SB 375: Promise, Compromise and the New Urban Landscape

Darakjian, John, UCLA Journal of Environmental Law & Policy

  I. INTRODUCTION

 II. TRANSPORTATION, LAND USE AND GLOBAL
     WARMING

III. THE SMART GROWTH PEDIGREE: THE SLOW
     GROWTH MOVEMENT, AB 857 AND THE SACOG
     BLUEPRINT
     A. The Slow Growth Movement
     B. AB 857
     C. The SACOG Blueprint

IV.  SB 375: STRUCTURE, IMPLEMENTATION AND THE
     ROLE OF CARB
     A. The Role of CARB
     B. The RTP and SCS
     C. The APS
     D. CEQA Exemptions and Streamlining
        i.   Residential or Mixed-Use Projects
             Consistent With SCS/APS
        ii.  Transit Priority Projects
     E. Housing Element Reform

V.   OBSTACLES TO IMPLEMENTATION
     A. Transportation Infrastructure: Smart Growth's
        Missing Link
     B. APS, Feasibility and the Breakdown of Internal
        Consistency
     C. California's Land Use Status Quo: Loose Ends,
        Local Ties
     D. California's Changing Landscape

VI.  RECOMMENDATIONS
     A. Infrastructure
     B. Actions by CARB
        i. Compliance Clarity
        ii. Provision of GHG Emission Evaluation
            Guidelines
     C. Consider Amendment

VII. CONCLUSION

I. INTRODUCTION

On September 27, 2006, California Governor Arnold Schwarzenegger signed into law AB 32, (1) the Global Warming Solutions Act, widely considered the most comprehensive and progressive piece of legislation ever drafted to address the causes of anthropogenic climate change. The statute gives the California Air Resources Board (CARB) broad authority to regulate any source of greenhouse gas emissions (GHGs), including those from the transportation and land use sectors. (2) The eleventh-hour enactment of SB 375 in September, 2008 represents the first legislative step towards aligning the state's future land development with AB 32's emissions reduction goals. (3) Vaunted as a "trifecta of the impossible" by one of the statute's contributory drafters, (4) SB 375 seeks to harmonize three distinct areas--regional housing need, transportation infrastructure development and statewide air quality goals--in one comprehensive program. The law builds upon existing regulatory structures and seeks to incentivise compact development through a mix of project funding and process streamlining all targeted toward one end: reducing vehicle miles traveled (VMT) among California's 23 million licensed drivers. (5) Whether SB 375 will herald a new era of smart growth or simply add additional strata to an already complex planning process remains to be seen.

This Comment will look to past failures and present successes to determine what potential obstacles may arise in implementing the nascent law. Additionally, the Comment provides recommendations, both legislative and administrative, intended to bridge the gap between the untested language of the statute and practical achievement of its goals.

Understanding both the promise and potential pitfalls of SB 375 requires analyzing the law's overall structure to find the balance between what its language mandates and what the statute hopes to achieve through incentive--determining what must be done and what is still left to the caprice of local and regional governments. Beginning with Part II, this Comment will explore the environmental crisis and regulatory context under which the statute was conceived and ultimately enacted. The global and regional effects of climate change will also briefly be discussed. Part III will look to California's historical attempts to legislate smart growth, evaluating both the efficacy and structure of previous programs. These early state efforts to constrain suburban sprawl are presented as the evolutionary predecessors to SB 375, informing our understanding of this newest legislative species and providing an historical base from which to evaluate its potential for success or failure.

Part IV provides an overview of the statute's basic functional structure. The bill is not a stand-alone law but instead amends current regional transportation and environmental statutes. SB 375 inserts additional documentation into the regional transportation plan (RTP) already required under state and federal law (6) and adopts new regulatory procedures under the California Environmental Quality Act (7) (CEQA) for those projects meeting specified criteria. The section will also discuss how and by what time frame emissions-reduction targets will be assigned by CARB to each of the state's seventeen metropolitan planning organizations (MPOs) as well as the relative authority and obligations assigned to each of these various agencies. Additionally, the means by which the statute seeks to align the previously discrete housing-need allocation and transportation planning processes will be explored. Consideration of the workings of SB 375 illustrates the extent to which the new statute transforms the landscape of land use regulation in California and the degree to which previous structuring remains unchanged. The consequences of these issues will be discussed in detail in the subsequent sections.

Viewed from any perspective, SB 375 is legislation born of compromise. The statute endured fourteen amendments between its introduction and eventual adoption as its author attempted to appease the many stakeholders--builders, environmentalists, local and regional governments--whose concerns and concessions are now embodied in the law's text. As a result, the law is far less robust than it might otherwise have been, sacrificing strict mandate for incentive and suggestion in a bid for adoption. Part V will explore the effects of this compromise on regulatory consistency under SB 375 and the end run around compliance provided via the statute's alternative measures. This section also explores issues of funding, administrative complexity and litigative challenge likely to affect implementation.

Finally, Part VI presents recommendations and possible solutions to those issues considered in the previous sections. Suggestions range from the provision of guidelines for agency and judicial administration to the establishment of clearer, less equivocal policy under both SB 375 and AB 32. Each is directed at preserving the unlikely coalition of policy makers and stakeholders who made the law possible and ensuring the statute's goals are not swallowed by exceptions.

II. TRANSPORTATION, LAND USE AND GLOBAL WARMING

The issue of worldwide climate change is somewhat unique as it involves localized actions with global repercussions. While theories describing the basic potential for human activity to affect the atmosphere date back to the latter half of the nineteenth century, the bulk of scientific research in this area did not begin to amass until the late 1970s. (8) Over the following twenty years, a growing consensus developed among climate scientists as to the "greenhouse effect" created by fossil fuel consumption and the resulting emission of carbon dioxide into the atmosphere. (9) As the research progressed, it became clear that CO2 was only the most abundant among a list of GHGs, each the product of human activity and each capable of trapping heat and increasing ambient temperature. (10) As a result, scientists began to predict the earth's climate would steadily warm in concert with the planet's growing population.

Whatever uncertainty may have persisted as to the reality of anthropogenic global warming or its effects on the planet was laid to rest with the 2007 Intergovernmental Panel on Climate Change report. The Panel, established by the United Nations and consisting of over 2500 expert scientific reviewers, (11) stated in unequivocal language their "very high confidence that the global average net effect of human activities since 1750 has been one of warming." (12) As climate change transitioned from debatable theory to verifiable fact, the world was left to contemplate the results of unabated GHG emissions and the consequences of an economy addicted to fossil fuels. The basic facts are clear: the effects of persistent or increasing GHG levels on the global environment may vary from region to region, but, in the aggregate, these effects are overwhelmingly negative. (13) They include flooding and hurricanes of increasing frequency and severity, rising ocean levels, decreased availability of fresh water, reduced agricultural production and the increased incidence of malaria and diarrhoeal diseases. (14)

At the same time as the international scientific community established the present danger represented by climate change, the United States Supreme Court weighed in with equal clarity on the matter. In March of 2007, the Supreme Court decided Massachusetts v. EPA. (15) In its majority opinion, the court declared that the "harms associated with climate change are serious and well-recognized." (16) In addition to establishing the general danger represented by climate change, the case is significant for two principal holdings: First, the court declared C[O.sub.2] a pollutant properly regulated by the Environmental Protection Agency under the Clean Air Act; (17) and second, the court recognized standing by an individual state premised on concrete harms resulting from climate change. (18) The Massachusetts ruling clearly established states as potential victims of climate change, giving their attempts to regulate against further harm new validity and urgency. But with carbon emissions in some states rivaling those of major industrialized countries, states could act as significant drivers of climate change as well.

As stated above, because GHGs are long-lived and readily capable of dispersing throughout the earth's atmosphere, climate change is a problem of local actions and global consequences. (19) With a population of 35 million residents (expected to grow to 55 million by 2050), California is one of the world's most prolific emitters of C[O.sub.2]. (20) If the state were a nation, its yearly GHG emissions would place it somewhere between the tenth- and sixteenth-highest contributors globally. (21) California will likely face significant harms from climate change in the coming years. Although the potential to be injured by climate change is in no way unique to California--it was one of 12 state petitioners in Massachusetts--several factors make the region particularly vulnerable. In a 2006 report, the California Climate Change Center found "the state's vital resources and natural landscapes are already under stress due to California's rapidly growing population." (22) The vast majority of residents currently live in regions that fall significantly short of federal and state air quality standards. And the state as a whole suffers from some of the nation's worst air quality. (23) Rising temperatures will place pressure on California's already strained water supply, particularly in the hotter, drier southern regions of the state, reducing snowpack in the Sierras and increasing flooding in the plains. (24) In addition to threatening the potable water supply, a projected decrease of 30 percent in spring stream flow could wreak havoc with the state's agriculture economy. (25) Current estimates predict California farmers could lose as much as 25 percent of their needed water supply. (26)

It was under the threat of such dire consequences that the state enacted AB 32. The law establishes a 1990 baseline emissions inventory defining the target greenhouse gas emissions level to be reached by 2020. (27) As activities within the state were evaluated for their contribution to emissions, the movement of goods and people throughout the state emerged as a significant culprit. California's transportation sector, currently responsible for 38 percent of overall emissions, represents the state's single largest producer of GHGs. (28) If no action is taken, emissions from the sector are projected to increase by approximately 25 percent by 2020, an increase of 46 million metric tons of C[O.sub.2] per year. (29) Among the transportation sector, passenger vehicles are responsible for close to 30 percent of California's GHG emissions. (30) Considering the numbers, it is not surprising that the state would seek all possible means to reduce emissions from this sector.

In its June 2008 scoping plan, CARB addressed the nexus between VMT emissions and the state's land use policies. CARB suggested several means by which carbon emissions from cars and light trucks might be reduced, but ultimately determined that these measures alone might not be enough:

   While improved vehicle technology and lower carbon fuels provide
   most of the transportation reductions in 2020, additional
   reductions can be achieved by making the connection between
   transportation and land use. This scenario reflects an increased
   emphasis on urban infill development: more mixed use communities,
   improved mobility options, and better designed suburban
   environments. (31)

The legislative findings section of SB 375 even more aggressively states the necessity for reduced VMT, claiming "[w]ithout improved land use and transportation policy, California will not be able to achieve the goals of AB 32." (32) While this assertion is debatable, the potential benefits from compact, less sprawling development are becoming increasingly well established. (33) A recent U.C. Berkeley study evaluating regional California blueprint models combining land use and enhanced transit policies determined an average value of four percent per capita VMT reduction as compared to business-as-usual planning. (34) In any event, California's regional and local governments, the traditional holders of land use authority, have now been conscripted into the fight against GHG reduction. (35)

The push to increasingly wield land use as a weapon against growing carbon emissions has been felt beyond the state's legislative and policy arenas. Beginning in 2006, the California attorney general commenced aggressively litigating against counties failing to account for GHG emissions in their general plans and various approved projects. (36) This was a provocative move considering local governments have been fiercely protective of the exclusive land use authority traditionally granted them by the state. (37) Negotiations resulted in settlement in most of the suits, but the state had conveyed a clear message: the once unassailable realm of local planning would now be shaped and limited by the statewide goals of AB 32. SB 375 is a direct result of this new policy but it remains to be seen whether the statute's flexible, incentive-based approach will be sufficient to alter the land-use status quo. SB 375 is certainly the most substantial and sweeping law of its kind, but it is not the first attempt within the state to curb sprawl and encourage compact development.

III. THE SMART GROWTH PEDIGREE: THE SLOW GROWTH MOVEMENT, AB 857 AND THE SACOG BLUEPRINT

A. The Slow Growth Movement

Twenty years ago, Los Angeles took the first tentative steps toward structured development land use reform with the passage of Proposition U. Motivated by growing sentiment among county homeowners that unchecked real estate development was at odds with their desired quality of life, proponents of the proposition presented the law as a remedy for the congestion plaguing the city's notoriously gridlocked byways. (38) The proposition sought primarily to limit further high-rise construction throughout Los Angeles, only allowing continued development in specified urban areas like downtown and Century City and reducing by half the height of new buildings on the majority of the city's commercially zoned property. (39) But the movement towards slow growth was not limited to Los Angeles, nor was it limited to commercial or urban projects; during the same election year a spate of slow-growth propositions appeared on ballots throughout the state. San Francisco residents placed an initiative on the ballot to limit downtown office development. Simi Valley and Moorpark voters came out to restrict residential growth. And in San Diego housing development was limited to 8,000 new units per year. (40) All told, the 1986 …

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Publication information: Article title: SB 375: Promise, Compromise and the New Urban Landscape. Contributors: Darakjian, John - Author. Journal title: UCLA Journal of Environmental Law & Policy. Volume: 27. Issue: 2 Publication date: Winter 2009. Page number: 371+. © 1998 University of California at Los Angeles, School of Law. COPYRIGHT 2009 Gale Group.

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