Deconstructing that anti-CEQA study

Another phony CEQA reformer

Good analysis below of an anti-CEQA report I wrote about several months ago:

Anti-CEQA lobbyists turn to empirical analysis, but are their conclusions sound?

by Sean Hecht

Every August, as the California legislative session comes to a head, lobbyists attempt to gain support for dramatically scaling back California’s landmark environmental law, CEQA (the California Environmental Quality Act). This year was no exception. Last month, the law firm Holland and Knight, which has been a leading force on this issue, issued a new report designed to gain support for dramatic changes to the law. 

The report assembles a nearly-complete census of virtually all CEQA cases filed in California trial courts during the three-year period 2010 through 2012, and concludes—in heavy-handed rhetoric—that CEQA is typically not used to protect the environment, but actually harms the environment (and the economy). But despite the impressive quantity of data amassed for the report, my major takeaway is that the report’s own data set (in Appendix A of the document) does not support its conclusions. This report should not be used to inform future policy.

CEQA requires local governments and state agencies to study, understand, and consider the environmental impacts of projects before they approve them. 

It also requires government agencies to mitigate significant environmental impacts to the extent feasible. CEQA has done a lot of good over the years, increasing dramatically our knowledge of environmental challenges and requiring mitigation for most of the significant impacts caused by new development and industry over the past 40 years. 

On the other hand, application of the law sometimes has negative unintended consequences, such as providing a way for businesses to attack competitors to gain advantage. But those cases shouldn’t be used to take the heart out of the law, which is exactly what many of the legislative proposals floated in the last several years would do. While no major changes to the law were approved this year, we can expect the same issue to come back again and again.

Holland and Knight partner Jennifer Hernandez, the primary author of the report, has devoted much of her recent career to advocating major changes in CEQA to make it easier to build new projects. She has argued forcefully that CEQA does far more harm than good, and her advocacy has been influential over the past several years. 

I largely disagree with Jennifer about CEQA’s merits, but I enjoy engaging with her about it. Unfortunately, this report, which has been widely covered uncritically in the media, makes claims that are not supported by the data. (I’ll note also that my colleague Ethan Elkind has criticized the validity some of Holland and Knight’s prior CEQA-related claims.)

Below, I review a central claim of the new report: that the evidence demonstrates that CEQA is disproportionately used to attack projects that have environmental benefits. This claim relies on three specific assertions: (1) CEQA lawsuits disproportionately are aimed at infill development projects that contribute to higher-density communities that achieve environmental benefits and relieve housing demand, reducing our ability to provide infill housing. (2) CEQA lawsuits often target transit systems that likewise contribute to environmental quality and reduce carbon emissions, reducing our ability to develop mass transit. And (3) CEQA lawsuits often target renewable energy projects, especially solar energy, that is needed to replace fossil fuels to meet our state’s energy needs, reducing our ability to develop renewable energy capacity.

The report’s claim that it provides empirical evidence to support these three assertions underpins its ultimate conclusion that CEQA is bad for the state. These assertions have also provided a central theme to media coverage of the report. The report’s credibility thus stands or falls in large measure on the report’s ability to support these claims with specific empirical evidence. 

Upon close review, the report does not succeed...