Holland & Knight Study Uncovers Widespread CEQA Litigation Abuse

SAN FRANCISCO (August 4, 2015) –  Law firm Holland & Knight today released the first comprehensive study of lawsuits filed under the California Environmental Quality Act (CEQA), systematically reporting on widespread abuse that undermines the state's environmental, social equity and economic priorities. The study, "In the Name of the Environment," analyzes all CEQA lawsuits filed in California over a three-year period and recommends reforms to rein in CEQA litigation abuse by extending transparency mandates to CEQA lawsuits, eliminating duplicative CEQA lawsuits for the same plan or project, and aligning extraordinary judicial remedies such as injunctions with conventional civil litigation practice.

Among the key findings:

• CEQA is not a battle between business and environmental advocacy groups: 49 percent of all CEQA lawsuits target taxpayer-funded projects with no business or other private sector sponsors.
• The most frequent targets of CEQA litigation are projects designed to advance California's environmental policy objectives. 
• CEQA's most frequently targeted public infrastructure project: transit.
• CEQA's most frequently targeted industrial/utility project: renewable energy.
• CEQA's most frequently targeted private sector project: housing – with the most frequently challenged type of housing project being higher density urban projects such as transit-oriented development and multifamily (including affordable) housing. 
• Despite claims by special interests that defend CEQA litigation by contending that it combats urban sprawl, 80 percent of CEQA lawsuits target infill projects in established communities rather than greenfield projects on undeveloped or agricultural lands outside established communities.
• CEQA litigation is overwhelmingly used in cities. Special interest CEQA lawsuits often target core urban services such as parks, schools, libraries and even senior housing.
• Sixty-four percent of the petitioners filing CEQA lawsuits are either individuals or local "associations" that often have no prior track record of environmental advocacy. By contrast, recognized state and national environmental advocacy groups comprise only 13 percent of CEQA petitioners.
• CEQA litigation abuse is primarily the domain of Not In My Backyard (NIMBY) opponents and anonymous new unincorporated entities, including those using CEQA litigation tactics to gain leverage against business competitors, negotiate union agreements, or stop neighborhood-scale changes required to meet new state mandates such as greenhouse gas reductions or improve critical local services and facilities such as schools and parks.

"CEQA has been singled out as one of the key causes of runaway housing prices and as a major reason California has fallen far behind other states in creating, retaining and onshoring the middle-class manufacturing jobs that have helped create a manufacturing renaissance in other states," said Jennifer Hernandez, the head of Holland & Knight's West Coast Land Use and Environment Group and lead author of the study. "Ending CEQA litigation abuse is the most cost-effective 'incentive' available to restore California's middle-class job base and make housing more affordable, assure that taxpayer funds are spent on projects not process, and meaningfully improve the future of the nearly nine million Californians whom the U.S. Census Bureau reported were living in poverty."

"CEQA litigation abuse is real, it is harming people – especially the poor, the working class and the young – and it is hindering rather than advancing critical environmental priorities," Ms. Hernandez continued. "Of greatest concern at a policy and political level, CEQA litigation abuse allows polite, passionate neighbors to oppose change in the name of the 'environment' even when such change is required to address critical environmental priorities such as climate change. CEQA litigation abuse also allows parties seeking to advance non-environmental objectives to anonymously sue – again in the name of the 'environment' – to gain leverage against competitors, employers and taxpayers."

The study recommends three reforms to curtail CEQA litigation abuse:

• Requiring those filing CEQA lawsuits to disclose their identity and environmental (or non-environmental) interests.
• Eliminating duplicative lawsuits aimed at derailing plans and projects that have already completed the CEQA process.
• Preserving CEQA's existing environmental review and public comment requirements, as well as access to litigation remedies for environmental purposes – but restricting judicial invalidation of project approvals to those projects that would harm public health, destroy irreplaceable tribal resources or threaten the ecology.

It concludes that these moderate reforms will end lawsuit abuse and return CEQA to its mission of protecting the environment and public health, informing and involving the public, and assuring transparency and accountability for agency decisions that affect the environment.