SB 375: promise, compromise and the new urban landscape.

• Author: Darakjian, John
• Position: California Government Code section 65080

1. 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.

2. 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...