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:
And here’s the definition they use:
Yet in their own footnote to OPR’s definition, we find the following from OPR:
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”:
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:
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.