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Prop 23, Whitman Cannot Slow Down Progressive Planning Laws

The entire California planning world now seems to revolve around combating climate change and reducing greenhouse gas emissions. But Proposition 23 a long-term suspension of the state's climate-change law is on the ballot this fall. The proposition is behind at the polls but if it passes will that be the end of SB 375, Sustainable Communities Strategies, greenhouse gas emissions analyses in environmental impact reports, and the whole industry that has been built up around climate change planning? 

And even if Prop 23 fails, Republican Meg Whitman could be elected governor. And though Whitman opposes Prop. 23, she has promised to suspend parts of AB 32 until the economy gets better. So could she kill SB 375 and the whole climate change planning effort if she wanted to?

The answer appears to be no. And the fact that the answer is no represents an important lesson in how policies that emerge in response to a law quickly become embedded in the fabric of our governmental structure.

AB 32 calls on California to reduce greenhouse gas emissions significantly by 25% or so as soon as 2020. This target has triggered all kinds of other policies and actions on the part of the state, including the adoption of the low-carbon fuel standard, increased fuel efficiency standards, stronger building codes, a rethinking of how water is used, and all-but-mandatory requirements that local governments seem to minimize the increase in vehicle miles traveled associated with new development projects.

Proposition 23 represents a de-facto repeal of AB 32, because it would suspend the law until unemployment in California dropped to 5.5% for one year. Even in good times unemployment doesn't usually drop that low, at least not for that long. But passage of Prop 23 or institution of Whitman's executive decision to suspend critical parts of it won't change the planning landscape much in California. The reason is that climate change planning efforts, while initiated in response to AB 32, are now embedded in not only SB 375 but also SB 97. SB 97 ordered the state to include climate change considerations in the analyses under the California Environmental Quality Act. SB 375, of course, is the law that requires regional planning agencies to draft sustainable communities strategies designed to meet GHG emissions reduction targets set by the state.

Although SB 375 gets all the publicity, it is SB 97 that has most affected daily planning practice in California.

One typical pattern under CEQA is that a new area of concern or a new technique is first identified by practitioners or lawyers, then memorialized permanently through a combination of legislative changes to CEQA and revisions to the CEQA Guidelines, which are done administratively by the Governor's Office of Planning & Research and the Natural Resources Agency. For example, this is how mitigated negative declarations became part of the fabric of CEQA. It's also how greenhouse gas emissions analysis became part of CEQA's fabric.

After AB 32 was passed, Attorney General Jerry Brown who will be the next governor if Meg Whitman loses sued San Bernardino County, claiming that because of the threat of global warming, greenhouse gas emissions had to be analyzed in the County's General Plan Environmental Impact Report. In a legal settlement reached in August of 2007 [pdf], the County agreed to incorporate GHG considerations into its General Plan. CEQA practitioners interpreted the settlement as meaning that GHG analyses had to be part of CEQA practice which, of course, was Brown's whole point in suing San Bernardino County in the first place.

Subsequently, the Legislature adopted SB 97, which essentially memorialized the need for GHG analysis in state law and ordered that the CEQA Guidelines be revised to set out requirements and procedures for GHG analysis. It is this law not AB 32 that forms the legal foundation for GHG analysis in the state and requires GHGs to be examined in every CEQA action.

The point is that even though SB 97 was drafted as a way to implement AB 32, it's now a separate law and therefore not likely to be affected by the passage of Proposition 23.  Of course, if 23 passes somebody will file a lawsuit claiming that SB 97 is no longer valid. But it's likely that such challenge would fail because of the nature of CEQA. There is no reason to prohibit lead agencies and their environmental scientists from concluding, on their own, that increased greenhouse gas emissions is a potentially significant environmental issue that must be considered under CEQA.

Of course, Whitman if she's elected could try to change the CEQA guidelines to weaken the requirement to conduct GHG analysis. But it's unlikely she could get rid of it altogether.

Then there's SB 375. The guts of the law lays out the process that the Air Resources Board must follow to create 2020 and 2035 targets for GHG emissions reduction and then the process that the regional planning agencies must follow in creating Sustainable Communities Strategies.

But the law is so cleverly written that it can't be tied directly back to AB 32 -- an intentional effort, no doubt, by Tom Adams, the brilliant labor/environmental law who drafted most of the bill. SB 375 has only two references to AB 32, and both are in the preamble. Never does SB 375 say that it is implementing AB 32, even though it establishes processes that would not be necessary for any other purpose. And, at the same time, SB 32 wraps itself around two other legally required processes that regional planning agencies engage in the Regional Transportation Plan required under federal transportation law and the Regional Housing Needs Allocation process required under state Housing Element law. Quite simply, SB 375 seeks to leverage the process of reducing greenhouse gas emissions to achieve other planning goals required by those other two processes.

So there you have it. Proposition 23 or no Proposition 23, climate change planning is a permanent part of the California planning landscape. Meg Whitman can try to weaken this planning effort but it's unlikely that she can get rid of it and, once in office, she may reveal herself to be a moderate Republican in the Schwarzenegger mold who sees political advantage to keeping environmental regulations strong. And as for Jerry Brown, he tipped his hand in the San Bernardino case: To him, climate change is the clearly cornerstone of California's planning in the 21st Century.

--Bill Fulton

 

 

 

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