Chris Elmendorf Profile picture
Jun 28 26 tweets 6 min read Read on X
An update on California's CEQA / housing package as we hurtle toward the finish line.

tldr: @BuffyWicks's CEQA infill exemption is now *even better* than the 6/24 draft ⤵️; and it looks like @Scott_Wiener will land most of the fish in SB 607 but not the real lunker.

🧵/25
The million dollar (million unit?) question about Wicks's infill exemption has always been, "Will labor unions extract wage concessions that render the bill ineffective?"

/2
The 6/24 bill draft featured a novel, two-tier minimum wage for construction workers, plus "prevailing wage" requirements for tall projects (>85'), 100% affordable projects, and certain projects / crafts in San Francisco.

/3


I called it a "plausibly workable compromise," one which might help to cement the coalition between Yimbys, the Carpenters' union, and other unions whose members are housing consumers.

/4


The latest version of the AB 130 *removes* the two-tier minimum wage structure.

In exchange, the requirements of SB 423 for "skilled and trained" (i.e., craft union) labor on projects taller than 85' have been incorporated into the bill.

This is great news!

/5 Image
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Projects taller than 85' require costly steel-frame construction and (I am told) are usually built with craft-union labor regardless of legal mandates, b/c the work is tricky.

/6
So the "skilled and trained" requirement in the CEQA exemption for >85' buildings probably won't curtail the supply of skyscrapers very much.

/7
Projects under 85' are bread-and-butter wood-frame construction, and would constitute the vast majority of all housing built in a deregulated market.

(I'm just back from Türkiye, where 6' story apartment buildings are by all appearances more common than single-family homes.)

/8
Removing the novel 2-tier wage requirement for projects up to 85' ends a significant source of uncertainty about whether the new CEQA exemption will work smoothly for the vast majority of potential *low cost* infill projects.

/9
Now let's take a look at the Senate's housing trailer bill, SB 131, which incorporates much--but not all--of @Scott_Wiener's SB 607.

/10
In brief:

✅ No more CEQA for housing-element rezonings.
✅ Narrow enviro reviews for projects that just miss qualifying for an exemption.
✅ An official statewide map of infill parcels eligible for CEQA streamlining.

/11
❌✅ Simplification of the administrative record for judicial review.
❌ Repeal of "fair argument" standard, in favor of deference to lead agency on whether project may have a significant enviro effect, i.e., warrants an EIR.

/12
The biggest, most transformative idea in SB 607 was to cleave CEQA into two CEQAs.
- "Old CEQA" would continue to apply on environmentally sensitive lands & to a narrow set of high-risk projects.
- "New CEQA" would apply to everthing else.

/13
Under New CEQA, courts were not to second guess lead agencies on whether to prepare an EIR, so long as a "reasonable person" could agree w/ agency's determination that project was unlikely to have a sig. enviro impact.

(Under old CEQA, any "fair argument" triggers an EIR.)

/14
New CEQA is gone from the trailer bill (SB 131). In its place, there's a laundry list of new exemptions for specific kinds of projects on the non-sensitive lands.
- daycare
- advanced manufacturing
- small forest treatments near inhabited places
- farmworker housing

/15 Image
- broadband
- public parks and non-motorized trails
- climate plan updates
- small water/wastewater projects for poor communities
- stations & maintenance shops for high speed rail

In short, instead of Old CEQA vs. New CEQA, we get Old 'Swiss Cheese' CEQA With More Holes.

/16
SB 607's technical but very important reforms to the "administrative record" in CEQA litigation were also watered down, but not jettisoned entirely.

/17
Under SB 607, electronic internal-agency communications were excluded unless "presented" to decisionmaker.

In trailer bill, they're excluded only if not "consulted or reviewed" by a supervisory employee. How will agency prove that a document wasn't seen by such employees?

/18 Image
Image
Happily, the other significant provisions of SB 607 survived intact.

The combined effect of this bill and Wicks's infill exemption is going to make it MUCH easier for local governments to comply with housing-element law.

/19
Instead of three rounds of CEQA review and litigation risk (first for adoption of the housing element, then for the rezoning ordinance, and then again for project approvals), it'll be one and done.

/20
And the official state map of infill sites should reduce information costs for developers and cities alike (although it's not clear whether the map will be advisory or have legal effect).

/21


papers.ssrn.com/sol3/papers.cf…Image
The provision for "mini enviro reviews" for projects that miss qualifying for an exemption b/c of a single project feature or potential impact is also promising.

/22
It's a great complement for the new, clean infill housing exemption in Wicks's bill, which excludes sites that meet the GC 65914(a)(6) criteria for sensitivity.

To illustrate, if the infill site is a wetland, enviro review would look only at impacts on the wetland.

/23 Image
What comes next? Presumably further back-room negotiations and amendments, followed by passage of both housing trailer bills before 11:59 pm on Monday.

/24
Technically, it looks like the budget bill was only made contingent on Gov. signing SB 131 (Wiener's bill), not AB 130 (Wicks's bill), but @CAgovernor's stated intent is to pass both, and he can "make" the Leg do it by withholding sig. on Wiener's bill until Wicks's pases.

/end Image
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More from @CSElmendorf

Jun 26
For years, California environmentalists have been MIA or worse on an absolute no-brainer of green policy: building dense housing near transit.

Are changes afoot? ⤵️

Maybe! But @NRDC's SB 79 support letter also shows persistence of addled Groups-blob thinking.

🧵/14.
First, some context:

- How I came to be an environmentalist without a home in the environmental movement,


/2
- How CA enviros were duped or white-guilted into letting greenfield developers get their dream policy enacted, even as the same orgs continued to fight infill housing,

/3motherjones.com/environment/20…
Read 15 tweets
Jun 25
Further thoughts on the construction-wage provisions of AB 140, the @BuffyWicks & @GavinNewsom budget trailer bill.

🧵/17.
As a matter of principle, I *do not* support industry-specific, let alone task-specific, wage requirements.

I've tweeted that so-called "prevailing wage" rules are the Democratic Party's version of crony capitalism.

/2 Image
I think it's profoundly embarrassing that "intellectuals" with Democratic Party career ambitions won't publicly acknowledge this point.

/3
Read 17 tweets
Jun 25
Joe C. points out that CA housing trailer bill also modifies the Permit Streamlining Act (PSA) in important ways.

I see the PSA provisions as a work in progress, whose ultimate payoff (if any) will depend on future legislative & judicial tinkering. 🧵/15

x.com/CohenSite/stat… x.com/CSElmendorf/st…Image
Image
The big idea of the PSA is that if a city doesn't approve or deny a project w/in defined period of time, the project becomes "automatically approved" by operation of law.

However, opponents can attack it in court if project didn't comply w/ applicable rules.

/2
That is, a project which has been "deemed approved" by operation of PSA is not "deemed to comply" with applicable zoning & development standards. (Though certain provisions of the HAA may render project "deemed compliant" too.)

/3
Read 16 tweets
Jun 25
Big news from CA: new budget "trailer bill" will effect biggest CEQA reforms ever (should it pass), and points toward plausibly workable detente between key labor unions & housing developers.

Kudos to @BuffyWicks, @GavinNewsom & @cayimby.

🧵/18 Image
The bill marries @BuffyWicks's AB 609, a clean CEQA exemption for infill housing, w/ new labor standards & tribal consultation rules.

The labor standards and tribal rules are different--and much better--than those of other recent CA housing laws.

/2


The "prevailing wage" rules imposed on public works projects (& housing projects per previous CEQA-exempt housing bills) establish detailed job classifications and a way-above-market wage for each classification.

By contrast, this bill is more like a minimum-wage law.

/3
Read 19 tweets
May 29
Does U.S. Supreme Court's big new NEPA decision have implications for CEQA?

Yes!

The liberals' (!) concurring opinion strongly reinforces an argument that @TDuncheon & I made for judicially narrowing the scope of CEQA review of housing projects.

🧵/16 Image
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Current convention under CEQA prescribe analysis of the "effects" of a project as a whole, relative to a no-project (a/k/a status-quo, a/k/a current-conditions) baseline.

/2
But b/c the whole point of CEQA (like NEPA) is to inform the agency's exercise of *discretion*, Tim & I argued that the current convention is misguided.

Analysis of "effects" should be limited to effects caused by (and thus within scope of) agency exercise of discretion.

/3
Read 17 tweets
May 17
Worth taking a moment to observe just how far the politics of CEQA reform have shifted over the last 3 years.

A timeline 🧵.

1/15
- spring 2022: CEQA ruling blocks UC Berkeley from expanding enrollment. Met w/ outrage, but Leg musters only very narrow fix.

/2


courthousenews.com/legislature-pa…
- winter/spring 2023: court holds that "student noise" is CEQA pollution, blocking UC Berkeley campus housing & again triggering outrage + super-narrow fix

/3


sfist.com/2023/05/23/sta…
Read 18 tweets

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