Messing with CEQA: Jerry Brown's Conventional Vision
The Jerry Brown administration floated a trial balloon two weeks ago to protect the proposed California High Speed Rail project from all but the most devastating environmental challenges under CEQA, California's landmark environmental protection law. Response from various quarters was predictable, with greens aghast and development interests cheering. The move was neither surprising nor particularly out of character for Brown, whose all-too-conventional political career consists of trying to erode legal obstacles to his momentary whims.
At issue with the California High Speed Rail project and CEQA -- the California Environmental Quality Act -- are procedural lawsuits that promoters claim bog down progress on the project. Rail promoter Robert Cruickshank neatly summed up developers' objections to CEQA on his blog:
I disagree that the governor's approach is creating any kind of "dangerous precedent." In fact, the true danger to the state's environment comes from the current way that CEQA is used and abused. Rather than serving as a tool to promote smart planning and help the state build projects that will help the environment and the climate, CEQA is often abused by NIMBYs and others to harass environmentally friendly projects for reasons that have nothing to do with the environment.
This is, the astute observer will note, an argument that could have come nearly word-for-word from the mouth of a promoter of utility-scale solar, opposition to which Brown famously vowed to "crush" last year.
CEQA is one of the earliest all-encompassing environmental laws in the nation. Passed in the wake of the National Environmental Policy Act (NEPA), the legal basis for all those Environmental Impact Statements you read about, CEQA went a step further. NEPA requires that agencies analyze the environmental effects of a project subject to the law; CEQA requires that the state do something to minimize those effects.
The law specifically includes a number of arenas in which a project under review might affect the environment. These include local noise, impact on public services and recreation, effects on transit and traffic patterns, hydrology, toxic chemicals, and housing -- as well as issues concerning habitat and threatened species.
A wide-ranging law requiring extensive documentation of a project's effects, and subject to challenge in the courts by any citizen or group with legal standing, is necessarily going to be looked upon askance by developers of large projects. It is a consummately democratic legal tool: a gigantic, statewide project can be suspended over its impact on one locality or one small group of residents, and the project -- at least in theory -- must be reworked to accomodate those local concerns should the court so agree.
The California High Speed Rail project is huge: backers call it the largest proposed public works project in the country. Due to its scope, review under CEQA is being undertaken in an unusual two-tier process: one review of broad statewide and regional effects, and smaller-scale reviews of local effects of each section of track. It's a daunting process, as any environmental review of such a huge project must properly be.
One of the key pieces of CEQA is its requirement that all the effects of a project must be accounted for up front. An Environmental Impact Report (EIR, distinct from the federal Environmental Impact Statement or EIS) can't legally defer analysis of a portion of a project's effects until a later date. All effects must be disclosed up front. Again, this is an essentially democratic provision: it ensures that the public has as much information as possible when the project is under review.
Developers hate this requirement. If you can defer assessing a certain aspect of the project, the overall impact seems much smaller to someone who reads the initial EIR, and thus opposition to the project may be diminished. That's why deferring review of parts of a project is against the law. It's called "piecemealing," and it's part of the reason Chevron lost its 2009 battle to expand its Bay Area refinery in Richmond.
The piecemealing prohibition is one of the parts of CEQA developers most want done away with. Brown's proposal for sheltering high speed rail from the demands of CEQA essentially does away with the prohibition on piecemealing, which would certainly be a relief to planners preparing almost a dozen distinct EIRs for the project.
Brown's plan would also put a lower financial limit on damage covered under CEQA. For a court to stop the project, it would have to find that damage done to the state by the project was of greater financial import than the loss of $2 billion in ARRA stimulus funding, forgone by the state if the project is stopped, would be. As the Bay Chapter of the Sierra Club pointed out in a June 5 letter to Brown,
This creates an impossible hurdle for valuing certain environmental impacts. What dollar value does one put on a population of endangered salamanders that could be destroyed by the rail's route? Additionally, it removes a key motivation for the HighSpeed Rail Authority to produce reliable and accurate environmental documentation and to sufficiently and seriously consider ways to avoid or mitigate environmental damage. Without the threat of project suspension, even for a limited period, a judge has weak tools to force the state to protect the public's interest and the public trust.
Brown reportedly plans to seek a similar exemption from CEQA for his revived Peripheral Canal project, which would pipe fresh water from Northern California around the Sacramento Delta toward the San Joaquin Valley and Los Angeles. Environmentalists and fisheries biologists fear such a project, by doubling freshwater diversions from the Delta, would likely be the death knell for the endangered Delta smelt and California's struggling salmon fishery.
If Brown gets a CEQA exemption for both projects, look for more erosion of the law after that. One obvious target would be utility-scale energy development in the California desert: though state agencies already wave away massive environmental damage documented in such projects EIRs as excused by "overriding considerations," at least, for the time being, the analysis is done. Brown is on record as thinking even this short-circuited application of CEQA to big solar projects is unnecessarily obstructive, and "streamlining" review of giant public lands solar and wind projects is a very likely next step for Brown's anti-CEQA campaign.
Or perhaps the law will be changed wholesale, to exclude piecemealing across the board or to set a statewide monetary cap on environmental damage.
Brown is capable of justifying those changes to himself and putting a green gloss on the whole thing. He's a formidably intelligent person. (It takes an old California hand to recall that his monicker "Moonbeam" wasn't bestowed for being a space case, but rather for his early and prescient advocacy of satellite communications for the state of California.)
He is also famously impatient with consensus-building and negotiation, and far mre comfortable with the power to give marching orders.
In the early 1990s, burned out on electoral politics and running a populist radio show on Pacifica, he moved to Oakland with the express intent of having a local progressive movement coalesce around him. When the already-existing local progressive movement in Oakland refrained from so coalescing, he decided to run for Mayor. Oakland's charter limited the Mayor's power, so he revised it to give him more. The Oakland Unified School District resisted his direction -- probably unwisely, given the rampant mismanagement within the district -- so Brown sought the power to appoint the entire School Board by fiat. When he didn't get that power, he worked on launching a couple of charter schools outside Oakland Unified's purview. Then he decided to run for state Attorney General, and within weeks Oakland residents were complaining that their mayor seemed to have lost interest in the city's more pedestrian issues. (In the interests of full disclosure, i should mention that I lived in Oakland for much of this period, was married to an Oakland Unified grade school teacher, and that I had friendly meetings with Brown on a few occasions to discuss political and environmental issues.)
In other words, Brown generally has an idea of how he wants things done and he sticks to it. When he encounters obstacles, he tries to evade them or obliterate them rather than incorporate them into a solution. Or, as Brown himself put it,
[Y]ou have to crush some kinds of opposition. You can talk a little bit, but at the end of the day you have to move forward.
After four decades of right-wing tax revolt, California's infrastructure is crumbling. The state faces an inevitable shift to more ecologically sounds ways of doing things, from generating energy to using water to moving people between cities. It's the kind of situation that provides an irresistable temptation for strong-willed men with Big Ideas: the future demands bold strokes, bold actions, and anyone who would stand in the way of this progress is to be derided as a "NIMBY."
We've been through this before, when the state was run by another smart man with Big Ideas: Governor Edmund "Pat" Brown, Jerry's dad. In office from 1959 through 1967, Pat presided over the building of the massive California Aqueduct to serve agribusiness, gargantuan dams to feed the aqueduct, and more than a thousand miles of freeway -- damage from the last of which the California High Speed Rail project is intended to undo. Pat Brown had a grand vision for California for which we are still paying.
It's no particular accident that CEQA, passed just three years after Brown left office, was the strongest environmental protection law in the country for some time. We'd seen the result in California of grand plans for the state rammed through without consideration for the impacts on local communities, local ecosystems, and the cumulative effects of those local impacts on a wider scale.
Empowering objections from neighborhoods to seemingly trivial aspects of grand projects is not a flaw in CEQA: it is the whole point of CEQA. To limit those objections is to gut the law.
Which has got to be frustrating for a guy like Jerry Brown. How pesky it must be that we Californians don't truly recognize his genius. Shortsighted as we are, we insist on making sure his high-speed trains won't shake our houses off their foundations, that his water projects won't kill the last of California's chinook salmon, that his grandiose and obsolete desert solar farms don't kill off endangered species and leave us with centuries of dust storms.
Here's the thing: grand plans usually crumble when confronted with realities on the ground. The mark of a mature, visionary politician is that he or she will incorporate those pesky realities into the overall vision rather than "crushing" them. Jerry Brown has a reputation for being a holistic thinker, but holistic thinking says that the Big Picture emerges from the details rather than ignoring them.
Brown's threat to dismantle CEQA is the opposite of holistic thinking. It is the opposite of visionary. By threatening to take away the main legal tool with which Californians can make sure development plans are grounded in reality, Brown exposes his thinking as very, very ordinary.
Chris Clarke is an environmental writer of two decades standing. Director of Desert Biodiversity, he writes from Palm Springs regularly at his acclaimed blog Coyote Crossing and comments on desert issues on KCET weekly. Read his recent posts here.