Q&A with Leading Environmental Expert Jennifer Hernandez

from BIA Online Magazine - June 2023

Q&A with TeamPMP Lisa Parrish

Jennifer Hernandez is one of California’s leading experts on how the California Environmental Quality Act (CEQA) is abused to slow the production of muchneeded housing. She heads the West Coast Land Use and Environmental Group for the law firm Holland & Knight and is legal counsel to the Building Industry Legal Defense Foundation.

Southern California Builder: Before we get to the findings in the updated edition of the “In the Name of the Environment” report, let’s discuss a more personal aspect of your work. Despite all the good work you have done, do you still find yourself in situations where you feel you have to work harder because you’re a woman?

Jennifer Hernandez: That has diminished as I’ve gotten older. What’s now more common is that I still can be the only woman in the room with otherwise senior people. I’ve actually said sometimes in those situations, “Not to worry. I like you guys. I married one of you, after all.” But uniformly, unless I’m at the top level of some organizations, there’s much more diversity, and much less thinking about who you are and more about what you’re accomplishing. And hugely, it’s much more diverse in the Southern California ranks than in the old school San Francisco ranks.

SCB: How about earlier in your career?

JH: When I was younger, I had a dual challenge because I went to Harvard back in the 70s when their version of affirmative action was to try to grab people from different high schools that had never sent anyone to Harvard. That was interesting in terms of the level of honest diversity it created – it was really astonishing.

By the time I graduated, affirmative action was pretty much cemented as race-based, so I had the combination of being presumptively an affirmative-action-some-kindof-walking-lawsuit person who was less qualified than credentials would suggest – even though Stanford Law School let me in, so go figure – and then there was also being female.

SCB: How do you feel your work has influenced the building industry?

JH: I’ve been at the forefront of efforts to peel back the onion layers of all the rhetoric that surrounds CEQA to demonstrate that it is fundamentally a tool for antihousing, anti-homeownership litigation abuse. Anyone who believes in greater equity and less race-based or class-based discrimination should be offended by CEQA abuse because it is the redlining, anti-equity and anti-upward-mobility tool of choice of NIMBY Boomers, climate extremists, and wealthy environmentalists.

SCB: Have you used the building of Holland & Knight’s West Coast land use practice as an opportunity to bring talented women into our industry?

JH: The 25-member team I run is diverse on every possible scale of diversity. Partly that was intentional and partly it wasn’t – for example, it’s a really nice place for young parents, and young parents have a high diversity index to start with. But, we’re now facing something of an identity politics regime where we are supposed to count noses and hit precise quotas. While that’s not at all a firm policy, it is part of the culture on the West Side and Bay Area, and it makes me really nervous. I don’t want there to ever by an inference that a diverse candidate is somehow less qualified because we’re playing a numbers game. We shouldn’t have to do address diversity in that manner, so let’s just treat diversity like we treat grammar: It’s something to do because it just is.

SCB: Do you find that the building industry, with its long tradition of people advancing up from jobs the field, is more accepting of diversity and more in touch with the value of homeownership?

JH: Absolutely. My brother got his welding apprentice at 19 from his high school and worked his whole career as a welder. He made a fine living, has a nice home and got going on that all-important inter-generational wealth that comes with home ownership. We are fortunate to see that kind of story repeated over and over in the building industry. That’s the industry’s big contribution to society: It puts homeownership back on the table. We should be very, very righteous about the need for attainable homeownership as part of our California Dream. It’s not inconsistent with the environment or climate – it’s just being able to participate fully in America.

SCB: What advice do you give to those who are just getting started in their careers?

JH: One piece of advice I give everyone is that you will be most successful if you do what you love. If it feels like torture to read a zoning code, then go elsewhere. Torturing yourself will harm your health and hurt your career prospects. Next, I tell people that if all they do is wait to see what crosses their desk and try to do that well, they won’t be very good at it. You need to be proactive and understand from the prospective of those you work with what their priorities are – how do they think, what is driving their decisions because the ones who succeed are the ones who can handle the difficult, uncomfortable situations because they’ve gotten into the client’s or regulator’s or opposition’s head.

I also tell people there are inevitable periods in their life, like when you’re a new parent or when there’s an illness in your family, where you are going to need to take a bit of a pause, and then there are periods when you can and should surge, by which I mean work really hard, and just get better. There is just no substitute for it. Our careers still start with what is largely an apprenticeship – you only can figure it out by doing it, and doing it, and doing it some more, until you get better and faster.

SCB: How do you see opportunities for women to advance to the top in the building industry?

JH: That has really changed over time. I find quite a lot of openness – at least in the California building industry, where I work. I mention that because I spent one semester of law school at the University of Hawaii and I worked at a law firm there. They said that women had always had a place at their firm – and would I like to do trusts and estates, or family law? Those were my two choices and I realized, “Oh my God, I’m not in Kansas –or California – anymore.” It would never had occurred to me as a Californian that that sort of attitude existed. Statewide, I find that there are a lot of women in the building industry, and they tend to be very good at what they’re doing.

SCB: You have just updated Holland & Knight’s breakthrough study on the true negative impacts of CEQA abuse, “In the Name of the Environment.” What did you find in the updated data?

JH: First and foremost, CEQA abuse is all about housing, which remains the top target of CEQA lawsuits. We counted all approved housing units that faced CEQA litigation in 2020 and got up to 48,000. California’s annual production that year was just over 100,000, so basically half of all approved housing units got sued. Going further, I counted the number of units included in General Plans, Housing Element updates, and Sustainable Communities Strategies that were challenged. Over the three-year period, more than one million of these planned-for housing units were targeted in CEQA lawsuits. That’s about half of what the governor says we need in new housing units, yet all we have now is CEQA lawsuits.

The next thing I found is that of all the infrastructure project that faced CEQA litigation, far and away the top target was water projects, especially any kind that would actually increase water supply. All the water lawsuits are yet another surrogate for fighting housing because they don’t want water to be available for new homes. It is an absolute: We must reform CEQA or we will not be able to build the home supply we must build to meet the demand. 