In my first year of grad school, I visited the Albany Bulb a couple times a month. It's a spit of land with gorgeous views of the Bay. I was a little skittish about the piles of debris and occasional encampment, so I stuck to going there in the daylight. About 18 months ago I noticed marked improvement in the area. The uneven dirt path was paved, debris was cleared away, and more people started frequenting the Bulb and getting the nature pick-me-up that I love so much.
Little did I know that an intense legal battle had been fought and won by the East Bay Regional Parks District in favor of this restoration of the Albany Bulb. Who were they fighting? The Sierra Club and an organization called the Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDF). To the untrained eye, it seems like environmentalists are fighting each other.
Why?
A recent study by Jennifer Hernandez, a prominent environmental lawyer, concerning the California Environmental Quality Act (CEQA) illuminates the situation.
I HIGHLY ENCOURAGE you to read the study. It is very well written and Ms. Hernandez could have a second career as a novelist.
Some background on CEQA. The act was passed in 1970 and its purpose was to require proposed development and infrastructure projects to assess and disclose the environmental impact of their projects. The spirit of the law is to protect California's natural beauty without legislating specific land-use regulations. CEQA lawsuits are filed by plaintiffs who have a bone to pick about the environmental impact report (EIR), such as an overlooked or improperly addressed impact.
Unfortunately today, CEQA is wielded as tool to stop many urban development projects, such as infill housing, transit stations, and renewable energy plants. Two aspects of CEQA make it an especially lethal legal tool to kill projects.
First, anyone who invokes CEQA in a lawsuit can remain anonymous. This allows parties to use CEQA to promote economic and business interests, rather than purely environmental interests. Scanning the end notes of Hernandez's study, you can see that many plaintiffs of CEQA cases have long, vague, environmentally sounding names. For example "Alliance for Responsible Neighborhood Planning," "Citizens for Educated Government," and "Preserve San Leandro Mobility." These organizations have no webpages and only exist within the law suit. These specific parties are suing school districts and cities, but defendants also include a wide array of government agencies and community-backed projects.
Second, each project or development plan can have several CEQA lawsuits filed against it. I discovered this when combing through articles about the Albany Bulb project. At least two lawsuits (mentioned here and here) were filed against the same general project. Here's an excerpt from one of the case filings. As you can see, most of the complaints have to do with details of the EIR.
Hernandez's study compiles all the CEQA lawsuits filed in the state of California between 2013 and 2015. I wish she disclosed how many lawsuits are in her database to get an idea of the magnitude of the problem, but she only reports percentages. The percentages do, however, paint the picture that CEQA is not being using as it was originally intended. And Hernandez points out that her study only captures all the projects who had the resources to create environmental impact reports -- which requires several rounds of screening and legal and professional consulting -- that the plaintiffs then sue. A project cannot exist without an EIR. It's hard to know how many projects never came to fruition because complying with CEQA and handling the potential subsequent legal cases were insurmountable challenges.
The way the law is written gives undue power to the plaintiff. No one says it better than Hernandez herself: "In short, the act of filing a lawsuit [using CEQA], with no showing of harm to people or the environment, and no showing of the likelihood of winning on the merits, should not be the equivalent of winning an immediate injunction against a project—a project that has often been shaped by more than two years of community input and approved by elected leaders—with neither a hearing nor a bond."
On to my favorite part. Graphs! Maps! Figures!
First up, where are most CEQA lawsuits filed? Most CEQA lawsuits challenge projects in the Los Angeles and San Francisco Bay Areas. Fewer than 10% of lawsuits are filed in the wild wildernesses of California, which include Northern California, the Sierras, and the Mojave Desert.
To play devil's advocate, this type of distribution makes sense if you reason that the environment needs the most protecting where there are more people around to destroy it.
Hernandez thinks about this too. As a counterargument, she reports that 87% of challenged projects are infill projects located in already urbanized areas. An astounding 100% of all challenged projects in San Francisco were infill housing. I didn't know what infill housing was, so I found these pictures on Wikipedia:
Infill housing seems like a reasonable, low-impact choice to me. So it's safe to assume we aren't destroying our only parks with infill housing. Also, some may fear infill housing is ugly. What if high-rise towers were to plop right down in the middle of the neighborhood? I've learned from Hernandez's study that high-rise towers, constructed of concrete and steel, are one of the most expensive forms of housing to construct, so they are very unlikely to be undertaken. Most infill projects propose duplexes, or 2-3 story complexes. So again, seems like a good choice.
Probably the most damning claim in this study is that "LA CEQA lawsuits disproportionately target new housing in whiter, wealthier, healthier communities." Cal EPA mapped environmentally disadvantaged communities using metrics that included poverty and unemployment rates, average education-attainment levels, English-speaking rates, and nearby sources of pollution. In LA, 78% of challenged projects were located outside of these communities. In the figure below, the disadvantaged areas are colored in light orange and the CEQA lawsuits are mapped by blue or purple blocks. If you're curious, the distinction between blue and purple is that blue indicates the project is in a transit priority area and purple indicates a project is not.
One should note that projects in environmentally disadvantaged communities probably have a harder time gathering the resources to get started, so the projects never come into existence. If they did, then perhaps we would see more CEQA lawsuits in the orange areas. But then one comes back to the point that deterring projects from even existing is not a good or originally intended outcome of CEQA, and these deterrence rates are probably much higher in environmentally challenged areas. By definition of project deterrence, there exists no data that can truly differentiate the impact of CEQA in low-income vs high-income areas, but this picture is a start.
As it turns out, many of the projects CEQA targets are projects that would reduce greenhouse gas emissions and populations' environmental impact. From Hernandez, "Studies have established a clear correlation between urban density and reduced carbon emissions. A 2014 report from the University of California, Berkeley . . . found that families living in denser urban cores had a carbon footprint that was half that of families living in suburbs." It's looking like a knockout round for Hernandez.
At the end of her study, Hernandez includes a thoughtful discussion of the original intent of urban land use patterns. Many housing regulations were enacted in the past to informally enforce racial or class discrimination. Hernandez goes through a few examples in her study, such as black factory workers in the Richmond shipyards during WWII being excluded from home and mortgage loans. Other examples include zoning regulations that only allow for large, single-family homes, barring from the area those who can't afford that type of housing (conveniently the same people who were excluded from home and mortgage loans). Disallowing infill housing to be built in these zoned areas perpetuates the malintent of the original laws to create geographic socio-economic divides.
To cap off my post, here is a picture I took of a plaque from an apartment complex on University Avenue and Martin Luther King Way in Berkeley:
"The University Lofts is the first new privately built housing on University Avenue in more than 27 years."
Albany Bulb, 2014. pc: Me!
Bulb, 2015. Gotta throw this one in here with my adorable mom.
Little did I know that an intense legal battle had been fought and won by the East Bay Regional Parks District in favor of this restoration of the Albany Bulb. Who were they fighting? The Sierra Club and an organization called the Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDF). To the untrained eye, it seems like environmentalists are fighting each other.
Why?
A recent study by Jennifer Hernandez, a prominent environmental lawyer, concerning the California Environmental Quality Act (CEQA) illuminates the situation.
I HIGHLY ENCOURAGE you to read the study. It is very well written and Ms. Hernandez could have a second career as a novelist.
Some background on CEQA. The act was passed in 1970 and its purpose was to require proposed development and infrastructure projects to assess and disclose the environmental impact of their projects. The spirit of the law is to protect California's natural beauty without legislating specific land-use regulations. CEQA lawsuits are filed by plaintiffs who have a bone to pick about the environmental impact report (EIR), such as an overlooked or improperly addressed impact.
Unfortunately today, CEQA is wielded as tool to stop many urban development projects, such as infill housing, transit stations, and renewable energy plants. Two aspects of CEQA make it an especially lethal legal tool to kill projects.
First, anyone who invokes CEQA in a lawsuit can remain anonymous. This allows parties to use CEQA to promote economic and business interests, rather than purely environmental interests. Scanning the end notes of Hernandez's study, you can see that many plaintiffs of CEQA cases have long, vague, environmentally sounding names. For example "Alliance for Responsible Neighborhood Planning," "Citizens for Educated Government," and "Preserve San Leandro Mobility." These organizations have no webpages and only exist within the law suit. These specific parties are suing school districts and cities, but defendants also include a wide array of government agencies and community-backed projects.
Second, each project or development plan can have several CEQA lawsuits filed against it. I discovered this when combing through articles about the Albany Bulb project. At least two lawsuits (mentioned here and here) were filed against the same general project. Here's an excerpt from one of the case filings. As you can see, most of the complaints have to do with details of the EIR.
Hernandez's study compiles all the CEQA lawsuits filed in the state of California between 2013 and 2015. I wish she disclosed how many lawsuits are in her database to get an idea of the magnitude of the problem, but she only reports percentages. The percentages do, however, paint the picture that CEQA is not being using as it was originally intended. And Hernandez points out that her study only captures all the projects who had the resources to create environmental impact reports -- which requires several rounds of screening and legal and professional consulting -- that the plaintiffs then sue. A project cannot exist without an EIR. It's hard to know how many projects never came to fruition because complying with CEQA and handling the potential subsequent legal cases were insurmountable challenges.
The way the law is written gives undue power to the plaintiff. No one says it better than Hernandez herself: "In short, the act of filing a lawsuit [using CEQA], with no showing of harm to people or the environment, and no showing of the likelihood of winning on the merits, should not be the equivalent of winning an immediate injunction against a project—a project that has often been shaped by more than two years of community input and approved by elected leaders—with neither a hearing nor a bond."
On to my favorite part. Graphs! Maps! Figures!
First up, where are most CEQA lawsuits filed? Most CEQA lawsuits challenge projects in the Los Angeles and San Francisco Bay Areas. Fewer than 10% of lawsuits are filed in the wild wildernesses of California, which include Northern California, the Sierras, and the Mojave Desert.
To play devil's advocate, this type of distribution makes sense if you reason that the environment needs the most protecting where there are more people around to destroy it.
Hernandez thinks about this too. As a counterargument, she reports that 87% of challenged projects are infill projects located in already urbanized areas. An astounding 100% of all challenged projects in San Francisco were infill housing. I didn't know what infill housing was, so I found these pictures on Wikipedia:
A potential infill site
An actual infill site
Probably the most damning claim in this study is that "LA CEQA lawsuits disproportionately target new housing in whiter, wealthier, healthier communities." Cal EPA mapped environmentally disadvantaged communities using metrics that included poverty and unemployment rates, average education-attainment levels, English-speaking rates, and nearby sources of pollution. In LA, 78% of challenged projects were located outside of these communities. In the figure below, the disadvantaged areas are colored in light orange and the CEQA lawsuits are mapped by blue or purple blocks. If you're curious, the distinction between blue and purple is that blue indicates the project is in a transit priority area and purple indicates a project is not.
One should note that projects in environmentally disadvantaged communities probably have a harder time gathering the resources to get started, so the projects never come into existence. If they did, then perhaps we would see more CEQA lawsuits in the orange areas. But then one comes back to the point that deterring projects from even existing is not a good or originally intended outcome of CEQA, and these deterrence rates are probably much higher in environmentally challenged areas. By definition of project deterrence, there exists no data that can truly differentiate the impact of CEQA in low-income vs high-income areas, but this picture is a start.
As it turns out, many of the projects CEQA targets are projects that would reduce greenhouse gas emissions and populations' environmental impact. From Hernandez, "Studies have established a clear correlation between urban density and reduced carbon emissions. A 2014 report from the University of California, Berkeley . . . found that families living in denser urban cores had a carbon footprint that was half that of families living in suburbs." It's looking like a knockout round for Hernandez.
At the end of her study, Hernandez includes a thoughtful discussion of the original intent of urban land use patterns. Many housing regulations were enacted in the past to informally enforce racial or class discrimination. Hernandez goes through a few examples in her study, such as black factory workers in the Richmond shipyards during WWII being excluded from home and mortgage loans. Other examples include zoning regulations that only allow for large, single-family homes, barring from the area those who can't afford that type of housing (conveniently the same people who were excluded from home and mortgage loans). Disallowing infill housing to be built in these zoned areas perpetuates the malintent of the original laws to create geographic socio-economic divides.
To cap off my post, here is a picture I took of a plaque from an apartment complex on University Avenue and Martin Luther King Way in Berkeley:
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