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Attorney General May Punish Plans For Failing to Mitigate GHGs

In 2007, then-Attorney General Jerry Brown established a new paradigm for planning in California. With his settlement in a lawsuit against San Bernardino County, he clearly signaled that cities, counties, and county subregions would have to account for, and attempt to mitigate, greenhouse gas emissions in their general plans under the California Environmental Quality Act and AB 32. In fact, Brown went so far as to vow to sue any city that failed to account for its greenhouse gas emissions.  

Last month, Brown's newly installed successor Kamala Harris, issued a sharp critique of regional plan in the Santa Clarita Valley in north Los Angeles County -- indicating that she will be carrying on this legacy. 

Commenting on a environmental impact report circulated by Los Angeles County planners, Harris says that the draft – which was revised and re-circulated late last year -- insufficiently addresses many issues, including greenhouse gas mitigation. Planners say that her approach, though in keeping with CEQA, could end up stifling the collaborative planning efforts that will be necessary to implement the Sustainable Communities Strategies that SB 375 calls for.  

The "One Valley, One Vision" (OVOV) plan will govern the next generation of growth both in the City of Santa Clarita and in the surrounding unincorporated areas of Los Angeles County. Founded in 1987 in the rugged hills north of the City of Los Angeles, Santa Clarita has grown to 176,000 residents both through build-out and voracious annexation of heavily-developed surrounding areas. The area, which consisted of barren hillsides 30 years ago, is expected to gain 90,000 dwelling units – an increase of 230 percent – by 2035, according to projections by the Southern California Association of Governments.  

These projections have inspired an effort that planners say is unique in California regional planning. As its name implies, OVOV is actually two plans in one: a general plan update for the City of Santa Clarita and an area plan update for the surrounding county territory. Planners from the city and county are drawing up separate documents and conducting separate environmental impacts reports, but otherwise they are coordinating and collaborating in an attempt to manage growth in the entire area. 

"The city is very unique because it's surrounded by unincorporated territory and the city has grown and annexed territory over the years so there was a real interest in joint planning," said Mitch Glaser, supervising regional planner with the Los Angeles County Department of Regional Planning. 

In an age when regional planning is coming to the fore because of SB 375, officials say that this sort of collaboration will become increasingly necessary. 

"As (the Southern California Association of Governments) is dealing with developing the first sustainable communities strategy in order to reduce greenhouse gases and vehicle miles travelled in the region, we're actually very supportive of the types of policies that are going into that plan," said Mark Butala, manager of comprehensive planning at SCAG. "The cooperation that we're seeing…is a model, on a smaller scale, of where we expect the region to go as we move forward in this more integrated planning approach."

Both portions of the OVOV plan involve heavy doses of smart growth principles. The City of Santa Clarita is increasing density on its transit corridors, envisioning the repurposing of retail strips, and promoting mixed-use development -- all in a city that promotes itself as a quintessential suburb of single-family homes. Meanwhile, the county is down-zoning some of the more remote developable land while up-zoning land adjacent to major arteries. The plans also call for intensive development around the valley's three Metrolink commuter rail stations. 

All of this, planners say, is a recipe for sustainability. 

"We are supportive of the fact that county unincorporated area is willing to downzone considerably in some areas and the city is taking on additional density in a strategic way in their transit corridors," said Butala. 

The attorney general's office, however, contends that the harmony that has developed between city and county does not excuse what it considers to be an insufficient environmental review. The attorney general's office's letter, signed by Senior Attorney Susan Durbin on Harris' behalf, calls into question both the plan and some of the methodology present in the re-circulated DEIR. The letter was directed only at the county's portion of OVOV; her office did not raise concerns about the city's portion.  Durbin was one of Jerry Brown's key aides on greenhouse gas emissions when Brown was Attorney General.

The letter criticizes the plan's projected increase in ground-level pollution as well as in greenhouse gas emissions from increased car trips. The letter notes, "rather than proposing land use changes that reduce the need to drive  in the Valley, the OVOV Plan will result in a 120 percent increase in existing driving trips," for a total of 3 million additional annual miles. Most damningly, the letter hones in on the DEIR's admission that the increase in car trips far outstrips the projected increase in population. 

The letter criticizes the plan for relying on vague mitigation measures, such as increased use of transit, without offering any assurances that the mitigation measures will be feasible. And the attorney general's office was disappointed in what it considered a lack of information on certain key points. 

For example, our concern about full disclosure of housing development that has already received entitlements arose because the revised DEIR seems less informative on this point than the original EIR," wrote a spokesperson for the Department of Justice in an email. (The spokesperson requested that neither he nor staff attorneys be identified by name; this article presents those comment as official representations of department's views.)

Environmental groups are also wary of the plan. Though it is separated from the perennially smoggy San Fernando Valley by the Santa Susana Mountains, the Santa Clarita Valley emits plenty of its own pollution, which is then trapped by the mountains that surround it on all sides. They say that concerns such as Harris' are well founded. 

"The Santa Clarita Valley…suffers from some of the most intractable air pollution, ozone problems in the region," said Damon Nagami, staff attorney with the Natural Resources Defense Council.  We see this as a battleground and a place where we're glad to see the attorney general stepping in and taking a strong stance that GHG emissions need to be properly analyzed and fully mitigated for."

County planners say that they would like to be able to mitigate more of the impacts from dispersed development, but their hands are tied by several factors. While it may seem that greenfield development on the urban fringe is a thing of the past, thanks to the recession and current planning trends, in the Santa Clarita Valley is, to an extent, stuck in the 1980s. 

County planners are working with SCAG's population projections as well as the Regional Housing Needs Assessment, both of which compel them to accommodate a certain number of units. As well, tens of thousands of undeveloped units are already entitled and therefore exempt from OVOV, no matter how much those developments might clash with OVOV's goals. Glaser said that SCAG projects an increase of 61,000 dwelling units in the unincorporated area, but 33,500 percent of that growth has already been approved (and not yet built). This leaves only 45 percent of potential new development under the plan's jurisdiction, and the county is reluctant to constrict development further. 

"The total amount of growth that's provided for under OVOV would accommodate all of what's being proposed by SCAG," said Paul Brotzman, Santa Clarita's director of community development. 

But in accommodating that growth, the plan – especially the county's portion – is constrained.  

"We're a very large jurisdiction that has a large area that has not been developed. There has to be some sort of development potential," said Glaser. "We're not in a position where we can go out and designate all remaining land as permanent open space."

County planners say that the attorney general's office did not fully appreciate these constraints. The attorney general's letter, however, says that that DEIR falls short by not identifying the location of the approved units.  

As well, Harris' office may be sending a message to other planning agencies to indicate in no uncertain terms that she is serious about enforcing greenhouse gas regulations. 

"I do think that part of the reason why this was publicized is that it's absolutely a message to all other local jurisdictions that this administration is going to be looking at this just as much as Mr. Brown's administration did," said Glaser. Glaser noted that he was, in fact, taken aback by the fact that he learned of Harris' concerns via a press release rather than by an advance copy of the letter. 

More importantly, though the attorney general may be within her rights to consider CEQA litigation against the plan, CEQA's narrow concerns for individual plans does not take into account region-wide efforts to combat greenhouse gases. 

The North County Subregion is only one of several subregions in Los Angeles County, which is, in turn, only one piece of the five-county SCAG region. Because the Sustainable Communities Strategies that are now under development take a regional approach to reducing vehicle miles travelled and GHG emissions, planners say that to single out one plan like OVOV – which, they say, is intended to complement the region's SCS – ignores the benefits that will accrue to the county as a whole.  

"Our modeling and analysis has shown that by increasing growth and densities strategically in parts of our region, while showing some localized adverse impacts, can have some potentially very positive impacts at the greater regional scale," said Butala. 

The attorney general's office confirmed that they did not contact SCAG before submitting their letter to the county. They were, however, "generally aware of the development of the Sustainable Community Strategy while we were preparing our comments," according to the Department of Justice spokesperson. 

Regardless of the substance of Harris' letter, officials working on the OVOV plan say they were taken aback by the way that she delivered it. The attorney general's office not only sent the letter directly to the L.A. County Planning Department but also issued a press release that broadly publicized her concerns. 

"I do think that part of the reason why this was publicized is that it's absolutely a message to all other local jurisdictions that this administration is going to be looking at this just as much as Mr. Brown's administration did," said Glaser. 

"I think that cities and counties should be on notice that the old tricks just aren't going to fly any more," said Nagami, of the NRDC. 

The Department of Justice spokesperson wrote that the office will be keeping a close watch on cities' and counties' plan updates. 

"The AG will evaluate on a case-by-case basis whether, when, and where litigation is the best option to fulfill our office's statutory responsibility to enforce CEQA," wrote the department spokesperson. "Cities and counties should perform their duties under the planning laws and under CEQA because that is their job and their duty to their residents, not because the AG might sue them."

Though Los Angeles County faces the relatively immediate threat of a lawsuit if it does not satisfy the attorney general's office, planners hope that this sort of dispute becomes less common as considerations for greenhouse gas emissions become common practice. 

"I think there's a learning curve, but there was (one) with the basic disclosure and evaluation and mitigation of all sorts of environmental impacts four years ago when CEQA was young in the early 1970s," said John Buse, senior attorney with the Center for Biological Diversity. "Once that becomes more routine I don't think it's going to be any more difficult than looking at any other air quality impacts, for example."

Contacts & Resources

One Valley, One Vision Plan 

Paul Brotzman, Director of Community Development, City of Santa Clarita, 661.255.4330

John Buse, Senior Attorney, Center for Biological Diversity, 323.533.4416

Mark Butala, Manager of Comprehensive Planning, Southern California Association of Governments, 213.236.1809 

Mitch Glaser, Supervising Regional Planner, Los Angeles County Department of Regional Planning, 213.974.6476

Damon Nagami, Staff Attorney, Natural Resources Defense Council, 310.434.2300

 

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