Is CEQA Bad For Bike Projects?

Categories: bikes

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I wade into the ongoing debate over CEQA, with much unease.

For starters, the minute that I start to explain that CEQA stands for the California Environmental Quality Act and that San Francisco City Hall's administration of that particular law is the subject of a long-running and heated political discussion, particularly over the question of which municipal body gets to adjudicate which appeal and in regard to the timing of the petition process and ... never mind, you've probably already hit the back button.

For those of you still with me, here's the other reason I worry about writing this: Those who follow this issue seem to follow it very closely and with a level of vociferous conviction that makes my equivocating self a little nervous, because as a cyclist and a citizen, I can sympathize with both sides of this argument.

To back up, CEQA is the 1970 state environmental protection law which says that any project built, funded, or approved by a government body in California needs to pass ecological muster. Whether it's major city development projects, state high-speed railway plans or that tool shed you want to build in your backyard, the relevant agency has to ask whether "there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects" before signing off on anything.

Key to all of this is that the law also allows for us lowly plebs to engage in that review process.

If a project has been approved (or exempted from evaluation completely) without the proper once-over, the public has the right to challenge that review. So far, this is all irrefutably good stuff.

Where things start to feel a little shakier is when you get into the actual mechanics of the law as applied -- how San Francisco administers that review process and how it processes those public petitions. Last October, Supervisor Scott Wiener put forward a piece of legislation that would, in the supervisor's words, streamline the City's "opaque and unpredictable" review process that often results in "dramatic delays and cost escalations."

Cyclists in San Francisco are all about dramatic delays. No doubt, it is a testament to the strange politics of this issue that one of the biggest supporters of what's being called an attack on the state's principal environmental protection law are the folks who want everyone to get around on bikes: the Bicycle Coalition.

Of course, the Coalition's beef with the local CEQA process dates back to 2005 when, after the City was all set to move forward with its new city-wide Bicycle Plan, the proposal was stopped by CEQA appeal by the misanthropically tenacious Rob Anderson. The City, Anderson argued, had not properly vetted the bike plan's impact on transit and overall traffic congestion. With the Bicycle Plan lodged in bureaucratic limbo for the next four years, the Coalition has ever since called for a process that is "more transparent and predictable" and therefore "less likely to unnecessarily stall important bike and pedestrian safety improvement projects," they wrote to me in an email.

Wiener's solution: Once a project is given a green stamp of approval by the Planning Department, a would-be challenger only has 30 days to file an appeal. In other words, an appeal can't be filed on a project after the backhoe's been rented. Also, in those cases where the Board has to approve a municipal project (say, a new bike path), under the proposed law, a majority "Aye" vote would count as both an approval of the project itself and as an affirmation of its environmental soundness.

The stated goal of Wiener's bill, then, is to limit redundant appeals and restrict the ability of obstructionists to repeatedly obstruct. In the last few weeks, other examples of lone, disgruntled NIMBYs tying up perfectly good and green projects under the guise of environmental concern have made the rounds in the media to highlight the need for reform.

But according to the San Francisco Sierra Club's Sue Vaughan, whom I spoke to yesterday afternoon, the Coalition (and any cyclists standing behind Wiener's bill), are taking a myopic view.

"There are developers out there who are going to push this through to bypass the environmental analysis process and that is not good for anyone," she said. In other words, weakening the appeals process is a double-edged sword. Limit the ability to hold up bike path construction and you limit the ability to hold up ill-conceived developments across the city.

"I'm a bicyclist. I don't have a car. I'm a member of the Coalition," said Vaughan. "But from my point of view, it's good to fully assess any plan."

Certainly, I do understand the hesitancy to tinker with the administration of a long established environmental law. And while I don't like the fact that someone can hold the city's bike lanes hostage for almost half a decade, I also recognize that the next time a delay tactic is employed against a major project, it might be against one that I'm less partial to.

That said, I am not so convinced that Wiener's reform would lead to a pandemic of skyscraper rush jobs. To the extent that the proposed legislation restricts the public input process, San Francisco's application of the law would still allow for more flexibility than most other cities in the state.

But more broadly, bike and pedestrian oriented infrastructure projects -- projects that make streets safer, that make it more convenient for people to get around without the use of a car, and which, of course, make for a more environmentally-friendly neighborhood or city (like this one) -- are worth prioritizing.

Supervisor Wiener's proposal may yet see more revisions (it has already been amended some 40 times) and Supervisor Jane Kim's alternative CEQA bill has yet to be unveiled. But, to state the obvious, if and when CEQA process reform passes this year, part of the goal should be to ensure that that process lives up to the spirit of the law itself.

Ben Christopher is an Oakland-based freelance journalist. His favorite pastimes include pretending to work at coffee shops and shaking his fist disapprovingly at errant drivers from atop his baby blue Cannondale.




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9 comments
Samantha
Samantha

I am not a lawyer...but per a reading from case law, it seems that the judge was reluctant to create busy work for the sake of creating paperwork. The intent of the legislation is "to protect society against environmental blight" [http://ceres.ca.gov/ceqa/cases/1972/f_o_mammoth_092172.html]

And 

"'The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.'"

How is going through a full EIR following through with the spirit of the law?

As a resident of San Diego where much of the large scale environmental destruction happened after CEQA was signed, I'm not too sure that CEQA has had positive end results that was originally intended by the authors of this law.

brookse32
brookse32 topcommenter

It is very important for readers to understand that the California Environmental Quality Act (CEQA) in no way whatsoever held up the bike plan implementation for four years. What held up the plan was a lawsuit that was filed because the Bike Coalition and its allies in the City government foolishly tried to -skip- the CEQA analysis of the bike plan in order to rush the project through to completion. So the bike plan was actually delayed because its proponents tried to -duck- the CEQA process. If they had simply followed CEQA properly and done an environmental impact report on the project in the first place, there would have been no lawsuit and no four year delay.

And is notable, that Supervisor Wiener's measure is attempting to allow -all- projects to similarly skip sensible and comprehensive environmental examinations, and dangerously track these reviews into a much earlier and shorter time period, and with far less robust participation by the public and decision makers.

So if Wiener gets his way, guess what..

We will see a -lot- more law suits delaying many more projects, for much longer periods of time.

Wiener's measure epitomizes the mistake of creating larger long term losses by myopically focusing on smaller short term gain; a foolish paradigm which appears to be rampant in the U.S. in these times.

selizabethvaughan
selizabethvaughan

Thank you, Ben, for your thoughtful piece.  I would like to point out that the 40 revisions to Supervisor Wiener's legislation are not substantive, and the intent remains the same -- to constrain the appeals process and thus the ability to file CEQA lawsuits.  It is the threat of such lawsuits that compels the project sponsors to negotiate in good faith.  Now being litigated are Treasure Island, Park Merced, and the Beach Chalet soccer fields project.  The America's Cup sponsors came to the negotiating table when threatened with a lawsuit after a failed appeal at the Board of Supervisors.  Supervisor Wiener knows exactly what he is up to -- constraining the appeals process so that appellants screw up as they are rushing to appeal, either failing to include arguments in their administrative appeals or making some other technical error such that they forever lose their right to appeal projects in a court of law.  San Francisco is now ground zero for development to accommodate from 150,000 to 200,000 additional residents, and believe you me, CEQA "streamlining" is on the agenda of the One Bay Area project sponsors.  We should all be alarmed if our ability to demand that projects to accommodate this influx of people will be prevented from being properly vetted.

rmajora
rmajora topcommenter

Marcos is right. The Bicycle Coalition, like WalMart and any other developer, simply wanted its pet project to get a pass on complying with the most important environmental law in California. The assumption of the law is undeniably sensible: any project---and the Bicycle Plan was a large project---that even might have a negative impact on the environment has to undergo an environmental review before it's implemented.

If the city had simply followed the law in the first place, they would have done the EIR in the first place way back in 2005, saving everyone a lot of time and money. The city did no "vetting" at all of the 500-page plan. They simply declared it exempt from having to do any CEQA review, which was ridiculous for a project that planned to take away street parking and traffic lanes on many busy city streets to make bike lanes.

If Dennis Herrera had prolonged litigation at his client's expense in private practice, he would be guilty of malpractice. Instead, in the end the city's taxpayers had to pay for the hours our lawyer spent on the litigation. And no one in City Hall---or the Bicycle Coalition---seems to have learned anything from this fiasco.

And of course I'm supposedly some kind of a bad guy---even a "misanthrope"!

marcos
marcos

We were wrong 10 years ago.  The Bike Plan did indeed have legitimate, real environmental impacts as it delayed autos which in turn created congestion and delayed Muni.  Muni is the centerpiece of sustainable transportation, as most folks can't or won't bike or walk but would take transit if it is rapid and reliable. 

Until the Muni is no longer treated as infinite source, infinite sink to subsidize development, until pathetic transit running times are treated as a valuable public asset that can only be improved an never diminished, no amount of bike facility engineering is tip the balance in favor of sustainable transportation.

Scott Wiener is more conservative than Ronald Reagan as far as public participation goes.

marcos
marcos

@brookse32What is really sad here is that the SFBC did not take a moment to demonstrate some humility and learn the environmental lesson that the Bike Plan debacle taught us.  The City could have done an initial study, identified and mitigated where the bike plan might have impacted transit, and produced a mitigated negative declaration.  But if one looks at the Bike Plan EIR, the transit delay impacts are pyramidal, with the "significant" delays, >= 6 min, at the top, three of them, and a broadening base of impacts of 5m50s down to 30s.  This means that the cumulative delays deemed insignificant under CEQA standards dwarf those that passed the threshold to significance.   This tells me that pursuing surface transit as the centerpiece of a sustainable network is an unsustainable fool's errand.  We're going to have to go underground with a subway network if we are to meet our environmental goals and provide an attractive, reliable and rapid, transit alternative to driving.  We can't let any discretionary projects diminish surface transit running times, full stop.  There ain't no free lunch and that's what CEQA is all about.

rmajora
rmajora topcommenter

@selizabethvaughan 

Ben's account of the Bicycle Plan fiasco is not particularly "thoughtful." And he links a Chronicle story about some delaying so-called "improvements" to a neighborhood park. So what? What's the big hurry on a park project? Seems to me that Vaughn is right here. Why assume that City Hall Knows Best on these projects? The process should give individuals and neighborhood groups the benefit of the doubt, make deadlines easier to meet and the paperwork easier to do.

Still waiting to hear some serious examples of the abuse Wiener is supposedly addressing. The park and the North Beach library aren't particularly compelling examples and the Bicycle Plan example is only made by people paid to lie---a certain special interest group I could name---or by people who don't know what they're talking about.

marcos
marcos

@rmajora Wasn't the point of Moby Dick that Captain Ahab's self loathing was manifest by his self destruction in chasing the whale?  Leah Shahum is our Captain Ahab, first having set into motion, via bucking the voters on Saturday JFK Drive closure, a backlash that ended up clearing the way for luxury condos in the Mission and then became fixated on efforts to exorcise the ghosts of the Bike Plan humiliation via an all out assault on CEQA in order to vindicate her error.  Shahum is doing irreversible damage to both social and environmental justice by putting her own single issue ego above balanced environmental protection.

gneiss123
gneiss123

@marcos Using LOS for autos has also been used to delay the implementation of transit plans on city steets as well as the bike plan.  The Van Ness and Geary bus rapid transit corridors are classic examples where the myopia of auto LOS has been used as a cudgel to prevent new transit from getting implemented given that it would "cause congestion" with cars.
If you were really interested in better transit, you'd be similarly disappointed by how the CEQA was applied to those projects as well as one for bike lanes.  It's just your bias against 'bikers' that makes you think it's a legitimate use of the CEQA to delay and/or prevent the implementation of bicycle lanes.

What we should really be doing is stop taking car congestion into account for these kinds of transportation projects.  The projections that engineers are making for individual intersections are outdated and don't take into account mode shift that would take place if there were safe alternatives to using cars.  By their calculations, we should be building freeways along all the major streets to improve 'traffic flow' as if that's the only measure of livability on our city streets.

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