A state appellate court has upheld the Coastal Commission's handling of a housing project appeal. The court ruled that although the Commission did not comply precisely with the state open meeting law's requirements, the Commission came close enough and did not portray an intent to avoid the law. The ruling is the latest setback for developers Keith Fromm and Robert Kalmbach, who propose a 43-unit housing development on about 6 acres in Pacifica's coastal zone. Last year, the Ninth U.S. Circuit Court of Appeals threw out an award of $665,000 to the developers for damages and legal fees in a suit alleging the City of Pacifica violated the developers' equal protection and due process rights (see CP&DR Legal Digest , July 2008 ). In 2002, Pacifica approved a coastal development permit for the project proposed by Fromm and Kalmbach (operating as North Pacifica LLC). A resident appealed the decision to the Coastal Commission. Before the Commission could take action, North Pacifica filed lawsuits in state and federal courts. The state court lawsuit concerned one of the city's conditions of approval, which an appellate court upheld in an unpublished opinion. Because of the litigation, the Coastal Commission delayed consideration of the appeal until December 2005. At that time, the Commission determined the appeal was within its jurisdiction. It followed up on December 20, 2005, by mailing a "Commission Notification of Appeal" to the city and North Pacifica setting a tentative hearing date of January 11-13 in San Pedro. The Commission posted an agenda for its January 2006 meeting on its website December 28, and posted a staff report on the appeal December 30. The Commission mailed formal hearing notices on January 3, 2006. On January 11, the commission decided the appeal presented a substantial issue but postponed a hearing until February 2006. North Pacifica did not attend the January 11 meeting but afterward requested the hearing be delayed until at least April. The Commission finally conducted its appeal hearing on May 11, 2006, during which the Commission overturned the coastal development permit because of potential impacts to wetlands, water quality and environmentally sensitive habitat. North Pacifica did not attend the May 11 meeting, either. In the meantime, North Pacifica sued the Commission, arguing that its noticing of the January 11 meeting was deficient. Los Angeles County Superior Court Judge David Yaffe rejected the contentions, and a unanimous three-judge panel of the Second District, Division Five, upheld the ruling. The Bagley-Keene Act (Government Code § 11120 et seq.) requires state agencies to provide 10-day advance meeting notice to all interested parties. The law authorizes nullification of actions taken at improperly noticed meetings, which is what North Pacifica sought. The court conceded North Pacifica did not get the actual meeting notice until six days before the hearing, but the court found the Commission substantially complied with the law. "When the Commission's efforts to provide notice of the January 11, 2006, meeting are viewed in the aggregate, they substantially comply with Government Code § 11125," the court ruled. "Northing about those efforts suggests that the Commission was attempting to thwart the objectives of the Bagley-Keene Act by holding a meeting that was not fully disclosed or open to the public." Even if the meeting notice was inadequate, North Pacifica was not harmed because the Commission at the January 11 meeting – without debate or public comment – merely set a date for a hearing on the merits, the court found. Thus, the Commission was authorized the act on the appeal at the May 2006 meeting. The state Supreme Court on December 23 denied North Pacifica's request to consider the case. The case is North Pacifica LLC v. California Coastal Commission , No. B199446, 08 C.D.O.S. 12419, 2008 DJDAR 14787. It was filed September 19, 2008.

Monterey County has been ordered to pay more than $244,000 in attorney fees and costs in a California Public Records Act case involving a long-controversial development proposal in Carmel Valley. The Sixth District Court of Appeal upheld a trial court's award of $244,287 in fees and costs to the Open Monterey Project, an organization that sought records related to the proposed September Ranch project. The Sixth District also directed the trial court to award the Open Monterey Project attorney fees related to the appeal. Plans to build houses on the 900-acre September Ranch have been around since the 1990s, and in 1998 the Monterey County Board of Supervisors approved a 109-unit subdivision. However, the Sixth District Court of Appeal invalidated the project approval because of an improper water supply study ( Save Our Peninsula Com. v. County of Monterey , 87 Cal.App.4th 99; see CP&DR Legal Digest , April 2001 ). After conducting additional environmental analysis, the county approved a 95-home project on a small portion of the ranch in 2006; however, a Monterey County judge last year rejected the revised cumulative water analysis. While the county was processing the revised project, the Open Monterey Project made several California Public Records Act (CPRA) requests. Although the county produced some records, the organization was not satisfied and went to court in March 2005. A special master was appointed and ultimately recommended the county turn over another 2,000 pages of records. Superior Court Judge Robert O'Farrell accepted the recommendation and ordered the county to produce the records. Open Monterey Project then filed a request for attorney fees of $194,800, with a multiplier of two because attorneys worked on a contingency basis and because of the protracted nature of the litigation. Judge O'Farrell approved fees of $188,630, applied a multiplier of 1.25, and then added costs to reach a total award of $244,287. On appeal, the county argued that the fee amount should be cut by two-thirds because Open Monterey Project was successful in only one of three areas of requests, and that no multiplier was appropriate. The county said that the special master rejected most of the group's requests for private records of the environmental impact report consultant, and all requests for correspondence with the county's legal advisor. The Sixth District, however, found no legal basis for the county's argument, and concluded that the county's approach could diminish efforts to enforce the Public Records Act. " e determine that there is no requirement that the trial court make an award of attorney fees in an amount that is commensurate with or in proportion to the degree of success in the CPRA litigation," Justice Patricia Bamattre-Manoukian wrote for the court. The appellate panel also upheld the fee enhancement because of the incentive it provided to an attorney to enforce "important constitutional rights" on a contingency basis. The case is Bernardi v. County of Monterey , No. H0231648, 08 C.D.O.S. 13725, 2008 DJDAR 16415. The opinion was filed on September 30, 2008, and ordered published on October 29, 2008.

Sometimes, email is no substitute for snail mail. In a California Environmental Quality Act (CEQA) case from Contra Costa County, the First District Court of Appeal has ruled that notification of a trial court's judgment via email did not trigger the 60-day deadline for filing an appeal. The court ruled that opponents of Davidon Homes' plan to build 22 single-family houses on the 15-acre Weber Ranch may press forward with their appeal of the trial court's ruling. The Town of Danville approved the housing development in 2007 based on a mitigated negative declaration that said all significant environmental impacts would be fully offset. A group called Citizens for Civic Accountability sued, arguing the city needed to further study impacts on roads, red-legged frog habitat and scenic views. The group insisted the city should prepare an environmental impact report. Contra Costa County Superior Court Judge David Flinn ruled for the city but did insist on further study of the impacts of removing 120 trees from the site. The clerk of the court then sent the parties an email advising them that the judgment had been authorized for filing on April 1, 2008. On April 10, Citizens served a "notice of entry of judgment" and on June 9 filed an appeal. The city and Davidon Homes contended the appeal was too late because the 60-day deadline started to run with the April 1 email notification. The First District, however, said an email did not suffice under California Rules of the Court rule 8.104(a). That rule requires filing a notice of appeal within "60 days after the superior court clerk mails the party filing the notice of appeal a … file-stamped copy of the judgment." The city and Davidon Homes argued the terms "mail" and "email" were essentially the same here. The court disagreed. " ecause rule 8.104(a) must be strictly construed to preserve the right to appeal when possible without doing violence to the language of the rule, ‘mail' must be construed according to its primary meaning to be limited to postal delivery," the court ruled. The Case: Citizens for Civic Accountability v. Town of Danville , No. A121899, 08 C.D.O.S. 13565, 2008 DJDAR 16254. The opinion was filed October 27, 2008.

The Auburn Dam died an official death in December, when the State Water Resources Control Board revoked the U.S. Bureau of Reclamation's rights to 2.5 million acre-feet of water per year from the American River. The board and state law require water rights holders to put water to beneficial use. But with the dam stalled since 1975 and no prospect for resuming construction, the board concluded it had little choice but to take back the water rights. The City of Sacramento and San Joaquin County have already filed applications to gain rights to the water. Congress authorized the 680-foot-tall dam in 1965, and site work just south of Auburn began in 1967. An earthquake on a fault that runs directly under the dam site forced construction to a halt in 1975. As environmental concerns and estimated costs – they eventually approached $10 billion – rose, the project lost momentum and construction never resumed despite downstream flood concerns and the need for water (see CP&DR Environment Watch , August 2006 , September 2002). Also dying in December was a proposal to extend Orange County's Foothill South toll road through San Onofre State Beach. In early 2008, the California Coastal Commission rejected the Orange County Transportation Corridor Agency's plan to build the freeway through the state park because of potential impacts to coastal resources and environmentally sensitive habitat. Using the federal Coastal Zone Management Act, the agency appealed that decision to the federal Commerce Department. However, federal officials declined to override the Coastal Commission. A 28-page decision prepared by the National Oceanic and Atmospheric Administration found that there is at least one alternative route for the six-lane toll road and that the road is not necessary for national security. The transportation agency vowed to continue fighting for the toll road, likely in the courthouse. A plan to remove hundreds of structures and rebuild 125 acres in the heart of Baldwin Park appears to have died with Bisno Development's announcement that it was pulling out of the project because of the sour economy. The plan called for Bisno to fund the Baldwin Park Redevelopment Agency's acquisition of residential and commercial properties. The agency would then turn over the real estate to Bisno for development of up to 8,000 housing units, nearly 4 million square feet of commercial, retail and entertainment uses, and public projects such as a promenade, a lagoon and a fancy Metrolink station. The project was extremely controversial because of its potential to displace about 100 households and 300 businesses (see CP&DR Redevelopment Watch , May 2008 ). City officials say other developers are interested in a smaller version of the project.

Proposals to extend the life of redevelopment project areas for as long as 40 years continue to float around the state Capitol as part of a budget-balancing package. Local redevelopment agencies or some other entity would issue tax-increment bonds based on future revenues, and the state would get a chunk of the proceeds to help offset the budget deficit. In exchange, redevelopment agencies could continue implementing redevelopment plans and receiving tax increment without having to make legal findings that blight still exists. Although a detailed, written proposal for the redevelopment extension has not surfaced, the California State Association of Counties (CSAC) has already gone on the defensive. In a December 16 letter to Gov. Schwarzenegger, CSAC called the proposal both "legally questionable" and ineffective, because most tax increment is diverted from school districts and the state is obligated to backfill the lost revenue. "Counties simply cannot afford to continue involuntarily contributing to redevelopment activities beyond their statutory deadlines," the CSAC letter states. One potential supporter of a redevelopment extension is the City of Industry, where developer Ed Roski Jr. has proposed a 560-acre project on city-owned land that would include a pro football stadium, a shopping mall and entertainment district, and 1.5 million square feet of offices (see CP&DR Places , June 2008 ). Last year, Industry sponsored legislation that would have allowed it to continue redevelopment activities for an additional 10 years without renewed blight findings (see CP&DR In Brief , May 2008 ). Although the city denied it, the bill was largely seen as a vehicle for football stadium financing. The bill died without a hearing. Now, Industry has called a special election for January 20 at which the city's 82 registered voters will decide on a proposed $500 million general obligation bond that would provide the infrastructure for Roski's project. Also on the ballot are proposals to tax tickets and parking at entertainment venues, creation of a municipal electric utility, authorization for the city to award public works contracts without competitive bidding, and a measure that would prohibit people who live other than in permanent residences from voting in the city.

Agreements approved by Riverside County and cities in the Coachella Valley in support of a multiple species habitat conservation plan did not violate a political corruption law, according to the state attorney general's office. Attorney General Jerry Brown's opinion unit provided its analysis in response to a request by state Sen. Jim Battin, a Republican from La Quinta who has since been termed out. A staunch opponent of the Coachella Valley multiple species habitat conservation plan, Battin in June 2007 asked the attorney general if a memorandum of understanding between the county and eight cities in support of the plan violated Penal Code bribery prohibitions, and if the agreement would remain in effect as the membership of elected bodies changed over time. Deputy Attorney General Marc Nolan said the MOU did not violate the Penal Code, and that ongoing implementation of the agreement was permissible because it did not contract away any jurisdiction's police power. Nearly 15 years of planning and politicking went into the habitat plan, which the cities approved in 2007 and became final in September 2008 when the U.S. Fish and Wildlife Service and the California Department of Fish and Game provided formal approval. The plan permanently preserves 240,000 acres (in addition to 500,000 acres already owned by public agencies) to provide habitat for 27 sensitive plant and animal species (see CP&DR Local Watch , April 2006). The "hard line" plan prevents nearly all development in protected areas and calls for a mitigation fee (now at $5,730 per acre) on development outside protected areas to fund acquisition of conservation lands. Every city in the Coachella Valley except Desert Hot Springs, along with Riverside County and other local government agencies, has agreed to participate in the plan. Battin fought against the habitat plan and specifically against political pressure from Riverside County Supervisors Roy Wilson and Marion Ashley, both of whom championed the plan and publicly suggested they would make life difficult for cities who did not support the plan. Battin questioned the MOU between the county and the cities under which the county agreed to abide by city development standards within a city's sphere of influence if the city endorsed the habitat plan. Battin suggested the agreement amounted to illegal vote trading under Penal Code § 86. In his opinion, however, Nolan explained that § 86 concerns bribery, corruption and personal advantage, and that the provisions dealing with vote-trading are narrowly written. "The mere fact that the item voted upon involves a proposed trade-off between jurisdictions does not dictate or even imply that any trade-off will occur between officials voting on that item," Nolan wrote. The mutual obligations set forth in the MOU did not portray a corrupt intent, he added. "To conclude otherwise would, in effect, criminalize the conduct of entering into intergovernmental contracts which, by their very nature, mutually commit participating jurisdictions to any number of obligations, and thereby subject the public officials who vote to enter into such agreements to the severe criminal and civil sanctions reserved for bribery and like offenses," Nolan wrote. "We decline to attribute such sweeping coverage to § 86. Absurd results would follow." An agency may not contract away its police power or that of "successor legislative bodies," but the agreement at issue here did not do so, Nolan found. In fact, the implementing agreement made clear a participating jurisdiction may withdraw from the conservation plan and its provisions with sufficient notice, Nolan pointed out. The attorney general's opinion is No. 07-506 and may be found at 08 C.D.O.S. 14099, and 2008 DJDAR 16920. It was published on November 13, 2008.

The Fourth District Court of Appeal has thrown out a California Environmental Quality Act lawsuit filed by Riverside residents because of a procedural error. Because Friends of Riverside's Hills brought California Environmental Quality Act (CEQA) challenges along with allegations that the City of Riverside violated the Subdivision Map Act, the map act's requirement for service of a summons within 90 days of the city's decision applied. Friends argued they had to comply only with CEQA procedures, but the court disagreed and blocked the lawsuit. Friends did successfully defend against a claim for millions of dollars in damages and sanctions sought by landowners, who argued the appeal was frivolous. On June 13, 2006, the Riverside City Council accepted as complete final tract maps for three subdivisions in La Sierra, located in northwest Riverside. La Sierra has been the scene of growth battles since the 1970s as residents have fought to maintain the area's semi-rural nature. A month after the council's 2006 decision, Friends of Riverside's Hills sued, arguing the city had violated open space protections and mitigation measures required by a 1996 specific plan. The group also argued the city violated the map act. On September 14, 2006, the city, the subdivision developers and the landowners asked the Riverside County Superior Court to dismiss the lawsuit because Friends had failed to serve a summons within 90 days of the City Council's decision. Riverside County Superior Court Judge Stephen Cunnison granted the request and dismissed the suit. Friends appealed only the issue of the map act's procedural requirements to the CEQA claims. Friends argued that because the allegations of CEQA violations did not involve the map act, the 90-day deadline for service of a summons should not apply. But the court determined that the CEQA claims and the map act claims were essentially all the same and, therefore, the map act's procedural requirements applied. " he CEQA cause of action was merely another vehicle for challenging the city's failure to require the applicant to implement open space and other mitigation measures that were part of the project's conditions of approval and of the specific plan," Presiding Justice Manual Ramirez wrote for the Fourth District, Division Two. "Friends not only could have brought this claim under the SMA rather than CEQA, it in fact did." While the appeal was pending, the landowners asked the court to sanction Friends because "any reasonable attorney would agree that the appeal is totally and completely without legal merit." The landowners sought $16 million for loss of market value, $403,000 for out-of-pocket expenses plus $1,248 every day since September 1, 2007, and $27,500 in attorney fees. The court rejected the request because such an award could chill litigants' right to appeal. "Weighing the chilling effect of sanctions against the issues raised in this appeal, and finding that a reasonable attorney may well have believed the appeal had some merit, we conclude that sanctions are not justified," Justice Ramirez wrote. The case is Friends of Riverside's Hills v. City of Riverside , No E042724, 08 C.D.O.S. 14458, 2008 DJDAR 17376. The opinion was filed October 24, 2008, and ordered published November 24, 2008.

Cities, counties and public water agencies have broad discretion over the way they conduct water supply assessments for development projects that rely on groundwater, the First District Court of Appeal has ruled. The court upheld a water supply assessment (WSA) prepared by the City of Rohnert Park for a 1,000-acre area where 4,500 housing units and 5 million square feet of commercial space are planned. The unanimous appellate panel overturned a trial court judge, who rejected the WSA because the area studied was not entirely related to the relevant groundwater sub-basin. The First District said that SB 610 – the 2001 law that clarified the need for water supply assessments – did not mandate a specific approach. " he intent was to ensure that the local agencies take water supplies into account when considering new development. It was not to impose upon water suppliers the burden of undertaking a basin-wide analysis of past and future groundwater conditions every time a local agency proposes a new development project," the court ruled. The decision is the first of its kind on how a government agency must prepare a water supply assessment under SB 610. The court's deferential approach is helpful to agencies, said Eric Robinson, a Kronick, Moskowitz, Tiedemann & Girard attorney who filed an amicus brief in the case on behalf of the League of California Cities and the California State Association of Counties. "You don't want to get a court second-guessing groundwater experts. I think that rule goes beyond groundwater," Robinson said. Stephen Kostka, an attorney for the developer in the case, said the ruling is important because the court treated the question of water supply assessment methodology as a factual one, rather than a legal one, and thus deferred to the city's experts. "Instead of treating it as something that is decided in the abstract, you've got to consider the actual data," Kostka explained. In an analysis of the First District decision, attorneys for the Nossaman law firm who did not participate in the case agreed the ruling is important because it provides "water suppliers with considerable discretion to adopt technical and practical approaches to evaluating the sufficiency of water supplies for new development." Since 1999, Rohnert Park has sought to expand its city limits and urban growth boundary to accommodate 1,000 acres of new growth. A 2001 general plan update called for the growth. In January 2005, the city adopted a water supply assessment for all projects in the planned expansion area, which would be served by a city water system that relied primarily on groundwater. Among the projects was the 300-acre University Village, where developers propose about 1,600 housing units and 250,000 to 350,000 square feet of commercial space (see CP&DR Public Development , August 2006 ) and Brookfield Homes' 2,900-unit housing project. According to the WSA, there would be an adequate groundwater supply to meet the needs of the projects and others within a defined study area. The study estimated groundwater pumping would be about 7,350 acre-feet per year during 2025, a slight increase from recent levels but a decrease from historic amounts. Pumping 7,350 acre-feet of water from the ground each year is sustainable, according to the WSA. A group called the OWL Foundation sued, arguing the WSA was invalid because the study area was insufficient. Sonoma County Superior Court Judge Knoel Owen agreed and tossed out the WSA. The city and the University Village developers appealed. The issue was whether the city complied with Water Code § 10910, subdivision (f)(5), which guides the preparation of a WSA in which groundwater is a source. The statute requires a WSA to include "an analysis of the sufficiency of the groundwater from the basin or basins from which the proposed project will be supplied to meet the projected water demand associated with the proposed project." The court decided to review the city's actions based on the "abuse of discretion" standard, which is deferential to the city. The court declined to use the "substantial evidence" standard, which is typical in California Environmental Quality Act cases, although the court opined that Rohnert Park's water study would pass either test. The OWL Foundation complained that the city's groundwater study area – which was based on the California Interagency Watershed Map – was inconsistent with a water study performed for the general plan update. The study for the general plan found that full implementation of the plan would substantially lower the groundwater table. The group also said it was improper for the city to extend the study area into the hills outside of town because the area was not representative of the groundwater sub-basin. In his ruling, Judge Owen suggested that Rohnert Park should restrict its inquiry to a definite sub-basin. The First District rejected these arguments. It found that the term "sub-basin" does not appear in § 10910, that a sub-basin may be too large for practical study, and that there is no "inherent hydrological significance in the delineation of a sub-basin" because the Department of Water Resources allows the use of political and institutional boundaries to define a sub-basin. Studying the entire Santa Rosa Valley groundwater basin, which underlies numerous jurisdictions and contains 40,000 wells, would not be feasible either, the court determined. "As a practical matter, requiring a water supplier to collect data on pumping throughout a groundwater basin would impose an enormous if not impossible burden on the water supplier, particularly given the relatively brief <90-day> time frame required to complete a WSA," Presiding Justice William McGuiness wrote for the First District Court of Appeal, Division Three. "A WSA serves the limited function of providing information about groundwater sufficiency for a specific, proposed development project . It is not a general planning document for the management of groundwater supplies in a basin." The city's experts justified their use of the watershed map to determine the study area, McGuiness continued. " he selection of the watershed as study area appears to be based on an analysis of the empirical data rather than an unsupported assumption," he wrote. "There was plainly a rational reason for choosing the particular study area." Procedurally, the court departed from the ruling in California Water Impact Network v. Newhall County Water Dist. , (2008) 161 Cal.App.4th 1464 (see CP&DR Legal Digest , June 2008 ). In that case, the court declined to consider the adequacy of a WSA until after the study was incorporated into an environmental impact report and the development project approved. In the Rohnert Park case, the OWL Foundation sued before the EIR was finalized. However, since the suit was finalized, the city certified the EIR, approved the University District specific plan and the OWL Foundation filed a second suit on the same grounds. All parties agreed the court should decide the first lawsuit, and the court did so. The water supply assessment ruling means the CEQA litigation is complete, and the University Village project may move forward, according to Kostka. The Case: OWL Foundation v. City of Rohnert Park , No. A114809, 08 C.D.O.S. 14341, 2008 DJDAR 17157. Filed November 19, 2008. The Lawyers: For OWL Foundation: Edward Casey, Alston + Bird, (213) 576-1000. For the city: Veronica Ramirez, McDonough, Holland & Allen, (510) 273-8780. For real party in interest University District LLP: Stephen Kostka, Bingham McCutchen, (925) 937-8000.

Isolated transit-oriented developments in a sea of automobiles. That's how Robert Cervero, one the country's foremost authorities on transportation and transit-oriented developments, described this country's approach when I spoke to him recently while working on a story about SB 375, AB 32 and other climate change policies for the February edition of Planning magazine. The chair of the University of California, Berkeley, Department of City and Regional Planning, Cervero says we're getting it wrong. "We get it backwards. We do the transportation first, and then we respond to the sprawling auto-dependent growth patterns," he told me. In his extensive research , Cervero has found that people who live in transit-oriented condo developments make four to five times as many trips by transit than people who live elsewhere. But even in urban areas, these condos account for only 1% to 2% of the housing stock. Until there's a critical mass of housing in close proximity to transit stations – as well as employment centers, schools, shopping, government offices and recreational opportunities near transit – we are not taking full advantage of a transit system's benefits, he argues. "TOD can matter," he told me, "but we need to have true visionary planning." Cervero's words ring louder in my ears every day as the pleadings for a huge package of federal public works spending grow more urgent. I'm not against putting money into our badly neglected infrastructure. But there seems to be a great rush simply to throw billions and billions of dollars at highways, bridges, and old school and government buildings. I don't see any true visionary planning. I'm not sure I've seen any planning at all. We have an opportunity to make investments that could greatly benefit society 20 or even 50 years from now. We also have the opportunity to make the same old mistakes that have resulted in "isolated transit-oriented developments in a sea of automobiles." – Paul Shigley

An AB 32 Scoping Plan that places a great deal of emphasis on the SB 375 process was approved on December 11 by the California Air Resources Board. The plan tentatively calls for land use actions that reduce greenhouse gas emissions by 5 million metric tons (MMT) of carbon dioxide equivalent annually. Environmentalists and some smart growth advocates argued for a higher land use target, while building industry representatives and some local government officials said 5 MMT should be the maximum. Rather than adjusting the target one way or the other, CARB assigned the SB 375 Regional Targets Advisory Committee – or RTAC, which has yet to be appointed – the task of refining the land use target. "RTAC should recommend a method to evaluate the full potential for reducing greenhouse gas emissions in each major region of the state, and statewide, using improved land use patterns, indirect source rules, enhanced bike, walk and transit infrastructure, and pricing policies where applicable (including congestion, toll and parking pricing)," the CARB resolution approved on Thursday says. "It is the board's intent that the greenhouse gas emissions reductions associated with the SB 375 regional targets represent the most ambitious achievable targets." Signed by Gov. Schwarzenegger in September, SB 375 attempts to tie together greenhouse gas emissions reductions from transportation, regional planning, transportation funding and planning for affordable housing.   One key element of SB 375 implementation is establishment of regional targets for reducing greenhouse gas emissions tied to land use. The principle behind SB 375 is a desire to encourage compact, dense, mixed-use development that allows people to take many trips by foot, bicycle or public transit. Board Member Daniel Sperling, who is director of the Institute of Transportation Studies at University of California, Davis, said he understands why land use received heavy attention, even though it accounts for a very small part of the AB 32 emissions reductions. "There is so much frustration that's been growing over the years about sprawl and desire to create better communities," Sperling said. "Many people are looking to what we are doing here because we have an institutional structure and a legal process." "What we are doing here is breathing life into a movement," Sperling added. "We walk a line here," said CARB Chairwoman Mary Nichols, emphasizing that the board is not a land use planning agency. "My sense is we have to find a way … to be clear and to be forthright about what we think is needed." But Board Member Ron Roberts, a San Diego County supervisor, said that while he could accept the 5MMT target, it will require "drastic measures" to achieve. Plus, he pointed out, the state is handing the emissions reductions mandate to regional and local governments at the same time the state has eliminated all funding for transit. Greatly improved transit service is essential to meeting the goal, he said. Richard Lyon, senior legislative advocate for the California Building Industry Association, applauded CARB's decision. "It certainly is an ambitious plan. As it relates to land use, it tracks pretty close to Senate Bill 375, and we firmly believe that is the appropriate process to determine emissions reductions in each region," Lyon said. The coalition of builders, labor, environmentalists, local government officials and planners who endorsed SB 375 is broad, but tenuous, Lyon added. "Holding that coalition together is important," he said. "Being true to SB 375 is important. That process is where we decided the limits should be set." Meanwhile, Matt Vander Sluis, global warming program manager for the Planning and Conservation League, said he was disappointed that CARB did not establish a high target for emissions reductions due to land use changes. In November, the board appeared headed toward a target of 10 MMT to 15 MMT, he noted. Still, he said, the RTAC has the opportunity to set an ambitious, science-based goal. "The SB 375 target-setting process is a great opportunity. We'll continue to make the case about reducing sprawl as part of our global warming solution," Vander Sluis said." It's good that we are going to continue to have that dialogue." The air board staff in January will propose an RTAC membership composed largely of metropolitan planning organization members, according to CARB Executive Officer James Goldstene. The committee should have recommendations for the board by late 2009, and will finalize regional emissions numbers during the later part of 2010, said Lynn Terry, CARB deputy executive officer. She insisted that 5 MMT "is not the maximum achievable target." Both Roberts and Board Member Ron Loveridge, the mayor of Riverside, said collaboration between the state and local and regional government is essential for success. "This is not the end, but really the start," Loveridge said of the scoping plan. Aside from land use, the Scoping Plan includes a "cap and trade" program under which some emissions will be sold and others given away. The program, however, remains very much a work in progress that will not be finalized for another two years. Assembly Bill 32 requires California to reduce greenhouse gas emissions to 1990 levels by 2020, which amounts to a 25% to 30% reduction from business as usual. Cap-and-trade transactions would be responsible for about 20% of the greenhouse gas reductions under the Scoping Plan. Other major reductions would come from cleaner automobiles, lower-carbon fuels, more efficient buildings and appliances, dramatic increases in renewable energy production, and different refrigerant gases. – Paul Shigley

The California Air Resources Board is scheduled to decide this week on a broad plan for implementing the state's greenhouse gas emissions reduction law. The board's decision could have profound implications for both growth patterns and individual development projects.   The Proposed Scoping Plan for AB 32 covers many subjects, including automobile efficiency, alternative fuels and renewable energy sources, with the intent of reducing greenhouse gas emissions statewide by 169 million metric tons (MMT) of carbon dioxide equivalent annually by 2020. This is about a one-quarter reduction from "business as usual." An early version of the scoping plan attributed 2 million tons of reduction (1.18% of the total) to local government actions and changes in land use. The 2 million-ton target disappointed environmentalists and smart growth proponents who advocate growth that encourages walking, bicycling and riding transit – and which discourages driving everywhere. Those who were disappointed by the draft scoping plan had more positive things to say about the revised (or "proposed") scoping plan released in October . It raised the land use target to 5 million tons annually, and called for local government operations to reduce their emissions by 15%. During a day-long public hearing in November , environmentalists and the smart growth crowd encouraged CARB to keep the land use target at 5 million tons or even increase it. Builders cautioned against the 5 million ton target. Cities were divided, with suburban towns deriding what it called an "unfunded state mandate," while some big cities and other jurisdictions urged CARB to go even further. And further is where the board just might go. Board members directed their staff to explore a land use target "somewhere in the range of 10 to 15 MMT." A target in that range is expected to be part of the final package the staff presents to the board on Thursday morning in Sacramento. The land use target in the AB 32 plan is crucial because it will be used by CARB when it allocates emission levels to the regions in 2010 – a step required to implement SB 375 . A metropolitan planning organization must draw up a "sustainable communities strategy" that conforms to the regional emissions figure. The strategy will provide the basis for the regional transportation plan and for fair-share housing allocations. Which gets me back to where I started. The higher CARB sets its target for greenhouse gas emissions reductions attributable to land use, the greater the pressure on cities and counties to adopt plans for compact land use. Both sides are flooding CARB with emails in advance of the noon on Wednesday deadline for submitting written comments on the Proposed Scoping Plan. In an email blast to members, the California Building Industry Association said, "Homebuilders have a vested interest in the success of SB 375 and AB 32. Homebuilders also have a vested interest in assisting the state out of its current and profound economic malaise. Imposing out-of-proportion burdens on California's homebuilders and consumers will neither help our struggling economy nor realistically achieve our AB 32 goals." Environmental groups, meanwhile, are telling CARB to adopt a land use target in the 11 to 14 million ton range, based on an analysis that says CARB's model underestimates the benefits of dense, mixed-use development. "Setting a higher target for the land use sector will signal to the world that new land use patterns are a high priority in the fight against global warming," the Planning and Conservation League said in an email blast sent Monday. The intense lobbying is very telling. Although the Schwarzenegger administration, CARB and state lawmakers insist that local governments will continue to make land use decisions, the air board could greatly influence those decisions. The board, in fact, could signal the end of the low-density, single-family housing tract. – Paul Shigley

WASHINGTON – Industry and environmental groups in California are awaiting a ruling from the U.S. Supreme Court that could determine how far the state's coastal power plants must go to reduce their fish-killing intake of ocean waters used to cool generating facilities. The justices heard arguments on December 2 in the Bush administration's industry-backed effort to overturn a federal appeals court decision that bars the use of cost-benefit analysis to determine what power plants have to do to minimize their impact on fish and aquatic life. Environmentalists argue that a cost-benefit analysis violates the Clean Water Act's mandate that cooling-water intake structures employ the "best technology available" to reduce the fish-kills resulting from the use of river, bay or ocean waters for cooling purposes. Environmental and industry groups in California filed friend-of-the-court briefs that took opposite sides on the legal question in the case: whether the Environmental Protection Agency (EPA) has discretion to use cost-benefit analysis in applying the statutory requirement contained in § 316(b) of the act. But the groups also disagree on the broader policy question whether the alternate cooling technologies available to minimize the collateral damage on aquatic life are needed at all and, if so, whether they are economically viable and logistically feasible. The Supreme Court's ruling in Entergy Corp. v. Riverkeeper, Inc. , could have significant effects on the operations of the 19 electricity-generating plants that dot California's coastline and that environmentalists say take in 17 billion gallons of water a day. The California Supreme Court put on hold a challenge to operations of the Moss Landing power plant, sited at the midpoint of Monterey Bay, pending the U.S. Supreme Court's decision. (The California Supreme Court case is Voices of the Wetlands v. State Water Resources Control Board , No. H028021; see CP&DR Legal Digest , April, 2008 , March 2008.) The plants' use of water to cool generating facilities adversely affects the marine environment by killing fish and aquatic organisms in the water itself and then discharging the water as much as 40 degrees Fahrenheit hotter than the ambient water temperature. The existing "open cycle" or "once-through" cooling systems pass water through the facility once and then release most of it back to the body of water. Environmentalists say the impact can be reduced by use of "closed cycle" systems that recirculate water through the facility several times or "dry cooling" systems that use air instead of water. Electric utilities say conversion to the alternate technologies is expensive – a particular problem for economically marginal, aging plants like many of those on California's coast that may be operated only for peak power demand instead of all the time. The Supreme Court case stems from separate challenges filed by industry and environmental groups to rules adopted by the EPA in 2004 for existing power plants. "Phase I" rules adopted three years earlier generally require closed-cycle cooling systems for new plants. But the "Phase II" rules list closed-cycle systems only as one alternative for existing plants and allow permitting authorities to weigh costs and benefits in determining the system to be used. Industry groups challenged the Phase II rules altogether, arguing that § 316(b) does not apply to existing power plants. At the same time, environmentalists – including the Hudson River advocacy group Riverkeeper – argued that the EPA had no discretion to use cost-benefit analysis in enforcing § 316(b). The Second U.S. Circuit Court of Appeals rejected the industry's argument and agreed with environmentalists. The Supreme Court agreed to review the decision solely on the cost-benefit issue. In urging the Supreme Court to reverse the decision, lawyers for the Bush administration and electric utilities argued that the "best technology available" requirement did not preclude the kind of cost-benefit analysis permitted by and routinely used to enforce other environmental statutes. "There is no reason to think Congress would want greater protection for fish through intake structures than for people through the discharge of pollutants," Deputy Solicitor General Daryl Joseffer told the justices. Representing the environmental groups, Richard Lazarus, a Georgetown law professor currently visiting at Harvard Law School, said regulators could give some weight to costs in deciding what technology is "available" or in determining whether to grant a variance to a specific plant. But the statute prohibits the agency from making a direct cost-benefit comparison, he said. "It doesn't allow them to weigh one against the other," Lazarus said. Lawyers for the administration encountered skeptical questioning from, among others, Justices David Souter and Anthony Kennedy. A cost-benefit analysis was inappropriate, Souter said, because "you're dealing with such incommensurables." Kennedy sharply challenged the government lawyer by depicting the "best available technology" requirement as "the most rigorous standard in the statute." On his side, though, Lazarus had a difficult time fending off questions from, among others, Justices Stephen Breyer and Samuel Alito Jr., who both viewed it as difficult if not impossible to completely disregard costs in enforcing the law. "Of course, you take those things into account," Breyer said. Without some comparison, Breyer said, the law could lead to "insane results." In California, Stanford law professor Deborah Sivas said the State Water Resources Control Board is considering rules to require closed cycle or other alternative cooling systems and some plants are moving to install alternate technologies. "Our fear is that even though you've started to see this trend on the California coast, it may reverse if the Supreme Court says you can use cost-benefit analysis," she said. As director of Stanford's environmental law clinic, Sivas is representing the challengers in the Moss Landing case and filed an amicus brief in the Riverkeeper case. But Robert Lucas, a consultant to the industry-backed California Council for Environmental and Economic Balance (CCEEB), said that the expense and practical difficulties of converting to closed-cycle cooling could force some plants either to close or go offline for long periods. "If that financial viability test is not allowed and there is no other choice but to change over to closed cycle cooling, then people are playing a potentially reckless game with the stability of the California electrical grid," said Lucas, a Sacramento lawyer-lobbyist and onetime civil engineer. A decision in the Riverkeeper case is due before the justices take their summer recess at the end of June. The Case: Entergy Corp. v. Riverkeeper, Inc. , No. 07-588. The Lawyers: For the administration: Daryl Joseffer, Office of the Solicitor General, (202) 514-2217. For the industry: Maureen Mahoney, Latham & Watkins, (202) 637-2200. For the environmentalists: Richard Lazarus, Harvard Law School, (617) 495-1000. Kenneth Jost, former editor of the Los Angeles Daily Journal , is Supreme Court editor for CQ Press.