Tag Archive for Aesthetics in CEQA

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.