“The Law That Swallowed California”

Tim Kowal March 23, 2023

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want.

“CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent CEQA case, Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project. And yet the way it is used today suggests that “[s]omething is very wrong with this picture.”

In this clip, Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA and the Tiburon case:

The original “grand design” of CEQA was not to frustrate the democratic process but to promote it: projects could go forward, “but only after the elected decisionmakers have their noses rubbed in [the project’s] environmental effects, and vote to go forward anyway.”
Matt Taibbi’s article about how CEQA, as deployed today, acts as a backdoor subsidy to owners of California’s existing housing stock, paid for by new entrants to the housing market (who happen also to be laboring under swelling tuition debt).
CEQA is often used to frustrate high-density projects. But Tiburon involved a decades-long battle to thwart just 43 single-family homes. CEQA can be used as a bludgeon for anyone, so there is something to hate for everyone.

Watch the clip here.

This is a clip from episode 50 of the California Appellate Law Podcast. Listen to the full episode here.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"A judge is a law student who grades his own papers."

— H.L. Mencken

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

“The Law That Swallowed California”

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"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"A judge is a law student who grades his own papers." — H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant