California's Landmark Environmental Law Finally Comes for the Legislature Itself

Golden State lawmakers have refused to fix the California Environmental Quality Act. Now it could cost them a brand new office building.

California's landmark environmental law has helped thwart state lawmakers' many, many plans for society. They're now thwarting lawmakers' plans for themselves too.

Last week, a California appeals court brought legislators' plans for a new office annex on the state Capitol grounds to a screeching halt when it ruled the $1.3 billion project had been greenlit without the requisite analysis of its environmental effects.

That ruling came in response to a lawsuit filed by Save Our Capitol!—a motley coalition of small business groups, taxpayer advocates, preservationists, and environmentalists—arguing that the public had not been given adequate opportunity to comment on the final design of the office complex and that the state hadn't put enough thought into less environmentally impactful designs.

Giving the unincorporated group the right to sue is the California Environmental Quality Act (CEQA).

The 1970 law requires that government agencies study the environmental impacts of their projects and, where possible, mitigate those impacts. That sounds simple enough. The original intent was to force the government to stop and listen to public feedback before paving over wetlands with a new highway project.

But the "citizen-enforced" law gives anyone the ability to file administrative appeals and lawsuits arguing that any of a long list of a project's impacts on natural, physical, cultural, and/or historic resources had not been adequately studied.

Over the decades, court decisions also extended the scope of CEQA to cover even privately sponsored projects (like a new single-family home or apartment building) that government bureaucrats had a minimal level of discretion over.

Today, the law effectively gives anyone with a few hundred dollars to spare the ability to hold up massive projects, public and private, for years or even decades with arguments that this or that impact hasn't been exhaustively examined in reports hundreds of pages long.

By delaying new homes for years (or some cases, decades), CEQA has become a major contributor to the state's housing crisis.

The law has enabled activists to hold up government projects—both wise and ill-advised. CEQA lawsuits helped derail California's high-speed rail project and delayed new bike lanes. The law has been an additional headwind on the state's overregulated marijuana industry.

CEQA made national headlines earlier this year when Berkeley activists successfully used it to freeze student enrollment at U.C. Berkeley on the grounds that the university hadn't adequately studied the environmental impact of its growing student body.

Enter the Capitol annex project. Back in 2016, the Legislature approved a plan to rebuild the existing 70-year-old, aging office complex that is reportedly riddled with asbestos and not handicap accessible.

The project quickly became controversial. A diverse array of critics contended that it was much too expensive, too disruptive of the historic Capitol grounds, would remove too many trees, and/or would be near defenseless against January 6th-style riots and other acts of political violence.

In November 2021, Save Our Capitol! filed a lawsuit arguing that the final design of the Capitol annex project differed significantly from the one that the public had had a chance to comment on during the CEQA-mandated review process.

Their petition was rejected by a superior court. But the California Third District Court of Appeals proved more receptive.

In a 63-page ruling, a majority of the court agreed that the state's Department of General Services—which was responsible for drafting the environmental impact report—failed to adequately study the visual impacts of a new visitor center that would be part of the project. They also agreed that alternatives to the finalized project weren't adequately considered.

The ruling means that the imminent construction of the new office space will have to stop while a new environmental impact report is prepared. Activists are sounding a triumphant note.

The court ruling will require state officials "to do what they should have from the start of the Project: fully evaluate the Project's environmental impacts, and consider and adopt feasible mitigation and alternatives," said Save Our Capitol! attorney Stephen Cook, adding that his group "is hopeful that, now, they will properly consider alternatives to the Project which do not involve decimating these irreplaceable historical resources."

There's a certain irony to a law that legislators have repeatedly shied away from fixing frustrating a project in their own backyard.

The problems with CEQA are well acknowledged and accepted. But the law remains a third rail of California politics: No one wants to touch it in a comprehensive way.

A wide range of interest groups, from unions to environmentalists to anti-Walmart activists, use it to stop projects they don't like or extract concessions from the project sponsor. Making CEQA less onerous requires taking on all those interest groups at once.

Instead of doing that, legislators have usually opted to pass one-off carve-outs to CEQA whenever it stops something truly popular or of particular interest to lawmakers.

After the U.C. Berkeley fiasco, the Legislature rushed through a narrow bill that undid the university's enrollment freeze. Later in the year, lawmakers also approved a bill exempting some public student housing projects from CEQA. But they didn't pursue more wholesale reform that would stop privately sponsored apartment buildings next to campus getting tripped up by CEQA.

Over the years, lawmakers have carved out exemptions for everything from new bike lanes and Olympic stadiums to new duplexes and supportive housing projects funded by one particular Los Angeles bond issue.

Sometimes these exempt beneficial activities from CEQA challenges. But with each exemption, the general case for CEQA reform is weakened.

That's regrettable. CEQA has been described as a "superstatute" and "the law that swallowed California." It's given litigious busybodies the ability to delay or stop almost anything new, whether that's a cannabis dispensary, a burger joint, or an apartment complex.

It's a law that requires wholesale reform, if not abolition. The dust-up over the Capitol annex project hopefully drives that need home to lawmakers, even if it doesn't spur them to action.