How a handful of unions are hijacking California environmental law

How a handful of unions are hijacking California environmental law

Since its enactment in 1970, the California Environmental Quality Act — or CEQA, as it is widely known — has expanded exponentially beyond its original scope of protecting the natural environment. It now includes numerous public health considerations such as traffic, noise and tenant displacement to its list of “environmental” impacts that must be analyzed in reviewing development projects.

As most people who follow California housing news know, this expansion of CEQA’s scope has become a favorite tool of NIMBYs who file dubious legal challenges under the law to preserve their neighborhood’s status quo. Less known, however, is how special interest groups have harnessed the law not to protect the environment, but to extract a self-serving toll from housing developers.

As a lawyer who has seen environmentally sound projects in the Bay Area stalled for years by specious CEQA claims, allow me to fill you in on how this racket works.

Faced with the prospect of a CEQA lawsuit, housing developers are forced to make a financial choice about whether to fight an expensive court battle, cave to demands or simply give up on their development. Each of these scenarios is lose-lose, stalling or killing projects or driving up the cost of construction — and therefore rents. Typically, developers choose a non-litigation option.

Opponents of CEQA reform argue that litigation is rarely used to stop housing development. Their oft-cited statistic is that only 2% of projects requiring CEQA-mandated environmental impact reports are subjected to legal claims. But that statistic is a diversion; a much higher percentage of projects are targeted for meritless CEQA litigation threats rather than actual lawsuits.

In an example from the East Bay, where I represent housing developers, leveraging the threat of CEQA litigation has been the longstanding strategy of an association of four building trade unions — that demand high-priced no-bid contracts from developers in exchange for an agreement to stand down on meritless CEQA claims.

The association goes by the reasonable-sounding name “East Bay Residents for Responsible Development.” In reality, they are the Plumbers and Pipefitters, Local 342; Electric Workers, Local 595; Sheet Metal Workers Local 104; and Sprinkler Fitters Local 483. They make up just a fraction of the trades needed to complete a housing project, but their involvement in politics, including campaign contributions, and skillful use of CEQA, give them outsize influence over whether housing gets built in cities like Oakland.

I learned firsthand how the CEQA scheme works several years ago while representing a developer on a 167-unit, middle-income housing project on a long-vacant parking lot near BART in San Lorenzo.

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