Opponents of CEQA challenges can expect to win more than half of the time, according to a recent study released by Holland & Knight. Prompted by the ongoing debate on the future of CEQA and the need to modernize, the study evaluated 95 CEQA case studies from 1997 to 2012 which were subject to the greatest level of environmental scrutiny: Environmental Impact Reports. Among its findings, the report demonstrates:
- 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.
- CEQA litigation is mostly about non-polluting projects. Fewer than 11% of these cases involve industrial projects.
- CEQA litigation is not just about “developers”: More than one third of the challenged projects (39%) are public agency projects, and the most commonly challenged types of projects targeted public infrastructure (19%).
- CEQA litigation shelters anonymous interests: The vast majority of cases – 73% – were filed by local organizations. State and regional-level organizations (e.g., environmental organizations such as the Sierra Club) were only involved in 26% of the cases, most of the time in tandem with a local organization. 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.
- CEQA litigation almost always involves environmental issues that are already regulated by other environmental laws, and already addressed in local land use plans. In the cases in which courts found an EIR deficient, the adequacy of water supply (34%), traffic impacts (25%), and air quality impacts (25%), were the most likely to be identified as inadequately analyzed and/or mitigated. There are adopted legislative and regulatory standards about water supply and most types of air quality issues, and local governments have land use plans (typically adopted after a plan-level EIR) that address traffic impacts. For infill projects specifically, there are increasingly local land use plans that address traffic impacts (with policy overrides on traffic congestion at the intersection level, to promote walkability and transit). Projects that comply with adopted standards and comply with adopted plans still get sued (and lose) under CEQA.
For more information contact Bryan Starr, Senior Vice President of Government Affairs.