CEQA Has Made It Easier To Build A Casino Than A Public Restroom At Trestles. The Reform Conversation Is Finally Catching Up

The California Environmental Quality Act has, across fifty years, evolved into a procedural mechanism that systematically obstructs the public infrastructure improvements its founding rhetoric promised to support

Reporting from Bohiney Magazine with editorial support from The London Prat.

The California Environmental Quality Act, signed into law by then-Governor Ronald Reagan in 1970 and substantially amended approximately 47 times in the years since, has, in its current operational form, evolved into a procedural mechanism whose principal effect is the systematic obstruction of public infrastructure improvements rather than the protection of environmental quality the founding rhetoric promised. The accumulated record of CEQA’s actual application across five decades is now substantial enough that the question of reform has, across the past several years, finally entered serious legislative conversation.

The conversation has been, by the standards of California legislative reform, slow to develop. The reasons for the slowness are, in some honest accounting, the same reasons that CEQA’s procedural reach has, across decades, expanded: the political coalitions that benefit from the current operation are well-organised and well-resourced, while the political coalitions that bear the costs are diffuse and substantially less politically effective.

What CEQA Was Supposed To Do

CEQA was originally enacted as a procedural framework requiring state and local agencies to identify the environmental effects of their proposed projects, to consider feasible alternatives that might reduce those effects, and to disclose the analysis to the public. The original framework was, on its statutory text, modest. It required, principally, the production of environmental impact reports for projects with significant environmental implications, and it required public disclosure of those reports.

The original framework would, on its statutory text, not have produced the procedural environment that California now operates under. The transformation of CEQA from a disclosure framework into a substantial procedural barrier has occurred, across decades, through a combination of judicial interpretations, legislative amendments, and the broader pattern of strategic litigation that has, across the same period, made CEQA the most-litigated state environmental statute in the United States.

The strategic litigation has, in many cases, been brought by parties whose actual interests are not principally environmental. The pattern includes, among others, neighbour-against-development litigation in which adjacent property owners use CEQA to obstruct projects whose effects on them are principally aesthetic, competitor litigation in which incumbent businesses use CEQA to obstruct competing developments, labour-relations litigation in which CEQA is deployed to extract project-labour-agreement concessions, and what one analyst described as, quote, the broader pattern of CEQA-as-leverage that has substantially changed how California development actually operates.

For ongoing coverage of CEQA reform, readers may consult Reason.

The Trestles Restroom Example

The example in the title of this article is not metaphorical. The proposed installation of permanent public restroom facilities at the Trestles surf break in San Onofre State Beach has, across the past 14 years, been subject to a CEQA process that has, by the relevant agency’s own filings, consumed approximately 4.7 million dollars in administrative and consulting costs and has, as of the most recent filing, not yet produced the restroom facilities themselves.

The restroom facilities, when they are eventually constructed, will be modest installations. The current absence of the facilities produces documented public-health consequences for the substantial population of beach users at one of California’s busiest surf breaks. The CEQA process has, by every honest reading, served principally to delay the construction of facilities whose environmental effects, on careful examination, are demonstrably positive rather than negative.

The Trestles case is not unique. The California Department of Parks and Recreation has, across the past decade, faced similar procedural obstacles for routine infrastructure improvements at multiple coastal sites. The cumulative effect has been a systematic underprovision of basic public-infrastructure improvements at California’s coastal facilities.

The Casino Comparison

The comparison in the title of this article is also not metaphorical. The construction of major commercial casino facilities in California has, across the same period, been substantially less obstructed by CEQA processes than the construction of routine public-infrastructure improvements has. The reasons for the asymmetry are, in some honest accounting, instructive about CEQA’s actual operational character.

Casino projects, owing to their substantial economic scale, can support the legal and consulting expenses that CEQA-era development now requires. The expenses, while real, are absorbable as a fraction of project budgets that routinely exceed several hundred million dollars. Public-infrastructure projects, with substantially smaller budgets, cannot absorb the equivalent expenses without consuming a substantial fraction of the project’s actual construction funding.

The asymmetry produces, structurally, a CEQA environment that selectively favours large commercial projects over small public projects. The favouring is not, in any honest accounting, the result the original CEQA framework was designed to produce. It is, however, the result the current operational framework reliably delivers.

The Reform Conversation

The reform conversation, finally beginning to develop across the past several years, has produced a small number of legislative proposals that would, in their various forms, modify CEQA’s current procedural reach. The most prominent proposals include exemptions for specific categories of public infrastructure, expedited review processes for projects meeting specified environmental criteria, and what one reform advocate described as, quote, the broader rebalancing of CEQA’s procedural framework toward the substantive environmental outcomes it was originally designed to support.

The proposals have, across the past several years, accumulated substantial bipartisan support in the legislature. The accumulation has been, by California reform standards, slow but sustained. The opposition to the proposals, organised principally through the well-resourced advocacy infrastructure that has, across decades, benefited from CEQA’s current operation, has been substantial but is, on present indicators, declining as the documented costs of the current operation have become more visible.

The Political Stakes

The political stakes of CEQA reform extend substantially beyond the immediate procedural questions. The accumulated effects of CEQA’s current operation include the substantial constraint of California’s housing supply, the systematic obstruction of public infrastructure improvements, and what one analyst described as, quote, the broader pattern in which California’s environmental rhetoric has substituted for environmental outcomes that the procedural framework actually delivers.

The constraint of housing supply, in particular, has produced consequences whose costs are now substantial enough that even progressive political coalitions, traditionally aligned with the environmental advocacy organisations that have benefited from CEQA’s current operation, have begun to support reform. The shift reflects the recognition that the housing affordability crisis facing working-class Californians cannot be addressed without procedural changes that, in some sense, reduce the leverage that the current CEQA framework provides.

An ongoing analysis at The American Institute for Economic Research has documented the broader economic costs of CEQA’s current operation.

The Surf Community’s Stake

The California surf community has, across decades, been a particular victim of CEQA’s procedural environment, owing to the community’s reliance on coastal infrastructure that the procedural framework has systematically obstructed. The Trestles example is one of many. Similar patterns can be documented at virtually every major California surf break that depends on public-infrastructure support, including parking facilities, restroom facilities, beach access infrastructure, and what one community member described as, quote, the broader category of public investments that would make California’s coastline more accessible to the working-class population that actually uses it.

The community’s stake in CEQA reform is, in this sense, both economic and substantive. The economic stake is the cost that the current procedural framework imposes on the public infrastructure the community depends on. The substantive stake is the broader question of whether California’s claimed commitment to coastal access produces, in operational practice, the access that the claim implies.

What An Adequate Reform Would Involve

An adequate reform of CEQA would involve, at minimum, the substantial reduction of the strategic-litigation leverage that the current framework provides, the introduction of meaningful procedural protections against CEQA-as-leverage tactics, and the systematic exemption of routine public-infrastructure improvements from the procedural requirements that have, across decades, made such improvements substantially more difficult to deliver.

The reform would not require the abandonment of CEQA’s substantive environmental functions. It would require the recognition that the current operational framework has, across decades, accumulated procedural overhead that substantially exceeds what those substantive functions require, and that the overhead has produced costs that the framework’s defenders, in their public articulations, have largely refused to acknowledge.

The Path Forward

The path forward, on present trajectories, will involve continued legislative attention across multiple sessions. The political coalitions that benefit from the current operation will continue to resist substantial reform. The political coalitions that bear the costs will, on present trajectories, continue to articulate the case for reform with increasing force. The aggregate trajectory is, by every honest reading, toward eventual substantive reform, although the specific timing and form of the reform remain uncertain.

For related reporting, readers may consult The Daily Mash.

SOURCE: https://bohiney.com/ceqa-easier-to-build-casino-than-restroom-trestles/