Like ’em or hate ’em, environmental laws have been the bane of California, causing unconscionable delays and wasting fortunes on litigation by assorted NIMBYs trying to frustrate perfectly innocuous projects, including needed housing projects. Back in the 1970s, Professor Bernard Frieden, head of the MIT Planning Department, wrote an excellent book on that subject, entitled The Environmemntal Protection Hustle (MIT Press 1979) in which he demonstrated that environmental laws, particularly as applied in the land-use context, were being abused on a large scale for the benefit of wealthy, influential suburbanites rathyer than the environment. A major culprit is the California courts’ approach that favors broad standing in these cases, so that virtually anybody can sue to stop any project. As professor William Fischel, a noted Dartmouth College land economist, observed in his book Regulatory Takings: Law, Economics, and Politics (Harvard U. Press 1995), at p. 251:
“The California court changed the legal rules so that any number of parties could stop a given development up to the moment at which it was physically improved. The court thus created a commons in the right to exclude.”
So when it comes to building large projects, litigation over application of environmental law compliance can be protracted and costly. But hey man, say the environmentalists, the environment must be protected for the sake of the children and the planet, and besides, like it or not, the law is the law, and we have to obey it lest we sink into a lawless abyss of environmental despoliation with greedy developers (is there another kind?) raping the earth, and reaping obscene profits. Right? Wrong. It turns out that it all depends on who you are, how big your project is, and how much political clout you wield.
When it comes to the construction of football stadiums, the latest wrinkle is for the legislature to grant the football nabob du jour special treatment that minimizes the burdens of complying witth environmental laws. At the moment, AEG wants to build Farmers Field, a new football stadium in downtown Los Angeles (next to the Staples Center), even though there is no Los Angeles NFL team that would play there. As you can imagine, plopping down an NFL-style stadium smack-dab in the heart of downtown would be a gigantic undertaking because, among other things, it would require the demolition and reconstruction of that municipal white elephant known officially as the Los Angeles Conventional Center, that is currently running a municipal deficit of $30 to $40 million per year. So given these facts, this appears to be the sort of big, complex project that would normally attract environmental litigation like you-know-what attracts flies on a warm summer day. What to do?
The proposed solution has been a piece of legislation that would short-circuit the judicial environmental review process and de facto reduce the courts to not much more than a rubber stamp. This legislative scheme would eliminate the right to litigate in the trial court altogether, and would limit judicial relief (if any) to a review proceeding directly in the Court of Appeal which would have a mere 175 days to complete the review. But review of what? Usually, an appellate court reviews the judgment of a trial court where admissible evidence was presented, the law was briefed, and a judicial decision was made. Thus, the trial court judge in such cases provides the parties with procedural due process of law by admitting documentary evidence, hearing sworn testimony and cross-examination of witnesses, and is in a position to make an informed judgment. Not so when the matter goes directly from a city hall administrative body to an appellate court which is not equipped to hear testimony and is unable to afford the parties the usual due process protection. All it can review is the administrative record of non-judicial proceedings in City Hall, which are not any kind of administrative adjudication before an administrative judge, but, to put it charitably, a free-for-all that rarely bears even a casual resemblance to due process of law.
And to stack the deck further, the proposed legislation would give the Court of Appeal a mere 175 days to complete review of a billion dollar project, even while deciding other cases in its usual case load. Does that sound like a thoughtful, prudent process to you? It sure doesn’t to us. But what do we know?
An insight into what’s afoot here is provided by the observation of Los Angeles Times Sacramento columnist George Skelton, who described the handling of that legislation as follows:
“The developer’s representatives spent weeks trying to negotiate a private backroom deal between competing interests. The plan was to jam through a bill at the last minute without public hearings, leaving little time for the generation of public opposition.” Geoge Skelton, Touchdown Is Within Reach, L.A. Times, September 8, 2011, at p. A2.
You get the picture, don’t you?
But that isn’t all. First, this deal is the second one like that. A similar bit of legislation was passed recently to grease the skids for another new football stadium in City of Commerce (located in the Los Angeles basin). So if all this stuff ever becomes reality, the Los Angeles area will have four — count ’em, four — major football stadiums — the Rose Bowl, the Coliseum, Farmers Field and the one in the City of Commerce — but no NFL football team. That may make sense to the folks in City Hall, but being a person of meager intellectual resources, your faithful servant has a problem or two wrapping his mind around this bit of lunacy. The theory is that Los Angeles will be able to lure the San Diego Chargers, which, should it come about, would leave San Diego with an unused stadium.
And that isn’t all. Mr. Skelton informs us further that this sort of stuff is so appealing to the Sacramento politicians that they are now contemplating legislation that would create a similar exemption from the usual environmental law constraints to “other large environmentally friendly, job-creating developers.” Under this scheme, “the Governor would decide which projects qualified for lawsuit expediting.” Oh goody!
Mr. Skelton apparently thinks this is just jim-dandy: “It’s a needed step toward refoming the cumbersome environmental quality act and erasing the perception that California is anti-business.” Lord knows that California enviropnmental laws could stand some pruning. But if relaxing environmemntal law constraints for the big boys is such a wonderful thing, then not why relax them for other, smaller but job-creating enterprises as well? After all, as we are endlessly told, it’s those smaller enterprises that collectively provide the bulk of new jobs. More important, do we live in a democracy, with equal protection of the laws for all, or is it a plutocracy in which there is one set of laws for the big boys, and another, more onerous set, for regular folks who build smaller job-creating projects and foolishly think that a few million dollars (that’s with an “m” rather than a “b”) is real money?
Don’t bother answering that question. It answers itself.
Follow up. The (Los Angeles) Daily News of September 10, 2011, reports — Dakota Smith, State Senate Gives Environmental Go-Ahead to AEG Football Stadium Downtown, Daily News, September 10, 2011, at p. 1 (click here) — that both bills referred to above were passd by the California State Senate. We learn from this article that the motivation behind this legislation is to frustrate litigation expected to be brought by Majestic Realty which is promoting that competing City of Industry football stadium. Surprise, surprise.
Environmentalists are divided. The Natural Resources Defense Council at first opposed this deal but was later born again. The Sierra Club remains agin’ it.
Second Follow up. If you want to see a classic instance of talking out of both sides of one’s mouth, don’t miss the L.A. Times editorial CEQA and the Art of the Deal, L.A. Times, September 12, 2011, at p. A16. As best we can figure it out, the Times thinks the new legislation is bad because it “would further politicize a process that is better handled outside the realm of special deals,” and “it’s bad policy to offer special treatment to certain projects; it raises questions of favoritism and and corruption.” It’s also good because “CEQA lawsuits are famously protracted,” and some have gone on for decades. So maybe curtailing them isn’t so bad. Who can tell? According to The Times it’s also good because we plumb can’t “allow procedure to to stand in the way of progress,” a bit reasoning that is known as the end justifying the means. So the best we can do is surmise that the Times editorial board is sort of for this Mickey Mouse legislation, but it thinks it should hold its collective nose in the process.
The Times’ solution is to kick the can down the road — it says that “It’s time to get down to the important business of reviewing CEQA thorougly and carefully” for “all Californians,” not just for one developer at the time. You can get an idea of what a “thorough” and “careful” review of legislation can mean out here in la-la land, when you reflect on the fact that when in our field the California Law Revision Commission was directed by the legislature to study and revise the law of eminent domain, it took from 1952 to 1976 — four times as long as it took to fight an win WW II — to come up with a recommendation. And as the Times properly notes, litigation over the extension of the 170 Freeway through South Pasadena has been going on since 1973. So maybe it’s time to face reality, scrap CEQA and start over again to make it reasonable and mindful of this state’s wretched economic condition. Can that happen? We don’t think so, but as we are fond of saying, what do we know?