SAN DIEGO—The growing backlog of infrastructure projects ranging from potholes to major water-infrastructure improvements has led to increased calls for CEQA reform, Dentons San Diego partner Brian Fish tells GlobeSt.com. Especially for improvements in already-developed areas, where many state policies are attempting to focus new growth, there are increasing calls to amend CEQA to increase certainty without completely eliminating environmental protections. If the legislature and governor are able to thread that needle, it could go a long way toward addressing California's serious backlog of deferred infrastructure improvements.

We spoke with Fish about what has led up to the calls for reform, which aspects could most easily be amended and how these amendments could help with the backlog.

GlobeSt.com: What else has led to the calls for reform?

Fish: The increased time and expense of complying with CEQA and defending against challenges. A report prepared by the law firm of Holland and Knight, based on a review of almost 600 CEQA lawsuits filed between 2010 and 2012, disclosed that 49% of all CEQA lawsuits challenge publicly funded projects. That study also disclosed that 80% of CEQA lawsuits target projects in established communities, not projects on previously undeveloped or agricultural lands.

Misuse of CEQA by groups with ulterior motives is another thing that has led for calls for reform. Labor unions, business competitors and others use CEQA to gain leverage in their push for other goals such as requiring project labor agreements or project changes unrelated to environmental impacts.

Also responsible is the length of time it takes to get an infrastructure project through the approval process, due at least in part to the documentation required to create the most defensible CEQA document.

GlobeSt.com: Which aspects of CEQA could most easily be amended?

Fish: An additional exemption for certain types of infrastructure projects would offer the most politically expedient approach to reform. Exemptions have been the “solution” of choice for the governor and legislature in recent years. Current exemptions exist for improvements such as restriping of streets (Public Resources Code § 21080.19) and repairs or minor alterations to existing roadways in jurisdictions with less than 100,000 people (Public Resources Code § 21080.37). In the current legislative session, AB 278 proposes an exemption that would apply to the “inspection, maintenance, repair, rehabilitation, replacement, or removal of, or the addition of an auxiliary lane or bikeway to, existing transportation infrastructure.” However, an exemption strategy also has the most limited benefits. Most exemptions are so narrow, and the requirements to qualify so numerous, that few projects actually qualify. Further, because of all the threshold requirements the offer opportunities to challenge, the exemptions do not eliminate significant risks.

GlobeSt.com: Are the courts' views on these cases changing in response to the calls for reform?

Fish: Generally speaking, it does not appear as if the calls for reform are having any impact on the way judges apply CEQA.

GlobeSt.com: How could amendments help with the backlog?

Fish: Broad statutory exemptions that do not require extensive studies to demonstrate their applicability would speed up the process. In addition, exemptions of that nature would decrease the costs. Limits on CEQA litigation could decrease the current incentives that exist for groups to use CEQA to promote their non-environmental interests. Eliminating or narrowing the potential for opponents to recover attorneys' fees or tightening standing requirements would reduce the number of lawsuits. However, neither approach is likely to make it through the legislative process. Efforts to further prioritize CEQA litigation and impose expedited briefing schedules, while theoretically helpful, face practical difficulties due to the heavy caseloads of judges.

We spoke with Fish about what has led up to the calls for reform, which aspects could most easily be amended and how these amendments could help with the backlog.

GlobeSt.com: What else has led to the calls for reform?

GlobeSt.com: Which aspects of CEQA could most easily be amended?

GlobeSt.com: Are the courts' views on these cases changing in response to the calls for reform?

Fish: Generally speaking, it does not appear as if the calls for reform are having any impact on the way judges apply CEQA.

GlobeSt.com: How could amendments help with the backlog?

Instant Insights /

Why Infrastructure Projects Need CEQA Reform

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