SAN FRANCISCO (May 26, 2023)– A new Holland & Knight study reveals that housing remains the top target of California Environmental Quality Act (CEQA) lawsuits that challenge state agency approvals of private projects.
The study, "In the Name of the Environment Part III: CEQA, Housing, and the Rule of Law," examines CEQA lawsuits filed in state courts over a period of three years, between 2019-21. It was published by the Chapman University Center for Demographics and Policy and is available here.
In 2020 alone, the study found, CEQA lawsuits sought to block approximately 48,000 approved housing units statewide — just under half of the state's total housing production. Overall, CEQA lawsuits filed during the study period challenged agency housing plans that allowed for more than 1 million new housing units. In addition, non-housing projects that accommodate housing and population growth, such as transportation and water infrastructure, are also a major target of CEQA lawsuits.
The study is the third in a series of how CEQA, enacted in 1970, is actually litigated in the real world. All three studies concluded that the most frequent target of CEQA lawsuits was housing approved in existing communities. Previous studies spanned 2010-2012 and 2013-2015, respectively.
The latest study examines how the unpredictability of CEQA lawsuit outcomes has created a low-cost, no-risk strategy for project opponents to block even benign and beneficial projects until litigation, inclusive of appeals, is completed — typically in four to five years. This judicial outcome uncertainty has made lenders, investors and grantors unwilling to fund projects while CEQA lawsuits remain pending.
Meanwhile, California's housing crisis has caused the state to have the worst housing-adjusted poverty rate in the United States, and housing production remains essentially flat.
"After many years of our comprehensive study of CEQA lawsuits, it is impossible to explain CEQA litigation patterns without highlighting the role the judiciary has and continues to play in expansively and creatively applying CEQA to identify new analytical and other requirements that are not expressly written into CEQA, the CEQA Guidelines, or any prior published case comprising CEQA jurisprudence," said Jennifer Hernandez, the head of Holland & Knight's West Coast Land Use and Environment Group and author of the study.
"We urgently need the state's elected leaders and our distinguished judiciary to restore CEQA to ordinary administrative law jurisprudence, and allow critically-needed housing, climate resilient infrastructure, water supplies and public services to be built in full compliance with the thousands of environmental protection statutes and regulations adopted since 1970," Ms. Hernandez added.