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“Rethinking Environmental Impacts” is a four-part piece that examines the relationship between climate change, environmental review, and development politics in the California context.  Part 1 deals with the changing ways we are thinking about the use of environmental review.  Part 2 will deal with the use of redevelopment tools to implement greenhouse gas reduction goals.  Part 3 will examine the idea that environmental review should privilege positive environmental impacts such as public health goals.  Part 4 will consider the future for environmental review in California and the nation more generally.

Part 1 – The evolving thinking on the environmental impacts of urban development.

The way we think about how human activity impacts natural environment has evolved over the forty years since the first Earth Day.

This is in large part thanks to advances in climate science over this period.  We have moved from an environmental ethic focused on conservation to one focused on anti-pollution controls to one focused on the global climate consequences of human activity.  In the 1960s, air and water pollution was observable by regular folks and helped create a legal and political constituency for environmental action.  This, in turn, led to such landmark legislation as the Clean Air Act, Clean Water Act, Endangered Species Act, CERLCA (the "Superfund" act), and NEPA - the National Environmental Policy Act.  All enacted during the late 1960s and early 1970s (CERCLA was actually later - 1980).  The effect on the observable environment was significant in a relatively short period of time.  And, as things progressed people started thinking we had gone "too far" and began rolling back the achievements by allowing such things as SUVs to be treated like trucks rather than cars and be exempt from auto emissions standards.  And as the 1970s turned into the 1980s activists increasingly focused on the dangers of nuclear energy, not realizing that there was more significant and global environmental impact from coal production than just dirty air and acid rain.

There has been a lot of discussion lately about the need for nuclear energy in light of climate change, and its safety in light of the Fukushima disaster.  I am not going to argue in favor or against the use of nuclear energy here, but I raise it only to highlight the complexity of environmental impacts today and how it is changing how we (must) view human activity.  This is also true where human activity is focused on the built environment (infrastructure and habitation).  The idea that certain kinds of building should be subject to an environmental review process was forged by the adoption of NEPA.  It is that certain projects that will significantly impact the environment should be analyzed so that the public and decision-makers can properly assess them and consider less-harmful alternatives.  NEPA spawned several state environmental acts, with California's Environmental Quality Act (CEQA) perhaps being the most wide-reaching.  For forty years, the application of the law has focused on the specific and cumulative impacts of individual projects with little regard for global or national environmental impacts.  As a result, urban infill projects often look like worse projects for the environment than suburban and projects located on the periphery of urban regions.  That thinking began to change in the 1990s as the smart growth and new urbanist movements began to call for compacter development and better public transit connectivity.  However, those schools of thought were often rooted more in non-environmental philosophies such as “livability” and “return to small town America”  that had little impact on how people thought about CEQA's application to projects.

The approach that CEQA took in the early years was largely responsive to a no-growth skepticism about new development on greenfields and coastal areas.  Ironically, that approach actually complicated the ability to build in denser urban areas and may have facilitated development on the periphery.  The actual task of review under CEQA focused on the impacts of particular developments and its immediate area.  As a result greenfield developments could be made to seem less environmentally harmful than urban infill developments.  Since about 1990, the thinking on environmental review has evolved towards an understanding that dense urban development is better for the environment than even spotty development on the periphery.  The recent climate change legislation in California is a reflection of this by allowing exemptions for developments that meet certain infill and density requirements.  It is not clear that the approach is heavy-handed enough to change development priorities that are so ingrained in the culture.

In California, all projects that require any governmental action (such as a permit) and are not exempted by law are subject to the environmental review requirements of CEQA.  NEPA and other states’ laws require that projects either be public or of a significant threshold size.  The wide application of CEQA was the result of the legislature choosing not to define "project" in the statute.  The law's principal drafter, Contra Costa County Assemblyman John T. Knox, insisted that the term was not only meant to be interpreted broadly to private projects, but that he had indeed communicated that with other members of the legislature.  The California Supreme Court agreed that all projects that required permitting from local governments were subject to environmental review under CEQA.  From that point forward, California's development landscape was radically changed.  A new and expensive requirement in the development approvals process not only created a new consultant industry and extended the timeframe for development, but created litigation traps that previously did not exist.  The potential cost of litigation was another barrier to development, or so it seemed.  In the 1970s in California that probably sounded like a really good idea to most people.

The problem we know now is the release of carbon into the atmosphere.  On a planetary scale, this is more damaging to the environment than simple air and water pollution (not that those things are unimportant).  It is creating significant and perhaps permanent change to the planet’s climate.  And it is not a matter of whether some places will see warmer seasons; it is upsetting the global weather patterns already and threatening coastal areas to the point that permanent evacuations will be necessary.  The negative impact of this climate change will be significant on human communities and an extinction-level event for many other species.  The most important sources of carbon release into the atmosphere is from human activity that is related to city building – transportation infrastructure that facilitates auto mobility; disconnected siting of housing and work locations; cumulative energy use in physical structures.

How does CEQA affect our ability to deal with climate change?  The law is an effort to review development projects in order to understand their actual impacts on the natural environment.  But, historically rooted in a conception of development politics that views dense urban development as a negative impact it is at a disadvantage in dealing with an environmental problem that calls for dense urban development as a solution.

Prior to California’s climate change legislation in 2006 there had been several attempts to amend CEQA in the past decade.  Because they were often championed by development interests and involved exemptions to the law that benefited those interests, many people were understandably skeptical (including this author).  However, the evidence is clear: sprawling human development is a significant contributor to our changing climate.  To the extent that the way CEQA is used today presents obstacles to dense urban development, changes are necessary.

In 2006 the California legislature passed a major law designed to address climate change (AB 32).  AB 32 committed the state to reducing greenhouse gases (GHGs) to 1990 levels by 2020 with additional progress required by 2050.  To ensure that local and regional transportation and land use policies would be geared toward the state’s goals, SB 375 was enacted in 2008.  SB 375 contains provisions to align local and regional transportation and land use planning priorities with the GHG reduction goals set out in AB 32.  The law requires something called a “sustainable communities strategy” (SCS) which is a kind of mini-plan that theoretically nests into the regional transportation plan and in local general plans.  Plans are not required to be consistent with the SCS, but a lot of transportation money from the state is tied to whether projects are consistent with an SCS or not.   Among the most important provisions of SB 375 are those that provide various levels of exemption from CEQA.  There are three tiers of exemptions based upon consistency with the SCS or meeting over a dozen criteria of project priorities with the intention of providing incentives for developers to build projects consistent with a GHG reduction strategy.

The exemptions laid out under SB 375 might not be as available to developers as one might assume, considering the number of conditions a project must meet to receive a complete exemption.  However, this law is a reflection of the evolving view of development’s impact on the environment.  These exemptions are a reflection of the growing consensus that the way we have viewed the environmental impacts of development projects have been at some times merely inadequate but at other times in ways that aggravate rather than mitigate the actual impacts.

As our understanding of how transportation and land use development impacts our environment, so must the way we apply environmental review processes such as CEQA.  Part 2 will investigate how we might use the public tools of redevelopment to support proactive environmental development and why Governor Brown’s proposal to end redevelopment for California may have significant unintended consequences.

Published by this author at The Big Idea.

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