Tag Archive for Assembly Bill 598 (2012)

California Republicans Need to Ensure That Unions Don’t Evade California Environmental Quality Act (CEQA) Reform in 2013

As interest groups await State Senator Michael Rubio’s introduction of his bill to revise the California Environmental Quality Act (CEQA), it’s becoming clear that this reform, as introduced, will not hinder the CEQA exploitation strategies used by California Unions for Reliable Energy, regional building trades councils, and individual unions to block proposed projects until the project owners commit to labor agreements or other economic concessions.

Despite not quite having one-third control of the California State Assembly and State Senate, Republicans may be able to influence CEQA reform and add appropriate and meaningful provisions that end union abuse of CEQA for purposes other than environmental protection.

My commentary Republicans Have Opportunity to Broaden CEQA Reform was published on February 1, 2013 in www.FlashReport.org. Here is a summary of my recommendations:

An Ideal Republican Response: Analyze Before Praising and Demand Real Reform

Considering that Senator Rubio may be able to ride on his leadership in CEQA reform to future statewide office, and considering that environmental groups may convince some legislative Democrats to oppose any CEQA reform, how should Republicans use their potential political leverage in response to Senator Rubio’s specific proposal?

When he actually introduces the bill, Republicans should refrain from immediate praise and support. Instead, they should take the time to analyze it, line-by-line, to determine if such language would have been effective in discouraging notorious union CEQA threats against projects such as Gaylord Entertainment’s now-abandoned Bayfront Hotel and Conference Center in Chula Vista or the San Diego Convention Center Expansion Phase 3, for which hotel and construction unions dropped CEQA objections after obtaining commitments for union monopolies in employment.

As a guide, Republicans may want to look at concepts proposed in past CEQA reform legislation such as Senate Bill 628 (2005), Senate Bill 1631 (2008), and Assembly Bill 598 (2012).

If Senator Rubio’s bill does nothing but suppress the simple CEQA complaints of elderly long-time California residents who are upset about an apartment complex proposed for their rural community, Republicans should resist the corporate pressure to vote for it anyway as pro-business “CEQA reform.”

Instead, Republicans need to ensure that Senator Rubio’s CEQA reform proposal discourages ALL parties that exploit CEQA for purposes unrelated to environmental protection, including unions that engage in “greenmail” to coerce labor agreements or other economic concessions from project applicants.

Without a coordinated caucus strategy, individual Republicans in the legislature will adopt their own strategies about planning and portraying their relevance in CEQA reform. If assessments are accurate such as the anonymous February 5, 2013 commentary in www.FlashReport.org entitled Sacramento Syndrome: Republicans Accept Their Status as the Political Hostages of Big Business, some Republicans may greet the Rubio proposal with instant enthusiasm, rather than appropriate skepticism and public attention to its shortcomings.

Opinion Pieces:

Phony Tree Huggers Are Abusing CEQA…CEQA Needs To Be Updated!!! – “Monday Morning Quarterback” bulletin of Associated General Contractors of San Diego – by Jim Ryan, Executive Vice President – February 4, 2013

Republicans Have Opportunity to Broaden CEQA Reformwww.FlashReport.org – op-ed by Kevin Dayton – February 1, 2013 (reprinted on the Families Protecting the Valley web site)

Senator Rubio’s CEQA Reform Gives Unions a Free PassSacramento Bee – letter to the editor by Kevin Dayton – January 30, 2013

Rubio’s Interest in CEQA Reform Turns Out to Be Highly SelectiveBakersfield Californian – op-ed by Kevin Korenthal of KOREN Communications – January 29, 2013 (Kevin Korenthal was a guest on the Ralph Bailey Show, KNZR 1560 AM in Bakersfield on February 7, 2013 to talk about Senator Rubio’s CEQA reform and union greenmail.)

Rubio Would Gut CEQA for Public, but Not Touch UnionsSacramento Bee – letter to the editor by Tim Bosley – January 20, 2013

Lead Democrat for “Reform” of the California Environmental Quality Act (CEQA) Never Mentions Unions as the Major Instigator of CEQA Abusewww.LaborIssuesSolutions.com – January 14, 2013

CEQA Reform is Over for This California Legislative Session: Sustainable Environmental Protection Act May Return in 2013

CEQA reform is over for this legislative session.

Some union officials, environmental lobbyists, and lawyers specializing in exploiting the California Environmental Quality Act (CEQA) are celebrating with emailed bulletins and tweets. (See the August 23, 2012 “Sierra Club California Statement on Abandonment of Environmentally Dangerous Bill.”) One particularly happy Tweeting union leader is Lorena Gonzalez, head of the San Diego County Central Labor Council, AFL-CIO.

That’s no surprise if you read my August 8 post,”Unions Submit 436 Pages of Objections to Draft Environmental Impact Report for Proposed San Diego Convention Center Phase III Expansion Project: CEQA Abuse Run Rampant.”

UNITE HERE Local 30 (based in San Diego) and the San Diego County Building and Construction Trades Council have filed a massive CEQA objection with the United Port of San Diego concerning the Draft Environmental Impact Report (EIR) for the proposed San Diego Convention Center Phase III Expansion Project and the adjacent Hilton San Diego Bayfront Hotel expansion.

Here are some recent Tweets from Lorena Gonzalez ‏@LorenaSGonzalez:

And the Rubio #CEQA reform bill is officially dead! Yay!

URGENT: Don’t let them gut California Environmental Quality Act. Sign NOW: http://SaveCEQA.com  #CEQA #SaveCEQA

I support #CEQA. Gutting 40 years of progress will hurt the environment, workers and the public! These aren’t reforms, they go too far.

So happy to see most of our SD Democratic Legislators asking their colleagues to keep their hands off CEQA #SaveCEQA

Meanwhile, I posted this in the comment section of the Sacramento Bee article, “Bid to Overhaul California Environmental Law Falls Short“:

The Sierra Club representative called the bill “one of the worst attacks on environmental protections that we’ve seen in the 40-year life of this law.” They actually mean, “one of the worst attacks on our political agenda from Democrats, whom we thought would never betray us by supporting economic growth and job creation.”

Actually, it’s questionable whether or not this “Sustainable Environmental Protection Act” of 2012 would have been all that effective in hindering the professional CEQA operators – the people who use CEQA for economic or financial objectives. It was certainly tame and weak compared to Assembly Bill 598, for which the Sierra Club lobbyist took great offense during a January 9, 2012 hearing of the Assembly Natural Resources Committee. If that bill had become law, it would have shut down the CEQA extortion industry by limiting the authority to file lawsuits under CEQA to the California Attorney General.

The Sierra Club and the Natural Resources Defense Council can continue to enjoy their “Blue-Green Alliance” of convenience with labor unions and turn a blind eye to how CEQA is exploited for purposes other than environmental protection, such as coercing Project Labor Agreements, Neutrality Agreements, etc.

They’ve been coasting for 40 years on the Friends of Mammoth v. Board of Supervisors of Mono County decision of the California Supreme Court in 1972, which stunned many by applying CEQA to private projects and activities. One day soon the political pendulum will swing to the Right in this state (probably after the state tries to file for bankruptcy), and then AB 598 will become law.

In the meantime, enjoy the CEQA paperwork! For example, here’s what the Fresno County Planning and Land Use Division has been dealing with as unions object to proposed solar energy power plants:

The Fresno County Planning and Land Use Division responds on August 7, 2012 to a request for records concerning submissions of the law firm of Adams Broadwell Joseph & Cardozo on behalf of California Unions for Reliable Energy (CURE) concerning proposed solar energy generation projects.

A First Crack at Analyzing the Proposed CEQA Reform: “The Sustainable Environmental Protection Act” of 2012

UPDATE: the Sacramento Bee reports in CEQA Overhaul Amended into Senate Bill that the Sustainable Environmental Protection Act has been inserted into Senate Bill 317, but as of 10:52 a.m. on August 23, the version of Senate Bill 317 posted on the California State Legislature’s web is still the old 2011 language. Not that anyone actually plans to read the language anyway … talking points are already prepared.


The rumors were true! Specific language is now circulating in the California State Legislature to make changes to the California Environmental Quality Act (CEQA). It’s called the “Sustainable Environmental Protection Act.”

Here’s a concise summary of the contents:

Section 21200 – Orwellian name of the bill is the Sustainable Environmental Protection Act.

Section 21200.5 – a LONG list (a through q) of the legislature’s findings regarding the innumerable environmental laws in effect in California, followed by some observations about additional environmental activities and priorities. At the very end of the list are some cautiously critical statements about duplicative environmental reviews and the problems that result, including “litigation and the considerable political uncertainty” that delay projects and activities.

Section 21201 – definitions of various terms related to CEQA and the bill itself.

Section 21202 – documents prepared about proposed projects and activities by lead public agencies under CEQA shall disclose all applicable environmental laws listed in Section 21200.5. The exclusive means for lead public agencies to evaluate and mitigate environmental impact of these projects and activities is to ensure compliance with that list of laws.

Section 21203 – outside parties cannot challenge individual projects on the basis of environmental laws for which the public agency has shown that the project complies, and outside parties cannot challenge individual projects with characteristics that are shown to conform to already existing land use plans.

Section 21204 – lead public agencies don’t need to evaluate “aesthetic impacts” under CEQA unless the project or activity affects an official state scenic highway.

Section 21204.5 – lead public agencies still need to evaluate impact on Native American resources and conform to existing laws about working with Native American representatives on such matters.

Section 21205 – the reforms in the Sustainable Environmental Protection Act only apply to projects for which lead public agencies agree to make an annual report available to the public in electronic form about the legally-mandated reporting or monitoring program meant to ensure changes and mitigation procedures actually occur.

Section 21206 – public agencies may adopt requirements for information or analysis beyond those requirements under CEQA.

Section 21207 – environmental documents prepared under CEQA shall be required to consider only the environmental topical areas lists in Section 21200.5(b); that is, 17 environmental topical areas with 84 criteria. Also, the state won’t reimburse local governments for the cost of these mandates.

Here’s how the loyal opposition found out about the proposed Sustainable Environmental Protection Act:

Republican legislators and staff received the language as an attachment late this afternoon with this email message:

Sent: Wednesday, August 22, 2012 4:00 PM

Subject: CEQA Reform RN

To Assembly Republican Caucus Members,

Attached is the CEQA reform language we received this afternoon. This is what came out of Leg Counsel, however  we will not be able to confirm the accuracy of this language to what is put across the desk until the language it is actually across the desk. As soon as that happens our staff will be notified of the language and we will immediately reconcile. Should there be any changes or amendments we will analyze those a.s.a.p. and have updated comments for your consideration.

Should you have any questions for staff in the meantime, please don’t hesitate to contact xxxx at xxx-xxxx. Leadership staff is also available to answer any questions you might have.

One of the recipients of this email promptly sent it to me for my assessment of the proposed language in terms of how it would affect “greenmail,” the practice in which unions use CEQA objections to block or delay projects for the real purpose of seeking labor agreements or other labor concessions.

Would “greenmail” continue unabated if the Sustainable Environmental Protection Act became law? Would it be worth a compromise that included tax increases or other gifts to the tax-and-spend majority in the California State Legislature?

Here’s my preliminary analysis of the proposed Sustainable Environmental Protection Act, from the perspective of opposing union CEQA greenmail:

It’s hard to look at such a complicated bill and know the motives behind each and every provision. But I randomly selected from my files one massive union CEQA objection to a proposed solar energy plant (the Gestamp Asetym Solar “GIFFEN 1” Project in Fresno County) and cross-referenced it closely with the language of the Sustainable Environmental Protection Act. Here are my preliminary conclusions.

The Meat of the Bill #1: Outside Parties Cannot Challenge Individual Projects for Reasons Outside of the Numerous Environmental Laws Listed in the Bill

Section 21202 appears to establish that the exclusive means of evaluating and mitigating environmental impacts under CEQA for a proposed project or activity shall be the environmental document prepared under CEQA, provided the document discloses all applicable environmental laws listed in Section 21200.5 and indicates the changes to the project or the mitigation steps that will be taken to minimize environmental impact under those laws. A similar (perhaps redundant?) statement is made in Section 21207 regarding environmental topical issues in Section 21200.5(b).

Value of the Reform: QUESTIONABLE. It seems to me that the effectiveness of this language depends on how extensively outside parties use arguments in CEQA objections that are unambiguously irrelevant to current environmental laws.

For example, on May 7, 2012, the law firm of Adams Broadwell Joseph & Cardozo objected on behalf of California Unions for Reliable Energy (CURE) and other parties to the Initial Study/Mitigated Negative Declaration prepared by Fresno County for the Gestamp Asetym Solar “GIFFEN 1” Project. One of the arguments was that “The IS/MND Fails to Describe Baseline Conditions Related to Hazards and the Potential Occurrence of Coccidioides immitis at the Project Site.” This relates to how construction activities can reportedly stir up dust on which spores are attached that can cause “Valley Fever” if breathed into the lungs.

Now, which law listed in Section 21200.5 covers the risk of construction workers breathing in dust that could cause a Valley Fever infection? Is this an issue related to air quality, hazards and hazardous materials, or what? Could this item be reasonably ruled as outside of the list of laws in Section 21200.5?

In addition, even if this ONE particular item was ruled irrelevant under the provisions of the “Sustainable Environmental Protection Act,” the unions responded to Fresno County’s mitigated negative declaration with 28 pages of CEQA objections, many of them that a court would easily consider to fall under one of the classifications in the list of laws under Section 21200.5.

Perhaps Sections 21202 and 21207 would knock off some of the most far-fetched petty objections from small-time underfunded neighborhood troublemakers and even nullify a few of the numerous arguments generated by the professional extortionist law firms, but I question how often a project is blocked by objections completely unrelated to the 84 criteria in 17 environmental topic areas.

Recommendation: I recommend that state legislators ask the authors of this bill to provide FIVE examples of projects held up exclusively on the basis of environmental objections that fall outside of the list in Section 21200.5.

The Meat of the Bill #2: Outside Parties Cannot Challenge Individual Projects On The Basis Of Environmental Laws For Which The Public Agency Has Already Shown That The Project Complies

Section 21203(a)(1) appears to mean that if the public agency shows in its environmental document required under CEQA that environmental laws listed in Section 21200.5 are applicable to the project or activity, and the public agency also shows in the document how the changes or mitigation measures for the project ensure compliance with these laws, then outside parties cannot challenge the public agency’s decisions regarding these laws.

Value of the Reform: QUESTIONABLE. What serves as compliance for a public agency might not serve as compliance according to an outside party. Aren’t CEQA challenges (“causes of action”) premised on the idea that public agencies will often stretch to find compliance and therefore approve projects or activities despite the potential for significant environmental impact?

For example, on May 7, 2012, the law firm of Adams Broadwell Joseph & Cardozo objected on behalf of California Unions for Reliable Energy (CURE) and other parties to the Initial Study/Mitigated Negative Declaration prepared by Fresno County for the 18 megawatt Gestamp Asetym Solar “GIFFEN 1” Project. Objections include claims that Fresno County failed to set the appropriate environmental baseline for agriculture, air quality, and hazards and failed to recognize potentially significant and unmitigated impacts on agriculture, air quality, and biological resources.

Would Section 21203 nullify all of these claims? Wouldn’t California Unions for Reliable Energy (CURE) and other parties simply reject the County’s claim of compliance and seek a preliminary injunction from a judge to freeze approval of the project?

Recommendation: I recommend that state legislators ask the authors of this bill to provide FIVE examples of projects held up by objections that would be rejected under the Sustainable Environmental Protection Act because the projects were clearly and unambiguously in compliance with the huge list of environmental laws in Section 21200.5. Also, state legislators need to ask what the disincentive would be for an outside party to simply challenge the environmental document in court earlier in the CEQA proceeding.

The Meat of the Bill #3: Outside Parties Cannot Challenge Individual Projects That Are Shown To Characteristically Conform To Existing Land Use Plans

Section 21203(a)(2) appears to mean that if a specific proposed project or activity is shown by the public agency to be consistent with existing density, use type, and intensity requirements and standards in a Land Use Plan (such as a General Plan, a Specific Plan, or a Sustainable Community Strategy), then outside parties cannot challenge the public agency’s decision.

Value of the Reform: QUESTIONABLE. Let’s again take the example of the proposed 18 megawatt Gestamp Asetym Solar “GIFFEN 1” Project. The Gestamp Asetym Solar project is proposed for the Exclusive Agricultural, 20-acre minimum parcel size Zone District, according to a November 22, 2011 memo circulated within and outside the Fresno County Land Use and Planning Division. Obviously the reform of Section 21203(a)(2) would not assist the Gestamp Solar company in avoiding the union CEQA objections to their proposed solar energy plant.

In fact, how many proposed or approved solar energy generating facilities in California qualify within the existing density, use type, and intensity requirements and standards in a Land Use Plan? Many of the solar plants proposed in San Joaquin Valley are proposed for agricultural zones.

I recommend that state legislators ask the authors of this bill to provide FIVE examples of renewable energy projects held up by objections that would be rejected under the Sustainable Environmental Protection Act because of duplicative CEQA review.

The Meat of the Bill #4: The End of Aesthetics

Section 21204 states that, except for official state scenic highways, “a lead agency shall not be required to evaluate aesthetics pursuant to CEQA or this division, and the lead agency shall not be required to make findings” regarding aesthetics.

Value of the Reform: QUESTIONABLE. Aesthetics is in the eye of the beholder. Some people would say that the power plant in the City of Carlsbad is an ugly gash on the retina that destroys a beautiful coastal vista. Others might consider it an artistic touch that breaks the monotony of the shoreline and provides a pleasing, delightful contrast.

What is beauty? Who is the judge? Can aesthetics be reduced to a subjective economic measurement based on property values? (If so, would it be more appropriate to include aesthetics in an economic impact report than an environmental impact report?)

Has anyone ever analyzed the evaluation of aesthetics in CEQA documents? It sounds like a good PhD thesis for someone in art or architecture school.

Section 21204(b) allows lead public agencies to consider aesthetics under laws other than CEQA. My guess is that heritage trees and trees in general are often the primary aesthetics issue disputed in CEQA reviews. These are often matters of local law.

Recommendation: I recommend that state legislators ask the authors of this bill to provide examples of aesthetic objections to projects under CEQA that would not be applicable if the Sustainable Environmental Protection Act became law. What eyesores are at issue here?

The Bill Encourages Public Agencies to Collect and Maintain Electronic Records of CEQA Proceedings

I agree with one finding that is mildly critical of the current CEQA process. Section 21200.5(n) notes that the respondent public agency is the only party that has the complete record of documents concerning proceedings when outside parties use CEQA as the basis to challenge the agency’s decisions. It encourages public agencies to create and maintain electronic records of these proceedings.

As I’ve attempted to develop a complete documentary record of how unions exploit CEQA to block proposed construction projects, I’ve often found it difficult to obtain relevant documents from government agencies. Documents aren’t available on web sites and sometimes can’t be provided in electronic format. Apparently I’m not the only person who has encountered this obstacle to tracking CEQA actions.

Value of the Reform: WEAK. Unfortunately, the Sustainable Environmental Protection Act does not go so far as to REQUIRE public agencies to maintain electronic records about CEQA proceedings and make them available on their web sites, probably for practical reasons: some small public agencies in California probably don’t even own a document scanner. Effective outreach to the public with a web site varies widely among California local governments.

The Bill Provides an Incentive for Public Agencies to Be Diligent in Complying with Reporting and Monitoring of Changes and Directives to Reduce Environmental Impact

Section 21205 states that a public agency can only adopt the reforms of the Sustainable Environmental Protection Act if the agency complies with Public Resources Code Section 21081.6(a)(1), which states the following concerning an agency that determines that changes or alterations in a project mitigate or avoid significant environmental effects:

The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation. For those changes which have been required or incorporated into the project at the request of a responsible agency or a public agency having jurisdiction by law over natural resources affected by the project, that agency shall, if so requested by the lead agency or a responsible agency, prepare and submit a proposed reporting or monitoring program.

Value of the Reform: WEAK. This requirement is already in law, so shouldn’t public agencies be doing it already?

Conclusion: There Are Better Options

Without obtaining a list of the specific past and future projects and activities that would have benefited from the Sustainable Environmental Protection Act, I certainly wouldn’t consider this bill to be a worthy trade-off for a tax increase. Besides, there have been better proposals in the past:

The most direct and effective way to stop the misuse of the California Environmental Quality Act (CEQA) is to amend CEQA itself to prohibit the behavior. Past legislative efforts to do this have failed:

2008 – Bill to Make Greenmail a Crime Fails to Pass Senate Committee

A large coalition of construction groups supported Senate Bill 1631. Authored by Senator Dick Ackerman (R) on behalf of Associated General Contractors (AGC), this bill would have created a misdemeanor crime for any person who filed or threatened to file an environmental objection to a public works project in order to obtain or extract money or other thing of value from the person. Under the definition of “public works” in Labor Code Section 1720, applicable projects would have included numerous private projects that get public subsidies or other public benefits.

Opponents of the bill included various umbrella groups for construction unions, including the State Building and Construction Trades Council of California. The bill failed in the Senate Government Organization Committee on April 15, 2008 on a 5-5 party line vote, with Republicans in support and Democrats opposed.

2005 – Bill to Squash Greenmail Fails in Senate Committee

Associated Builders and Contractors (ABC) of California continued its legislative fight against “greenmail” targeted at power plant developers, in which unions block licensing of power plants on environmental grounds until the developer agrees to sign a Project Labor Agreement. On April 19, 2005 the Senate Energy, Utilities, and Communications Committee considered Senate Bill 628, a bill sponsored by ABC of California and introduced by Senator Bob Dutton (R-Riverside). The bill would have required the California Energy Commission (CEC) to allow parties to present testimony about alleged misuse of its licensing procedures to exert economic pressure on a party to enter into a labor agreement. It also would have required the CEC to take certain steps to maintain its neutrality in labor disputes, including the exclusion of parties  from participating in the siting process, restricting the rights of parties in that process, and reducing the weight of the participation of a party in that process.

Committee Chairwoman Martha Escutia (D-Montebello) spent more than 20 minutes on discussion of the bill, including asking a representative of the CEC to speak on the matter. The Riverside Chamber of Commerce supported the bill, recognizing that greenmail is delaying Riverside’s proposed municipal power plant. An attorney for California Unions for Reliable Energy (CURE) and union lobbyists testified against the bill. The State Building and Construction Trades Council of California submitted an eight-page letter of opposition. It was defeated in a party-line vote.

2012 – Bill to Limit CEQA Lawsuits to the Attorney General Fails in Assembly Committee

On January 9, 2012, the Assembly Natural Resources Committee considered and rejected a proposed CEQA reform bill (Assembly Bill 598) introduced by Assemblywoman Shannon Grove (R-Bakersfield) that would have given the California Attorney General the sole and exclusive right to file lawsuits against governments for inadequate environmental review under CEQA. Assemblywoman Grove cited four specific examples of CEQA abuse by labor unions:

In 2011, the Teamsters union filed a CEQA lawsuit against VWR International, a distributor of laboratory supplies. The union, in an attempt to intimidate VWR International into signing a union labor agreement at a proposed new facility in Visalia, is using CEQA to allege that trucks entering and exiting the facility will harm the environment. This large facility is likely to employ more than 100 people in a county that has an unemployment rate over 15% and desperately needs jobs, yet there are truckers trying to stop the use of trucks! And this is after an EIR has already been approved for the process.

In 2009, the California Nurses Association sued Alameda County under the pretense that the county did not comply with CEQA in approving a project to demolish the deficient Eden Medical Center Hospital and other buildings and replace them with a new state of the art hospital and medical office complex. The nurses’ union did not want Sutter Health to close the San Leandro Hospital and reduce the number of beds at the Eden Medical Center. Here we see nurses protesting against a state-of-the-art new hospital.

The Service Employees International Union filed a CEQA lawsuit in 2007 to stop construction of Providence Holy Cross Medical Center in Mission Hills and a CEQA lawsuit in 2006 to stop construction of Sutter Medical Center in Sacramento. Both of these lawsuits occurred in the context of SEIU organizing campaigns.

The United Food and Commercial Workers Union has been behind numerous CEQA lawsuits filed by a Davis lawyer against proposed Wal-Mart projects in Northern California. These lawsuits are related to unions concerns over non-signatory competition for grocery sales.

Until CEQA reform addresses this kind of abuse, it’s not going to make much of a difference.

Is REAL Reform of the California Environmental Quality Act (CEQA) in the Works? Here’s the Test: Does the Reform Measure Discourage Union GREENMAIL?

There is a sudden burst of talk out of California’s state capitol regarding the possibility of some sort of amendment to the California Environmental Quality Act, or CEQA (California Public Resources Code Section 21000 et seq.). Consider the news reports today.

Environmentalists, unions fear last-minute CEQA changes” according to the Los Angeles Times. Sacramento Bee columnist Dan Morain reports that Using CEQA as bait, [Assembly Speaker John] Pérez muscles tax bill. The San Diego Union-Tribune has just published an editorial on its web site for August 16, 2012 (“Finally, Momentum to Reform Regulations, Help Economy“) that expresses astonishment about the serious possibility of significant changes to CEQA:

Now there are reports that Assembly Speaker John Pérez is considering backing a reform that is beyond anything business groups ever thought could emerge out of Sacramento: exempting projects that adhere to local planning and zoning codes from CEQA review entirely. If this somehow made it into law – and if the three ex-governors were heeded and CEQA stopped being a tool for obstruction and legal extortion – this would be remarkable indeed.

All of these developments have triggered sharp expressions of concern from the Sierra Club, the Planning and Conservation League and other environmental groups. But they would have far more credibility if they’d spoken out against how CEQA has been used for “greenmail”: to extract money from developers.

It’s about as unsubtle as it gets: Warning of environmental disaster if a project proceeds, labor groups file a vast list of CEQA objections that would take many years to resolve. When they get the pay and benefits concessions they want, suddenly their environmental concerns vanish.

This editorial hits the same concerns about union “greenmail” using CEQA that the Fresno Bee addressed in its August 6 editorial “Governor Again Moves Toward Needed CEQA Reform Steps: Changes to the state law should be vetted and discussed by all parties and the Modesto Bee addressed in its August 11 editorial “Study CEQA in the Open.”

In my opinion, Californians will be able to test the seriousness of CEQA reform if the proposed changes hinder the ability of construction trade unions to exploit the law as a weapon to force private developers to sign Project Labor Agreements and make other economic concessions.

In January 2012, the Assembly Natural Resources Committee considered and rejected a dramatic proposed CEQA reform bill (Assembly Bill 598) introduced by Assemblywoman Shannon Grove (R-Bakersfield) that would have given the California Attorney General the sole and exclusive right to file lawsuits against governments for inadequate environmental review under CEQA. I believe this is the ultimate fate of CEQA if meaningful reforms do not occur soon.

Here are the opening and closing statements of Assemblywoman Grove when her Assembly Bill 598 was considered in committee on January 9, 2012.

Opening Statement

Thank you Mr. Chair and fellow Members.

Any private developer or public agency in California that considers building anything of significance knows that one of the chief obstacles is the California Environmental Quality Act, better known as CEQA. The problem is not so much complying with the requirements of CEQA, however. The problem is dealing with the many parties that exploit CEQA for ends unrelated to environmental protection.

CEQA was signed into law in 1970 by then-Gov. Ronald Reagan with the intent to “develop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate and enhance the environmental quality of the state.” Yet, like many noble efforts, CEQA has been repeatedly abused and is now hindering economic growth throughout California.

In an all-too-common scenario, labor union interests are often behind CEQA lawsuits filed against a construction project on the claim that they are merely looking out for the environment, only to drop the suit once the business owner agrees to employ unionized labor. This practice, properly known as “greenmail,” is rampant up and down the state. Allow me share some examples.

+ Last year, the Teamsters union filed a CEQA lawsuit against VWR International, a distributor of laboratory supplies. The union, in an attempt to intimidate VWR International into signing a union labor agreement at a proposed new facility in Visalia, is using CEQA to allege that trucks entering and exiting the facility will harm the environment. This large facility is likely to employ more than 100 people in a county that has an unemployment rate over 15% and desperately needs jobs, yet there are truckers trying to stop the use of trucks! And this is after an EIR has already been approved for the process.

+ In 2009, the California Nurses Association sued Alameda County under the pretense that the county did not comply with CEQA in approving a project to demolish the deficient Eden Medical Center Hospital and other buildings and replace them with a new state of the art hospital and medical office complex. The nurses’ union did not want Sutter Health to close the San Leandro Hospital and reduce the number of beds at the Eden Medical Center. Here we see nurses protesting against a state-of-the-art new hospital.

+ The Service Employees International Union filed a CEQA lawsuit in 2007 to stop construction of Providence Holy Cross Medical Center in Mission Hills and a CEQA lawsuit in 2006 to stop construction of Sutter Medical Center in Sacramento. Both of these lawsuits occurred in the context of SEIU organizing campaigns.

+ The United Food and Commercial Workers Union has been behind numerous CEQA lawsuits filed by a Davis lawyer against proposed Wal-Mart projects in Northern California. These lawsuits are related to unions concerns over non-signatory competition for grocery sales.

As you can see, unions are abusing our environmental laws in order to extract the project labor agreements that they seek. However, it is not only unions abusing CEQA. Businesses have been known to sue on the grounds of environmental protection simply as a way to fight off competition. All the more reason that Californians should be appalled at how the legitimacy of the state’s environmental protection laws is undermined and trivialized by special interest groups with ulterior motives.

This is a slap in the face to any Californian who is truly looking out for the environment, and it is crushing business development and job creation. Something drastic needs to be done. AB 598 would establish a policy that a lead agency’s decision to approve a project, certify an environmental impact report or adopt a mitigated negative declaration based on an initial study for a project is not subject to review by a court, except for reviews initiated by the Attorney General.

It is the constitutional duty of the California Attorney General to see that the laws of the State are uniformly and adequately enforced. The repeated abuse of CEQA to hold up projects while labor unions and others pursue non-environmental goals has proven to be bad public policy. This bill will provide businesses protection from frivolous attacks by organizations alleging environmental concerns, yet still ensures citizens, through the Attorney General, the people’s attorney, the recourse against legitimate environmental concerns.

Thank you very much.

Closing Statement

Colleagues, I am not asking for CEQA to be eliminated.  We do need to protect the environment.

I am asking that after a lead agency makes a judgment on its environmental impact, that the proposed project not be subject to a frivolous lawsuit.

I am asking to eliminate the abuse and allow the people’s attorney of the state of California to be the one to uniformly enforce our environmental laws. The Attorney General’s office may not believe they have enough time or resources for this, but that is simply not a valid excuse to just sit by and watch this abuse occur.

This abuse of CEQA is mocking the legitimate attempts at using CEQA to protect our environment, and is CRUSHING job creation and the entrepreneurial spirit that has built California. California consistently ranks as one of the least business-friendly states in America. Instead of promoting job creation by encouraging businesses to build and expand, we discourage them with costly regulations and lawsuits. California needs jobs. We cannot afford to continue treating businesses like adversaries. Eliminating the misuse of our environmental law will send at least one clear signal that the Legislature is serious about addressing the structural changes necessary to improve California’s economy.

I ask for your ‘Aye’ vote.  Thank you.

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Fresno Bee Calls for CEQA (California Environmental Quality Act) Reform That Includes Stopping Union “Greenmail” for the Purpose of Coercing Developers to Sign Project Labor Agreements

The Fresno Bee published an editorial on Sunday, August 5, 2012 calling for Governor Jerry Brown to take a leadership role in reforming the California Environmental Quality Act, or CEQA (California Public Resources Code Section 21000 et seq.) so that unions can’t exploit it to block proposed projects until the owner signs a Project Labor Agreement giving unions monopoly control of the construction work.

See “EDITORIAL: Governor Again Moves Toward Needed CEQA Reform Steps – Changes to the State Law Should Be Vetted and Discussed by All Parties” – Fresno Bee – August 5, 2012.

Like other counties in the San Joaquin Valley (such as Kings, Tulare, and Kern counties), Fresno County has received numerous environmental comments on behalf of construction trade unions from the law firm of Adams, Broadwell, Joseph & Cardozo concerning proposed solar energy power plants. The ultimate objective is not saving the planet, but coercing the developer to sign a Project Labor Agreement.

The editorial states the following:

Brown recently has been dropping hints he is open to a significant reform of the law. It’s clearly needed, and we hope this isn’t another instance of him shooting off his mouth. California needs significant CEQA reform.

CEQA is being abused, and defenders of the law get defensive whenever anyone suggests it. The most pernicious abuse is known as “greenmail,” with groups threatening CEQA lawsuits to get labor concessions or other side deals.

See a Sacramento Bee article about Governor Brown’s comments: “California Gov. Jerry Brown Upsets Environmentalist Friends with His CEQA Critique” – Sacramento Bee – July 31, 2012.

Also, read the opinion piece from former California governors George Deukmejian, Pete Wilson, and Gray Davis calling for “modernization” of CEQA: “Keep California Green and Golden with CEQA Reforms” – San Diego Union-Tribune – July 12, 2012.

Real Reform of CEQA Will Be an Uphill Battle

The California State Legislature has considered one bill this year to significantly reform CEQA. On January 9, 2012, the Assembly Natural Resources Committee considered Assemblywoman Shannon Grove’s Assembly Bill 598, which would have given the California Attorney General the exclusive authority to file or maintain a lawsuit alleging that an Environmental Impact Report (EIR), negative declaration, or mitigated negative declaration does not comply with CEQA.

The committee rejected the bill on a 6-3 party-line vote, with Republicans in support and Democrats opposed. The hearing was an opportunity for the committee to discuss how certain parties, particularly labor unions, exploit public participation in the CEQA process to achieve objectives unrelated to environmental protection.

Assemblywoman Grove cited four specific examples of different unions (the Teamsters, the California Nurses Association, the United Food and Commercial Workers, and the Service Employees International Union) filing CEQA lawsuits to delay projects as leverage to extract labor concessions from businesses. She also noted that some businesses use CEQA to try to block potential competition.

Testifying on behalf of my former employer (Associated Builders and Contractors of California), I discussed how certain construction trade unions abuse CEQA as a weapon to delay projects until the owner agrees to require contractors to sign a Project Labor Agreement with unions. The Western Electrical Contractors Association (WECA) and the Chambers of Commerce Alliance of Ventura & Santa Barbara were the other public supporters of the bill.

Assemblywoman Linda Halderman (R-Fresno) cited a specific example of a union using CEQA to try to force a contractor to sign a Project Labor Agreement to install solar panels at Fresno-Yosemite International Airport. Assemblyman Steve Knight (R-Palmdale) adeptly exposed the Attorney General’s double standard of opposing the additional responsibilities assigned in AB 598 while remaining silent about adopting additional responsibilities through other legislation.

Legitimate environmental organizations such as the Sierra Club and the Planning and Conservation League opposed the bill. The Teamsters and United Food and Commercial Workers (UFCW) union opposed the bill in writing but did not speak at the hearing. Democrats on the committee opposed the bill, but some of them (along with the Attorney General’s office) acknowledged that some parties abuse CEQA. Assemblyman Bill Monning (D-Santa Cruz) said nothing about how the Carpenters union used CEQA in a recent high-profile campaign to delay and ultimately derail the proposed La Bahia Hotel in Santa Cruz.