CONTROLLING GREENHOUSE GAS EMISSIONS OR LAND USE AUTHORITY…WHAT IS THE REAL POWER OF SB 375?

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By E.A. Barrera

"This legislation constitutes the most sweeping revision of land use policies since Governor Ronald Reagan signed the California Environmental Quality Act." --Governor Arnold Schwarzenegger, September 30, 2008.

"This fundamentally changes the way we think about growth...It does not reduce growth. I think growth is inevitable and a good thing. But it will allow California to grow in ways that are sustainable for our environment." --State Senator Darrell Steinberg (D-Sacramento), author of SB-375

October 21, 2009 (San Diego)--The State of California wants you to drive less and live closer to work. But who will be the last word on how this happen? That is the big question.

California State Senate Bill 375 - the sweeping anti-Green House Gas Emissions legislation signed last September by Governor Arnold Schwarzenegger - may mean a future of fewer automobiles on California’s roadways, and future development projects creating tighter-spaced, dense communities tied to public transit.

It could also mean more court battles over future land use, with the question of who is really in charge less clear.

The California State Air Resources Board (SARB) is scheduled to finalize its greenhouse gas reduction targets by September 30, 2010. San Diego was chosen as the first region in the state to begin work on achieving the goals of the bill. SB-375 specifically names the San Diego Association of Governments (SANDAG) as the lead regional agency to develop a plan for implementing its guidelines.

SANDAG board member and former chair Mary Sessom, noted SANDAG initially opposed the bill, but is now supportive.

"There was no support originally from SANDAG," said Sessom, who currently serves as Mayor of Lemon Grove. "But we are now committed to making it work. Anything that can help us take control of growth and traffic is a good idea."

But within this next year, the real question could be who ends up with the power to make land use decisions--and what real changes, if any, will take place in land use planning to lower the amount of carbon dioxide entering into the California atmosphere.

The bill requires SARB to work "in consultation" with local governments and agencies, and provide greenhouse gas emission reduction targets - specifically automobiles and light trucks - by 2020 and 2035.

SB-375's primary goal is the reduction of greenhouse gas emissions from automobiles over the course of the next several decades. State Senate Majority Leader Darrell Steinberg's bill says that transportation vehicles - planes, trains and especially automobiles - are the single largest contributor of greenhouse gases. The bill states automobiles and light trucks alone account for 50 percent of air pollution in California and 70 percent of its consumption of petroleum.

According to SARB, in 1990 automobiles and light trucks contributed 108 million metric tons of greenhouse gas emissions into California’s atmosphere. By 2004 these emissions had increased to 135 million metric tons. SARB said technological advances in engine and fuel designs could help some of the problem, but reduction in over all driving was critical to reducing greenhouse gas pollution.

"The goals are laudable, and the policy is accurate in that it is better to try to link transportation with future land use planning. But the real question is how will the public react?" noted Shawn Shamlou, project manager for Encinitas-based Dudek Engineering, an environmental and engineering consulting firm. "Are people really ready for more density?"

The politically problematic issue of increasing densities in local neighborhoods is where SB-375 could muddy questions over who controls growth. The bill provides a process for the courts to stop any development project if “the project's applicant or any interested person” brings a lawsuit against the project due to a lack of compliance with the bill.

“We have 18 sprawl-based communities in this county connected by a series of freeways that only increase traffic,” noted Save Our Forests and Ranchlands (SOFAR) president Duncan McFetridge, who spearheaded lawsuits against the county in the mid 1990s. “None of the politicians in those communities want to consider the effects sprawl and pollution from car traffic have on the region as a whole. SB-375 was a start in the right direction … it has flaws and it’s not the whole picture, but it begins the process of San Diego thinking regionally," said McFetridge.

The bill would allow a court to force a local government to rezone land in order to comply with SB-375. A court could halt any project indefinitely if it did not meet the goals of the bill. Meanwhile, a developer whose project was halted do to the court’s actions could sue the local government for the costs of delay.

"What strikes me ...is that if anything happens it is always the County that pays,” said San Diego trial attorney Clinton Rooney, referring to a local government's responsibility for approving a development project. “If the County fails to re-zone, the County pays. If the County approves a project and the Court finds that they shouldn't have, then the County still pays. Either way, the County, and thus local tax-payers, would be left holding the bag no matter what," added Rooney.

Rooney said this provision of SB-375 gave developers an incentive to do whatever was needed to get an initial approval and break ground as soon as possible.

“If there was a failure to re-zone, the developer is protected as long as the area was slated to be re-zoned. If the area was not slated to be re-zoned, the project is improperly approved and someone actually sues ... and the County loses, the developer can still go after the County to recover his or her money," noted Rooney.

San Diego's battles over sprawl and land use have become legendary, with the County Board of Supervisors often pitted against environmental watch-dog groups such as SOFAR. In 1995 SOFAR took the Supervisors to court over a rezoning plan for 191,000 acres in San Diego's unincorporated backcountry. Judge Judith McConnell, who now serves on the California Court of Appeals, was the presiding judge in the case. McConnell found the Supervisors had failed to adequately create a zoning plan which adhered to the California Environmental Quality Act.

The California Environmental Quality Act (CEQA) governs land use in California – specifically requiring an environmental impact report (EIR) on any development project that may have a significant effect on the environment. An EIR is study that can often take more than a year to complete, at costs well over six figures. The development company is usually the one who pays for the EIR.

But SB-375 would exempt any transit priority project from CEQA that was declared by the local government to be a "Sustainable Communities Project" (SCS). According to Housing California, a coalition of affordable housing advocates, California will allocate $6 billion a year to transportation projects that implement the SCS, and the SCS will be updated every four to five years as part of the region’s transportation plan.

SB-375 defines a sustainable community’s project as "a realistic development pattern that meets a state target for reducing greenhouse gas emissions, while taking into account the region’s housing needs, transportation demands, and protection of resource and farm lands."

But any exception to CEQA presumes an organization such as SOFAR will not challenge the local government's decision regarding the CEQA process in court, or a judge won't find the local government made an error in their assessment. This was the circumstance in 1995 when Judge McConnell ruled against the San Diego Board of Supervisors.

"It has been said that you don't know what you've got 'til it's gone," said McConnell in her ruling against the County. "Yet where state environmental law applies, the opposite is true: Citizens and decision makers must, in fact, be informed of what they have before, and not after, it's gone."


E.A. Barrera is a San Diego-based freelance journalist and the recipient of a first-place award for news reporting in San Diego Press Club’s 2009 journalism competition.