Why reforming California’s bedrock environmental law is good for the environment

So it is with a great deal of pride, and no small amount of sadness, that a growing flaw in the California Environmental Quality Act, one of the principle legal mechanisms we use to protect clean air and water, conserve sensitive lands and habitats and address the pollution that causes climate change, is now cause for concern.

CEQA, as it’s colloquially known, embodies the proposition that you should “look before you leap” on issues that could have negative environmental or public health impacts. The law’s core legal principle holds that decision makers should know the environmental consequences of their actions before taking them.

This purpose remains a worthy one. Unfortunately, over time CEQA has led to unfortunate and inadvertent consequences — in particular, it is commonly used to block much-needed housing in California. But the law is not only harmful in its use: The mere threat of a CEQA lawsuit is enough to stifle new housing developments since such suits can add substantial time, cost and risk for builders who already face daunting construction costs.

The dilemma is how to retain the beneficial essence of CEQA while dealing with the downsides. A bill in the California Legislature deals with this and deserves support.

Assembly Bill 609 creates an exemption from CEQA for infill housing projects that are compliant with local laws and not in environmentally sensitive locations. “Building up” in urban locations reduces development pressure on open land in outlying areas. It also reduces commute times and reduces pollution.

As a father and son with lifetimes of experience in environmental causes, we write with some ambivalence. Decades ago, one of us was responsible for the emergence of CEQA as a “super statute,” drafting the amicus brief to the California Supreme Court in Friends of Mammoth v. Mono County — the bedrock case in which the court ruled CEQA extended a public “right of action” against private activity.

Some may view any changes to CEQA as a “camel’s nose under the tent,” inevitably leading to its demise. Our view is the opposite; like all laws, CEQA derives its social license from its good-faith application. But when a bedrock environmental law is used to cause measurable environmental harm — for example, by displacing housing developments to agricultural and open lands — that undermines political support for the law.

Thoughtful reforms such as AB 609 can maintain CEQA’s core focus on environmental protection, while enabling housing to be built more quickly, cheaply and sustainably.

For those that view climate change as one of the key issues of our time, infill housing is a critical solution. For those that want to see California’s environmental values shape the nation, without cheaper housing, California will lose population and electoral power to other states. 

After the 2030 census, projections show that California could lose four congressional districts (and four electoral college votes), while states with cheaper housing, like Texas and Florida, stand to gain.

If reducing the cost of housing alone is not enough, then for those that care about the environment and climate change, there is plenty to love in the growing push to legalize more infill homes in our cities.

Nick Yost created and formerly led the environmental section of the California Department of Justice. As general counsel of the Council on Environmental Quality under the Carter administration, he was lead draftsperson of National Environmental Policy Act regulations. Daniel Yost is an attorney and the former mayor of Woodside. He was a founding board member of Peninsula Clean Energy.