Tosta adds that an entire environmental impact report industry exists that simply serves special interest groups that have nothing to do with the environment. “It became an industry of plaintiffs’ lawyers protecting people under the guise of environmental documents.”

So what’s the solution? “I think we have to have an honest look at the law and whether it works,” says Tosta. “It has to be an objective evaluation of this law and its costs to culture and the government. Forty years is a long time on an issue that’s been as quick-evolving as awareness about the environment. This constant tinkering by the courts doesn’t make any sense any more. If you’re really trying to help the environment, realize that it’s shifted dramatically since the law was created.”

Frank P. Angel, an attorney with Angel Law in Santa Monica, CA, disagrees that special-interest group claims that invoke CEQA are without merit. “There is something fundamentally elitist, if not discriminatory, about CEQA opponents’ policy argument that CEQA should be repealed or weakened because some plaintiffs without ‘pure environmental agenda motives’ have sought CEQA relief,” Angel tells GlobeSt.com. “As for frivolous CEQA claims, these are extremely rare. I certainly have yet to see one judicial opinion finding a CEQA suit frivolous.”

Angel adds that there is a frivolous-claim sanctions provision in CEQA that was enacted in 2010, but he has never seen it used, nor has he come across a court decision that has awarded, or upheld an award of, sanctions under that section or under the Code of Civil Procedure’s general sanctions provision, for somebody’s maintaining a frivolous or vexatious CEQA suit.

“Diligent CEQA attorneys carefully investigate their cases before they file them. Moreover, we do not repeal or weaken laws that are often used to protect some businesses against other businesses (e.g., trademark, copyright or patent laws, tort laws like libel, etc.) or, for that matter, false claims, fair housing, employment discrimination or other civil rights statutes, just because a few plaintiffs here or there have misused them by bringing frivolous complaints. Courts have tools to promptly deal with frivolous or vexatious litigation. Besides, CEQA does not even involve time-consuming, costly discovery, unlike those other laws when they are being litigated.”

Angel emphasizes that it shouldn’t matter what a plaintiff’s motives in making a CEQA claim are as long as the claim has merit and leads to environmental disclosure as well as officeholder accountability and, in the end, produces a better project or an environmentally less harmful project alternative. Ultimately, he says, frivolous claims are thrown out by the court before they can delay a project to a significant degree.

Angel does concede that the time has come to study and assess what all the amendments to CEQA over the decades have done to the statute. “Maybe, without weakening the statute, it could be reviewed and checked for which provisions are superfluous and make the statute difficult to read. The problem is you have conflicting standards. The guidelines need to be formed more than the statute.”

As GlobeSt.com previously reported, several factors unique to California complicate the matter of doing Phase I environmental site assessments. Those factors include several regulatory programs including CEQA, regional water-quality control boards, CHHSLs and CUPAs.