The last thing the California Legislature should be doing during an ongoing housing crisis is voting to pass laws that make constructing any new housing harder and more expensive in the golden state. Yet, last week the California Assembly did just that by passing AB 1001 (C. Garcia), a bill that proposes to redress historical land use injustices by expanding the California Environmental Quality Act (CEQA) to create new avenues of litigation and limit local government’s ability to mitigate environmental impacts for all types of housing projects, from 100% affordable to market rate units.
AB 1001 proposes to greatly expand CEQA by injecting new, highly subjective, non-quantifiable and litigation-bait standards into the statute. In attempting to address environmental justice concerns through CEQA as the bill proposes, AB 1001 winds up substantially aggravating one of the state’s most intractable problems: a housing crisis inextricably linked to its inability to produce housing quickly and cost effectively. Despite laudable intent by the author, the bill is unwise and unnecessary because it will further exacerbate the ongoing housing crisis by overlaying onto local governments new subjective standards into a broken statute already abused by “Not In My Backyard” (NIMBY) housing opponents.
While CEQA is not the sole reason for the skyrocketing housing prices, it is a major element that is used to suppress much needed housing construction. That is why it is unwise for the Legislature to create new subjective standards in CEQA that will further drive up the costs on local governments to prepare the necessary environmental review documents and defend against NIMBY abuses of CEQA aimed at delaying or blocking new housing projects . Project opponents can already levy a plethora of legal challenges to housing projects under CEQA and only need to be successful on a single element to block the project approval. NIMBY neighbors already can stop 100% affordable infill housing projects under the guise of environmental protection by claiming “environmental impacts” from obstruction to their views. Injecting new subjective standards into CEQA about what is “fair” or “meaningful involvement of all incomes”, as AB 1001 proposes to do, will create new avenues of litigation for anti-housing opponents to use to block or delay even more housing.
The bill is unnecessary because CEQA already prohibits lead agencies from approving projects with significant environmental effects to any community, including disadvantaged communities, where there are feasible alternatives or mitigation measures that lessen or avoid those impacts. As part of CEQA’s enforcement process, local agencies must also adopt a program for mitigation monitoring or reporting per CEQA Guidelines, § 15097, subd. (a).) The purpose of these monitoring and reporting requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. Notably, CEQA already requires that any alternative or mitigation of a project’s impacts must have a nexus that directly addresses the ways it will reduce or eliminate the project’s impacts to that community or subgroup. (See CEQA Guidelines, § 15041, subd. (a) [noting need for “nexus” between required changes and project’s impacts].)
Additionally, AB 1001 is unnecessary because the California Legislature already passed SB 1000 (Leyva) that does exactly what this bill is trying to do, but in a more appropriate area of law where cities can evaluate their entire jurisdiction to more equitably site land uses. SB 1000 requires every city and county to adopt an Environmental Justice land use elements into their comprehensive, long-term General Plans. This process is still underway as evidenced by the Governor’s Office of Planning & Research’s most recent 2020 EJ Guidance to cities and counties.
The Legislature should allow local governments to implement the laws it recently passed before stacking new ones that exacerbate known problems. We are already seeing new laws passed by this Legislature intended to help address the housing crisis blocked by NIMBYs. AB 1001 empowers anti-housing project opponents by providing them with new legal arguments that local governments will be at a significant disadvantage to defend against.
Instead of comprehensive CEQA reform that promotes the legacy of protecting human health and the environment while eliminating the exploitation of the statute for non-environmental reasons, the California Assembly did the exact opposite by expanding CEQA unnecessarily to the detriment of all Californians hoping for more affordable housing.