CEQA versus the Constitution – round two

We have previously reported on the Tuolumne Jobs case, an important appellate decision expanding CEQA and diminishing California voters’ constitutional right of initiative.  The Tuolumne Jobs decision broke with precedent and held that a city counsel was required to prepare an environmental impact report under CEQA before it could adopt an ordinance presented to it by voter initiative.  The proponent of the usurped initiative sought review of Tuolumne Jobs in the California Supreme Court, and PLF has urged the Court to take the case.

PLF now finds itself in good company with the Chairman of the Board of JSerra High School in San Juan Capistrano, Timothy Busch.  In also encouraging the state Supreme Court to review Tuolumne Jobs, Mr. Busch explains that the approval of his high school was the subject of a voter initiative, after the San Juan Capistrano City Council refused to even consider it.  When almost of third of the voters in the city signed an initiative petition supporting the school, the city council finally bowed to reality and the will of their constituents.  They approved the high school in council in response to the initiative, as they are authorized under state law.

JSerra High School’s experience is not just a nice story.  It led to the decision in Native American Sacred Site and Environmental Preservation Society v. City of San Juan Capistrano. (Wow, do these cases have long names or what?)  That decision rejected a claim that a city council could not approve a voter initiative without first preparing an EIR under CEQA.  The court in Native American Sacred Site wisely held, following California Supreme Court precedent, that voter initiatives were not subject to CEQA, whether they were adopted at an election or by the city council.  This is the decision that Tuolumne Jobs expressly refused to follow.  Mr. Busch points out that if Tuolumne Jobs had been the law when JSerra’s initiative was presented, the city council might have stalled them for years engaging in CEQA reviews instead of acting on the initiative.  He further notes that big companies, like Walmart, have the resources to withstand years of CEQA compliance and ensuing litigation, while public interest projects like high schools usually do not, and stand to suffer the greatest harm under Tuolumne Jobs.

So JSerra High School is an example of the type of good project brought about by engaged citizens exercising their constitutional right of initiative that could be thwarted by Tuolumne Jobs.  Not surprisingly, the actual Tuolumne Jobs and Small Business Alliance (another mouthful), opposes the Supreme Court reviewing the case, and argues that Tuolumne Jobs is a good decision because it will only harm one entity in California: Walmart.  And in arguing against the voters’ right of initiative, the Alliance repeats the error of the appellate court by giving equal weight to a statute and the California Constitution.  We have news: in the real world, the Constitution actually does trump CEQA.

But, in the activist mind, the constitutional rights of California voters are unavoidable casualties in the ongoing obsession to land the white whale by any means necessary, all the while extending CEQA to places it was never meant to go.

PLF really looks forward to the Supreme Court granting review.