July 30, 2012
California flirts with new environmental review exemptions for infill projects
Anyone who has practiced or studied land use law in a state with a strong environmental review process knows how that environmental review process often comes to override the land use permitting process. In particular, urban projects have often suffered from an environmental review process that works better for reviewing greenfield projects, and also from more litigious groups of neighbors that use environmental review procedures either to oppose the project, or seek "mitigations" that benefit neighboring property owners. On the other hand, efforts to ease the environmental review burdens on infill projects often run into a roadblock of environmental groups that believe exemptions for infill projects will likely only lead to more exemptions and a gutting of the entire law itself (the "slippery slope" argument).
This fight has been ongoing in California, and other states, for decades. Several infill exemption provisions from the state's California Environmental Quality Act ("CEQA", pronounced "SEE-kwa") look good on paper, but are essentially unworkable if there are litigious parties involved. Such unworkable exemptions are in the state's landmark SB375 legislation that seeks to link land use and transportation: the list of requirements for applicability of the exemption apply to, well, about absolutely nowhere. Another unworkable exemption is CEQA Guidlines section 15332, which is seldom used where litigation is possible.
With the passage of SB 226 in 2011, however, the state is once again taking a hard look at exemptions for urban infill projects. Under a mandate of SB 226, the Governor's Office of Planning and Research, now headed by Ken Alex, a well-respected former senior assistant attorney general who ran the California Attorney General's environmental division, has drafted a proposed new CEQA Guideline for urban infill exemptions that was released on June 25, 2012 after epic public commenting. The proposed CEQA Guideline is now going through formal rulemaking processes at the state's Natural Resources Agency. A cheat sheet on the new proposed infill exemption is available here. If you want to keep up-to-date on the California infill exemption hearings, you can do so by adding your name at this link.
California's purpose for pursuing the infill exemption is now structured in terms of the climate change debate, but decades ago, the need for such legislation was structured in terms of "sprawl" or "smart growth." We all know that it is harder to build in urban areas than in greenfields, and there needs to be a way to level that playing field and encourage urban infill. Following this latest effort in California will be a chance to watch this debate unfold once more, and now in the framework of the climate change debate.
Stephen R. Miller
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