California’s environmental laws rely heavily on the California Environmental Quality Act, or CEQA. As the Cal Chamber initiative to rewrite the statute moves forward, lawmakers face the task of preserving those protections without the current legal framework.
Support for the initiative is high, with a recent poll showing over 70% of voters favoring the changes. This creates pressure to address the gaps that will open if CEQA is altered. The legislature could take steps to address the impacts on state environmental law of the enactment of this initiative.
Many of the state’s environmental laws were written depending on CEQA as a mechanism of enforcement or implementation. That means claims that repealing CEQA does not affect underlying environmental protections in California are naïve or disingenuous. The most important provisions for lawmakers to consider are those that currently depend on the statute.
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California’s Endangered Species Act does not explicitly protect habitat for state-listed species. The state has generally relied on CEQA for those protections. Furthermore, CESA only covers state-listed species, but we may care about a wider range of species and habitats. The current CEQA thresholds of significance are broader than CESA and apply when a project has the potential to substantially reduce the habitat of a fish or wildlife species or cause a population to drop below self-sustaining levels.
The legislature could enact those thresholds as standalone wildlife and biodiversity protections that are binding on all state and local agencies, including when those agencies approve permits for private activities. One possible tweak would be to allow state and local agencies to consult with the state Department of Fish and Wildlife in assessing their compliance with those standards. If DFW concludes the project meets those standards or provides recommendations to alter projects to meet those standards, and agencies adopt those recommendations as binding changes, courts could review agency compliance with significantly greater deference.
While these changes would address habitat and species protection, they do not solve the problem of air pollution. The primary mechanisms by which California considers neighborhood or community-level cumulative impacts from air pollutant emissions is through CEQA review. Currently, regional air quality management districts provide cumulative significance thresholds for air quality that generally are used by local and state agencies under CEQA.
The legislature could mandate that air districts set binding standards for cumulative air pollution that state and local agencies must comply with. This would ensure that community health protections remain in place even if the specific review process changes.
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Climate and wetland regulations
Another major gap involves climate goals. The state Air Resources Board scoping plan relies significantly on land-use changes to reduce vehicle miles travelled and therefore greenhouse gas emissions from auto-dependent development projects. However, the main mechanism for implementing those changes currently is through CEQA review. This would likely disappear for residential and mixed-use projects under the Cal Chamber initiative.
Finally, the state legislature still has not codified changes in state law that would respond to the Supreme Court’s significant retrenchment of federal wetland protections under Sackett. While the state water board has filled the gap for deposit of fill materials in wetlands no longer covered under federal law, discharges from point sources into these wetlands remain to be addressed. While CEQA might provide protections in the absence of changes to state law, the initiative would eliminate those protections for many projects.
Codifying pre-Sackett federal standards for wetlands protection in state law would address this gap. Setting these objective legal standards for these environmental resources separate from the CEQA guidelines would likely also make them enforceable under the revised CEQA process under the initiative. It would be a messy, bureaucratic fix, but it is a fix nonetheless.
