Let's Protect The Environment More Efficiently
California's "rollback" didn't really roll anything back -- it just exempted infill housing from environmental review. Which just highlighted the need to change the whole system.
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The recent “rollback” of the environmental review process in California has been hailed as a major victory for YIMBYS and the Abundance Crowd. Significantly, as I wrote on Monday, the rollback may represent the beginning of the end of what I called “Joni Mitchell Environmentalism” – the idea that the status quo is preferably and any change is inherently damaging to the environment.
But there’s a deeper question that hasn’t been addressed yet, either at the state or federal level: If Joni Mitchell Environmentalism is dying, should the whole concept of environmental review die with it
I usually don’t get too nerdy on Substack about the technical details about how urban planning works – that’s my day job – but it’s necessary here to explain where we go next after the California reforms.
A landscape in Riverside County protected by the Endangered Species Act.
The California “rollback” involves the California Environmental Quality, or CEQA, the state’s notorious law that requires environmental review of virtually every development project, including housing projects. There’s a federal equivalent, the National Environmental Policy Act, or NEPA, that applies only to federally funded public projects, not to private development projects.
It's important to understand that the California “rollback” wasn’t really a rollback. Very little about how CEQA works was changed. The main thing that happened was that infill housing projects – housing in existing urban areas – was exempted from CEQA. They may still have to go through a city’s approval process, but they are not subject to CEQA.
For most other projects, including infill projects that aren’t mostly residential, not much has changed. They’re still subject to the unpredictable and potentially time-consuming and expensive process of environmental review.
How Environmental Review Works
A trick question I always ask my California land use planning students is, “What is the purpose of CEQA?” A lot of them always answer, “To protect the environment” – and while that’s clearly the intent, it’s not the purpose.
As I said on Monday, I call NEPA and CEQA the “if only we’d known laws”. Way back in the ‘60s, there was a sense that we didn’t know what kind of environmental damage different types of infrastructure and development projects would do – and if only we’d known, we might have done things differently.
NEPA and CEQA, then, were designed to inform both decision-makers and the public about the potential environmental consequences of different projects, whether it was a federally funded highway (which would trigger NEPA) or a local housing development project (which would trigger CEQA). The decisionmakers can then choose to damage the environment if they want to move the project forward.
A typical CEQA process flow chart
The problem with NEPA and CEQA is that they’re process-oriented laws. They often lead to an open-ended investigation into potential environmental consequences and possible “mitigations,” as actions designed to minimize those consequences. Nobody ever really knows how much time or money will be required to get past a NEPA or CEQA process. CEQA in particular was designed to make it easy for citizen groups to sue, which of course led to the creation of lots of citizens groups (some of which have as their sole purpose suing under CEQA).
Yet, at the same time, we’ve got all these other environmental laws that actually have standards in them. At the federal level, among others there’s the Clean Air Act, the Clean Water Act, and the Endangered Species Act. All of them have environmental protection standards, either in the law or the regulation. There’s a standard for air pollution. There’s a standard for water pollution, and also for wetlands protection. And there’s a standard for determining when a species is endangered or threatened.
And while those standards may change depending on whether we have a Republican or Democratic presidential administration (the standard for what’s a wetland has been flipping back and forth for the last decade), at least we know what the standards are going in.
How To Protect The Environment More Efficiently
Here’s an example of how environmental standards can create more certainty in a way that helps everybody.
Starting in the 1990s, the Endangered Species Act – actually, both the federal and California laws – began to threaten new suburban development in California, especially Orange, Riverside, and San Diego Counties. On every project, developers had to set aside land for plants and animals or pay a fee, and they couldn’t predict in advance