Letter From the Desert: CEQA Deserved Better

a.k.a. why I won't be voting for Gavin Newsom again

I guess it’s one of those “everyone’s doing it,” shifted-Overton-Window kind of things, like the Democratic Party adopting the Republicans’ racist position on migration across the southern border because they think it’s gonna play well in flyover country. The right has been talking about “needless environmental regulation” for centuries, if you include worker safety as an environmental issue. In recent years what passes for an Establishment Left has gotten on board, though they dress it up with the anodyne label “permitting reform.”

We devoted a recent episode of the podcast to dissecting just one such example of putative progressives talking about how it should be easier to build huge projects without having to examine what those projects’ effect on the environment will be. That example was the book “Abundance” by Ezra Klein and Derek Thompson, discussed here, which was so poorly written and researched that it shocked me, frankly speaking. It was a festival of cherry picking of data and ignoring inconvenient counterexamples, making claims that are contrary to fact, and advocating, based on those rotten arguments, for less democracy and more autocracy in our decision making.

A truly shitty piece of work, and it did not surprise me even a little that when California Governor Gavin Newsom signed into law two bills that gutted California’s signature environmental law, he name-checked Ezra Klein.

Assembly Bill 130 and Senate Bill 131, passed by the Legislature in late June, are the biggest rollbacks of the California Environmental Quality Act (CEQA) since that law was passed during the governorship of well-known radical environmentalist Ronald Reagan. Passed shortly after the law’s federal sibling, the National Environmental Policy Act, CEQA is essentially a NEPA with more teeth.

Each law requires that certain development projects undergo an environmental review, with the likely effects of several different versions of the project (a.k.a. “alternatives”) compared. The biggest difference between the two laws is that while under NEPA, the federal government merely has to list the likely impacts and can then approve an alternative that poses more threat to the environment anyway, agencies performing reviews under CEQA must choose the least environmentally damaging alternative unless there’s a compelling reason not to.

Also, NEPA kicks in only when there’s what is called a “federal nexus”: the project in question must either be funded by the feds or be subject to approval by a federal agency. (Think a new road being built on BLM land: BLM has to approve or deny that road, and so NEPA comes into play.) CEQA, on the other hand, can be triggered with any project that needs any kinds of state, county, or municipal approval. (Think building permits, changes to zoning, or running fiber optic cable through an existing right of way.)

The facet of CEQA that attracts the ire of Politicians With Big Ideas is this: if a member of the public feels that an agency’s CEQA analysis omits important details from discussion, they can sue to have the approval overturned.

And due to that important, Small-D democratic aspect of the law, CEQA has gotten a really bad rap of late. In particular, the law is blamed for handing affluent Californians a tool by which they can stop housing construction. That’s basically what you’ll hear about CEQA if you limit your information sources to The Atlantic or Medium or similarly neo-liberal outlets. And a lack of housing construction is indeed a big part of the reason why California is so expensive to live in, and why our unhoused population is a higher percentage of the total population than in most other states.

But is CEQA the main reason housing construction is failing to keep up with demand in California? Or are other factors at play here? Most developers would rather build market rate than affordable, using affordable housing as a window-dressing to blunt opposition. And even when it is built, “affordable” doesn’t mean “easy to pay for.” Affordability in housing is generally determined relative to the Area Median Income, which in California in 2021 was just under $85K for a one-person household. “Low income” single-person households, at 80 percent or less of the Area Mean Income, can bring in as much as $73K (again, figures are for 2021). Between the housing market being tilted in favor of people who in most other states would be considered quite comfortable, and the increasing number of housing units being kept off the market either for short-term rentals or as a speculative investment, the reasons for California’s housing shortage are complex.

And here’s something you won’t hear about CEQA: The law almost never stops a project.

Wait, what? The bête noire of developers everywhere, the gigantic roll of Red Tape blocking profitable projects from coming into the state, doesn’t stop projects? Surely, Chris, you have some detail to back that up.

Well, as it happens…, yes. Yes, I do. Have a couple of bullet points.

• Lawsuits over CEQA proceedings are extremely rare, affecting less than one percent of projects.¹

• Lawsuits cannot cause a project to be stopped due to the substance of a project’s Environmental Impact Report. The only lever plaintiffs have in court is whether the agency involved didn’t follow proper procedure. If an EIR states that a shooting range won’t cause noise pollution despite allowing bazookas to be fired 24/7, that’s not something you can stop through litigation.²

• CEQA requires that any measures proposed to mitigate a project’s environmental impact be “feasible,” and feasibility is determined taking economic factors into account. In other words, proposed mitigation cannot be so expensive that it kills a project.

We have a good example of just how ineffective CEQA is at stopping destructive projects right here in Twentynine Palms this month. A developer wants to build a glamping resort in a residential neighborhood hard up against the national park boundary. The City’s Planning Commission met to consider whether the project could escape CEQA analysis. The project would require that the parcel it would sit on be rezoned, but the proponents claimed that by performing a couple of mitigation measures it could reduce its environmental impact. Local sentiment runs against the project by an approximately 100-to-1 margin. The Planning Commission listened to the fervent objections of locals based on concerns like dark night skies, traffic increases, damage to endangered species habitat, inconsistency with the city’s general plan in a way that would worsen traffic and sprawl, and harm to the business community in downtown 29 due to the resort siphoning dollars away from downtown.

Short term rental in 29

The Planning Commission voted unanimously to approve the project, which now must be approved by the City Council. If the Council greenlights the project, the worst-case scenario for the developers is that someone in the neighborhood will sue because the environmental documents are haphazardly thrown together, and the developer will be forced to do things right and then get re-approved by the City.

And then there’s this: even if a project would undeniably cause significant harm to the environment or the other features of Californian life protected by CEQA, the agencies involved have a get out of jail free card: the Statement of Overriding Considerations. In brief, this aspect of CEQA allows an agency to approve an environmentally destructive project due to the fact that the powers that be really want to do it.

Example: in 2010, the California Energy Commission conducted a CEQA assessment of Imperial Solar One, a 7,000-acre proposed project in the Yuha Desert. The landscape is extremely important to local tribes, some of whom sued to block the project. The CEC’s own staff concluded that building this solar power project would damage or destroy more artifacts and other cultural resources than all the other projects the CEC had ever considered, combined. The CEC approved the project anyway, under the Overriding Considerations protocol.

In Adam Hochschild's book The Unquiet Ghost: Russians Remember Stalin, Hochschild describes a conversation with Alexander Vologodsky, a Russian physicist. Vologodsky had noticed an abandoned settlement as a youth in the extreme north of Siberia, and found that the settlement was the remains of a prison labor construction project. Stalin had been looking at a map, noticed a blank spot on the Arctic coast between the mouths of the Yenisei and Ob rivers, and decided he wanted a railroad built connecting the two rivers — across 800 miles of tundra. As Hochschild relates:

As far as [Vologodsky] can figure out, there was no logical reason to build this long and expensive railroad — particularly in the famine-ridden, ravaged, exhausted USSR of 1948 — The Soviet Union is famous for grand public works projects that turn out not to work; but this Arctic railway, said Vologodsky, was “the acme of the absurd.”

In the frantic haste to satisfy Stalin's orders, Vologodsky said, when construction began in 1948, “they were laying the tracks at the same time as they were surveying.” The terrain was a builder's nightmare: below ground was rock-hard permafrost; on top of this lay six feet of snow in winter, and, in the summer, vast bogs that swallowed up ties, tracks, and equipment. Although the work force of prisoners reached as high as one hundred thousand, in five years they succeeded in laying tracks over little more than half the route.

Today, thinking of this waste of resources and human life, it seems easy to condemn the folly of this railroad. But listening to Vologodsky talk, it occurred to me that in other parts of the world, when such projects reach their aim, we often honor them as great feats of engineering or symbols of national grandeur. The Pyramids, the First Transcontinental Railroad, the Panama Canal. Between these efforts and something like Stalin's Arctic railway, where do you draw the moral dividing line? It is not always easy.

I thought of that passage while reading Abundance and its denigration of environmental regulations for delaying California’s high-speed rail project. That’s not the first time the parallel occurred to me, mind: I have spent more time than I wanted to listening to high-speed rail advocates dismissing and even insulting everyday Californians who had concerns about the proposed route of the project, and wishing for a bit more autocracy in Sacramento to “get things done.”

And I want a high-speed rail line here.³ But not at the cost of transparency, or democratic power-sharing, or of ground-truthing the impacts of the project.

CEQA is a democratic (again, small-D) institution. If you want to profit by building something regardless of the effects on people and other living things in the neighborhood, then of course you’re going to hate it. The same way the above-mentioned autocrat would have hated soil scientists warning him about Arctic permafrost. The same way Floyd Dominy hated opponents of the Glen Canyon Dam. If it wasn’t for CEQA, California would look very different. There would be no open-space, no wildlife habitat in our swelling cities. No grasslands and oak trees between Oakland and Walnut Creek. No chaparral in the Verdugo Hills north of Glendale. No redwood tree buffers to separate profitable vineyards.

In part due to the still-extant natural beauty to be found in California, the state remains a highly desirable place to live and to do business. The state’s Gross Domestic Product, top among all 50 states for the last several decades, has more than doubled since 1997.⁴ Texas, often touted as California’s main economic rival, trails in second place by more than a trillion dollars for the last couple of years.

Photo by Beau Gailey on Unsplash

Democracy is hard work. It’s way easier to point at a map and say “build this Arctic Railroad here” and have your word be taken as law than it is to wrangle public opinion. Klein and Thompson acknowledge this in Abundance, in a discussion of California’s high-speed rail project, when they write

…China can build tens of thousands of miles of high-speed rail in the time it takes California to fail to build hundreds of miles of high-speed rail. China does not spend years debating with judges over whether it needs to move a storage facility. That power leads to abuse and imperiousness. It also leads to high-speed rail.

Sadly, Newsom’s gutting of CEQA is unlikely to increase the construction of new housing by much, given the essentially unregulated market forces still at work that favor high-profit housing for the affluent, second homes, and short-term rentals. That’s a shame. CEQA has proven, if at times inconsistently, to be compatible with both a thriving economy and smart planning. At the same time, it has provided policy transparency, in that it gives the public access to understanding why certain projects have been approved. And it gives regular members of the public a voice in the process, even if they can’t afford legal representation to challenge decisions in court.

I’ll take Newsom’s commitment to getting every Californian decent housing when I see him pushing a robust public housing law, building homes that are actually needed rather than those that offer the greatest chance for profit. Until then, this assault on CEQA is just pandering to the people from whom CEQA was intended to protect us all. Floyd Dominy would be proud.

1. A good source for some of the bullet points is this report by the Rose Foundation.

2. This is why the horrible Cadiz project sailed through CEQA, despite relying on scientific claims so flawed a clever fifth-grader could have rebutted them.

3. Tijuana to Vancouver sounds good.

4. Granted, GDP is not the be-all and end-all of economic well-being, and individuals may well be more comfortable in an economic sense in other states due to California’s high cost of living.