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How the California Environmental Quality Act Fails the Environment

Critics correctly blame the law for making it too easy to block housing construction. But it also fails far too frequently to protect wildlife habitat.

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But black-and-white discussions regarding the need for something like CEQA have masked the law's environmental deficiencies. Even Keller notes that some cities and counties simply fail to enforce CEQA's mandates. Others agree with this caveat —the law only works if officials, or vigilant citizens, force it to work.

"My underlying philosophy is it's the duty of the developer to cut every corner they can to make as much profit as they can, and it's the duty of the lead agency to make sure that they don't," Kanz said.

"The problem we have is the developers are upholding their end of the bargain and the lead agencies aren't."


This is How We Lose Endangered Species

When a development firm transformed the old Leona Quarry into a green park and housing complex in 2003, the City of Oakland required specific measures — notably placement of a snake-proof fence — to protect the endangered Alameda whipsnake from the earth-moving activities within the perimeter. But inspections in 2004 and 2005 found that the site managers were operating with sizable gaps left in the fence. A report from the inspector also described heavy machinery being used in the absence of a required biological monitor, whose job was to see that no snakes were harmed.

That was just one of many CEQA oversights by the Oakland officials. According to Kanz, who has spent countless hours investigating local development projects that might be impacting endangered species, the City of Oakland has a long history of doing this. Kanz said the Oakland Hills Tennis Club and the Sunrise Assisted Living Facility have not implemented required mitigation measures to protected the rare and endangered Presidio clarkia, a rare flowering evening-primrose, for a combined 50 years. The Chabot Space and Science Center, he said, has ignored required mitigations to protect the pallid manzanita for more than 20 years.

In fact, according to a blog post Kanz wrote in 2016, "The City has never enforced the mitigation measures for any project that has impacted Presidio clarkia. Never. Ever."

City of Oakland employees presented with this allegation declined to comment and recommended making a public records request for any information.

The lack of oversight on CEQA projects from governmental agencies is widespread. In 2009, the Santa Clara Audubon Society released a report analyzing more than three dozen building and roadway projects in the South and East Bay in which mitigations failed or were abandoned. When notified, officials rarely forced compliance.

"Even when problems were brought forth to local cities or the county, action on those problems was often slow or simply did not occur at all," the authors wrote.

Out of the multiple pallid manzanita plants that were initially growing on the Chabot Space and Science Center site, just one is still alive, Kanz said. The rest have been lost to the unmitigated impacts of the project.

Such issues might seem trivial, but one project at a time, cumulative impacts to habitat add up.

"This is how we lose endangered species," Kanz said.


It Looked Like a Good Deal on Paper

In the North Bay wine country, vineyards are slowly creeping into the wooded hills adjacent to valley floors already carpeted with grapes. Most new vineyard projects involve taking out dozens, hundreds, or even thousands of trees.

This deforestation process is slowly chiseling away at the North Bay's remaining forests, whether oak or conifer. Since 1970, the county's grape acreage has nearly quadrupled from roughly 12,000 acres to more than 46,000 today, and tens of thousands more acres are considered suitable for grape cultivation. Google satellite views show this checkerboarding process vividly.

Under the theory behind CEQA, tree removals can be mitigated easily. Often, two or three seedlings are planted for each adult tree felled. By simple math, this theoretically makes up for tree removal. However, successfully planting trees in arid California isn't easy — especially when the trees are planted on land where they naturally were not previously growing.

"The developers choose where they're going to plant their grapes for a reason — it's the best spot," said Mike Hackett, a Napa County resident who has fought against the conversion of native woodland into vineyards, and coauthored an unsuccessful county ballot measure that would have afforded extra protections to oak trees and upland stream channels.

Planting seedlings to make up for cutting down adult trees looks good on paper, Hackett said, but doesn't really make up for ecological losses of deforestation.

"It takes 35 years to get an 8-inch-diameter oak tree," he said. "How can you possibly mitigate for the removal of native adult oaks? It can't be done. The whole thing's a joke, but it's what CEQA allows."

Even if the trees do take root and grow, a great deal of time passes "before the ecological contributions of replanted trees are realized," noted Concord-based attorney Ross Middlemiss, who works for the Center for Biological Diversity. "The removal of mature trees results in numerous short-term impacts, which are often inadequately addressed in the long term, given the difficulties in establishing replanted trees."

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