CEQA (Photos – ceja.org)
For California to meet its climate goals and lower costs on essentials like housing, transportation, and energy, it must dramatically scale up infill housing, transit, clean energy facilities, and other critical projects. A key part of reaching that goal involves reforming how environmental review under the California Environmental Quality Act (CEQA) can, counterproductively, slow permitting for this much-needed development.
By Ethan Elkind
But under the banner of that “Lord’s work” (as former Gov. Jerry Brown once called CEQA reform), a California Senate bill gaining significant momentum threatens to insert a poison pill that could fundamentally alter how CEQA treats a wide range of high-polluting projects.
SB 607 (Wiener) contains several provisions (which Eric Biber previously discussed), some of which could help advance infill development—for instance, by exempting rezonings for housing under approved housing elements. However, one provision would drastically change how CEQA is applied statewide by weakening the standard of review used when lead agencies determine whether a project’s impacts are significant enough to require a full environmental impact report (EIR).
The bill grants lead agencies, typically cities or counties, much broader discretion in making that determination. As a result, if a local government concludes that a new industrial facility, highway widening, dairy operation, or other polluting activity (excluding oil and gas facilities and distribution centers, which the bill exempts) doesn’t need a full EIR or associated mitigation, the public will have a much harder time challenging that decision.
Even more concerning, SB 607 introduces a new and untested standard for when a lead agency chooses to conduct an EIR: if it’s “more likely than not there will be significant impacts.” This threshold, apparently modeled on the “preponderance of evidence” standard used in unrelated legal contexts, has never before been applied in this type of administrative decision-making. The likely result? Litigation and confusion in the courts.
So who stands to benefit if this change becomes law? Certainly, lawyers will profit as they litigate the uncertainty. In the long run, more polluting facilities will slip through with minimal scrutiny. But perhaps the biggest winners will be county and city politicians, who will gain significant leverage over developers—leverage they can use to extract concessions, payments, or other benefits in exchange for waiving an EIR and withholding the information and mitigation options the public is otherwise entitled to under current law.
What California truly needs is more targeted CEQA reform—reform that supports climate-friendly development and broad-based prosperity. One promising example is AB 609 (Wicks), which just passed unanimously in the Assembly. As Eric Biber (and Jonathan Zasloff) previously blogged, it would create a major new CEQA exemption for housing projects up to 20 acres in urbanized areas.
The state should pursue more focused exemptions like AB 609, not the sweeping changes in SB 607 that risk gutting environmental review across the board. As the Legislature continues its halting progress toward solving California’s housing crisis, let’s hope this harmful provision is stripped from the final bill.
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