Public Comment

AB 292 and SB 900: Both Bad for the Environment;
Why Did Skinner and Hancock Vote for Them?

By Antonio Rossmann
Tuesday October 11, 2011 - 09:58:00 AM

Enactment of these two bills represent the culmination of a perfect storm, which runs the risk of repetition often in the days ahead. But first explanation of what they are.

SB 292 was the special interest bill to facilitate approval of a new NFL stadium in downtown Los Angeles. The project proponent is AEG Enterprises, Philip Anschutz' empire that includes many of the world's major sports and entertainment stadia, and ownership of several professional sports teams in hockey, basketball, and soccer. AEG claims they need special treatment under CEQA in order to bring an NFL team to Los Angeles; the asserted fear is that a lengthy CEQA lawsuit would delay the arrival of a team they acquire from elsewhere, leaving that team stranded in its present location. AEG also claimed discrimination because two years ago the Legislature gave a competing Southern California promoter categorical exemption from CEQA. AEG built a political consensus for its project and CEQA exception by touting the tens of thousands of jobs that would be created by stadium construction. 

It is noteworthy that the competing promoter has had his blanket CEQA exemption for two years, premised on the creation of immediate jobs at his site, and none (nor a football team) have been created there. It also bears observation that short of Chevron and Apple, AEG more than any other corporate entity in America has financial capability to assume the risk of stadium construction, and legal ability to marshal the law firms to defeat a meritless or competitor-motivated CEQA case. AEG appeals, however, to a defining and bipartisan theme of our political generation: all reward must remain private, all risk becomes socialized. 

Claiming that it was not asking for a blanket exemption, AEG negotiated with the Assembly Speaker's office the terms of SB 292: any CEQA case would have to be filed directly in the Court of Appeal rather than Superior Court. This process would thereby potentially shorten legal review by essentially depriving challengers of a guaranteed appeal on the merits, because appeals from decisions of the Court of Appeal can be summarily denied without hearing by the California Supreme Court. This process also meant that in this one case the Court of Appeal would be expected to set aside all of its appellate tasks to act in this instance as a trial court, for the sole benefit of AEG's project. 

Complementing these unfortunate features, SB 292 has some positive elements. It does impose some project approval conditions that are intended to minimize greenhouse gas emissions from the new stadium project; whether these are feasible or enforceable remains to be seen if the project does move forward. The bill also requires the approval agency to maintain a contemporaneous public record and submit that record immediately to the reviewing court with only copying costs charged to the petitioner. (One can argue that existing California law has always required the agency to maintain its record contemporaneously, and then to submit it to the court upon payment of solely copying costs, but in recent year truculent cities and developers have made a game of racking up both time and expense for doing what the law already requires, and demanding in some cases that CEQA petitioners pay hundreds of thousands of dollars for record preparation before a CEQA case can be tried.) 

SB 292's terms were introduced in the Legislature seven days before the end of session. The tactic used was "gut and amend" of an existing Senate measure in the Assembly, thereby precluding all but the most perfunctory of hearings on one day's notice in both houses of the Legislature. Once approved by the Assembly as gutted and amended, it went to the floor of the Senate for concurrence vote. As expected, Governor Brown (who became quite critical of CEQA as mayor of Oakland, despite his strong support for the law in his initial gubernatorial terms) signed the bill, with much fanfare at the proposed Los Angeles stadium site. 

But SB 292 left an immediate legacy of even greater potential harm. Once it was voted out of the Assembly, the Senate President Pro Tem performed a similar gut and amend in his chamber on another Assembly measure, AB 900, and copied the AB 292 format to be applied statewide in major projects selected by the Governor. Thus, instead of confining the CEQA trial to one Court of Appeal case and to one known project, AB 900 makes trial courts out of all the Courts of Appeal in the state for any number of projects, and of equal moment, is not tied to any specific project known at this time. Instead, the projects eligible for this special treatment are chosen by the Governor, with the proviso that his selection is not subject to judicial review. The Governor signed this bill concurrently with SB 292. 

AB 900 resulted from a process even more foul than that of SB 292. AB 900 was introduced on the next to last day of the legislative session, given a perfunctory hearing in the Senate, and then rushed off the floors of both houses, all in under 24 hours. As a consequence, the only "participants" in this measure were those who secretly negotiated it; even less opportunity was provided for critical or considered review, or to have AB 900's flaws exposed or corrected before such rapid enactment. If the accepted legislative process had played out over several months, the entire land-use regulatory, environmental, and development communities could have addressed CEQA revisions with a more rational and beneficial outcome. 

As the Daily Planet's editor reports, our Assembly Member voted for both of these measures, and our Senator voted for the more significant and flawed one, AB 900. These votes can be explained on two levels. The first is that of following party leadership on pain of disciplinary action; on the Assembly side, the Speaker has not hesitated to punish Democratic dissenters, in one case actually threatening to terminate the staff of Pasadena's representative for supporting the efforts of newspapers to uncover the chamber's internal expense account. The Speaker believed he had negotiated a stadium bill that was less drastic than a complete override of CEQA. On the Senate side, the President Pro Tem has made no secret of his personal priority to keep the Sacramento Kings in that town, and so exploited one of the basic arguments against the stadium SB 292 (it singles out one project for favorable treatment) to expand the opportunity for equal treatment for what may emerge as his own professional sports stadium. 

(What is is about stadia, be they at Cal or Staples Center or in the Natomas floodplain, that causes our officials and leaders to lose their heads? Do not the University and State of California have better priorities?) 

The larger explanation for these bills lies in successful exploitation of our current economy to stoke unsound fears that environmental protection must be sacrificed to restore economic opportunity. "Jobs" has replaced "national security" as the talismanic codeword to justify the waiver of protections that most citizens support and that time and again have been shown in dispassionate analyses NOT to stand in the way of economic progress. In Washington this banner is carried by the minority party; in California it finds large support in the majority party. Even a generally progressive Governor Brown (and hence his staff) envision "CEQA reform" as a priority for state legislation. But we must remind these leaders that if AEG wanted to create jobs in downtown Los Angeles without SB 292, it has ample financial and legal resources both to play fair and to exact fairness from others in the land-use review, without asking the state to remove the last measure of private risk standing in the way of its private enrichment. 

The proper response, then, calls for a comprehensive public review of CEQA procedures, not the private deal-brokering that stained the end of the current legislative session. That will require our local legislators to vote their constituents' values in the coming session, and stand up for a better outcome. The good news is that an example was set in the concluded session, by Assembly Member Jared Huffman of Marin and Sonoma Counties, who properly objected to a foul process and a foul result. In the coming year Berkeley's representatives should not let Huffman stand alone, and make clear to the administration and their party leadership that we can do better. 

In the meantime, we should observe how 292 and 900 play out. Perhaps the NFL will yet decline to let LA steal another city's team. Perhaps no project will qualify for SB 900's exemptions, and the measure will sunset in 2014 never having been exercised. And let's not discount a constitutional challenge: the Court of Appeal's original jurisdiction is defined by the State Constitution, which includes the courts' discretion to decline to hear a case on the merits. Can the Legislature tell the courts how to conduct that business, any more than the courts can tell the Legislature how to do theirs? But perhaps the ultimate irony would be an affirmative answer to both questions, with a judicial decree that the Legislature can no longer proceed under "gut and amend" as it did this year. 

Antonio Rossmann has practiced CEQA law for nearly 40 years, including some of its landmark appellate decisions. He also teaches that subject at UC Berkeley School of Law.