California needs to reform its landmark environmental protection law to keep it from stifling economic development, some of the state's top legal experts said last week.

The California Environmental Quality Act has been responsible for securing plant and animal habitat, preserving open space and reducing air pollution from construction projects since its inception in 1970. But it is also often used to tie up projects and policies in costly litigation, said lawyers who gathered at the University of California, Davis, last week to debate its merits.

There have been twice as many court decisions on CEQA during the second 20 years of its existence as during the first 20, according to an analysis by Lisabeth Rothman, an attorney at Brownstein Hyatt Farber Schreck in Los Angeles. The glut of lawsuits, some brought by business competitors under the guise of environmental concern, is stalling projects, she found.

"CEQA was done at a time when we didn't have environmental law," said Jennifer Hernandez, head of West Coast land use and environment practice at law firm Holland & Knight in San Francisco. "We didn't have the Clean Air Act, the Clean Water Act ... any kind of cleanup requirements. It was it.

"What is no longer cost-effective is pretending that CEQA is the only [one]," Hernandez said.

CEQA was enacted in 1970, right after the infamous 1969 oil spill off the coast of Santa Barbara. The state law reaches further than the federal National Environmental Policy Act of 1969 by requiring an "environmental impact report" analyzing potential environmental effects and ways to avoid or mitigate the damage for any project that needs state or local approval. The federal law applies only to projects that need federal agency approval or use federal funding.

Michael Zischke, a partner with the firm Cox, Castle & Nicholson in San Francisco, said the economic costs had to be acknowledged. "CEQA is part of what makes California exceptional," he said. "We are proud that we are stronger environmentally, but that does affect the business climate."

As written, CEQA covers a huge swath of projects, said Ken Alex, the head of the state's Office of Planning and Research. It requires the same type of analysis for a new apartment building as it does for the state's planned high-speed rail line from San Francisco to Los Angeles, he pointed out.

"CEQA has been extremely powerful and is something the state should be quite proud of," Alex said. On the other hand, "I think it's time to try to think seriously about whether there are some changes that might be beneficial," he said. "One size may not fit all."

Because it is so broad, the law is also used to address issues that might benefit from a narrower debate, said David Smith, senior vice president at DMB Associates, a developer of planned communities. He predicted CEQA would be used to sue the San Diego Association of Governments over its new plan to reduce greenhouse gases from traffic, which is required under a separate law, S.B. 375.

"It's a fundamental decision on the devotion of our resources toward roads or mass transit," he said. "That's a very legitimate public policy debate, and lawsuits over CEQA are not going to get us to the right answer for that."

"If you have so many stakeholders using CEQA in a decisionmaking process one way or another, that tells you CEQA's become almost overly broad, or the only tool of leverage people can use when they don't have the political strength they want," said Davis Mayor Joe Krovoza.

The constant threat of lawsuits raises the cost of projects, he said. "It seems like every time we turn around, there's another $40,000, $70,000 or $20,000 request to bring in a consultant on a specific project so we've got our bases covered."

There have been some attempts to reform the law, including a package of bills passed at the end of the state's legislative session last month.

Attendees were split on the significance of the bills, which streamlined environmental review requirements for rooftop and parking lot solar panels, a planned football stadium in Los Angeles, certain infill projects and certain other LEED-certified, renewable energy generation or clean energy manufacturing projects that would generate $100 million or more of in-state investment and produce no additional greenhouse gases (Greenwire, Oct. 21).

As part of S.B. 226, the bill that expands the definition of urban infill projects, state officials are working on a set of "performance standards" due out next year that will serve as minimum requirements an infill project must meet before it is eligible for expedited environmental review, Alex said.

"We recognize this is a trade-off, and not everyone thinks it's a good trade-off," he said. "There may be less ability to do legal challenges, but the decisions that local developers and agencies are going to be making will be constrained by stronger environmental practices."

State Sen. Lois Wolk (D) suggested more legislative fixes. "It is time for the Legislature to look at CEQA reform in a comprehensive way," she said. At the same time, lawsuits need to be taken seriously, she said. "There really is a check and a balance, and that's the courts."

Kathryn Phillips, director of Sierra Club California, said she was hoping to work on the law outside of legislative channels. "For the last couple of years, these people have been talking, sort of independently," she said of the lawyers in attendance. "It helps to hear what everyone's thinking; where there are opportunities for working together and where you might want to be prepared for your defense."

The nature of the fixes should be "weedy things that are long overdue and aren't sexy enough to get people's attention," Hernandez said. Figuring out environmental priorities is essential, she said. "We need to weight impacts. If we want climate to be an overarching issue, for renewables or infill or anything else, we have to change that part of the law."