Capitol Journal: Labor needs to stop using environmental law to kill jobs
It’s not polite to call out union leaders on Labor Day, but let’s be frank: Some are costing workers jobs.
Yes, of course, unions historically have expanded the middle class in America by demanding and obtaining better pay and benefits for their members. We’re better off because of them, especially in the private sector.
But in this state we’ve got a widely abused law called the California Environmental Quality Act, or CEQA. And labor is one of its biggest abusers, contributing to California’s reputation as a lousy place to invest and do business.
Signed 45 years ago by Gov. Ronald Reagan, CEQA gradually became the bane of developers and other entrepreneurs. It requires them to undergo a long process of detailing their projects’ environmental effects.
True, the act deserves credit for helping to clear the air, keep the water clean and prevent greedy developers from building on dangerous earthquake faults.
But CEQA also has been shamefully abused by union blackmailers — “greenmailers” — who threaten to derail a project by filing an environmental lawsuit unless the developer caves in to their labor demands.
Unions aren’t the only abusers. Business rivals try to drive off potential competitors. And NIMBYs — “not in my backyard” — fight local projects, even environmentally friendly ones such as transit stations.
The result is costly, years-long delays, if not outright project scuttling, that discourages future investments in the state.
“CEQA suits are overwhelmingly filed against environmentally benign projects by people using them for non-environmental reasons,” says land use attorney Jennifer Hernandez of Berkeley.
She recently published a lengthy report substantiating that assertion after studying 600 CEQA lawsuits filed over a three-year period. More on that later.
Hernandez usually represents project sponsors, but she has environmental credentials as a longtime board member of the California League of Conservation Voters. She’s also an unabashed Democrat.
But ever since her steelworker father got laid off at age 55 many years ago, Hernandez has fretted about and focused on the demise of the working class in California. “We’ve lost our manufacturing base,” she laments. “This whole getting rid of middle-class jobs has been bad for California.”
The fact that CEQA is flawed and abused is no secret in the state Capitol. Gov. Jerry Brown has called reforming the act “the Lord’s work.” But he seems to be still waiting for the Lord to do it.
In his 2013 State of the State address, the governor thrilled business leaders by briefly advocating CEQA reform that would “provide greater certainty and cut needless delays.” But then Brown basically went silent and never offered a proposal.
“The appetite for CEQA reform is much stronger outside the state Capitol than it is inside,” Brown said a few weeks later.
Republican lawmakers have tried to push it, but are too weak. A few Democrats have carried reform legislation. But most have shied away from bucking labor unions, the biggest supplier of Democratic campaign juice, and agitating friendly environmentalists.
However, if a project has enough political pull, lawmakers will exempt it from some CEQA burdens. Two proposed Los Angeles football stadiums were granted exemptions a few years ago, but the projects collapsed. In 2013, then-Senate leader Darrell Steinberg (D-Sacramento) obtained an exemption for a new NBA arena in his hometown.
Last June, the Legislature exempted drought-related water projects.
And currently, lawmakers seem prepared to grant an exemption for highway projects as part of a possible road funding compromise. Under the bill, a construction or repair job generally could not be halted by a judge while a lawsuit proceeds.
“Why do we get so little bang for our buck in highway spending?” asks the bill’s author, Republican Assemblyman Ray Obernolte of Big Bear. “These projects often are challenged under CQEA, leading to delay and expense.”
He adds: “This is a baby step, but a natural step.”
The grown-up, better step would be to apply the exemption to all CEQA projects. But this bill beats doing nothing.
Another much-needed reform is transparency. The true plaintiffs — the CEQA lawsuit bankrollers — don’t have to be identified. “Who are you and why are you suing?” Hernandez asks.
Her study found that 45% of plaintiffs remain basically anonymous, using fronts with nice environmental-sounding names and hiring “bounty” and “shakedown” lawyers. Digging into the paperwork, she estimates that most of the anonymous plaintiffs are NIMBYs, but roughly one-third are unions.
Only 13% of CEQA suits are filed by recognized environmental organizations, Hernandez discovered.
For many people, she continued, “their environmental view is out the bathroom window. They don’t want to see an apartment building next to a transit station. I can’t blame them, but I question whether that’s the proper use of California’s environmental protection law.”
Her report includes this chilling statement: “CEQA, which in its heyday was used to challenge nuclear plants, coal-fired plants and plants burning hazardous waste or garbage, is now used most frequently to challenge solar and wind renewable energy projects — precisely the ‘green’ projects that are most critical to meeting California’s climate change reduction mandates.”
As for labor, she says, “I started out thinking it just wanted to negotiate good jobs. I didn’t realize that individual unions often were fighting other unions for control of jobs.”
They’re also trying to muscle union-leery retailers like Wal-Mart.
So happy Labor Day, unions. Pat yourselves on the back. But also kick yourselves in the butt for scaring investors and chasing off jobs.
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