The Bay Area is often associated both with the beauty of its natural environment and the skyrocketing living costs. Both have been viewed lately as being in tension. Should the The ridge that separates Pittsburg and Concord be developed for 1,650 new houses, or preserve the open space and “watch people move to Texas,” as the San Francisco ChronicleIt was the headline. Should UC BerkeleyShould Berkeley allow more students to be enrolled? Or is the potential environmental impact on Berkeley’s current residents outweighing the benefits? Should the As to build a stadium at Howard Terminal and housingShould the Oakland waterfront be closed to development to prevent environmental damage to a community already plagued by high levels of water and air pollution?
In each case, the lawsuits turned to the California Environmental Quality Act (or CEQA) in order to highlight the conflict between new housing developments and California’s environmental protection legacy. However, Many national stories are widely readWhile most of the discussion has been about how CEQA allows neighborhood groups and other groups to block development in their area, a CEQA case involving Newark’s wetlands and housing illustrates some of the criticisms levelled at the law by conservationists who claim that it is too rigid for the changing environmental threats posed by a dynamic world.
I don’t think that anybody really thinks that CEQA works exactly how it’s supposed to, says Eric Buescher, an attorney with San Francisco Baykeeper, a non-profit organization that works to protect the Bay’s health. Developers claim it is too restrictive. Cities claim it is prohibitively expensive and difficult to follow. Environmental groups say you can’t even get a project that is going to be built for sea level rise reviewed in time for sea level rise.
CEQA was established in 1970 following the National Environmental Policy Act. Look before they leapTo reduce and assess any significant environmental impacts of new projects and keep the public informed as to how and why these decisions were made. The statute requires that Approval process in phasesFor any project.
A preliminary review is done after a project is initiated to ensure that CEQA is applicable to it. If CEQA approval is required, a study will be done to identify areas where the development could have adverse environmental effects and whether it conforms to other environmental laws and plans. If the law considers the impacts to be significant, it will require an environmental impact report (EIR) which evaluates the potential effects of the development on the area’s population, traffic, schools and fire risks. It also assesses the effect the development would have upon the area’s population, traffic, schools, traffic, traffic, schools, fire risk, endangered species, archaeological artifacts, and aesthetics. It also involves creating alternative plans and holding public hearings so that residents can comment to ensure accuracy.
CEQA can be used as a planning tool for many purposes. However, because of its overarching nature, it can also be used by almost everyone. This is why the implementation of CEQA has so often seen developers and residents vying for local planners in a region that is facing a growing climate crisis and homelessness.
Buescher states that if you give everyone a chance to veto, there will be some strange or unintended outcomes. For example, you might get a judge who misses something or interprets law in a certain manner, or a plaintiff who is pursuing a particular agenda. This is not the intent of CEQA.
While the Berkeley story dominates the news cycle, Newarks Area 4 development has been a source of controversy since the city designated it for development in early 1990s. Environmentalists long sought to add Area 4 of the Don Edwards San Francisco Bay National Wildlife Refuge to protect the area’s wetlands and allow them to migrate inland in the event of rising sea levels.
After a prolonged battle, the 2022 Winter Olympics were won. Citizens Committee to Complete the Refuge (CCCR), lost a CEQA appeal before California’s 1st District Court against the City of Newark, removing one final roadblock to the construction 469 single-family, low-density homes on elevated peninsulas near Newarks shore.
The Federal Emergency Management Agency manages most of Area 4.AE flood hazard zoneThis means that the city is already at risk from flooding and would be inundated by what hydrologists refer to as a 1-percent storm. According to the EIR the city plans to build floodwalls or levees on top of the flood-prone areas. This is in case flooding becomes more frequent in the future.
The EIR did not assess the impact of floodwalls and levees that the project would require, however, opponents of the development made their case in court. Although one set of floodwalls or other levees won’t make a huge impact on the Bay, if all cities do it, it could cause cascading impacts across the Bay. You can find out more about the Bay at www.bay.gov. 2021 article in the Journal Proceedings of the National Academy of SciencesMichelle Hummel, University of Texas Arlington civil engineering professor, and her colleagues found that floodwalls on a city scale could help to prevent flooding in certain areas while also causing flooding in other areas. Newark’s decision now to build on the shoreline makes is very likely that it will later build those walls to protect residents, an impact CEQA doesn’t force anyone else to consider.
Buescher wrote an email that he said that by developing now in an area where we know it will be inundated, he committed us to specific actions for the future. Building a wall around one place to protect its residents exacerbates the impact of sea level rise on nearby communities at the same time it limits those communities’ options to respond. CEQA, as it stands now, does not consider future commitments or assess the environmental impact of these future actions. We approve projects without considering long-term regional impacts. This limits the future flexibility to respond to the effects of sea level rise.
Citizens Committee to Complete the Refuge argued before court that Newark should address the negative environmental effects the measures would have on the environment. The judge disagreed. He stated that sea levels rose was not an effect on the environment due to the project. Therefore, neither Newark’s REIR (a recirculated environmental EIR) or the checklist were required to discuss the effects.
The Check out this checklistThis is how project proponents demonstrate CEQA compliance. They go through the list, mark sections with the likely impacts, and then explain why they did what they did. Then the public comments are taken on the draft. The governing body then decides whether the project should be approved or closed. CEQA is known for putting environmental impacts in checklists. This means that the fight is often about how someone checked these boxes. It is not about whether it makes sense to build the Newark shoreline, in a location that will be impacted by groundwater flooding or sea level rise. Buescher says that CEQA doesn’t often ask for the larger picture questions. The idea that this is not a two way interaction I think we’re missing the forest for the trees.
While it is true under CEQA that projects must consider their impact on environment, not vice-versa (sometimes referred too as reverse CEQA), it is contrary to the way it has been implemented for over 40 years. The way that courts have been interpreting CEQA lately, you wouldn’t need to look at that, says Richard Grassetti, an environmental planner with expertise in CEQA compliance.
Grassetti cited two recent court decisions to emphasize this point. In the Ballona Wetlands Land Trust and City of Los AngelesSanta Monica’s shoreline development project was stopped by several environmental groups. They claimed that the EIR failed to adequately account for sea level rise. The California Court of Appeal rejected the claim in 2011, and wrote that “while an EIR must identify and analyze the significant environmental effects that may result from a project, it is not required to examine the significant effects of the environment on the project.” In 2015, the California Supreme Court took up an appeal from the trade group California Building Industry Association, which had sued the Bay Area Air Quality Management District to prevent new air quality standards for construction projects. There are some exceptions. The court wrote, “we hold that CEQA does not require an agency to consider the impact of existing conditions on future project users.”
If the Building Industry Association decision hadn’t come down, you would be looking at impacts of the environment on a project, Grassetti says. He suggests that the state could amend the law to clarify that CEQA must consider both the impacts of and on the environment.
Sea level rise is one of the greatest impacts. The Newark judgment seems to be at odds with CEQAs goals. The court ruled that the City was not required by law to analyze the effects of adaptive pathways because of the wide range of projections of sea level rise between 50 and 80 years from now.
This decision was based upon a 2020 case. County of Sacramento v. Environmental Council of SacramentoAccording to, an EIR did not need to discuss future developments that were unknown or unspecified because such an analysis would be based upon speculation about future environmental impacts.
Both Buescher and Grassetti argue that sea level rise doesn’t seem speculative anymore. EIRs could use current range estimates just like they do for airquality or greenhouse gas emissions and discuss the entire range of projections in their analyses. A key finding of the EIRs is that sea level rise is not speculative. 2017 reportThe California Ocean Protection Council Science Advisory Team stated that waiting for scientific certainty in future sea level predictions is not a prudent or safe option. It is necessary to consider high and extreme sea levels in decisions that have implications beyond 2050 to protect the people and resources of the coast of California.
CEQA was created to prevent or at least minimize an environmental impact. Grassetti argues sea level rise is the largest environmental impact in the Bay Area. We need to structurally alter our society. [CEQA]To look in the future, to care for the future.
However, in the interim, less reliance upon CEQA and more hyperlocal work with city planning to help them visualize their future general plans may be a better approach. General plans are long-term documents, which serve as the basis for zoning codes. They regulate project development in different areas of a city. Baykeeper is working with cities to ensure they plan for toxic sites within the sea rise zone sites. These sites are not yet at the Bay’s edge, but will be in the future. Buescher says cities need to plan how to manage development or non-development in these areas.
He cited Alameda to illustrate a city that is planning for the future. It should with In 80 years, sea level will rise six to seven feetAlameda must improve 25 miles of shoreline, at a cost of $10-20 million per mile.
The city conducted a study in 2020 on groundwater issues. It found that sea level rise would also raise the water table, causing more flooding and soil contamination in all Alameda neighborhoods. The Climate Adaptation and Hazard Mitigation Planning Plan will be adopted by Alameda’s City Council this month.
Buescher states that there needs to be more of this in every community throughout the Bay, even or especially when it is difficult to do so. So that the entire system can move in the right direction, despite the many problems such as housing, climate change, environmental protection, and development.
