Holland & Knight Releases Comprehensive Study of California Environmental Quality Act
23 Jan, 2013
Holland & Knight recently conducted an analysis of litigation over the past 15 years to determine which types of projects are most often the target of lawsuits filed under the California Environmental Quality Act (CEQA).
Holland & Knight, a law firm that frequently handles CEQA cases for both public agencies and private entities, reviewed all 95 published court decisions from January 1997 to February 2012 in which a CEQA lawsuit challenged the adequacy of a project’s Environmental Impact Report at the California Court of Appeal or Supreme Court.
Among key findings of the analysis:
- CEQA litigation is aimed more often at infill than greenfield projects. Of the cases which could be characterized as involving “greenfield” or “infill” projects, 59% involved infill projects.
- More than a third (36%) of projects challenged were public agency projects like schools, hospitals, roads and universities.
- The most commonly-challenged types of projects are infrastructure projects and mixed use development (19% of cases each).
- CEQA litigation is mostly about non-polluting projects. Fewer than 11% of these cases involve industrial projects.
- CEQA litigation shelters anonymous interests: The vast majority of cases – 73% – were filed by local organizations. Forty three percent (43%) of the local organizations are unincorporated associations, which do not need to disclose their members (or the potential non-environmental economic or other interests of their members), when filing CEQA lawsuits.
“This analysis flies in the face of the notion promoted by some that CEQA is only being used to stop polluting projects or projects outside the urban boundaries,” said Jennifer Hernandez, head of Holland & Knight’s West Coast Land Use and Environment Practice Group and author of the analysis. “Clearly, CEQA is most frequently used to stop infill developments, public works and public infrastructure that are vital to grow our state responsibly and in an environmentally conscious manner.”
“As CEQA litigation works in practice, a project with many neighbors will always pay a much higher price than a project with very few,” said Daniel Golub, an associate in Holland & Knight’s West Coast Land Use and Environment Practice Group and a co-author of the analysis. “CEQA serves many important goals, but it is time to ask whether there is anything ‘environmental’ about burdening sustainable growth disproportionately to suburban sprawl.”
The Holland & Knight analysis builds off of a previous report conducted by the Thomas Law Group of the same 95 published CEQA court decisions. That analysis looked at whether or not the 95 cases won or lost in court when they were challenged. The review found that even when a project undergoes an extensive Environmental Impact Report (EIR), in which environmental impacts are evaluated and mitigated to meet all local, state and federal environmental laws, the project is rejected 50% of the time when a court challenge is brought under CEQA.
“Even when a public or private entity does everything they’re supposed to do, including completing an EIR, the odds of losing a CEQA lawsuit is essentially a coin toss,” said Gary Toebben, President & CEO of the Los Angeles Area Chamber of Commerce and a co-chair of the CEQA Working Group. “No public entity or private business can adequately plan with a 50/50 chance of being stopped by a lawsuit.