CEQA's ancestry
CEQA can trace its ancestry to the National Environmental Policy Act (NEPA), signed into law by Nixon in 1969, the National Historic Preservation Act of 1966, and even all the way back to an 1850's preservation society created to save George Washington's home: the Mount Vernon Ladies' Association. (This also gave rise to the tongue-in-cheek phrase "George Washington Slept Here" to describe properties striving to give themselves some historic status.)
CEQA, environmentalism, and litigation
CEQA is arguably an outgrowth of a wave of environmental consciousness that swept the United States approximately forty years ago. At the time development and government-run projects were driven largely by purely financial considerations, and CEQA brought a much-needed focus on environmental issues into the planning process. Unfortunately the judicial enforcement of CEQA has led to the planning process being overly driven by fear of litigation, and thus process is now trumping substance in environmental issues. The judiciary is driving environmental policy in California, rather than the legislative or administrative branches.
CEQA: the structural problems
CEQA has changed significantly since it was signed into law in 1970 by Ronald Reagan. The original act was quite brief (about three pages) and was patterned closely after NEPA. At its inception it applied only to government projects and created no new agencies. The original act faced little opposition; it was a "feel-good" act stating broad worthy goals (clean air, clean water). It was assumed it would have little impact on the economy. No one could argue against ensuring clean air or clean water for the citizenry. Nevertheless, there were two major problems embedded in the original legislation that would gradually come to light: 1) it was a law that could only be enforced in court, not through standard enforcement methods, and 2) many of the terms were so vague as to be meaningless without interpretation ("significant effect", "substantial evidence"). Imagine if you had to sue a robber in court to establish that the robbery had a "significant effect" on your financial situation when your TV was stolen from your home! The vagueness of the terms and the dependence on enforcement through litigation have led to a cumbersome, expensive process of enforcement -- and to a CEQA far different from the one originally signed into law.
The evolution of CEQA
Throughout the 1970's and beyond, CEQA came to be interpreted more and more liberally -- judges ruled that CEQA applied to private activities as well as government projects, and judges set precedents that the courts should examine the facts of the EIR itself and rule on its scientific basis. Further, in reaction to the Friends of Mammoth vs. Board of Supervisors case, the legislature introduced AB 889 which attempted to clarify but also broadened the scope of CEQA. AB 889 contained this passage which has proven to be an unanticipated and burdensome requirement on anyone who seeks a discretionary permit for a project in the state of California:
Whenever any person applies to any public agency for a lease, permit, license, certificate, or other entitlement for use, the public agency may require that person to submit data and information which may be necessary to enable the public agency to determine whether the proposed project may have a significant effect on the environment or to prepare an environmental impact report.This wording, which seems relatively innocuous at first glance, means that the government can now require the property owners to provide essentially infinite amounts of information without regard to costs, delays, or necessity. Remember that public agencies can be sued at any time by a member of the public for discretion of abuse in regards to CEQA. Since the cost of the provided information is borne by the property owner, and since the potential court costs are borne by the public agency, understandably government agencies have interpreted this passage to mean "provide more and more information so we don't get sued." In practice this has meant that some development projects stall or are abandoned altogether, since requests for additional information can continue until one or both parties are exhausted.
For a good summary of CEQA's significant court cases and major changes from its beginning to the early 1990's, see this article by Robert O'Reilly.
Recent changes: historic resources
The most recent changes to the CEQA Guidelines occurred in late 1998, when there were sweeping changes to the code affecting historic resources. Some experts now recommend that reports prepared before 2000 be considered potentially inadequate because CEQA's definition for the lower age threshold for historic resources changed from 100 to 50 years in late 1998. Thus many resources that would not have been considered potentially historic a few years ago are now subject to CEQA.
The sum of all these minor changes have had a profound impact on historic preservation in California. An environmental law that was originally intended to ensure clean air, clean water, and transparency of information to the public has morphed into a state law that requires a public agency to do an exhaustive, legally defensible review of a single-family dwelling built in 1959 if the owners want to do anything requiring a discretionary permit.
Saving Mother Earth to analysis paralysis
Thus we have gone from the noble goal of saving Mother Earth all the way to analysis paralysis -- requiring the citizens to protect the government from lawsuits by producing reams of expensive reports. Because these costs are hidden within the regulatory framework and are funded by private citizens, there is no way to measure the ultimate impact on the economy. However, it's obvious that thousands and thousands of dollars are spent on EIRs that are not helpful to planners, provide little transparency to the public, and arguably do not protect the environment very well.
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