BILD Board Spotlight

Jennifer Hernandez

Holland & Knight

In her role as legal counsel to the Building Industry Legal Defense Foundation, BILD, Jennifer Hernandez is our resident warrior for CEQA reform and fair housing policies that address the needs – and dreams – of blue collar and minority families. She has practiced land use and environmental law for more than 30 years and heads the West Coast Land Use and Environmental Group for the law firm Holland & Knight. She recently shared her thoughts with Southern California Builder.

Southern California Builder: What got you into the law, then into litigation and then into CEQA litigation?

Jennifer Hernandez: I learned to debate nuns in school without getting kicked out – a fine line – and then went to law school because I didn’t know what I wanted to do. In law school, I went into environmental law because nobody knew what it was in 1984 so it was easy to be as smart as more experienced lawyers. In 1989, I became a land use and CEQA lawyer because the University of California Office of General Counsel hired me after losing a CEQA lawsuit. They advertised the position as an “environmental” lawyer, but on my first day there, they handed me a traffic study for UC Santa Barbara. I asked why and they said it’s environmental. I said it wasn’t and they said it was, it’s CEQA. And I said, what’s SEQUA?

SCB: We all think of Berkley as the kind of place that doesn’t turn out lawyers who fight for builders, often against environmental NGOs. Are we thinking wrong or are you an anomaly? JH: There are two Berkeleys because there are over 30 years’ worth of kids like me who grew up in blue collar and lower income families who got into college and grad school through scholarships. We share core values like upward mobility and equity – which mean working hard, owning a home, and having and taking care of your family. We didn’t have trust funds that allowed us to volunteer for cool internships and go to expensive meetings with each other to decide how “those people” should live – we were “those people” and we needed to get on with life!

I’ve met some of the worst racial and sexist bigots, most contemptible elitists, and most counterproductive environmentalists in Berkeley, and that’s done a great job of keeping me calm as I work all over California and celebrate the basic decency, shared values, and common sense of regular people - qualities that often seem in short supply for too many Bezerkleyans and Bay Areans. We still live in Berkeley, but I confess I couldn’t take it during COVID-19, so my husband and I have leased a lovely apartment in Marina Del Rey – sunshine, smiles, and swimming provide a lovely contrast to the dour defeatism of our socialist and environmental overlords to the north.

SCB: Holland & Knight is a big firm – more than 20 offices and 1,100 lawyers. Give us a bit on how your specialty of real estate and environmental law/litigation fits into the bigger Holland & Knight picture.

JH: Holland & Knight has the nation’s largest land use practice, but when our group joined from a boutique

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firm more than 15 years ago, the firm did not have a West Coast land use and environmental practice – so we were a great strategic addition. The firm was and remains a great fit for our team, which has grown to more than 25 lawyers from San Diego to Sacramento and in between.

SCB: You and your colleagues really made waves with Holland & Knight’s 2015 book, “In the Name of the Environment,” which provided a shocking review of the real impact of CEQA lawsuits. Tell us about the book and how it came about.

JH: It’s a bit of a long story, but I think the context is important. I spent 23 years on the Board of Directors of the California League of Conservation Voters (“CLCV”), and right before the 2008 recession hit, CLCV honored infill builders like Forest City for pioneering higher density, mixed income urban developments near transit. Then the 2008 recession wiped out housing, including the housing construction trades – and that was the remaining blue collar employment base for my family and those I grew up with after the rust belt hit California and wiped out thousands of manufacturing jobs in the late 1980’s. In 2008, Silicon Valley was still a global economic success story in the recession but had, and continues to have, a massive housing shortage. At one point the Bay Area was creating nine new jobs for every new housing unit.

Looking at this, there was an obvious win possible right after Jerry Brown was elected to do a two-year emergency exemption from CEQA for higher density housing along transit corridors – housing that had to comply with local zoning and also all of California’s stringent environment and building standards. That could keep construction workers from losing their jobs, their marriages, their kids, and in some cases their life as physical and mental illness spread like wildfire. I pitched this two-year exemption idea to Tom Adams, CLCV’s Board chair, who earlier, as the founder of Adams Broadwell, had invented the use of CEQA as a litigation leverage tool by the Building Trades Council. I’d been friends with Tom for 20 years, but after he heard my proposal in 2009 he said the last words he’s ever said to me: “Jennifer, that will never happen.” I was flabbergasted – why not help construction workers and people who need housing by quickly building more housing where the environmental community just agreed it should be, and where early climate laws like SB 375 said it should go? Tom’s answer was that he would NEVER give up leveraging CEQA lawsuits to get Project Labor Agreements for the union locals who hired his firm – which was not at all about the environment, or housing.

I decided that to effectively advocate for housing – and the families, workers, builders and employers who depended on housing – we needed to peel back the curtain on CEQA’s status quo defenders, and the abuse of CEQA for non-environmental purposes. I led the research, but even I could never have envisioned the results – only 13 percent of CEQA lawsuits are filed by environmental groups, the top target of CEQA lawsuits is housing in existing communities, and the winloss rate for CEQA lawsuits is nearly a coin toss. In practice, CEQA is a barrier to housing – and worse, it’s an anti-environmental barrier.

SCB: What affect do you think “In the Name of the Environment” has had?

JH: It changed the debate. Our research methods were simple and our factual conclusions have never been challenged. We looked at every single CEQA lawsuit filed over three years, then did subsequent studies over the next three years and thereafter, just documenting what was being targeted by whom. When we published the results, we got ludicrous critiques – like CEQA lawsuits are less than one percent of all lawsuits filed in California. But who cares how many property or contract or probate lawsuits we have? Or my favorite, versions of which were made in both San Francisco and LA, saying that fewer than one percent of CEQA decisions are ever litigated. Right. Because if you count the thousands of categorically exempt projects that we shouldn’t even have to think about, which in San Francisco included internal modifications to existing

“ B i l l , o r t h e G e n e r a l , w a s t h e q u i n t e s s e n t i a l i n n o v a t i n g a n d r i s k - t a k i n g d e v e l o p e r a n d p r o p a g a t o r o f t h e A m e r i c a n D r e a m . H e l e a v e s b e h i n d h u n d r e d s o f t h r i v i n g c o m m u n i t i e s a c r o s s o u r n a t i o n f u l l o f f a m i l i e s l i v i n g t h a t d r e a m . H e w a s , i s a n d w i l l r e m a i n a n i c o n o f t h e i n d u s t r y . ” - N E W M E Y E R & D I L L I O N L L P

“ I n e a r l y A u g u s t 1 9 9 8 , I h a d a n e w j o b o p p o r t u n i t y t o g o t o w o r k f o r W i l l i a m L y o n H o m e s , I n c . a s a p r o j e c t m a n a g e r i n t h e S o u t h e r n C a l i f o r n i a d i v i s i o n . A f t e r I h a d a l r e a d y a c c e p t e d t h e j o b o f f e r I w a s i n v i t e d t o a o n e - o n - o n e m e e t i n g w i t h G e n e r a l W i l l i a m L y o n . K n o w i n g w h a t a n i c o n i c f i g u r e h e w a s , h o w i n d e m a n d a n d b u s y h e m i g h t b e , I e x p e c t e d a r e l a t i v e l y q u i c k a p p o i n t m e n t , m a y b e a 2 0 m i n u t e m e e t - a n d - gr e e t w i t h t h e g r e a t m a n . T h e m e e t i n g l a s t e d f o r m o r e t h a n a n h o u r a n d a h a l f w h e r e w e c o v e r e d w i d e r a n g e o f s u b j e c t s i n c l u d i n g h o m e b u i l d i n g , p o l i t i c s , c a r s , f l y i n g a n d f a m i l y — h i s g r e a t e s t p a s s i o n s . O n e r a r e l y g e t s t o a s k s o m e o n e w h o h a s s p e n t a l i f e t i m e i n l e a d e r s h i p p o s i t i o n s a t t h e h i g h e s t l e v e l s a b o u t t h e q u i n t e s s e n t i a l a s p e c t s o f l e a d e r s h i p . B u t I d i d . O n e q u e s t i o n I a s k e d B i l l , a s I c a m e t o k n o w h i m w e l l d u r i n g t h e a l m o s t 1 1 y e a r s I s p e n t a t t h e c o m p a n y w i t h h i s n a m e o n t h e d o o r , “ W h a t a r e t h e m o s t i m p o r t a n t c h a r a c t e r i s t i c s y o u l o o k f o r i n t h e l e a d e r s o f y o u r o r g a n i z a t i o n s ? ” H e d i d n ’ t b a t a n e y e o f h e s i t a t i o n a s h e l i f t e d h i s h a n d u p a n d i n h i s f a m i l i a r g e s t u r e o f a w h i p o f h i s w r i s t h e h e l d u p t w o f i n g e r s a n d s a i d , “ T w o t h i n g s : i n t e g r i t y a n d l o y a l t y . ” F r o m t h a t m o m e n t o n , I k n e w I c o u l d c o n d u c t t he a c t i v i t i e s o f m y j o b o n b e h a l f o f t h e c o m p a n y a n d t h a t i f I c o n d u c t e d m y s e l f t o t h o s e i d e a l s , I k n e w G e n e r a l L y o n a n d t h e c o m p a n y w o u l d i n t u r n h a v e m y b a c k . A n d t h e y d i d . ”

- T O M G R A B L E , D I V I S I O N P R E S I D E N T , T R I P O I N T E H O M E S B I A S C I M M E D I A T E P A S T C H A I R

non-historic buildings – then you’re right: Almost no one is going to sue, it’s just a paper chase by the army of folks now making a living charging by the hour under CEQA. In a radio interview shortly after we published, David Pettit from the Natural Resources Defense Council admitted that “all the big projects” get sued under CEQA. Yep, the big ones, and increasingly the small ones too – especially to pay that whole class of ambulance-chasing CEQA lawyers who don’t even have a real client but just want a quick and substantial cash settlement. It is just shameful for environmental advocates to defend the CEQA status quo, given California’s poverty, homelessness, and housing crisis. I stayed on the CLCV Board for a couple more years, but the willful anti-housing and anti-people bias and blindness of too many in the environmental advocacy world was just too much. Even the Sierra Club’s first Black President noted that racism was and remains pervasive in environmental organizations, and Mary Nichols was passed over by the Biden administration after Black employees documented widespread racism and environmental justice advocates decried environmentalist cronyism and disregard for the health of poor communities of color.

I’m no friend of pollution – I grew up in a polluted factory town and have asthma – but for CEQA to be used to block critically-needed housing is not about fighting pollution or preserving natural spaces, it’s about extortion, NIMBYism and – too often – racism. In a second three-year study, we found that 78 percent of all anti-housing CEQA lawsuits in the LA region were filed in the region’s whitest, wealthiest and healthiest areas.

SCB: What are you working on now at BILD?

JH: Everything in California today revolves around climate change, and that’s led to the Vehicle Mile Travelled (“VMT”) regulatory regime imposed by the California Air Resources Board, and then weaponized in CEQA by the Office of Planning and Research. Climate change and its spawn, VMT, is this generation’s bureaucratic rationale for excluding minorities from attainable homeownership by demanding that new housing must either be high density, high priced units on a fixed-route bus or transit stop – or 100% “affordable” housing by which they mean the sort of taxpayer funded rental-only units that past civil rights leaders called “projects” as they fought for the right to buy a home just like their white co-workers.

When the Southern California Association of Governments issued its new regional SB 375 plan, buried in their models was a consultant-driven land use plan to reject more than 90 percent of approved General Plans in favor of concentrating new highdensity development in poor minority neighborhoods, while forbidding even small infill projects on surplus strip malls in single family home neighborhoods. The SCAG Regional Council wisely stepped in to call for a time-out and fixed it, but the planning bureaucrats and their advocates loved what they’d done because treading on the downtrodden reduces VMT!

In addition to VMT, while much of the California economy has been shuttered by the coronavirus, regulatory agencies have been plenty busy – for example, a stormwater regulation that would ban outdoor construction during the winter (because construction workers don’t need to work during the winter?). On another issue, we have seen the diverting taxpayer funds earmarked for road maintenance and improvements instead to a sole source contract to prevent housing on land “at risk” from development. Meanwhile, more than seven years of extraordinarily costly regulatory efforts to reduce greenhouse gas for climate change were wiped out in a summer in forest fires that the state’s own Little Hoover Commission warned years ago would cause “Fire on the Mountain” (the title being an homage to the Grateful Dead, incidentally).

These agencies and their policies too often aren’t really about climate or the environment; they are about people with power and money victimizing families struggling to get by on what they earn from good jobs

in a state that makes them pay three times more for a house than Arizona. I’m a lawyer and BILD is an advocate for building housing – and for us it is a moral imperative to continue to shine a spotlight on the abuse of people who need housing by wealthy elites, and use all of our legal tools to advocate for good housing policy and actual housing projects.

SCB: You’re also involved in The Two Hundred, which is a statewide voice advocating for more home ownership for low- and moderate-income communities of color. How did you get involved with them, and what are your thoughts on their mission?

JH: I’ve worked with members of The 200 for more than 20 years, first in their effort to force the Department of Toxics Substances Control and Regional Water Quality Control Boards to join more than 40 other states in having clear cleanup standards for Brownfields properties so these properties could be redeveloped with standard bank financing and community reinvestment tax credits. It was my honor to work with them on other projects, including most recently in homeownership. The 2008 recession destroyed trillions of dollars of wealth in minority communities, and the housing shortage and runaway housing crisis had been allowed to get so far out of control that California had become more racially segregated, with fewer minority homeowners, than before the civil rights movement of the 1960’s.

The 200’s focus is on homeownership: the most successful wealth creation tool in human history, which was responsible for the creation of the largest and most successful middle class in the nation’s history. The leaders of The 200 did an extensive survey of their civil rights colleagues and community leaders and members, housing advocates and developers, banks and lenders, and government officials – and they kept hearing over and over again about CEQA. I’m proud to be their enviro nerd on CEQA and housing but was totally taken by surprise when CARB jumped into CEQA in 2017 by adding anti-housing measures to the state’s climate change plan. The shocking truth is that CARB counts shrinking the California economy and exporting jobs and people to other states as greenhouse gas reduction achievements, thereby cloaking in climatetalk the anti-population agenda that is built into the DNA legacy of California’s environmental agencies and advocates. CARB and OPR continue to weaponize CEQA to drive Californians out of the state where housing is actually affordable to working families, even though a family moving from California to Texas nearly triples its greenhouse gas emissions. I did not anticipate spending these past several years working with The 200 to pursue civil rights litigation against state environmental agencies to try to recover the massive losses in homeownership since civil rights reform, but that’s where we find ourselves.

SCB: What does Jennifer Hernandez do when she’s not being the killer CEQA litigator we all think we know?

JH: Wish for more free time, thank my patient husband, miss my world-travelling son – and swim or walk in the Marina!

SCB: Any parting thoughts on anything at all?

JH: BIASC members build more housing than anyone else in California, by several orders of magnitude. BILD and BIASC are advocates for our members – and advocates for our state and its people. Homebuilding has always played a major role in economic recovery, and it was and remains a bright light of hope for the millions of families who long for a home they can buy, or a better home they can rent. Fighting for housing is a righteous war, but we can’t stay in an industry silo or a regional silo and win against the de-growth and income redistribution disciples that control too much of the housing policy agenda. BIASC has been a regional leader, and a catalyst for other sectors and regions, in holding elected officials accountable for restoring attainable homeownership to our hard-working families. I’m very proud to be on Team BIASC/BILD.