A 10-page article by Holland & Knight’s Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units – approximately half the state’s total annual housing production – in 2020 alone. While Holland & Knight’s analysis of 2019-2021 CEQA lawsuit data is ongoing, the article’s “interim report”, which can be read here, states there is no expectation of change in the magnitude of anti-housing CEQA actions, which most frequently allege violations relating to analysis of climate change related impacts, i.e., GHGs and VMT.
The article also notes recent patterns of the great majority of CEQA actions being filed not by established environmental organizations, but by NIMBYs, bounty hunters, economic competitors and labor unions, with the most frequently targeted housing projects being higher density housing on infill sites in wealthy communities. Also noted is a very recent explosion of CEQA suits challenging renewable energy and infrastructure resiliency projects, such as solar, wind, hydropower, water, flood, and wildfire management projects. Further, the article asserts that CARB’s Draft 2022 Scoping Plan’s housing provisions evidence a “profound unfamiliarity with housing” and propose climate-driven “solutions” that are infeasible and simply invite more CEQA litigation.
The Holland & Knight interim report is a must-read and a sobering indictment of CEQA litigation abuse working at cross-purposes with California’s efforts to address its “housing supply and affordability crisis of historic proportions.” (Gov. Code, § 65589.5(a)(2)(A).) The CEQA litigation abuse deniers and enablers seem to have forgotten that one of CEQA’s fundamental and undergirding policies is to “[e]nsure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions.” (Pub. Resources Code, § 21001(d), emph. added.) Unfortunately, that fundamental policy has not been honored; CEQA has lost its way and become, as Senator Scott Weiner aptly put it, the “law that swallowed California.” Whether California’s legislature can summon the political will to reform CEQA as needed to solve our housing crisis remains one of the great questions of our time.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.