How environmental law is misused to stop housing

In summary

Two recent appellate court cases underscore the chaotic role that the California Environmental Quality Act plays in construction of much-needed housing.


It’s well known that the California Environmental Quality Act, signed by then-Gov. Ronald Reagan in 1970 and meant to protect the natural environment in public and private projects, is routinely misused to stop or delay much-needed housing construction.

Anti-housing NIMBYs in affluent communities misuse it to stymie high-density, multi-family projects, arguing that their neighborhoods’ bucolic ambience would be altered. And construction unions misuse it to extract wage concessions from developers.

It’s a long-running civic scandal and a major factor in California’s chronic inability to reduce its severe housing shortage, one that cries out for CEQA reform, which former Gov. Jerry Brown once described as “the Lord’s work.” But neither Brown or any other recent governor has been willing to take on the task, which would mean confronting environmental groups and unions, two of the Democratic Party’s major allies.

In the absence of comprehensive reform, governors and legislators sometimes grant CEQA exemptions for particular projects, such as sports arenas, or narrow categories of housing. However, CEQA misuse continues and the courts have become venues for battles over its application.

Two recent state appellate court actions in the crowded San Francisco Bay Area – one expanding the use of CEQA by those who oppose housing projects and another that restricts its use – underscore the law’s chaotic role.

Just before Christmas, one panel of the First District Court of Appeal issued a preliminary ruling that could open a new avenue for using CEQA to halt projects. It declares that a University of California student housing development in Berkeley violates the law because UC didn’t consider the impact of having more people – 1,100 students – in the neighborhood, citing the potential of late-night parties and other gatherings that could worsen a “persistent problem with student-generated noise.”

In other words, the court said that the presence of more people is an environmental impact – a novel theory that could hand anti-housing groups everywhere a potent weapon.

As UC law professor Chris Elmendorf tweeted about the draft decision, “The court’s reasoning is devastating ammunition for racist white homeowners who would leverage CEQA to keep poor people and minorities out of their neighborhoods.”

For example, he continued, “using the court’s statistical-associations logic, white homeowners could argue that CEQA requires affordable housing developers to analyze and mitigate putative ‘gun violence impacts’ from any lower-income housing project in an affluent neighborhood. The homeowners would point to statistics showing that poor people, and African Americans and Hispanics, are statistically more likely than affluent people and whites to be victims of gun violence.”

A few days later, another panel of the same appellate court rejected efforts by a group opposing a 130-unit project in downtown Livermore, called Save Livermore Downtown, to employ CEQA. Attorney General Rob Bonta had interceded in the case, supporting the city’s approval of the project and its win in Superior Court.

“Timing is critical for affordable housing projects, which often rely on time-sensitive funding sources like tax credits to finance development,” Bonta said while intervening, adding, “Our state is continuing to face a housing shortage and affordability crisis of epic proportions. CEQA plays a critical role in protecting the environment and public health here in California. We won’t stand by when it is used to thwart new development, rather than to protect Californians and our environment.”

After the appellate court action, Bonta tweeted, “CA’s housing crisis is dire. We won’t stand by and let people misuse our laws to avoid being part of the solution.”

The outcomes of both cases underscore the need for a fundamental CEQA overhaul to reinstate its original purpose, rather than continuing wasteful project-by-project skirmishes.