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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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That episode just about sums up the worst potential problems associated with the CEQA's third-party consultant system. It allows a developer to hire and fire environmental advocates until one of them produces the assessment they want — with environmental considerations a bottom-level priority.

Anderson calls the whole process "bullshit," at least as it plays out in the North Bay wine industry, where a collection of industry-friendly consultants are essentially paid to find the path of least resistance to project approval, with little regard for natural resources.

"Their forester comes out here, and on every project he looks at, he says there are no spotted owls here, and that's how they become endangered," Anderson said.

If, by chance, a consultant produces an unfavorable report, the developer may fire that consultant and keep the unwanted findings from ever seeing daylight.

"If the developer does not like the conclusions of the consultant, they can bury the results with the confidentiality," Kanz said. "Then the developer goes shopping for a consultant that will provide the answer they want, and no one will ever see the first consultant's work that contradicts what is found in the CEQA document."

Kanz described an Oakland case in which "the developer prepared the documents himself with some assistance from a consultant. The CEQA document never disclosed this fact." 

In 2003, lawmakers proposed a bill that would have eliminated this system by requiring that the lead agency overseeing a development project, rather than the project applicant, hire the consultant but using the project applicant's money. The proposed law would have limited personal contact between the applicant and the consultants. It also would have prohibited developers from hiding any damning details that might have come from the review process. But the bill disappeared quietly in the Senate in 2004, leaving project developers and their consultants largely directing the CEQA process.


Wearing Down the Watchdogs

CEQA is described on the state's website as "a self-executing statute." This means there is no single agency in charge of seeing it enforced. Instead, public agencies "are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof."

That means that citizens must be on guard. Yet Anderson said she has grown exhausted by the foot dragging of those in charge. She recounted the time she led three county supervisors to a roadside vineyard with its erosion control systems completely clogged and failing, causing streambed damage in a creek just downhill. Those officials are the very people who ultimately approve or reject proposed development projects. But nothing came of that visit, Anderson said, and permit violations continue.

Anderson continues with her activism, sending emails and posting photos and YouTube videos and generally being, as she says, "the whiny neighbor." But she feels she has all but exhausted her power as an environmental activist.

"I've stopped being an effective advocate because they turn me off whenever I bring something to them," she said. "I'm a pain in the ass. They brush me off with a little shoulder shrugging, and I'm like, 'Well, I've told you what's going on up there — aren't you at least curious?'"

Kanz also recognizes that he and his persistence have become a nuisance to public officials — part of the game of being an activist.

Anderson said that changing a government culture of ignoring scofflaw behavior will at this point be difficult, if not impossible, and arguably even unfair.

"The county's been ignoring it for years," she said. "The pattern of ignoring it exists and is established — there's no way for them to start following the rules now."

Grefsrud, with Fish and Wildlife, said she generally has faith in CEQA and its power to protect wild habitat and the species that live there.

"But it has its shortfalls," she acknowledged, "and I don't know how to fix it."

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