Friday, August 5, 2016

Prof. Ethan Elkind: Flawed Industry CEQA Study Gets More Flawed

The law firm of Holland & Knight has made waves over the past few years attempting to quantify how bad CEQA has been for pro-environment projects like infill and renewable energy. Their allies in the business community and Sacramento, along with unwitting media outlets, have trumpeted the results.

They are now out with a new “update” [PDF] on their flawed 2015 study that purports to show how CEQA has been overwhelmingly used against infill in the Southern California region.

But the problem, as I and my colleague Sean Hecht at UCLA Law have noted, is that they misleadingly chose a definition of “infill” in that 2015 study (and again in this update) that is so broad that it over-represents how often infill projects are subject to CEQA suits, out of all CEQA litigation in a given time frame.

Misleading may be a strong word, but how else can you explain it when they claim to be using a state-approved definition of infill that doesn’t in fact match their definition?
Here’s what they write:
In our [2015] statewide report, we called these “infill” locations, consistent with the infill definition used by the Governor’s Office of Planning & Research (OPR).
And here’s the definition they use:
[Projects] located entirely within the boundaries of existing cities or in unincorporated county locations that were surrounded by existing development.
Yet in their own footnote to OPR’s definition, we find the following from OPR:
“The term “infill development” refers to building within unused and underutilized lands within existing development patterns, typically but not exclusively in urban areas. Infill development is critical to accommodating growth and redesigning our cities to be environmentally and socially sustainable.”
Notice any inconsistencies? Nowhere does OPR claim that any development within existing city boundaries should be considered infill.  Yet that’s exactly what Holland & Knight claim their definition encompasses.  By adding that geography to the definition, they get to call areas like in this random screenshot of Hanford “infill”:
Valley infill
If they really want to update their study, they need to stop claiming that they’re using a state-sanctioned definition of infill.  Because they’re not.

Here’s another definition they could have used, that was added to CEQA by the legislature:
21061.3. Infill site means a site in an urbanized area that meets either of the following criteria:
(a) The site has not been previously developed for urban uses and both of the following apply:
(1) The site is immediately adjacent to parcels that are developed with qualified urban uses, or at least 75 percent of the perimeter of the site adjoins parcels that are developed with qualified urban uses, and the remaining 25 percent of the site adjoins parcels that have previously been developed for qualified urban uses.
(2) No parcel within the site has been created within the past 10 years unless the parcel was created as a result of the plan of a redevelopment agency.
(b) The site has been previously developed for qualified urban uses.
The report does go to some length to describe the challenges of defining infill for the purposes of a study like this one.  Personally I favor a definition linked to proximity to major transit stops, coupled with the definition Deborah Salon formulated in 2014 for the California Air Resources Board [PDF] based on low-vehicle miles traveled (VMT) neighborhood types.

But by misrepresenting their definition of infill, Holland & Knight undermines the credibility of their report and the quality of the findings.  If they issue any further “update” to it, I hope they finally correct that flaw.


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