Proposition 45: Changes to Environmental Review Process for Certain Projects Initiative

Amends CEQA

Prop. 45 would amend the California Environmental Quality Act (CEQA).  The first question is whether voters are properly asked to consider this detailed, 16-page amendment to a complicated statute.  As a general rule, I would prefer that the Legislature make such amendments with the aid of legal experts.  However, having dealt with CEQA during my legal career, it’s fair to say that CEQA reform by the Legislature has been stymied by politically-influential groups that benefit from using it to slow or stop construction of projects in California. Perhaps an initiative is the only way to make broad changes.  So, let’s consider its merits.

Very briefly and generally, CEQA requires that California state and local government agencies, before undertaking a project or granting authorization (a permit) for a project, must consider its potentially significant environmental impacts.  Depending upon potential impacts, there are different levels of environmental review.  The most detailed is preparation of an Environmental Impact Report or EIR, which must evaluate 19 resource areas, including but not limited to air quality, water quality, land use, housing, biological resources, hazards, traffic, tribal cultural resources, etc.  If the proposed project has potentially significant environmental impacts, the EIR must evaluate a “range” of feasible alternatives to the project, as well as mitigation measures, that might eliminate or reduce the impacts. The agency must allow public comment on the draft environmental review document. 

Ultimately, the “lead agency must certify that the final EIR has been completed in compliance with CEQA and that the information in the final EIR was considered by the agency before approving the project. Before approving the project, the agency must also find either that the project's significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits.”  Importantly, CEQA does not require an agency to approve any project.  Thus, the primary purpose of CEQA is to ensure than an agency considers environmental impacts, and how they might be avoided, when deciding whether to authorize a project.

I strongly support CEQA’s intent—government agencies should be informed about and consider a project’s environmental impacts, and how any might be eliminated or reduced, before deciding whether to approve it.  However, CEQA currently allows agencies to extend the environmental review process for years with repeated request for more information, more alternatives analysis, extended public comment periods, delays in certifying documents, etc.  While this extended process may sometimes uncover new and significant information, it also delays and increases the costs of projects that, if approved, have a public benefit.  So, these interests need to be balanced.

Prop. 45 is designed to speed up the CEQA review process for certain kinds of “essential” projects.  Let’s be clear—these “essential” projects cover a lot: housing projects, clean energy projects, water projects, public health projects, public safety projects, broadband internet access projects, education facility projects, and transportation projects.  They do not include nuclear power, oil or gas, jails, or commercial developments. 

Prop. 45 speeds up CEQA in a number of ways.  First, it sets deadlines for agency action on various processes (tribal consultation, pre-filing review, application review, completing the environmental document, and for judicial review). While aggressive, they are not unreasonable (e.g., 365 days to complete an EIR after application is complete).  Second, instead of setting a minimum public comment period, it sets a maximum time limit (e.g., 45 days for a draft EIR).  Third, it limits “second bites” so that an agency must specify all information required for a project application to be deemed complete and cannot repeatedly ask for additional information.  Fourth, after a “preliminary scoping process” where the agency and public can comment on the proposed project, the applicant must develop one proposed alternative to the proposed project that considers the input received and is compatible with its fundamental purpose, zoning and land use policies.  This is narrower than the “range” of feasible alternatives that agencies may currently require, but many agencies have required expensive and lengthy analyses of a very broad “range” pushed by every entity that would prefer a project be built elsewhere.  Fifth, environmental impacts are assessed based on laws and standards in effect when the project application was submitted, not later changes.  Sixth, if a court finds that the agency violated CEQA, the court can only stop the part of the project where the environmental review did not comply with CEQA while the agency fixes the problem.

I did not find the Prop. 45 opponents’ arguments particularly helpful or persuasive.  They talk about “fast-track the polluting projects you don’t want next door, with fewer protections for the water you drink and air you breathe.”  Not really—reducing the time in which public comments must be submitted does not allow pollution barred by other laws, nor is any agency required to approve a polluting project.  Prop. 45 opponents also suggest Prop. 45 will fast track “data centers,” but I don’t see how that fits into any of the “essential” project definitions. 

California needs more housing, infrastructure, schools, medical facilities, clean energy and wildfire prevention projects.  Prop. 45 does not exempt any such projects from environmental review or require any agency to approve them.  The timing deadlines may well push agencies to hire more staff or consultants (at applicants’ expense).  Project opponents will need to submit comments more quickly, but they can learn about the project in the preliminary scoping phase (60 days before filing), prepare their concerns while the draft EIR is being prepared, and 45 more days to comment on the draft EIR.  While limiting the EIR to the proposed project, one alternative project and “no project” (i.e., denial) may ignore other options, the agency may simply deny the project if it is not satisfied with the project or its alternative.  That leverage encourages the applicant to propose a project that it believes will be approved.

My one hesitation is that, where a statute is adopted by voter initiative, the Legislature may amend any later-discovered problems by adopting a new statute and submitting it for voter approval.  That makes it harder to fix any problems with Prop. 45 that may appear in practice.  That said, problems can be fixed and, as noted, agencies can deny any discretionary projects if they are not satisfied that such projects are in the public interest.

Because Prop. 45 does not exempt any project from environmental review and agencies retain the ability to deny permits to any discretionary project, I will vote in favor of Prop. 45 to speed review of the “essential” projects that California needs.

Environmental review in California has no clock, and finishing it buys no certainty. An agency can take years to review a housing project, and once it's finally approved a single lawsuit can void it and send everyone back to the start. The only guaranteed winner is whoever wanted nothing built.

Prop 45 puts the process on deadlines for essential projects. Agencies get 30 days to deem an application complete, 90 business days to rule on an exemption, and 365 business days to finish an environmental report, and an applicant can force a decision when an agency blows a deadline.

important protective measure to support communities who are fighting unwanted warehouses or freeways or some other evil thing being built. CEQA is flawed and needs reform, but this is one of the only good things about it. don't change it!