Episode Transcript
Speaker 1 00:00:08 Good planet. It's a hard find out tempera zones and tropic climbs through current and thriving seas. Winds blowing.
Speaker 2 00:00:36 Hello, K Squid listeners. It's every other Sunday again. And you're listening to sustainability now, a biweekly case, squid Radio Show focused on environment, sustainability and social justice in the Monterey Bay region, California and the world. I'm your host, Ronnie Lipschitz. What do you know about SE q A? The California Environmental Quality Act passed in 1970 and signed into law by then Governor Ronald Reagan. For more than 50 years, C Q A has been used to inform decision makers and the public about the potential environmental impacts of proposed projects. But in recent year years, it has been applied to situations for which it was not designed, especially new housing development. In response, both Governor Newsom and the state legislature are seeking to amend the law to prevent various activists and opponents from obstructing new housing. Not so fast, say the law supporters, they point to a recent report by the Rose Foundation that SE q A has had little, if any, impact on housing projects across the state. So who is correct? My guest today to talk about C QA is Professor Deborah Sivas, who is Luke w Co-pro professor of Environmental Law at the Stanford Law School, where she's also director of the Environmental Law Clinic and the Environmental and Natural Resources Law and Policy Program. Her current research is focused on the interaction of law and science in the arena of climate change and coastal marine policy, and the ability of the public to hold policymakers accountable. Professor Debra Sivas, welcome to Sustainability now.
Speaker 3 00:02:08 Thank you. Glad to be here.
Speaker 2 00:02:10 Um, why don't we start at the beginning? Um, what do you do at Stanford precisely, and how did you end up there?
Speaker 3 00:02:19 Yeah, so, so I am a, officially a professor of environmental law at Stanford Law School, and I also have an appointment in the New School of Sustainability. Um, but I've pretty much worked my entire legal career in the environmental field, um, and actually started out as a biology major and then was in graduate school in ecology and kind of switched over to the social science side and went to law school and, but knew I wanted to work on environmental issues and have done that pretty much my entire career.
Speaker 2 00:02:48 Hmm. And, um, was there anything in particular that led you into environmental law?
Speaker 3 00:02:57 No, it was, it was a really different landscape when I was, uh, you know, when I was young and, uh, I, I grew up in Southern California and I always say that, uh, if you grow up down there, you're either completely oblivious to environmental issues or keenly aware of them. And so I, I grew up in the sixties and seventies and smog was a huge issue. We had, you know, pesticides were an issue, coastal development. Um, so I guess I ended up on that side of the line and that really, uh, compelled me. I mean, we're in a really different world now, but, um, I'm, I'm, I'm glad that across the spectrum more people are tuned in to environmental issues.
Speaker 2 00:03:38 Okay. Um, and what does the Environmental Law Clinic do?
Speaker 3 00:03:43 So, a a, a law clinic is an opportunity for law students to, um, actually get some practical experience. So when I went to law school, uh, where there were no clinics, and so you just took classes, you know, regular substantive classes, and then you got out and you didn't know how to do anything. You didn't know anything about practicing law. Um, so these days we have a pretty robust clinical program here at Stanford, as do many, uh, law schools and students get to plug into the clinic. They take the clinic as a class. What's really unique about our program is that when students are in clinic, they're full-time. They don't take any other classes. They just work in the clinic full-time mm-hmm. <affirmative>, and they, they get to represent real clients. Um, our particular clinic represents, uh, mostly, uh, NGOs, non-governmental organizations in environmental and energy issues. And so students get to work on those cases. They interact with the clients, they write briefs, they go to court and argue, um, write petitions, all that thing. So the the kind of skills that you, you need as a practicing lawyer mm-hmm.
Speaker 2 00:04:47 <affirmative>, I mean, they actually can go and plead, do, do, uh, do plea in court Yes. Even though they're not, even though they're not licensed.
Speaker 3 00:04:55 Yeah. So they get That's interesting. Certified through the State Bar, Uhhuh <affirmative> Association, and, um, and we of course oversee their work. I have a staff of about, uh, there's about five of us, uh, lawyers mm-hmm. <affirmative> licensed lawyers. And, um, and the students practice under us, you know, very, very, uh, uh, circumscribed, but they get to go arguing in court, work on briefs mm-hmm. <affirmative> interact with the clients, so they get to develop those real skills.
Speaker 2 00:05:21 Well, we're, we're here to talk about C Q A. So why don't we get to that? What exactly is c a and what is its mandate? Yeah. Give us some hist, some history of it, as you know, as well.
Speaker 3 00:05:33 Yeah, for sure. So, California Environmental Quality Act, cqa, um, modeled after, uh, people have, some people have maybe heard of nepa, which is the federal statute, uh, national Environmental Policy Act. California, uh, adopted a very similar law, uh, in 1970 following on the federal law. Um, and the whole idea behind the law is to, um, make decision makers at every level of government. So, you know, local government officials, any kind of regional, um, organizations, all the way up to the state agencies to, to really think about the, um, impact of, uh, any proposals that they might approve and really consider those impacts. And then, um, think about whether there are ways that are less environmentally destructive to, uh, to approving those projects. So it's a, it's a dis largely a disclosure law, so allows the public to make comments and to, and, and it requires the agencies to disclose impacts, but it also is meant to make the agency stop and think before they just, uh, approved projects and really think about the, the consequences. And, and in the early days, it was important around kind of traditional things like air pollution and water pollution, pesticides, all of that. And that's important, uh, today continues to be important. But of course, now we've also got climate impacts and how, how, uh, projects might affect that. So, uh, remains very important today.
Speaker 2 00:07:11 Well, I was doing some reading about C Q A and I came upon the California Attorney General's website mm-hmm. <affirmative>, uh, which said, quote, C Q A requires that state and local agencies disclose and evaluate the significant environmental impacts of proposed projects and adopt all feasible mitigation measures to reduce or eliminate those impacts. Now, uh, please correct me if I'm wrong, but I've long been under the impression that the, the purpose of environmental impact statements is to acknowledge that these environmental impacts might take place. Right. And the developer or the agency can decide what to do, but they're not required. My, my sense was they're not required to actually do mitigation. Am I wrong?
Speaker 3 00:07:57 Yeah, actually, in California it's a little different than the, the National Law nepa, and let me just step back on on that one. So, at the federal level, um, for federal agency actions, NEPA is the statute that applies. And, uh, it, it's a similar statute that requires agencies to really look at the environmental impacts of projects that they might approve or that they might carry out themselves. But the courts have long interpreted NEPA from very early days to be completely procedural. That is, you can, as long as you adequately disclose the impacts, the agency can make any decision it wants, and it doesn't have to, um, modify the project in any way. So the one, so that's, uh, entirely procedural statute. The one modification when California, um, uh, adopted that model was to say, uh, that it was to require agencies to look at potential mitigation for project impacts, and in fact, to adopt mitigation where that mitigation was feasible to adopt and could lessen the environmental impacts.
Speaker 3 00:09:05 Now, it's not a hard and fast rule because there is a way for an agency to es to escape that, um, path by doing something called a statement of overriding considerations. So we're, we, we admit that there's, there's, um, you know, significant impacts from this project, but we think there are other reasons to override, uh, that concern and actually go forward with the projects. But short of that kind of a statement, the agencies are supposed to mitigate to the extent, you know, feasible and possible to do so. It is a, there's a little bit of substantive content that this federal law does not have, but the state law has.
Speaker 2 00:09:46 Okay. Um, uh, there, I wanna ask a, a, a question about that. So if, what I've seen is that private developers are now re are, are making or required to make these, uh, environmental impact studies, right. Um, and are they subject to that requirement?
Speaker 3 00:10:06 Yeah, so the, so the way it works is that, um, the on c a is only triggered where, uh, the, where an agency, a local, regional, or state agency, has to issue a discretionary decision to approve a project. So, for instance,
Speaker 2 00:10:23 Okay,
Speaker 3 00:10:24 If you are a, if you are a, an individual landowner and you wanna build a new house, right? And all you need to do is go get building permits. And those building permits don't really involve any discretion. You meet the standards, the building code standards, you don't, c a does not apply there because there's no discretionary approval. So, so, but, but once there is a, some kind of discretionary approval, whether it's a local permit or an air permit or a water permit, endangered Species Act permit, you know, whatever approval from a government agency, that potentially triggers C Q A there. And we can talk about the different categories of c q that apply. So that's how private, um, parties get pulled in. And if there is a discretionary approval, then, then the agency does have to look at mitigation and would have to condition the project on that mitigation unless it finds, um, that it's not feasible to do. Hmm.
Speaker 2 00:11:21 Well, and I also read that the C Q A is a self-executing statute, um, which of course sounds puzzling <laugh> <laugh> since it has no agency of its own. But what does that mean exactly?
Speaker 3 00:11:34 Yeah, I think that just means that, um, every agency has to comply. So yes, unlike, you know, the California Air Resources Board, which oversees air quality, right? The C Q A applies across the board, as I said, to every agency that would be, um, making some discretionary decisions. So in, in that sense, every agency has to make sure that it's complying with the law and, and the law applies whether or not you've actually got citizens out there who are concerned about it. Um, it, it just applies in every instance. And as you probably know, there is citizen enforcement, which I will talk about, I'm sure, um, but even without citizen enforcement, that every agency is supposed to make a determination at the beginning of the approval process, whether sce a is triggered, and if so, what level of review, uh, it needs to conduct.
Speaker 2 00:12:26 You're listening to sustainability. Now, I'm Ron Lipschitz, and my guest today is Professor Debra Sivas of the Stanford Law School, who is, uh, works on environmental law and various related topics, and is also director of the Environmental Law Clinic at Stanford. And we're talking about C equa, the California Environmental Quality Act, which was passed in 1970 and then signed into law by Ronald Reagan. Um, those were the days, weren't they <laugh>?
Speaker 3 00:12:54 Absolutely.
Speaker 2 00:12:55 Uh, so, um, you man, you, you mentioned something about citizen, um, what was the term?
Speaker 3 00:13:03 Citizen enforcement, right?
Speaker 2 00:13:04 Enforcement. Mm-hmm. So, mm-hmm. Okay. How does that work? What does that mean then?
Speaker 3 00:13:10 So, uh, so all one of the things about sequence is a very transparent and, um, kind of public oriented statute. So disclosure to the public and their, their processes that go along with that, depending on the level of review that's necessary, but, um, where the public can weigh in during, uh, during the agency's consideration, if they're going through the SQL process, there's usually an ability to, for the public to comment. And then once the agency has made a decision and issued the approval, um, the, uh, the, any member of the public, uh, that has participated in the process, uh, uh, the review process by doing comments or showing up in a public hearing, that kind of thing, um, could then, uh, bring a judicial challenge that says, agency, you did not do enough, uh, to comply with the requirements of c q. So that's, that's what you hear about A lot of the news is these se QL lawsuits, they're generally brought, um, by, uh, they can be brought by communities, citizens in the community, NGOs actually, bi private business actually brings a lot of those lawsuits too. You don't hear too much about that. Um, mm-hmm. But, uh, though, and then the court will look at what the agency did and determine whether it was adequate to comply with full disclosure under C Q A.
Speaker 2 00:14:37 Well, and now, so does that mean that, let's say plaintiffs bring a case, right? They file a lawsuit mm-hmm. <affirmative>, and the courts file in their favor, um, is then mitigation required, right? I mean, they, they, they find that, that indeed there was a failure to, to take into consideration a particular, you know, aspect, uh, environmental aspect, uh, that has to be addressed. Does that mean then that the agency or developer does have to apply mitigation?
Speaker 3 00:15:14 Yes. So, um, if, if a court finds that, so there's a couple of things that a court might find. One is that the review, uh, they just didn't do the right level of review mm-hmm. <affirmative>, and we could talk about that. There's kind of these more abbreviated reviews In California, the term is negative declarations. Um, but, or do they have to do a full blown environmental impact report, which is a bigger document. Um, so some, sometimes there's a challenge that says, oh, you just did the abbreviated version, but this is a very significant impact that could have potentially big, big, uh, impact, you know, consequences. And so you should have done a more robust e i r environmental impact report. Um, so sometimes that's the challenge. Sometimes the challenge is, well, you did an e I R, but you did not adequately consider traffic, um, concerns or, uh, you know, uh, air pollution impacts or whatever it is.
Speaker 3 00:16:10 And the courts will look at that and decide, you know, was enough done or not. Um, so that's another kind of challenge. And then the third kind of challenge is that you didn't adopt the mitigation and you didn't show that it wasn't feasible to do mitigation or that you, um, there were overriding considerations here, and so you need to actually, uh, adopt the mitigation and make it as a condition of the project. So those are all different ways that citizens might, um, or anyone might challenge the adequacy of what the agency did in terms of complying with C
Speaker 2 00:16:46 Comply. Who enforces that decision or that, you know, command?
Speaker 3 00:16:50 Well, that, that, that's a good question. So, um, the, the way these suits work is whoever is challenging the call, the petitioner right, will file the suit in court. And the agency is actually the defendant. So if there's a agency that's issuing a permit, the, um, the, the, the private entity that's receiving the permit is, is called a real party in interest. So they're part of the case, but they're not actually the, uh, respondent or the defendant in the case. It's actually the defending their own action, right? You're against the agency. So if you win a suit, a court will then issue what's called a writ of mandate and order the agency to, um, go back and do more review or do more mitigation analysis or whatever it is that you're, you, you win the lawsuit on. And then the agency has to, um, report back to the courts at some point that the court sets to say, here, okay, we've done what the, the additional analysis and, and here we're presenting it to the court to, you know, pass, uh, muster.
Speaker 3 00:17:55 And we, we wanna be now freed from any more responsibility. And then the court will look at that and, and decide whether they've done, uh, enough or not to comply. So there is a mechanism for, um, for actually following through on a court order, which is di interestingly indifferent than the federal. If you win a case, uh, on NEPA in the federal courts, that's it. And you, you hope that the agencies go back and do it. If not, you might have to sue them again. But your, your court is, your court case is done in California. The courts retain some jurisdiction to make sure the agencies are then doing the proper analysis.
Speaker 2 00:18:31 Huh. Okay. Um, you mentioned a negative declaration and, and, uh, you said there were several categories of, uh, of, of, yeah. So IRS basically, or what?
Speaker 3 00:18:43 Yeah. So yes, there actually are a number of different types of ERs, but from the, starting from kind of the least to the most, um, onerous, I guess, if you wanna think about it that way, is, uh, so, so first of all, there has to be a discretionary action. So if there's not actually a discretionary action, so sometimes agencies will say, this is ministerial, it's a building permit or something, and we don't need to do any sequence. So that's the least. And then built into c equa, there are a number of exemptions, and in fact, the legislature and the governor have, uh, increased those, um, exemptions in recent, recent years to, uh, cover more affordable housing infill development and a number of other things. And so that if a, if an agency determines that it falls within one of those exemptions, it actually doesn't have to do any envir any more review at all.
Speaker 3 00:19:35 And then the next level is, sorry, the next level is, um, a negative declaration where the agency looks at the looks at the, um, what impacts the project will have and says they're not gonna be significant. So we're just gonna go through the checklist. What are the air impacts, water impacts, greenhouse gases, et cetera. And we're gonna find that none of them are significant, so we don't have to do any further analysis. So that would be a negative declaration. Then there's something called a mitigated negative declaration, which says, okay, we've looked, and maybe there's one category of impacts that could be significant, but we're gonna mitigate those to a level of insignificance, and then we're gonna issue a mitigated negative declaration, and that's the end of what we have to do. So those are all the kind of more abbreviated fashions. If they, if there's a impacts that don't appear to be able to be mitigated as part of the project itself, then the agency has to go through a full-blown environmental impact report still needs to mitigate once it does that full report.
Speaker 3 00:20:42 But that's the thing that I think you hear complaints about that that takes, it can take up to a couple of years, years. Um, and then, so that's a full blown e i r for a project. And then, um, uh, there are ways to, if there's been like, like a general plan, so there's a big e i r done with a general plan that designates land uses in a city or a county, and sometimes you can what's called tearing off of that and do a more abbreviated e i r because you've already covered most of the impacts with the general plan, and you're just looking at the specifics of the project. So there's, there are those kinds of eir too that can be a little more truncated. So there's a whole range, a whole spectrum of, um, ways to comply. And those are often the most con, you know, contentious. Did the agency do enough? Should it have done more?
Speaker 2 00:21:32 Yeah, I wanna bring up a local case. Um, the uc campuses are required to do long range development plans, right? Every 10 or 15 years. And then I guess they have to do an e I R on the development plan. And one of the interesting phenomena or features of that is that these long range development plans rarely get completely fulfilled. So when, when there are lawsuits filed against them, they're being filed against a substantial number of elements of the, the plan that will never come to fruition. Mm-hmm. <affirmative>, you know, and I mean, it's, it's kind of, you know, you're filing suit against what is someone's imaginary v v version of what the future looks like. I, I don't think that happens that may happen in, in other general planning. I don't know. I, you know, the, the SOO County, uh, case where the, uh, investors are, are promising to build three model cities, right? Right. And, um, I suspect that's not going to happen. But, uh, there are are liable to be all kinds of lawsuits against, against these visions. Um,
Speaker 3 00:22:43 Yeah.
Speaker 2 00:22:44 Yeah. Go on. Sorry.
Speaker 3 00:22:45 So, oh, I was just, just a couple of points about that. I think that is right. 'cause if you have an e i r a big e i r that's done on a, something like a general plan, right? Sprawling. But the, the reason that, uh, some, sometimes those EIRs are challenged is that those general plans say, okay, here we're gonna put this kind of activity in this zone and this activity over here, and this is what the criteria are gonna be for development. And so one of the things about sequence, it has a very short statute of limitations, which means the time in which you can, um, cha legally challenge it, right? So it, it's, uh, very different than the federal law, which is, um, could be many years later, you could challenge an action in insa. The idea is you generally, you have to challenge it within 30 days.
Speaker 3 00:23:34 So that's a pretty quick Wow. You know? Yeah. Agency makes a decision. It's had a process, it's produced some kind of document, nec, p i r something. And within 30 days, a petitioner has to challenge or lose their ability to challenge. So with a general plan, you have to make a decision, you know, uh, is there something here that really locks in development rights that we would not be able to challenge later? And I think that's the decision that, uh, petitioners counsel often make is, or should we wait for the specific project that comes along. Right. Okay. But you Yeah,
Speaker 2 00:24:08 I see, I see. I, I understand you're listening to sustainability. Now. I'm Ronnie Lipschitz, and my guest today is Dr. Debra Sivas from Stanford Law School. We're talking about s with a California Environmental Quality Act. I have been reading a lot, and I have been hearing a lot about C Q A being an obstruction to new housing, uh, affordable housing, and all kinds of housing. What's, what is that all about?
Speaker 3 00:24:34 Yeah, well, so there is a, uh, as you, as you point out, there's a kind of ro robust debate that's happening right now, and we all know that we have a housing crisis in California. Um, I don't think anyone credibly would deny that. The question is, uh, is C Q a the source or a, an, uh, an important source of the problem? And, um, and there are, uh, a number of, um, the analysis and studies out there that are try, have tried to get at this issue. And the question is, is, is the, the availability, so the requirement that IT agency mostly local government agencies have to go through the S Q A process, is that somehow, and, and then the ability of citizens to challenge, um, those approvals under CE Q A is that somehow inhi inhibiting, uh, the development of new housing that we need. That is the core debate, and there's very strong opinions all around, um, and, uh, quite different opinions depending on who you're talking to.
Speaker 2 00:25:38 So, um, it's, it, the, the conflict involves a rather strange cast of characters in the sense that you've got NIMBYs, right? Not in my backyard mm-hmm. <affirmative>, uh, along with, uh, cities and, and some environmental organizations. And then you've got yms, which is Yes, in my backyard, right? Which includes, also includes cities, residents, developers, conservatives, and some social justice groups. So, um, you know, maybe you can, you can expand a little bit on what the, the conflict is about. And, and I'm wondering why does SE Q A apply to something like a hou would, why would Seql apply to something like a housing development? Maybe that's the first question to ask, and then, and, you know, and then go to the cast of characters.
Speaker 3 00:26:25 Yeah, that's a great question. Um, so again, I think I used in the beginning, if you're just an individual landowner and you're building your single family house or your, you know, your, your duplex or whatever on the property, you psql probably does not apply, uh, in uniformly local governments. Um, you know, there are building code standards as long as you meet them, you know, setbacks from the property and square footage and all of that, and all the rules about, um, the building codes you meet that you, you're not really getting a discretionary approval. You're just getting sign-offs by the building department. And, um, seql would not apply when CEQ starts to apply is larger projects. So that's tend to be more the multi, um, family housing units, uh, in addition to just, you know, industrial and commercial developments where those projects, often cities have, um, criteria, but they have a process called the conditional use permit or something similar, where as a developer, you have to go in, usually there's, usually, if it's a bigger project, there's a lot of working with the planning department in a city or county ahead of time to try to work out all the parameters of that.
Speaker 3 00:27:35 And, and those are usually subject to conditional use permits. So that's a discretionary action that the local government has to approve, and that's the point at which C Q A gets triggered. That's why CQ gets triggered with these larger development projects. Um, but it kind of depends on what is in the local code and what is required, what's allowed under the building code, and what requires that additional layer of, uh, discretionary approval.
Speaker 2 00:27:59 Can you talk a bit about the, the parties, the, these two, these two, uh, groups?
Speaker 3 00:28:04 You know, so as you can imagine, developers have long disliked SE q a, not just in the current housing crisis, but I would say I've, I've been doing this for a while, you know, way back to the early days of SE q a, 'cause of course, it's just another regulatory hoop they have to go through, right? Mm-hmm. <affirmative> and, um, and opens their project to public scrutiny. And, you know, potential challenge. I mean, of course, the point when you think about it from a democracy standpoint is that the public should have a say in how their communities are developing. And there shouldn't be sweetheart deals with cities and counties, which I think prior to <inaudible>, there were a lot of, uh, deals like that on the coastal, uh, side as well. Um, and that's why we, that's what resulted in the California Coastal Act, was to try to, uh, you know, give the public more of a say so.
Speaker 3 00:28:51 Um, so developers of long not liked it, but, uh, in recent years, I would say in the last decade, the developers have started to take up this idea that that C Q A is really the reason that you're not getting more housing developed in California. And, um, and they, and they have built an alliance with, uh, the YIMBYs, as you say, yes, in my backyard folks, um, which are, you know, they tend to be, um, it's, it's interesting, right? Because they tend to be a lot of, uh, younger, progressive, um, activists who wanna see more housing we, you know, which I think we all do. Um, and, and, and they've, they've kind of taken up this mantle that seq was part of the problem, or potentially a large part of the problem. Um, I, you know, I have, I have a view on that having, uh, litigated in the trenches and also read all of the studies, um, that CQ is a very, uh, uh, small part of that.
Speaker 3 00:29:51 Um, and that there are lots of other things that are playing into the housing, uh, the, the, our failure to develop enough housing. But c a has become the, um, you know, kind of the, uh, the, the, the, the, the, the, the thing to blame, but that the, uh, and what it is allowing the developers to do is to get a lot of legislative exemptions. Um, I think it remains to be seen whether any of these exemptions are, are actually doing anything for mm-hmm. <affirmative>, um, getting us more housing, particularly affordable housing. I think the fact is that the affordable housing exemption, the infill exemption, those exemptions that have been built into sequin the last few years in response to this concern have not, the study so far don't show that they're, they're leading to any more housing. So I think the concern is by some on the more, you know, environmental side is that this is just a, uh, the industry using the housing issue as a way to kind of really gut the statute and which is something they've wanted probably all along.
Speaker 2 00:31:05 Hmm. Um, and, and you, you mentioned HA has seqa actually blocked new housing? I mean, there've been, you know, and it's a, these, these few cases that make the headlines, of course make it seem like it's, it's going on everywhere, but, but from what I read, there are very few instances in which C Q A has been invoked in the case of, of housing.
Speaker 3 00:31:31 Yeah, no, I think that's absolutely right. And that's what some of these, um, more independent studies are, uh, I think showing, I, I, I don't know the current statistics, but it's, it's just a few percent, two or 3%, first of all, of all, c a potential matters. Mm-hmm. <affirmative> are litigated, right? Mm-hmm. <affirmative>. So you start with that, that it's a very small percentage of, so you see, if you think about it, local governments make decisions all the time. State agencies too, and regional agencies, but particularly local governments are making decisions all the time, right? Every single one of those is potentially subject to C Q A. Might be the city or county might find it to be exempted or NEC or whatever, but, and sometimes a full-blown e i r. But, um, those are happening all the time, and only a couple of percentage of those are ever even challenged in, in court.
Speaker 3 00:32:21 And then I think of the, I think what the studies have shown is that, um, um, not very many of the projects that are challenged are actually housing related projects, I think mm-hmm. <affirmative>. So the most recent things there, there's a group called SQL Works, which has done a, uh, a couple of studies, and I think their most recent study, which just came out a few months ago, showed that just around, just under a quarter of all seql lawsuits, again, that it's not that many lawsuits, a couple hundred a year out of the thousands and thousands and thousands of decisions that are made every year by agencies. But, um, even of that small set of challenges about, uh, I think it's slightly under a quarter of them relate to something that has a housing component, could be a whole housing development, but it could also be housing as part of a larger commercial development. So, um, so when you think about those numbers, it's not a, it's not a very big percentage out there. And the vast majority of housing projects, uh, go forward without, they may be stopped for other reasons, but they go forward without a se challenge to them.
Speaker 2 00:33:29 Well, the barrier to, to litigation by, by the public is pretty high. Since it costs so much to bring a case to court, someone has to have deep pockets Right. To be able to do it.
Speaker 3 00:33:41 Yeah, no, that's true. So it could be, so I think one of the, um, uh, the, the, the, one of the arguments is made is like, oh, well, wealthy communities, people can afford it. 'cause Right. The, the, those communities could afford to hire lawyers. And, and, you know, that could be true. And I, I can't refute specific instances. I'm sure that, um, some of that goes on. But the vast majority of secret cases are actually brought by community-based groups. Um, they don't have the resources largely to, um, hire lawyers. And so the lawyers who take on those cases are usually doing them, uh, on a contingency basis. So they would only get paid if they win the case. So you can imagine the incentive, it's a lot of mm-hmm. <affirmative>, um, you know, smaller firms and private practitioners. Um, and we, you know, as a clinic, we do some of it for pro bono for our clients, but, uh, but for most of the attorneys out there, um, they have to feel pretty confident they're gonna win the case that they have a good legal, good set of legal arguments before they would take on a case for which they're not being paid and would only get paid at the end of the day.
Speaker 3 00:34:52 Um, so the, yeah, and, and I, I talk to groups all the time 'cause we provide pro bono work that our students do. And so we get, of course, lots of calls and we turn away, turn away most of them. And so most of those community groups don't have the resources to hire a lawyer. So, um, it, you know, that that's, it isn't like, again, it's not to say there aren't, you know, some wealthy people who might not want the housing development next door. Maybe they're funding some of this in, you know, Atherton's and the Los Altos and Palo Altos of the world. But, um, that's largely not what's going on. Sequel.
Speaker 2 00:35:27 Yeah. Ar arguably, if, if it were easier to, to litigate, there probably would be more cases, right? More cases filed. Yeah. That's, that's, you know, I mean, we, we were talking about, uh, I think democracy of some sort or, you know, public involvement came up, right? And it's limited to making comments during the comment period, which tend to be ignored. Um, well, because of all of this hoopla, and I don't know, I know it's been in the Chronicle, the San Francisco Chronicle a lot. I don't know about, you know, the other big newspapers. Um, and I don't know what's going on online. Um, the, the governor and legislature have made noises about streamlining se streamline, streamlining C Q A in order to remove this obstacle so-called obstacle to housing development. What is that all about?
Speaker 3 00:36:19 Yeah, well, it is part of a, it is part of this larger, i, I think, strategy by those who don't like C Q A and I, I, I definitely think they have the governor's ear and the ear of many legislators. Um, and, uh, you know, it's interesting at the federal level where everyone is paralyzed, right? And no, none of the old laws like NEPA have been touched for decades. Now, C Q a, uh, is, is really different. The California legislature operates in a different way and is, is actually quite responsive to, you know, whatever the moment is. And so there's been a, over the years, there's been a whole slew of, um, uh, carve outs and exemptions built into C Q A. I don't know if you remember, but a few years back it was about sports stadiums. 'cause somehow those were so important to have that we had to like carve them out and not require s q a for those <laugh>.
Speaker 3 00:37:13 So what, you know, what was that about? It was, you know, wealthy sports teams, owners getting a legislative exemption. But in, in the more recent years, there's been a series of small, um, carve outs and exemptions. I think I mentioned a couple earlier. It's the, for affordable housing, if you have a certain level of affordable housing in your project or for infield development close into trans public transportation and those kind of things, which we wanna encourage for density purposes. So there's been these small carve outs. And as I said, I don't think that they're being really used. 'cause that's actually not what developers wanna do. You know, most developers don't wanna develop low income housing near transit stations. They wanna build high income, you know, uh,
Speaker 2 00:37:58 Con condos, uh,
Speaker 3 00:38:00 <laugh> condos Yeah. In Palo Alto or, you know, whatever. So, um, you know, so they throw in, 'cause they've got requirements to do some percentage of affordable housing. We'll throw some of that in. But those exemptions have not really, you have to be, it has to be a substantially affordable income project. So, um, they haven't really been used and now, but with these trying to, there is a, there's a low one law firm in particular that's generated I think three reports now. They represent the heavily developer financed law firm. And they've generated a bunch of studies that I think have, the legislature has, um, looked at those and said, well, we should do more streamlining. So even more than, than, than we've done so far. And so there's been a number of bills to, um, continue to expand these carve outs. And that's a continuing fight. The governor has signed a few this year, um, but there are more potentially coming, um, with bigger carve outs. So I think there is a worry about people who think of C Q A as our main public tool for keeping local governments accountable, um, are worried that there's gonna be this wave that washes through and really guts the statute. I don't think we're there yet with any of the legislation that's been proposed, but, um, it's a thousand cuts happening right now.
Speaker 2 00:39:21 Yeah. What, what, what has Newsom said he wants to do? Uh, I, I, again, I looked into it and I found it a bit confusing. What's, what's being done or what's, you know, been proposed?
Speaker 3 00:39:34 Yeah. So, um, what exactly,
Speaker 3 00:39:37 Well, right, so Newsom is he, he has a continued to express concern that SQ was the problem. And I think we, we could maybe talk about what other sources of the problem are. Yeah. But, you know, um, he, and so he's been, he's been willing to entertain bills coming across his desk. And so there's an, there's a new one. There's one right now, um, I'm trying to remember the number, AB 1633, I think. And it, it again, uh, waters down the standards and it, um, makes it easier for developers to get projects through without much secret review. Mm-hmm. <affirmative>. And it's actually coupled with everyone's talking now about the builder's remedy. So the Affordable Housing Act, which passed a few years ago, right. As part of that, um, it's, they're now trying to tether some secret exemptions to that law. And that hasn't gone into effect, but it's floating somewhere in the legislature.
Speaker 3 00:40:33 I don't, I don't do a lot of legislative work, so I'm not sure where it is in the committee. But, um, yeah. So each one is sort of a broader carve out than the last, and, and, and I think the legislature, the way it's justifying that is, well, we did this a couple years ago, we're not getting any more housing, so let's do some more carve outs Right. And make it easier, um, uh, on developers and, uh, uh, you know, try to push the cities to, to get these, get the que. And part of it is trying to, um, reduce the delay there. You know, there is a, there is a delay. So going, so a couple things. We, you know, if a project is, if the SE claims are not good claims, you're just not gonna see that much litigation. 'cause people aren't getting paid to do those.
Speaker 3 00:41:23 I mean, like I said, occasionally, yes, but not really. So, you know, the first question is are, are we seeing a, a lot of sequel lawsuits that are, uh, losers, you know, that would eventually be thrown out of court? So I say no, but even so, there is a written into the law itself that SE l cases are supposed to be expedited. You know, that's all to protect the developers mm-hmm. <affirmative> and most counties of any size, I think if you're over a couple hundred thousand, um, residents, you ha you're supposed to have a se a judge who has expertise in se a and who keeps cases moving through the system, right. So and so, in fact, if, if they're not good se claims, they'll get thrown out relatively soon, right? Mm-hmm. <affirmative>. And so, um, you know, you couple those things together. Just the, the worry that there's just delay and delay going on, I think is not, again, could happen in individual cases, but generally across the board is not what's happening. But part of the legislation and the legislative reform is to, like, we gotta keep streamlining, make it go faster, forcing the agencies to get these documents done more quickly or to invoke more exemptions and get them through the courts more quickly. So that's what most of the reform has, um, been going to. I, I would say the developers would love to just get rid of the law altogether. Those who are champions of the law are fighting at the legislative level to, to keep those carve outs as narrow as possible.
Speaker 2 00:42:57 Mm-hmm. <affirmative>, you're listening to sustainability now. I'm Ronnie Lipschitz, your host, and my guest today is Dr. Deborah SVAs of the Stanford Law School. We've been talking about, uh, C Q A and about, um, the attempts, the efforts by, uh, developers, I guess to, uh, get the legislature and the governor to somehow in introduce carve-outs, which would exempt housing developments from the, uh, uh, requirements of Qua. Um, you know, the poster child for all of this is the, uh, is the Berkeley case, right? Of the, the student housing in, in, uh, in, uh, to the north of the north to the south of the campus. Can can you tell us that story? I, you know, I don't know if everybody has heard it and it's a, a, a thought provoking one, I think <laugh>.
Speaker 3 00:43:50 Yeah. So, um, well, yeah. So the, the, the idea in Berkeley is to, obviously there's a huge housing shortage in Berkeley with all of those students, and that's probably true around all the big uc campuses. Um, and the idea was People's Park, which a little even predates me, and I'm <laugh>, um, I've been around for a while, but, um, was, you know, kind of a cultural icon in the sixties, uh, uh, the sixties, uc, Berkeley movement. And, um, but that park at my understanding, and I don't get to Berkeley all that often, but my understanding is that park has been, you know, pretty much a haven for, um, you know, lots of, uh,
Speaker 2 00:44:39 How do you put it? Yeah.
Speaker 3 00:44:40 You know, drug activity and other things, um, in recent years. And so the, the university has proposed to develop it into student housing, seems like a good thing thing. And some neighbors have then used cq, then used C Q A to try to, um, uh, to, to try to slow down that development. And one of the issues that they raised was that if you put student housing there, students are noisy, and that's gonna have a noise impact on the neighborhood, which to me was a whole silly thing. And I actually didn't think that case was gonna go very far when it was first signed, because, you know, of course, considerations of noise impacts are important. But, you know, I think of it like they're building an airport next to the, you know, next to the neighborhood, there's a noise impact, you know? Mm-hmm. <affirmative> students mm-hmm.
Speaker 3 00:45:25 <affirmative> late night partying. But, so it gets this, you know, it got, and, and a judge found it, and I won't say I won't, 'cause I don't know all the intricacies of the study, the, the studies that were done, but, um, it has now worked its way up to the California Supreme Court. That issue is now pending and has been briefed before the California Supreme Court. Um, but it has become the poster child. And just about a week ago, I think Governor Newsom signed a bill that would exempt it from, and not just that project, but housing projects around universities. Around
Speaker 2 00:45:59 Universities. Yeah, yeah, yeah. What what I thought was interesting about this is that, you know, qua says something about, about pollution, I guess, um, or was used in cases of, of air pollution. So some bright bulb created the meme that people are pollution because they're the ones who are making the noise. And that's found to be an impact under CE q a. Right. Um, I thought that was
Speaker 3 00:46:29 Interesting. Yeah. People, people are pollution.
Speaker 2 00:46:31 Interesting. Right? Yeah.
Speaker 3 00:46:33 I mean, it seems, it seems kind of silly, but it was holding up a project, but as I, as I said it, um, I, I feel like there's a few of these cases out there, and those are the things that the industry can glom onto and say, oh, now we've gotta change the law as, as opposed to kind of letting the process play out. Um, and, and so, you know, what you get in this case is a legislative reaction specifically to that one case. You know, we're gonna exempt University of California and Cal State probably, I don't know if it covers community colleges, but housing around schools. Right. But the, the problem with that approach is that every time there's a a poster child case, then there's a legislative reaction on that point. Yeah. Yeah. And then pretty soon you've got all kinds of stuff littering the law with all these specific, um, exemptions.
Speaker 2 00:47:28 Yeah. Well, you know, I mean, there's no reason in my view, to think that the, that Berkeley will actually get around to building the housing after all of this time. Right. It certainly is something that we see here in Santa Cruz at the university. Um, you mentioned that there are other, other factors that are more important and obstructing, uh, housing development. Can you just mention those briefly?
Speaker 3 00:47:52 Yeah. So, you know, I mean, like, it is true, I think if anyone who's follow anyone who, for anyone who's following the housing situation, that you're, you see these more affluent communities who don't, who don't want a lot more housing. Right? Right. And, and they're, um, often their city councils are, uh, denying approvals to projects or, or making, trying to make it more one onerous in terms of the re the conditions they're putting on projects. But, you know, to that is not se a happening that is like local politics happening, right? Yeah. And, um, uh, and, and so that, that's my frustration is that we're blaming an environmental law that, that I know as having used it a lot for environmental justice concerns is the, about the only tool that environmental justice communities have to actually try to protect themselves. And I could give you, I could talk, talk to you all, all day about cases that we've done, where that's exactly what we're doing is trying to protect those communities.
Speaker 3 00:48:51 Um, but, you know, in these affluent cities. And, and that's, that's what's going on is it's more politics than anything. I would say. The one of the thing, to the extent this is happening a lot in southern California, which was, um, developed later than a lot of northern California, although I I'm sure it's here too, in parts of the Bay Area and parts of Santa Cruz, is that a lot of that subdivision housing that was developed in the fifties and sixties actually has, um, deeded restrictions written into those documents, which I did not even realize this until a few years ago that say, single family housing is all that can be built, right? And so a local government can't even really override that with higher density housing 'cause that's written into the deed on the land. So, you know, those are really the things that we should be looking at, both the politics, but also, you know, some of these other land use restrictions. And rather than, in my mind, rather than gutting a pretty useful environmental law, uh, on, on the excuse that that's what's actually holding up housing. Mm-hmm. <affirmative>
Speaker 2 00:49:57 Mm-hmm. <affirmative>. Well, um, we're, we're running out of time. So I, I was wondering, what, what do you think is likely to happen with and two CE A in the, in the future?
Speaker 3 00:50:08 Yeah. Well, you know, I think it depends on who you talk to. So I have some colleagues who are very pessimistic. We're gonna see ce qa, you know, completely overridden. I'm not that pessimistic. I do think that these, some of these, uh, reforms will continue on for the next, um, few years. But, uh, I, you know, there is a vanguard of folks in Sacramento who do the lobbying stuff, who are, you know, pretty protective of the statute. So I don't think it's gonna go away. And I, I do think, you know, more analysis of how it's actually use to protect communities. Um, and, you know, we actually saw it in connection with a, uh, a proposed development in the old, um, Cargill salt, uh, flats, uh, here off the peninsula where at one point a couple years ago, they were proposing to put 25, uh, sorry, 12,000 single family homes and a lot of the, like, out into the bay, right?
Speaker 3 00:51:11 And a lot of the, uh, groups were threatening c a, uh, uh, challenges to that, and that back, that project off could, it may come back, I guess, but that was exactly the opposite because those groups were arguing, we need high density housing on the land, not infill that puts a bunch of, um, you know, sprawling single family residents. So, uh, you know, so hopefully it will stay around for those kind of situations and, and the true environmental situations where pollution and air pollution, water pollution and things. But I do think there'll be more, um, more streamlining. Some of that will go on. Mm-hmm.
Speaker 2 00:51:50 Well, is there anything you'd like to add, maybe that we, we didn't cover?
Speaker 3 00:51:54 No, I think we, we pretty much covered the waterfront. I, I would just say that we probably need more <laugh>. We probably need, uh, even more analyses of how, you know, how c Q a, um, maybe how c a is actually effective at, uh, protecting communities, um, low income communities, right? This is all about low-income housing. Well, I think low income communities, the client groups I work with, they would be devastated to see C Q a, um, gutted, so mm-hmm. <affirmative>, I think maybe more visibility of that issue.
Speaker 2 00:52:29 All right. Well, professor Debra SVAs, thank you so much for being my guest on sustainability now. Yeah.
Speaker 3 00:52:35 Thank you for having me, and I'm glad you're working on this topic.
Speaker 2 00:52:39 If you'd like to listen to previous shows, you can find them at ks qd.org/slash sustainability now, and Spotify, Google Podcasts, and Pockets amongst other podcast sites. Thanks for listening and thanks to all the staff and volunteers who make Case Good, your community radio station and keep it going. And so until next, every other Sunday, sustainability, now
Speaker 1 00:53:16 Zone tropics thriving seas, wind blowing, breathing trees, sunshine. Good.
