Gov. Jerry Brown has again raised the possibility of changes to the California Environmental Quality Act. That's the sweeping 1970 state law that requires public and private developers to analyze the impacts of their projects, study alternatives and implement mitigation measures.
CEQA is a powerful legal tool, and like the legal profession itself, nearly everyone has a love-hate relationship with it.
Developers have used the law to derail projects of competing developers.
Unions have sought exemptions from it for projects they liked and then filed CEQA lawsuits against developers who wouldn't commit to project-labor agreements.
Ever the chameleon, Gov. Jerry Brown has been a CEQA suitor and snubber. As attorney general, he used the law to pressure local governments into changing their long-term development and transportation plans to reduce greenhouse gases. But before that, as Oakland mayor, he clashed with CEQA litigants who objected to his plans for accelerating the construction of infill housing in downtown Oakland.
Since becoming governor, Brown has been dropping hints he is open to a significant reform of the law. At a news conference last month, he quipped: "I've never seen a CEQA exemption that I don't like."
This is a governor known to shoot off his mouth, so it is tempting to dismiss this comment. Yet California needs to have a serious discussion on CEQA, which at 42 years old is having a midlife crisis.
Is the governor up to leading that conversation?
As Brown knows well, CEQA is being abused, and defenders of the law tend to get defensive whenever anyone suggests it. The most pernicious abuse is known as "greenmail" with groups threatening CEQA lawsuits to get labor concessions or other side deals from developers.
Curtailing such abuses, however, is hardly simple. For years, lawmakers have struggled in drafting language that would prevent greenmail but still allow legitimate use of CEQA by citizens who could be harmed by a development. There may be a way to thread this needle, but it needs to be worked out through an open, deliberative process not in the final few weeks of a legislative session.
And that's been a problem with CEQA for several years. Lawmakers have approved CEQA exemptions for stadium developers and other special interests through last-minute "gut-and-amend" bills. Such giveaways have created an unlevel playing field and a "buy-an-exemption" atmosphere in the Legislature.
To their credit, lawmakers have made some worthy amendments to CEQA. These include restrictions on "last-minute litigants" who didn't participate in the previous public process, and encouragement of a mediation process to avoid lawsuits in other situations. They've also increased the possible civil penalties for frivolous lawsuits.
That's a start.
If the governor wants further changes, he needs to articulate what those are, and do it at a time when Californians can participate in the process.