Category Archives: Environmental review

Walking Back CEQA Protections Will Leave Californians Paying the Price for Ignoring Impacts

Introduction from Elizabeth Patterson, July 30, 2024

CEQA is the strongest planning tool we have. Before CEQA we had hydraulic gold mining ruining hills and raising Sacramento River by 15 feet – due to washed out sediment – making navigation difficult.

Before CEQA, and after gold, we had timber harvesting cutting down the world’s oldest and tallest trees.

Before CEQA we had water development, which led to crashing salmon species and extirpation of many native fish, and subsidence of 30+ feet that we the taxpayer are paying for – the repairs caused by private industrial farms over-pumping groundwater.

CEQA helped us focus on consequences of land development, thus protecting CA coast for all Californians not just wealthy property owners. CEQA helped us correct some water diversions thus recovering streams for fish.

CEQA helped identify cumulative effects of multiple projects.

CEQA provides consistent checklist to consider impacts and change design to avoid significant impacts.

CEQA can be used for selfish reasons, but MOST projects are approved, while few are challenged.

The development machine is the last extractive activity focused on wrecking land for ill-advised development. CEQA constrains bad projects. It’s not perfect, but it’s the best tool we have. Without it we will do to the land what we have done for gold, timber, and water. Mining California is profitable for a few, but leaves a wounded state for the rest of us. We pay the price for ignoring impacts.

For the life of me, I can’t understand how people making decisions think that build-build-build anywhere solves problems perpetrated by major land investors flipping it for a buck.

Addressing the wage gap is a good first step. Addressing capital gains tax to help fund affordable housing is a good step. Preventing corporate land speculation works. All of these actions actually address the root cause of affordable housing.

But no, the dismantling of the best planning tool in California is being proposed.

How sad. Half a century of clear-eyed assessment is in the way of bulldozing our way to ruin.

Little Hoover Commission’s Recommendations Undermine Fundamental CEQA Protections

Image by BenIndy, not original to the post.

Daily Journal, by Jennifer Ganata and Douglas Carstens, June 10, 2024

The Little Hoover Commission’s recent report, CEQA: Targeted Reforms for California’s Core Environmental Law, proposes to amend the California Environmental Quality Act (CEQA) in six areas and recommends “in-depth studies” of several others. While Commission Chair Pedro Nava notes that California has “incalculably benefited from CEQA,” the report’s specific proposals would make fundamental changes to the law, dangerously undermining CEQA’s protections for communities and the environment.

The Little Hoover Commission is supposed to be a fact-finding body. Its charge is to perform the difficult task of collecting facts—hard evidence, verifiable data—to identify specific problems to be solved through legislative action. Here, the Commission failed to perform that function: not only are the report’s proposals to weaken CEQA unsupported by credible evidence, but in some cases, the report’s own facts and analysis contradict its recommendations.

The report characterizes its “reforms” as “targeted and limited,” measures that would “improve the functioning of CEQA … without sacrificing necessary environmental protections.” The public should not be fooled. The proposed amendments would dismantle key elements of CEQA, weakening environmental review requirements and threatening communities’ ability to enforce the law in court. Further, the report recommends these changes even while acknowledging “[o]ften CEQA’s protections have been most profound in the most disadvantaged in vulnerable communities, where negative environmental impacts have often been the greatest in the past.” Why would the Legislature choose to weaken CEQA when the state’s vulnerable residents most need its protections?

Five “reforms” exemplify the Commission’s determination to roll back longstanding CEQA protections.

First, the report proposes a new limitation on plaintiffs’ “standing” in CEQA cases, a restriction that does not apply to any other public interest litigation in the state. If adopted, this proposal would have a chilling effect on meritorious CEQA claims, closing the courthouse doors to many community members seeking to enforce law. Tellingly, the report includes no specific analysis or findings to explain the need for this drastic change.

Second, the report recommends an extreme proposal to restrict the public’s right to comment on environmental documents; the restriction would apply to any project, no matter how destructive. This proposal would undercut CEQA’s longstanding guarantee of public participation in the land use process—a hallmark of the law. Frontline communities already overburdened by pollution should not be prevented from speaking out against harmful developments. Their comments on environmental documents do not stop projects, but improve them.

Third, the report proposes a new, “simplified” exemption for all housing on sites that are at least three quarters surrounded by existing urban uses, “with no conditions or qualifications.” If adopted, this change would represent a radical departure from the Legislature’s previous approach to CEQA exemptions. Unlike previous legislation, this exemption would include no requirements to protect natural and cultural resources and no condition that some housing units be affordable. Nor would the exemption include any restrictions on the location or size of the project or any other safeguard against urban sprawl. Indeed, the “simplified” measure would be broader than any housing exemption ever enacted by the Legislature.

Remarkably, the report does not attempt to explain the need for this extreme measure. Instead, it concedes the Legislature has already adopted broad new exemptions for housing in 2023, and opines that “the state should wait to measure the success of recent reforms before embarking on major additional changes.” The Legislature should follow this advice, taking the time to assess how existing exemptions are working—and their possible pitfalls—before adopting new ones. They should also focus on the real impediments to housing production, such as high land and construction costs, high interest rates, market timing by developers, and lack of subsidies for affordable housing. Additional proposals to exempt housing from CEQA review will not solve the housing crisis because—as multiple experts have found—CEQA didn’t cause the crisis in the first place.

Fourth, the report recommends that the Legislature study a proposal requiring plaintiffs to post bonds when filing CEQA challenges to certain types of development projects. This extreme proposal would effectively do away with CEQA enforcement for such projects, as non-profit organizations, who already bear a heavy financial burden in bringing CEQA actions, could not afford the risk of paying the bond if they lose. Citizen suits are the primary driver behind CEQA enforcement, with the Attorney General bringing enforcement actions only rarely. Thus, where bond requirements are imposed, CEQA could be violated with impunity.

Fifth, the report recommends that the Legislature study a proposal that would permit lead agencies to “lock in” analytical models for “some reasonable period” regardless of any new scientific information that might emerge. This proposal is misguided. Allowing agencies to approve development projects based on obsolete science or discredited data undermines effective decision-making and threatens California’s environment. Again, the report provides no justification for this dangerous proposal. In particular, it does not document its claim that agencies must “throw out” analyses when new modeling options become available.

These proposals, long sought by the building industry, are not targeted “reforms,” but major alterations to CEQA’s essential components. If they are implemented, Californians will lose the vital protections that CEQA has provided for half a century. Projects that threaten public health and/or natural resources could go forward without transparency and mitigation—exactly the problem CEQA was designed to address. Environmental justice organizations and other vulnerable California residents would suffer the most. Because the report never makes a case for such a drastic transformation, the Legislature should view it with great skepticism.

Jennifer Ganata is Communities for a Better Environment’s (CBE) Legal Department Co-Director. CBE is one of the preeminent environmental justice organizations in the nation. Prior to becoming Legal Department Co-Director in 2024, Jennifer was CBE’s senior staff attorney since 2018.

Douglas P. Carstens is board president of the Planning and Conservation League and managing partner of Carstens Black & Minteer LLP. His law firm specializes in environmental, land use, municipal and natural resources law.

This article originally Appeared in the Daily Journal on June 10th, 2024.

Seeno attorneys request new trial – Save Mount Diablo says motion “Should be denied”

Seeno’s attorneys request new trial following Save Mount Diablo legal victory against Faria project in Pittsburg hills

The Pittsburg hills where the Faria project has been approved for construction, as seen from the San Marco neighborhood in Pittsburg. Photo: Scott Hein
607-acre, 1,650-home development next to planned Thurgood Marshall Regional Park – SMD leader says motion for new trial “should be denied”

Contra Costa Herald, by Allen D. Payton, March 3, 2022

Last Friday, Feb. 25, 2022, attorneys representing Discovery Builders and their Faria new home development requested a new trial for the lawsuit by Save Mount Diablo, following a judge’s decision in favor of the environmental group to stop the project. As previously reported, on March 30, 2021, Save Mount Diablo filed a lawsuit challenging the City of Pittsburg’s approval of the 1,650-unit Faria project, on the ridgeline between Pittsburg and Concord. According to the agenda item documents, the master plan overlay district encompasses approximately 607 acres of land. (See related article)

The motion for a new trial was filed “on the basis that the Court’s decision is not supported by the evidence and controlling legal authorities. Specifically…that there were several portions of this Court’s February 10, 2022, Statement of Decision that may not have fully considered evidence in the administrative record.” In addition, the motion asks that the “Court vacate its Statement of Decision and enter a new decision denying SMD’s motion” and “conduct a new hearing”. Faria project Motion for New Trial Parsons Dec. ISO Mot for New Trial      Raskin Dec. ISO Mot for New Trial    Faria project new trial Proof of Service

A hearing date on the motion for a new trial has been set for April 14, 2022.

The now named Thurgood Marshall Regional Park is directly adjacent to the Pittsburg City Council approved Faria project. Herald file graphic. Credit: Save Mount Diablo/Google Earth.

On the day of the decision, Save Mount Diablo issued the following press release about their legal victory: [Previously published here on BenIndy, see Save Mount Diablo Wins Major Legal Victory Against Seeno to Protect Pittsburg’s Hills.]

Save Mount Diablo Says Motion for New Trial “Should Be Denied”

Asked about the motion for a new trial, Save Mount Diablo Executive Director, Ted Clement responded, “Regarding the Seeno companies/Pittsburg request for a new trial, the Court has already rejected their arguments for reasons fully set forth in its decision. Their Motion for New Trial does not question the adequacy of the administrative record on which the Court properly based its decision (and which the City itself prepared) or suggest there was any other irregularity or unfairness in the hearing. Instead, they seek a second bite of the apple.”

“Their Motion reargues issues that were fully briefed and addressed in the Court’s Decision,” he continued. “They also seek to introduce irrelevant and improper extra-record evidence, violating black letter law that CEQA actions must be decided on the record that was before the agency when it made its decision.”

“Because their Motion provides no basis for this Court to order a new trial solely on the issues decided adverse to them, it should be denied,” Clement concluded.

SEENO News: Save Mount Diablo Wins Major Legal Victory Against Seeno to Protect Pittsburg’s Hills

former-CNWS-and-Pittsburg-hills-Cooper-OgdenEast County Today, Feb 22, 2022

CONTRA COSTA COUNTY — On February 10, 2022, the Contra Costa County Superior Court handed Save Mount Diablo a major victory in its legal challenge to the City of Pittsburg’s approval of the 1,650-unit Faria/Southwest Hills Project.

According to the ruling, the city’s environmental review was inadequate in numerous ways. Faria was proposed by Seeno companies/Discovery Builders, Inc./Faria Investors LLC on the spectacular and highly visible major ridgeline between Pittsburg and Concord and could include grading and houses visible across the ridge.

As a result, the City of Pittsburg is required to overturn approvals for the project and correct environmental review. The city and Seeno/Discovery Builders will also be required to pay Save Mount Diablo’s legal fees.

It remains to be seen whether the developers, Discovery Builders, Inc. and Faria Land Investors, LLC, or the City of Pittsburg will appeal the decision.

The Pittsburg City Council—then-Mayor Merl Craft; then–Vice Mayor Holland Barrett White; and Councilmembers Shanelle Scales-Preston, Juan Antonio Banales, and Jelani Killings—all voted to approve the proposal in February 2021. (The mayor and vice-mayor designations rotate among the councilmembers.) They ignored hundreds of letters and public comments that opposed the project. Save Mount Diablo filed a lawsuit challenging the project’s approval in March 2021.

If the project had moved forward, it would have meant the development of a major, new residential subdivision on 606 acres of ridgeline and hillside grazing land in what is currently unincorporated Contra Costa County, immediately south of the City of Pittsburg.

The biologically rich site supports sensitive wildlife species and rare plants and is in one of the most visible and most environmentally constrained areas of the county. The Faria project would have fragmented open space and damaged wildlife corridors.

The proposed housing development would have changed the beautiful green hills forever by annexing the property to the City of Pittsburg and locating 1,650 new residences far from jobs, transit, and services.

The Faria project would have also impacted the new East Bay Regional Park District (EBRPD) Thurgood Marshall Regional Park – Home of the Port Chicago 50 at the Faria site’s southwestern edge, formerly part of the Concord Naval Weapons Station. Save Mount Diablo and its partners advocated for the creation of this new park over many years. The Faria project would have been located directly above the new park on a ridgeline, degrading views from surrounding areas.

The Contra Costa Superior Court ruled that the City of Pittsburg’s environmental review of the project was inadequate in four major ways:

  1. It failed to analyze any impacts that would results from the 150 accessory dwelling units that were added by the City of Pittsburg at the last minute. This is important because the number of units affects every part of environmental review from traffic to water supply to schools, etc. and will make correcting the environmental review complicated;
  2. It failed to include a baseline description of biological resources that could be impacted by the project, specifically special-status plant species;
  3. It failed to consider the water supply impacts of adding 1,650 new housing units in the area, which is especially important given years of drought and increasing fire danger; and
  4. It failed to adequately disclose or mitigate the project’s air quality impacts, including greenhouse gas impacts, without which development will continue to make the climate crisis much worse.

“The court’s decision says to developers: ‘You don’t get to kick the can down the road. You have to do a thorough analysis of your project’s impacts before you lock in project approvals,’” said Winter King, Save Mount Diablo’s attorney from Shute, Mihaly & Weinberger. “The court got it right.”

The court’s ruling means that the City of Pittsburg’s approval of the project is null and void.

The court also noted that additional impacts—such as geologic hazard impacts resulting from grading and filling, and impacts on streams and agricultural lands—would need to be addressed in more detail.

Save Mount Diablo Executive Director Ted Clement said, “Throughout the East Bay, residents have worked hard to protect our ridges and views, flora and fauna, and to defend our parks. In this case that was just decided in our favor, Save Mount Diablo had to stand up against some very powerful interests to help further the work of protecting these treasured resources, which add so much to our collective quality of life.”

“Although I’ve worked for Save Mount Diablo on this issue, I’m also a Concord resident,” said Juan Pablo Galván Martínez, Save Mount Diablo’s Senior Land Use Manager. “This project infuriated me as an open-space lover, a wildlife enthusiast, and someone who is deeply worried and taking action to stop catastrophic climate change. Since this affects both cities, I want both city councils to work together to protect the hills and ridgeline.”

“This is a major victory for Pittsburg’s hills,” stated Save Mount Diablo Land Conservation Director Seth Adams. “Open space, habitat for wildlife, and the community’s scenic views have won the day, and poorly planned development will not go forward, for now. We are very happy with the court’s decision.”

“On the other hand,” said Adams, “while our victory is costly for the city and Seeno/Discovery Builders in time and money, it does not stop the project forever. After correcting environmental documents, the Pittsburg City Council can approve Seeno’s huge project again if they choose. But now they have a second chance to make it better by protecting the ridgeline and neighboring regional park. We don’t have to argue about protecting ridgelines in other cities. The Pittsburg City Council should do the right thing.”


­­­­Save Mount Diablo

Save Mount Diablo is a nationally accredited, nonprofit land trust founded in 1971 with a mission to preserve Mount Diablo’s peaks, surrounding foothills, watersheds, and connection to the Diablo Range through land acquisition and preservation strategies designed to protect the mountain’s natural beauty, biological diversity, and historic and agricultural heritage; enhance our area’s quality of life; and provide educational and recreational opportunities consistent with protection of natural resources. To learn more, please visit www.savemountdiablo.org.

Orcem/VMT Letter: Environmental Misdirection

Repost from the Vallejo Times-Herald, Letters

Environmental misdirection

By Jeff Carlson, March 12, 2019 at 6:00 am

The corporate interests desperate to salvage an ill-conceived waterfront slag cement mill application, now staggering on its last legs under appeal, will attempt to pull off a sly last minute magic trick. Like most magic tricks, it relies on misdirection to draw the observer’s attention away from what they should really be looking at. Instead of talking about community values and our aspirations for the future character of our city for decades to come, the applicants want us to focus on the arcane intricacies of a technical environmental review process.

It’s a cynical calculated strategy designed to take a process intended to inform decision-makers and the public and turn it into an inaccessible debate among “experts” — impossible for the general public to follow or critically evaluate. Just check out the EIR analysis of traffic impacts from all the heavy diesel truck and crosstown freight train trips the project would generate at various intersections. See if you can make heads or tails of how they arrive at their numbers. Likewise for the modeling of the impacts to air quality from all the various pollutants the project would release. One more version of an environmental report and re-hash of emissions thresholds and mitigations adds nothing useful to the discussion, but the applicants are determined to create the illusion that the decision should hinge on nothing else.

The city staff who worked on this project application for years recommended that the permits be denied, not because the project crossed this or that threshold of significance in the environmental review, but because a heavy industry project in that location is fundamentally incompatible with the surrounding neighborhood land uses. The city commission primarily responsible for making rational decisions about land use compatibility and planning overwhelmingly agreed, and voted to deny the permits. The city’s general plan update process conducted at a cost of millions of dollars with broad public participation over a period of years resulted in a very different vision for a walkable connected waterfront, in line with the Bay Commission’s public access guidelines.

Why should we pay any attention to one more round of technical environmental analysis? If a deep-pockets corporation can pay experts-for-hire to come up with greatly improved numbers at this late date, it only goes to show what those numbers are really worth. It’s particularly galling after years of trying to avoid and game the environmental review process that the applicant’s would now so desperately cling to it as their last hope.

Former City officials and some members of the lead agency repeatedly demonstrated impermissible pre-approval of the project over a period of years prior to environmental review, beginning with the resurrection and transfer of a lease for public trust land with amendments that anticipate major impactful development. A one-vote majority of the Vallejo City Council colluded in secret with the applicants in a private planning initiative, and explicitly tied the goals of their ad hoc committee with approval of the project before even a first draft EIR was ready. CEQA requires that the public be allowed to evaluate and comment on an environmental analysis based on a stable project description. All the talk of trying to approve a final version of a radically altered project now without re-circulating a new draft EIR for public comment is not at all realistic and will never fly.

This decision is not about thresholds of significance or mitigation measures, it’s about what we value as a community and consider worth preserving and protecting. Residents in the proposed project impact zone already suffer some of the highest rates of pollution-related health effects in the state, including low birth weight babies and heart and lung diseases. No matter what a final EIR and the mercenary experts have to say, it won’t change the fact that instead of an accessible walkable waterfront, local residents would get heavy neighborhood truck traffic and another load of particulate and gas pollutants on top of the unfair burden they already carry.

Let’s ignore the magical misdirection and expert dog and pony shows masquerading as participatory public forums, and keep our attention focused where it belongs. The quality of economic development matters, and the old take-whatever-comes-along approach to city planning is completely irrational. The council is under no legal obligation to wait for another version of the EIR, and I’m sorry — the applicant’s fairness argument is laughable. This project was never worth anywhere near the resources and effort the city put into it, and the costs in terms of political division and acrimony continue to pile up. Time to pull the plug and turn out the lights on this magic show.

— Jeff Carlson/Vallejo