the shameful fact that the vast majority of our poor are Latino or Black, and question whether a climate cram-down meets anyone's criteria for racial justice.

Three more facts, direct from CARB's 2022 Draft Scoping Plan:

(1) California's entire economy produces less than 1% of global GHG, and Californians have the lowest per capita GHG emissions in the nation.

(2) CARB counts people and jobs that leave California - because they don't turn on the lights or the tap, or add heat to their house or production line - as GHG "reductions" that help California achieve its climate goals even when they simply move to Texas or other states and double (or worse) their GHG emissions. CARBs calso rewards off-shoring and supply chain vulnerability, equating products produced in other states - or countries ruled by racist and misogynistic autocrats, by counting products like cement and food produced outside California as causing zero GHG while dinging home-grown products as having causing massive GHG. More simply, CARBS climate math rewards "de-growth" - an Orwellian term for forcing your family, friends and jobs to leave for more affordable states.

(3) Two-thirds of CEQA lawsuits allege that the climate (GHG and/or vehicle miles traveled) impacts of a "project" are legally deficient, and not even the "best" climate hawk lawyers in California - former Attorney General Jerry Brown and former Office of Planning Research Director Ken Alex - satisfied the Supreme Court that they properly advised their environmental state agency client, and failed to meet the CEQA GHG compliance mark. Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 918 (Cal. 2016) ("CBD"). How much GHG or VMT a Bakersfield veterans medical clinic can have, and how much "mitigation" - translated as monetary costs - is required, remains a litigious black hole.

Under Governors Brown and Newsom, state environmental agencies have created a CEQA litigation bonanza, protecting legacy status quo defenders and hurting everyone not served by the (1970-era) status quo.

As Justice Ming W. Chin reported in his dissent in the CBD Supreme Court case, although the challenged EIR was "one of the longest ever prepared under CEQA," the majority opinion created an ever-shifting GHG mitigation trigger which will simply cause more uncertainty and delay for a "green" project. He observed that the people who would otherwise live and work in that project will live and work "somewhere," and "that somewhere will undoubtedly be far less green than this project promises to be."

Justice Chin also presciently forecasts precisely this Governor's legislative climate cram-down (and many of CARB's ever more grandiose but absolutely failed Scoping Plan mandates): "Delay can be its own reward for project opponents. Delay the project long enough and it has to meet new targets, and then perhaps new targets after that. All this is a recipe for paralysis. But CEQA is not meant to cause paralysis."

We represent The Two Hundred: civil rights leaders laser-focused on restoring attainable homeownership for California's hard working families, the majority of whom are in communities of color. Homeownership is not just the California Dream, it closes multi-generational wealth gaps and as Habitat for Humanity has exhaustively chronicled, allows kids to attain higher levels of education, increases voter participation and civic/charitable volunteer work, and creates family wealth that can be used to support college tuition, elder care, and the inevitable job losses and injuries or illnesses that happen in every family. The Federal Reserve calculated that the difference between the net worth of homeowners versus renters is staggering: in 2019, homeowners in the U.S. had a median net worth of $255,000, while renters had a net worth of just $6,300. Most homeowners are white; most renters are not.

Assuring a healthy housing market that supports homeownership for working families of color - and others - isn't Boomer nostalgia, it's a cornerstone of civil rights. And for civil rights to be thrown under the bus while leaders are shouting their commitments to racial equity is a poster child for political hypocrisy.

The Two Hundred has supported dozens of new housing laws to increase the housing supply, and has filed three lawsuits against state agencies, including CARB, that exacerbate CEQA's anti-housing weaponization. (We won one and the other two are pending.)

Among the most important of these new housing laws are those mandating approvals of new Housing Elements and of housing that complies with the new Housing Elements. If the Governor's climate cram-down or the 2022 Scoping Plan are approved as proposed, the anti-housing CEQA litigation Kracken will again be unleashed as Justice Chin predicted. The result? More paralysis (but more income for CEQA lawyers and the CEQA-industrial machine).

Shoving people and jobs to Texas isn't a legitimate climate change policy, it's a (largely) racially discriminatory family and job expulsion policy - and it runs afoul of civil rights laws, as well as the morality and decency that I believe must still be honored in our representative democracy.

There are far more effective, and equitable, climate leadership strategies that the world's fifth largest economy should embrace as foundational principles of a just transition to the climate future. According to President Obama's EPA in 2016, the Clean Air Act of 1970 eliminated 98% of smog-forming tailpipe emissions - an incredible environmental win that did not end homeownership which was achieved even though car use alongside population growth increased.

Equitable climate strategies to restore attainable homeownership, reduce poverty, and achieve GHG reductions on the global scale required rather than the "harm Californians first and most" doctrine advanced by CARB and the Governor, don't get debated or even proposed in a two-week top-down cram-down, or buried in the fraudulent climate bureaucratic math of the Scoping Plan.

Transparency, participation, equity (for all civil rights, including but not limited to environmental justice), is needed to solve our housing-induced poverty crisis, and restore attainable homeownership to our communities of color. The Governor has a clear pathway to four more years of climate leadership, and an unparalleled opportunity to solve both our housing and infrastructure crises. It's time to move from process (including endless CEQA lawsuit squabbles) to progress, for all Californians, including our communities of color.


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