FIRE to attack CEQA in Legislature this time




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Finance, insurance and real estate special interests, in league with the politicians they have bought, have orchestrated a major attack on the California Environmental Quality Act in the new, two-year session of the state Legislature. It is led by that bumptuous, 70-something adolescent, Gov. Jerry Brown, happy to be serving his 11th year in power. Power makes Jerry happy. Power makes Jerry feel as strong as the little choo-choo that could.

Gov. Brown is leading Big Business’s attempt to break out of the terrible box of the environment, that thing of Nature that does not grow infinitely as capitalism must. The Brown administration attack on the offensive environmental box is three-pronged: build peripheral tunnels to dewater the Delta and provide water security to the south Bay Area, Westlands Water District and Metropolitan Water District of Southern California; build a bullet train from LA to San Francisco and Sacramento; and gut CEQA like Congressional Republicans and Blue Dog Democrats tried to gut the Endangered Species Act back when former Rep. Richard Pombo, Buffalo Slayer-Tracy, was chairman of the House Resources Committee.

We are fortunate to have our leaders’ arguments briefly outlined by its principle legal advocate, James Moose, of Remy, Moose, & Manley, a prestigious Sacramento environmental defense firm. Since, in CEQA, members of the public must bring a suit against the local land-use authority and the real party of interest (private or public developer whose EIR has been approved by the authority), "defense" in this instance means that Moose's firm represents private and public developer respondents against the public.
Moose is leading a group of “like-minded” CEQA attorneys in their attack on CEQA and he lists himself as “outside counsel” on both the California High Speed Railroad and the Bay-Delta Conservation Plan (the peripheral tunnels).
According to a list of published cases posted on his firm's website, up until 1995 Moose he represented mainly citizen plaintiffs in CEQA suits; but after he had been properly trained by those groups in CEQA law, he switched sides and went with the big money respondents, which he is representing today in the efforts to gut CEQA.

Moose has four basic changes he wishes to see: (1) avoid lawsuits if possible; (2) speed up the process; (3) changing the way attorney fees are charged; and (4) allow courts to conduct discovery on citizens groups suspected of being fronts for economical rather than environmental interests (unions and supermarkets funding a CEQA suit against WalMart.

As representatives of plaintiff groups that have brought CEQA suits against a variety of public and private developers, these are our responses.

(1) The idea of project proponents "voluntarily" proposing strict mitigation measures for projects in lieu of preparing an EIR that can be legally challenged sounds extremely reasonable until you ask: who will enforce the measures? When a CEQA suit is settled without going to trial, mitigation measures are agreed to and the settlement has the authority of the court. Without that authority and recourse, the public will be left to depend on the voluntary commitment of developers?

(2) We believe Moose's second point is at least partly bogus. It has been our experience that developers are not held up by CEQA lawsuits but charge fiercely forward while litigation is on-going. So we wonder what he is really driving at. In any event there is already the remedy of the "supplemental EIR" that addresses deficiencies in a document the court finds otherwise acceptable. We suspect something like a new type of CEQA motion may be in the works, whereby the respondents ask the court to determine the "importance" of the project, in determining whether it will entertain a CEQA suit against it.

In fact, given that Moose describes himself as "outside counsel" for both the California High Speed Railroad and the Bay-Delta Conservation Plan (the peripheral tunnels), this sounds like pleading -- not for the general health of CEQA -- but on behalf of two monstrous, controversial and over-priced public works projects that will quite possibly created more environmental damage than it will improve the environment.

In the case of the Delta, which through the magic of finance, insurance and real estate now provides drinking water for 25 million people, most of them in Southern California, the current fantasy is that by building two huge tunnels under the Delta that will connect with the Delta Mendota and the California Aquaduct, somehow the water delivery system will avoid the danger of a catastrophic earthquake along the San Andreas Fault. This ignores that the two canals and their immense regulating reservoir, the San Luis Dam, are build alongside and in some cases directly over the San Andreas Fault.

These were mainly accomplishments of the governor's father, former Gov. Pat Brown and, of course, scores of brilliant engineers and water lawyers all wisely planning for our future.

The high-speed rail project is strictly a defiant public works project flung in the eye of the Great Recession.

We are Modern! We are California! We are Progressive! We are Great! (We really aren’t $20 billion in debt and we really didn’t elect Arnold the Hun our governor twice.)

There is a genuine economic Depression along most of the path of the proposed bullet train through the Central Valley. Our unemployed will be cheered immensely by the sight of the train flying down the track at breakneck speeds. But the fare from LA to SF will run more than $200 one way by the time it’s built and none of us will be able to afford a trip any farther than maybe Fresno to Bakersfield. We'll stick with our Amtrak and hope that high speed rail won't push it off the rails.

(3) A plan to apportion the attorneys’ fees to be paid by respondents in the event the public plaintiff wins some but not all of the issues in the suit. This is simply a scheme to limit the costs of respondents who lose CEQA cases by some gimcracker portioning of the attorneys fees they owe the public that sued them. Part of the Big Business elite mythology is that the public groups that sue developers under CEQA make money on the suit. To begin with, the judge can limit the amount of attorneys' fees respondents must pay public plaintiffs when the plaintiffs win. And the judges do that.

(4) Addresses a real problem: economic interests disguising themselves as environmental groups and suing developers under CEQA to extract advantages, for example, labor contracts. There are also groups operating that just settle for what they can get out of the developer. Question: hasn’t the courts handled this weakness in CEQA as well as or better than could a legislature bent on clearing any state legal obstacles to high speed rail and Delta peripheral tunnels?

What Justin Ewers's puff piece on James Moose below neglects to mention is that there are federal environmental documents that must also be completed where federally protected species, water, federal funding and other federal issues are involved. The National Environmental Protection Act is the federal equivalent of the state's CEQA.

Badlands Journal editorial board

California Economic Summit

Middle ground exists on CEQA reform - Environmental attorney…Justin Ewers

Jim Moose wrote the book on CEQA. Literally.

Along with several colleagues, Moose is the co-author of the Guide to the California Environmental Quality Act, currently in its 11th edition, a book regularly cited by California courts as one of the premier tools for navigating the state's
environmental law, in all of its byzantine complexity.

Seem like a good person to be involved in the CEQA reform debate in Sacramento? He thinks so, too.

That's why Moose, a senior partner at the law firm Remy Moose Manley, joined a group of CEQA experts who came together several years ago to begin the painstaking work of drafting the language that could make the state's 40-year-old environmental law, as he puts it, "less burdensome but still effective."

The group, known as the Enhanced CEQA Action Team (ECAT), has spent the fall refining this set of legal ideas, producing a legal toolkit, of sorts, lawmakers can use to update the law in ways large and small. (A small sampling of ECAT's proposals, along with some proposed amendments Moose has drafted independently of the group, can be found at the bottom of this page.)

"We're a bunch of wonky environmental consultants and planning directors and a few attorneys who have the same perspective," says Moose, who also serves as outside counsel to California's two biggest infrastructure projects, high-speed rail and the Bay Delta Conservation Plan—two projects that are already facing years of CEQA challenges.

A view from the trenches

"In ECAT, we're in the trenches, we like the law, we're up to eyeballs in it, and we think we have some insights about how to make it work better while still protecting the environment. Our hope is that we can participate in the upcoming discussions and be a voice in the middle."

Though some environmental leaders maintain that CEQA is not the bogeyman it's made out to be, pointing to studies showing only 3 out of every 1,000 CEQA lawsuits end up in court, Moose believes the problem of CEQA abuse is real.

"I continue to be sympathetic with the general thrust of CEQA, the idea of greater public participation and this general
legal mandate to mitigate significant environmental effects where feasible. That strikes me as good public policy," says
Moose. "But over the years, it's been abused more and more. We're spending an awful lot of money on gold-plating documents, fighting off litigation. Most of our resources are flowing to consultants and attorneys and not so much to mitigation. Even though I'm a beneficiary of that to some degree, I'm conscious that money would be better spent on teachers and firefighters."

Moose has watched with interest as this point of view has taken hold among several high-profile Democrats—not usually the group most eager to tackle CEQA. "Traditionally, it's the Republicans that do this, and they have draconian solutions that never went anywhere," says Moose. "Democrats have always just worked on the margins, never passing anything labor unions didn't like."

That changed last summer with Sen. Michael Rubio's (D-Bakersfield) aborted bid to comprehensively reform the law, which drew the ire of environmentalists and was shelved by Senate leaders, who promised to take up the debate again this year.

"The bill Sen. Rubio had last summer is interpreted differently by different people," says Moose. "I think some good drafting has to happen before a compromise can be reached on that subject."

The root of the problem

Moose believes that work should aim at what he views as CEQA's primary issue—the length of time the law allows projects to be tied up in court.

"My primary belief is that the sheer amount of time it takes to get through court is a huge part of the problem. A neighbor [who files suit against a project] can count on holding it up a minimum of 2-3 years and possibly 5-6 years with an appeal, even if they are ultimately unsuccessful," he says. "If the court process could be shortened to just a year or two, a lot of that leverage would shift, and the uncertainty [for business] would be more tolerable."

He points to the two major efforts he has advised the state on—high-speed rail and the Delta water project—as examples of CEQA's impact on projects California needs. "These projects are so important for the state. They are on balance good for the environment, even though they have a footprint, but the deck is stacked against them," says Moose, who is careful to state that he is not a spokesperson for either project and is only offering his personal views.

"With high-speed rail, we have the president, the U.S. Senate, the governor, and the Legislature behind it," he says.

"Billions of dollars have been given to California that could be lost if the thing goes awry in court. Under those
circumstances, if one farmer finds one flaw with the [state's Environmental Impact Report], they shouldn't be able to kill the project—that seems like an undemocratic result to me."

Moose believes it's time to alter the law to avoid the proliferation of lawsuits, speed up the legal process, and prevent
litigation abuse.

"It seems like the standards are impossible to meet under the current approach. My own feeling is California is so wound up in knots, it's an open question about whether we can do any new infrastructure now," he says. "Look around the state:

Sacramento, where I live, would be uninhabitable without the great water and flood control projects. We're not reciprocating for future generations—in part because we're too cheap, and in part because we've tied ourselves up so much we can't do it."

So what can be done?

Moose and the Enhanced CEQA Action Team have developed a range of solutions for remedying this situation. Three of their many proposed amendments to CEQA can be found below:

1. Avoid lawsuits in the first place: Right now, CEQA has a relatively low bar for requiring projects to complete a full
Environmental Impact Report, the costly review process required by the law. If someone can make a "fair argument" that there is substantial evidence the project may have a significant impact on the environment, an EIR is required. This drives up project costs. Indeed, the tens of thousands of dollars an EIR costs often nips many cash-strapped projects in the bud.

Moose proposes adjusting that standard by creating CEQA "safe harbors," where projects can avoid preparing EIRs if they voluntarily propose strict mitigation measures consistent with broader environmental goals. As Moose puts it, this might involve mitigating "impacts to air quality, habitat, and agricultural land to less than significant levels by funding
programs that offset air pollution, preserve and enhance offsite habitat, and preserve offsite agricultural lands."

Moose also says lawmakers could eliminate the "fair argument" standard when it comes to the aesthetic impact of a project in an urban area—which some consider an obstacle to infill development—when the project is already subject to a local design review process.

2. Speed up the process: When a CEQA violation is found, courts today often require agencies to go back and redo their entire environmental analysis. This can add several years—and millions of dollars—to the project. Moose's proposed amendment would give courts more discretion to allow "particularly important or compelling projects" with only "harmless errors" to proceed while their minor CEQA violations are addressed.

3. Raise the stakes by charging attorney's fees: Moose has proposed an amendment that would require defendants (a developer trying to build mixed-use housing, say) to pay attorney's fees when they lose an EIR challenge only for the time their challengers spent on making "meritorious arguments." Today, losing defendants pay the full cost of their opponents' legal bills—giving plaintiff's attorneys a financial incentive to try every imaginable legal argument and drag out the process as long as possible.

Moose also proposes an amendment that would allow courts to conduct discovery on the anonymous "citizens' organizations" that often file CEQA suits to determine if they are fronts for what he calls "deep-pocketed economic interests." (For example, a business competitor, as opposed to a group with a legitimate environmental concern.) If so, he thinks the court should be able to order those interests to post bond and, if they lose, to pay the winning party's attorney's fees.

CEQA in the 21st Century -- a series of news stories and individual perspectives designed to educate and spark dialogue on CEQA as the California Legislature revisits the role the environmental law will play in the future of our economy