The California Environmental Quality Act (CEQA) requires state and local agencies to evaluate and disclose the significant environmental impacts of projects they approve and to avoid or mitigate those impacts if feasible. But CEQA’s presumption that nearly all projects are inherently bad for the environment has frequently been exploited to quash or delay projects that reduce greenhouse gas emissions and produce other public benefits. Among the targets of CEQA appeals and lawsuits are sustainable transportation projects such as sidewalks, bike lanes, and street improvements that speed up bus service.
SPUR Transportation Policy Director Laura Tolkoff contends that CEQA has been used to alter some transportation projects, often in ways that dilute their benefits, such as increasing safe and equitable access to jobs, schools, and parks. In testimony before the Milton Marks “Little Hoover” Commission on California State Government Organization and Economy last month, she argued that certain transportation projects could be exempted from CEQA without any loss of environmental protection or meaningful public participation. We asked Laura to expand on her remarks about the relationship between CEQA and sustainable transportation and the use of two senate bills as a case study for the act’s positive reform.
How and why has SPUR recommended that CEQA be updated?
There’s no doubt that CEQA is intended to, and does, protect biodiversity, the environment, and human health. But as currently designed, it can be used to keep government agencies from realizing projects specifically aimed at doing so. Ideally, CEQA would be updated to prevent sustainable transportation projects from becoming ensnared in legal battles that ultimately hurt communities, particularly those that already are disadvantaged. CEQA should mitigate, not exacerbate, racial and economic disparities. It should not be a roadblock to mitigating climate change.
SPUR co-sponsored Senate Bill 288 (Wiener) in 2020 and its successor, SB 922 (Wiener), in 2021 to create a statutory exemption from CEQA for a selection of sustainable transportation projects. Prior to the enactment of these laws, CEQA had not been revised to support sustainable transportation since 1972.
What exactly makes CEQA a powerful instrument for killing or holding up sustainable transportation projects?
First, it assumes that almost every project damages the environment — even projects designed to reduce climate pollution. Second, it allows anyone to appeal or bring a lawsuit against a lead agency’s decision to approve a project, often for reasons that have little to do with environmental protection. It can be — and is — used by individuals or groups to advance narrow interests, such as preserving parking spaces or avoiding traffic impacts, which offer little to no public benefit.
What are the consequences when projects are stalled by CEQA?
Three consequences are that we leave ourselves ever more vulnerable to climate change, fail to protect public safety, and allow racial disparities in access, mobility, health, and safety to persist.
The climate emergency demands that we double down on transit and other forms of sustainable transportation — that is, projects that reduce driving and greenhouse gas emissions. More than 40% of California’s greenhouse gas emissions come from the transportation sector, the majority from passenger vehicles. People drive and pollute less in places with high-quality transit, bicycle lanes, and sidewalks. Providing more sustainable and affordable transportation options is essential for limiting global warming to 1.5 degrees Celsius and avoiding the most devastating climate impacts.
Public safety can be at stake in the blocking of sustainable transportation projects. CEQA litigation on San Francisco’s bike plan held up 34 miles of bike lanes for more than four years. During that time, 9 cyclists died, and more than 2,000 cyclists were injured in the city. The appeal was not grounded in legitimate environmental concerns but instead based on parking and traffic impacts.
Sustainable transportation projects are needed to mitigate racial disparities in access to opportunity and exposure to environmental pollution. When a single business owner in Berkeley threatened a CEQA lawsuit over parking losses, the East Bay Bus Rapid Transit project was compromised. The project sponsor was forced to significantly scale the project back to run only between Oakland and San Leandro. This change left people who live in some of the most disadvantaged neighborhoods, like East Oakland and downtown Oakland, without affordable, high-quality, and efficient access to jobs, schools, and goods and services in the East Bay.
Exactly how does CEQA affect the ability of agencies to deliver sustainable transportation projects?
CEQA’s assessment of whether a project poses significant environmental impacts is the basis for many state and local approvals needed to build a transit or other sustainable transportation project. Each step of the CEQA process is subject to appeals and lawsuits that can increase project delays. Appeals can regularly take six months to resolve, and lawsuits can take much longer.
Project delays also increase project costs. These costs for public works projects tend to go up by 3% to 5% per year on average (and more, in today’s inflationary conditions). When projects are delayed, the costs inevitably go up. When projects cost more, we get fewer of them.
Project delays also lead to a collapse of ambition. Anecdotally, public agencies think twice about pursuing projects that they know will incur setbacks in the CEQA process, or they end up scaling down projects because of appeals and lawsuits. When the business owner mentioned earlier threatened to file a lawsuit under CEQA over parking removal, AC Transit significantly scaled down the East Bay Rapid Transit Project.
But some projects can obtain CEQA exemptions, correct?
Yes. There are two types of exemptions from CEQA: categorical exemptions and statutory exemptions.
Categorical exemptions apply to categories of projects that generally do not have significant environmental impacts. But even these exemptions first require significant environmental impact evaluations, and they can be challenged through appeals and litigation based on “unusual circumstances.” As a COVID-19 emergency response, San Francisco attempted to install temporary transit lanes and emergency bikeways using the Class 1 Existing Facilities Categorical Exemption. However, the project was appealed.
Statutory exemptions are for projects or types of projects specifically excluded from CEQA requirements by state legislation. Unlike categorical exemptions, statutory exemptions cannot be easily challenged through appeals or litigation, and the lead agency on the project need not conduct time-consuming initial studies. A statutory exemption provides more time certainty and cost savings than a categorical exemption. Only a very small number of exemptions are currently available for sustainable transportation.
SPUR co-sponsored Senate Bill 288 (Wiener) in 2020 and its successor, SB 922 (Wiener), in 2021 to create a statutory exemption from CEQA for a selection of sustainable transportation projects.
What makes SB 288 and SB 922 good models for how the state could approach CEQA reform in other policy domains?
SB 288 and SB 922 created targeted new exemptions from CEQA for some types of sustainable and active transportation projects and for multimodal transportation plans. and they do this while avoiding any loss of environmental protection. SB 922 provides targeted statutory exemptions through 2030 for transportation projects that
• Make streets safer for walking and biking
• Speed up bus service on streets and highways
• Construct infrastructure or facilities to refuel zero-emissions transit vehicles
• Expand carpooling
• Modernize and build new bus and light-rail stations and terminals
• Support parking policies that reduce drive-alone trips and congestion
• Improve wayfinding for pedestrians, cyclists, and transit users
To qualify for the exemption, project sponsors need to meaningfully engage communities in shaping projects. If project costs are projected to exceed $100 million, they also need to undertake a racial equity analysis and a residential displacement risk analysis, which strengthens procedural equity in project development.
How was the statutory exemption from CEQA used under SB 288 and what do you anticipate agencies will do with the new exemption under SB 922?
We did a study and found that within six months of becoming law, the exemption in SB 288 was used to advance 15 critically needed and community-supported sustainable transportation projects. Most were small-scale improvements for walking and biking that otherwise would have taken longer and cost more. We expect to see more projects like these throughout the state.