On Aug. 26, The Bee published an editorial titled "CEQA end run could come back to haunt the Delta and Sacramento." The editorial states that legal experts claim the CEQA reform bill might exempt the peripheral tunnels from environmental review. This assertion is wrong.
The CEQA reform bill did not create an exemption for the peripheral tunnels or for any other project. California's environmental standards are among the most stringent in the nation if not the world, including groundbreaking climate change legislation such as AB 32 and SB 375. Yet today, public and private projects throughout the state are commonly challenged under CEQA even when they meet all these existing, stringent local, state and federal environmental and land use laws, regulations and local planning requirements.
Under the CEQA reform bill, projects that are currently required to undergo CEQA review would still be required to undergo such review. The bill, however, stated that if a project undergoes CEQA review and is subject to existing environmental standards and plans, then a legal claim cannot be asserted under CEQA that it should be required to go above and beyond existing law.
Importantly, the bill allows approving agencies to require additional mitigation to address local concerns but eliminates challenges to existing environmental standards based on project-by-project courtroom attacks that often have little to do with the environment. Moreover, for a topic where no applicable standards exist, in-depth CEQA review, unique mitigation and potentially litigation would continue. Therefore, contrary to some assertions, the bill does not lower any environmental standards and does not exempt any projects from CEQA's environmental review requirements.
The Bee previously recognized the value of this type of CEQA reform. On Aug. 16, a Bee editorial stated, "CEQA has problems, particularly the way it can easily be leveraged to obtain concessions that have nothing to do with the environment." The editorial concluded that a method to address CEQA's flaws would be to establish a "statewide planning law that sets across-the-board standards for housing and transportation." The CEQA reform bill contemplated by lawmakers this August would do precisely what The Bee recommended.
As CEQA lawyers who represent state, regional and local agencies as well as developers, we have a keen interest in both protecting the environment, and providing clarity and consistency in the application of the law. We look forward to continued discussions on the modernization of CEQA.
Tina A. Thomas of the Thomas Law Group, Jocelyn D. Thompson of Alston & Bird, and Michael H. Zischke of Cox, Castle & Nicholson practice in the area of environmental and land use law. Together, they have more than 90 years of combined CEQA experience.
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