An air pollution fee on new development in the San Joaquin Valley has been upheld by a Fresno County Superior Court. Judge Donald Black rejected numerous arguments against the fee in a lawsuit filed by the California Building Industry Association (CBIA), the Modesto Chamber of Commerce, Valley Taxpayers Association and affordable housing developer Coalition of Urban Renewal Excellence. The San Joaquin Valley Unified Air Pollution Control District adopted the "indirect source" fee (also called Rule 9510) in December 2005. It applies to housing developments of at least 50 units and all but the smallest commercial, industrial and office projects (see CP&DR Environment Watch , April 2006 , January 2004 ). The fee starts at $780 per residential unit. Developers may offset or even eliminate the fee by increasing residential densities, mixing uses, providing bicycle and pedestrian facilities, constructing energy-efficient buildings, or taking other steps that reduce driving and energy use. The district spends the fee revenue on off-site mitigation, such as replacing old farm equipment and buses. During the program's first two years, developers have mostly implemented the offsets and have paid far less in fees than the district anticipated. The CBIA and other opponents argued that the fee violated the Mitigation Fee Act, was an illegal special tax and an illegal exaction, and was pre-empted by a variety of state laws. Judge Black rejected all of the contentions. Black found that the fee was not subject to the Mitigation Fee Act because the district does not decide on development projects. "While plaintiffs argue that the fees are ‘in connection with approval of a development project' because defendant (the district) can compel plaintiffs to comply with the fee requirement, there is no evidence that defendants can prevent approval of the projects if the fees are not paid," Black wrote in a 46-page decision. "At most, the district can levy fines against plaintiffs for failing to comply with Rule 9510, which is not the same as preventing approval of the project." The fee is not a special tax because it is triggered only when a developer chooses to develop property and not implement sufficient mitigation, Black ruled. As for the argument that the fee is an illegal exaction or taking, Black determined the fee was subject only to the "reasonable relationship" test, which the district passed. The judge further ruled that the fee was not in conflict with the California Environmental Quality Act or the Subdivision Map Act. The case is California Building Industry Association v. San Joaquin Valley Unified Air Pollution Control District , Fresno County Superior Court Case No. 06 CE CG 02100. An appeal is likely.

The California Supreme Court has accepted a case of considerable importance to regional park and open space districts. The court will review a decision by the Fourth District Court of Appeal, which ruled that the Riverside County Regional Park and Open Space District could not sell about 80 acres to a community college district without voter approval. Park districts say the Fourth District ruling, if upheld, would require districts to conduct elections not only for the sale of land, but also for routine matters such as land transfers and boundary adjustments. One upshot would be a reluctance to acquire new parkland, the districts warn. The ruling is the first published interpretation of a 75-year-old law, amended in 1985, regarding the disposition of parklands. Public Resources Code § 5540 says that a regional park and open space district "may not validly convey any interest in any real property actually dedicated and used for park or open-space, or both, purposes without the consent of a majority of the voters of the district." The question for the court concerns when a property is "actually dedicated" for park or open-space use. The appellate court ruled that the land is automatically dedicated when acquired by a regional park and open space district. But that ruling is "contrary to decades of practice," said Carol Victor, assistant district counsel for the East Bay Regional Park District, which § 5540 helped create. East Bay does not consider property "dedicated" for park and open-space use until the Board of Directors approves a resolution, she said. Like similar districts, East Bay acquires property when it becomes available and often decides on the details of usage and park boundaries at a later date, Victor explained. Sometimes, pieces of an acquired property turn out to be unnecessary, so the district adjusts boundaries and sells the surplus. The district does not seek voter approval beforehand. "It's just not practical to run an election to sell property," said Victor, noting that an election could cost $1 million and delay a transaction by a year. If the ruling stands, the East Bay district would be reluctant to acquire property, she said. The Sonoma County Agricultural Preservation and Open Space District sounded a similar warning in an amicus letter to the state Supreme Court. "While a large majority of the real property interests acquired by the district are dedicated by board resolution for park and/or open space purposes, the ability of the district's board to decide when and whether to formally dedicate such property is critical to the district's overall effectiveness," Deputy County Counsel Phyllis Gallagher wrote. "The district does not have the power of eminent domain. Its dependence on willing sellers makes the district beholden to market exigencies, and requires flexibility in structuring acquisitions so that the district can take advantage of opportunities as they become available. The Court of Appeal's opinion eliminates this flexibility." In 1995, the Riverside County Regional Parks and Open Space District (for which the Board of Supervisors serves as the governing body) acquired 161 acres from a Wildomar property owner through a purchase and gift. Eight years later — after Wildomar voters dissolved a local park maintenance assessment district — the park district agreed to sell about half of the land to the San Jacinto Community College District, which intends to build a campus for up to 15,000 students on the site. However, Gerard Ste. Marie, who lives nearby, sued, arguing that the district could not sell the land without voters' consent. The county park district argued that it never "actually dedicated" the land for park and open-space purposes and could therefore dispose of the property as surplus county-owned land. Nothing in the 1995 purchase agreement offered the land for dedication, and the district took no action to dedicate the property for specific use, the agency argued. But Ste. Marie, who did not hire an attorney for his lawsuit, pointed to Public Resources Code § 5565. That statute says all property acquired by a regional park and open space district is automatically "dedicated and set apart for" park and open-space purposes. Riverside County Superior Court Judge Gloria Trask agreed with Ste. Marie. Although it employed slightly different legal reasoning than Trask used, a three-judge panel of the Fourth District, Division Two, also sided with Ste. Marie. On appeal, the district emphasized the term "actually dedicated," contending that it infers an affirmative act, such as board adoption of an ordinance or resolution. Only then does the property become subject to § 5540's requirement for voter approval. A 1985 amendment to the statute confirmed this view, the district argued. But the court said the 1985 amendment concerned only easements, not the underlying property. "In light of the legislative purpose in enacting the 1933 legislation, it simply makes no sense that the Legislature's use of ‘actually' was intended to have the effect to which district ascribes," Justice Douglas Miller wrote for the court. "Indeed, to accept district's interpretation would, in essence, render meaningless the language and import of § 5565." The state high court voted 5-0 (with two justices absent) on February 27 to accept the case. No date has been set for oral argument. Ste. Marie told the North County Times that the decision to sell the parkland should remain in voters' hands. "They don't want the voters in this area to decide. They want politicians in places other than Riverside County to make the decision," he told the newspaper. The case is Ste. Marie v. Riverside County Regional Park and Open Space District , No. S159319.

Don't miss Morris Newman, Senior Editor of California Planning & Development Report at the California Redevelopment Association's Annual Conference in Anaheim on March 26 . Morris will be participating in the panel on subprime mortgages and redevelopment Wednesday afternoon at 3:45 p.m. at the Disneyland Hotel.

Although it made no grand announcement, the California Chamber of Commerce's Board of Directors has voted to oppose Proposition 98, the Howard Jarvis Taxpayer Association's eminent domain initiative on the June ballot. Both sides of the 98 campaign have been rolling out endorsements lately, but the Cal Chamber's stance was the first genuine surprise. In opposing 98, the Chamber has joined forces with longime nemeses, such as labor unions, environmental organizations and social justice groups. The Chamber's willingness to hold hands with the California League of Conservation Voters, the State Building and Construction Trades Council, and the Western Center on Law and Poverty suggests that the Jarvis group and its allies — the California Farm Bureau Federation and property owners — either overreached or drafted the initiative poorly. Proposition 98 would prohibit the taking of private property by eminent domain for economic development purposes. It would also outlaw rent control. An alternative written by local government organizations, Proposition 99, would prohibit the taking of single-family, owner-occupied houses for economic development purposes. The Chamber cited Proposition 98's potential to limit water projects and economic growth. Opponents of the initiative have been arguing for months that the initiative's wording, either purposely or by accident, would prevent the use of eminent domain for water infrastructure projects. The Jarvis group and the Farm Bureau strongly deny the contention. The Proposition 98 and 99 campaigns are starting to heat up. However, almost no one in the general public is paying attention, a situation that is unlikely to change in the 10 weeks before the June 3 election. Considering that we have the most compelling presidential election campaign in decades under way, an economy that's sinking fast, $4-a-gallon gasoline, and a war that is entering its sixth year, the argument over local government's occasional use of eminent domain to get a hotel or a new big-box almost seems quaint. - Paul Shigley

The Coastal Commission's ability to prevent development by designating environmentally sensitive habitat areas appears to depend on the existence of a certified local coastal program (LCP). In a case from Sand City, the First District Court of Appeal ruled that the Coastal Commission could not overturn Sand City's approval of a 495-unit vacation housing project based on the Commission's conclusion that the site is an environmentally sensitive habitat area (ESHA). The court said that because Sand City's LCP did not designate the site as ESHA, the Commission effectively amended the LCP during an appeal of the housing project — an action that is not permissible. However, in a case from Los Angeles County, the Second District Court of Appeal ruled that the Commission could reject a landowner's coastal development permit in part because the site is not covered by a certified LCP. When there is no LCP, the commission "is given wide latitude to examine conformity with all Coastal Act policies," the court ruled. The Sand City case involves a controversy with more than 20 years of history. The Lonestar Company closed its sand mine, located between Highway 1 and the ocean in Sand City, in 1986. That same year, the Commission certified an LCP that designated the 39-acre sand mine site for visitor-serving commercial uses. The Monterey Peninsula Regional Park District soon began advocating for LCP amendments to designate all of Sand City west of Highway 1 for parks and open space. The state Department of Parks and Recreation sought to acquire some of the land. But Sand City resisted the park agencies. Eventually, in 1996, Sand City, the state parks department and the regional park district signed an agreement setting aside most of Sand City's coastal areas for parks, but designating two sites — including the former sand mine — for development. Sand City amended its LCP to reflect the agreement, and the Commission approved the amendment. In 1997, the Commission approved an LCP amendment to permit mixed, rather than segregated, uses on the sand mine site. The 1997 amendment came at the request of developer Security National Guaranty (SNG). It proposed building 495 residential units (including vacation rentals and time share condos), a hotel and a conference center at the former sand mine. Sand City approved a coastal development permit for the project in December 1998. The Sierra Club and two members of the Coastal Commission appealed, and, in December 2000, the Commission denied the development permit. The Commission based its decision on a staff report that declared the entire project site as ESHA. Under the Coastal Act, only uses dependent upon the habitat resources are permitted in an ESHA. Seeking to overturn the Commission's decision, SNG sued. San Francisco Superior Court Judge Ronald Quidachay ruled for the Commission, but the First District overturned the lower court. Although SNG made a number of arguments, the appellate court focused on the developer's contention that the Commission could not declare the project site ESHA during an administrative appeal of a coastal development permit. The Commission argued that the question was not ready for judicial review because SNG had not exhausted its administrative remedies and the Commission had not provided a final pronouncement regarding possible uses of SNG's site. The court concluded SNG's challenge was purely a legal question and ready for review. The Commission cited LT-WR, LLC v. California Coastal Com. , (2007) 152 Cal.App.4th 770 (see CP&DR Legal Digest , September 2007 ). In that case, the court ruled the Commission could designate a site as ESHA, even though the designation conflicted with an approved land use plan. But the First District said LT-WR was not applicable because the land use plan in that case specifically permitted designation of new ESHAs. Plus, LT-WR did not involve an administrative appeal. Instead, the court determined that the Commission's action regarding SNG's site "clearly exceeded" its statutory authority, which limits the Commission's review to the project's compliance with a certified LCP. "In denying SNG's permit at least in part based on its unlawful ESHA designation, the Commission imposed additional standards not found in Sand City's LCP," Justice Henry Needham Jr. wrote for the court. "SNG was entitled to have its development proposal judged by the standards of the certified LCP in effect at the time of its application." "By declaring the site an ESHA, the Commission has impermissibly attempted to amend part of Sand City's LCP," Needham wrote. The court ordered the Commission to rehear the appeal "based on the standards set forth in Sand City's certified LCP." In the case from Los Angeles County, the court reached the opposite conclusion. In 2001, Milos and Trisha Douda filed an application for a coastal development permit to build a 5,800-square-foot house, a garage, a swimming pool and a septic system on a parcel in the Santa Monica Mountains. The Coastal Commission had certified a land use plan for the area in the 1980s. But because the Commission never certified follow-up implementation ordinances and zoning maps, the county lacks a certified local coastal program for the area. Hence, the Coastal Commission makes the permitting decisions. The Commission concluded that the coastal sage scrub and chaparral on the Doudas' property met the definition of ESHA, and the Commission denied the application. The Doudas sued, lost at the trial court level and then appealed. They contended that the Commission's sole function was to determine whether a proposed development conformed with the certified land use plan or LCP. The county's land use plan did not designate the property as ESHA. The court noted that a certified land use plan is not equivalent to a certified local coastal program. A land use plan is only one part of an LCP. The court said that the Coastal Act does not address whether a permit issuing agency (the Coastal Commission in this case) can designate an ESHA if there is no LCP. The Doudas' interpretation would mean the Commission was "powerless to protect any such areas prior to their designation by a local government in a certified land use plan or a certified local coastal program," Justice Judith Ashmann-Gerst wrote for the court. "On the other hand, the Commission's interpretation will allow the issuing agency to protect natural resources for the benefit of the public … Undeniably, this interpretation more closely comports with the declared and salutary purposes of the Coastal Act." "Notably," Ashmann-Gerst continued, "the oversight given to an issuing agency prior to the certification of a local coastal program is much broader than the oversight given to it after certification. In the latter case, the issuing agency must do no more than confirm compliance with the policies of the Coastal Act. In the former case, there is no such constraint." The Doudas further argued that the Coastal Act gave the Commission only until September 1977 to designate "sensitive coastal resource areas," and leaves with local government the ability to determine the contents of land use plans and LCPs. The court said sensitive coastal resource areas are not the same thing as environmentally sensitive habitat areas, and said local government cannot adopt plans and programs without the Commission's consent. First Case: Security National Guaranty, Inc. v. California Coastal Commission , No. A114647, 08 C.D.O.S. 1235, 2008 DJDAR 1408. Filed January 25, 2008. The Lawyers: For SNG: Thomas D. Roth, (415) 293-7684. For the Commission: Peter Southworth, attorney general's office (916) 445-9555. For the Sierra Club: Laurens Silver, (415) 383-7734. Second Case: Douda v. California Coastal Commission , No. B188210, 08 C.D.O.S. 1701, 2008 DJDAR 2053. Filed February 6, 2008. Modified March 4, 2008 at 2008 DJDAR 3223. The Lawyers: For Douda: Stanley Lamport, Cox, Castle & Nicholson, (310) 277-4222. For the Commission: Gordon Overton, attorney general's office, (213) 897-2000.

Add Tucson to the list of cities in the Intermountain West that fear California-style growth � and is thinking about California-style solutions to forestall California-style problems. Last fall, Tucsonites overwhelmingly rejected the first foray into this arena � a California-style growth control measure that would have restricted future water hookups. On Friday, more than 500 Tucson residents gathered at the University of Arizona to bat around alternatives.� (I was one of three outside speakers brought in by the Arizona Daily Star and Thomas Brown Foundation to talk about growth and growth management.) Pima County has doubled in size to 1 million people since 1980 and is expected to add another 250,000 in population by 2020. A unscientific online survey by the Daily Star � completed by 3,000 residents � found that more than half of the respondents oppose continued population growth, compared with only a third who favor it. However, more than half of the respondents also said they would recommend the Tucson area to their friends as a place to live. The biggest issue people talk about in Tucson is water. That's understandable, since Tucson is obviously in a desert. But it's hard to know, at a glance, just how big an issue it really is. While no-growthers have made a lack of water the centerpiece of their argument, Sharon Megdal , director of the Water Resources Research Center at University of Arizona, said, "Arizona has ample water supplies for a lot more people." But there are two big questions, she said: "Is the water owned by who needs to use it?" and "Is it in the right location"? The answers to these questions are probably no � making Tucson even more like California. Meanwhile, members of Gov. Janet Napolitano's growth cabinet said they are moving forward with a couple of growth management initiatives � in particular, a new transportation plan and a Maryland-style "smart growth" system of dispensing discretionary state dollars only to projects and plans that adhere to smart growth principles. Clearly, Tucson's movers and shakers are going to do something. Daily Star opinion editor Ann Brown concluded in a Sunday piece that the region "craves consensus." But not everybody has bought in yet. A typical Daily Star online comment : "The growth forum was just another talk session, no action forthcoming. Waste of time." -- Bill Fulton

A controversial 225-square-mile annexation of territory in San Mateo County by the Midpeninsula Regional Open Space District has been upheld by the First District Court of Appeal. The court rejected annexation opponents' arguments that the San Mateo County Local Agency Formation Commission's approval of the annexation was flawed. The Midpeninsula Regional Open Space District covers portions of San Mateo and Santa Clara counties. Since its creation in 1972, the district has acquired more than 50,000 acres that are now protected in about two dozen preserves. The district's territory was centered in the hills between the coast and San Francisco Bay's urban areas. In 1998, however, San Mateo County coastal voters approved an advisory measure concerning district expansion. The advisory vote commenced a five-year process that involved more than 40 public meetings and, in 2003, certification of an environmental impact report for the 144,000-acre annexation stretching along the coast from Pacifica to the Santa Cruz County line. In April 2004, the Local Agency Formation Commission (LAFCO) approved the annexation. Under the Cortese-Knox-Hertzberg Act, voters may protest an annexation. If 50% of registered voters file valid written protests, the annexation is terminated. If 25% to 50% protest, there must be an election. If less than 25% protest, the annexation stands. The annexed territory had 16,284 registered voters, so opponents had to convince a little more than 4,000 registered voters to protest to force an election. Although the San Mateo County Farm Bureau had led the fight against annexation, the organization dropped its opposition when state lawmakers approved a bill — sponsored by the open space district — to preclude the district from exercising eminent domain in the annexed territory. But property rights advocates persisted. They contended the district would create new parks that bring traffic and trespassers to rural areas. They contended the district's activities were incompatible with agriculture, and they worried that the district would both raise taxes and remove land from property tax roles. The opponents rounded up 5,340 written protests. But the San Mateo County Elections Division determined that only 3,443 protests were valid, less than the 25% required to force an election. The LAFCO then ordered the annexation to become effective. Multiple lawsuits were filed. In one, opponents challenged the protest verification process. That litigation resulted in a San Mateo County Superior Court judge ordering an addition 64 protests certified, which left opponents still well short of the 25% threshold. A separate lawsuit was filed by Citizens for Responsible Open Space over the LAFCO process. A Superior Court judge ruled LAFCO had improperly excluded another 288 valid protests — which still left opponents about 300 signatures shy of 25% — but otherwise conducted the annexation properly. The court upheld the annexation. Both sides appealed and a unanimous three-judge panel of the First District, Division Three, ruled entirely for LAFCO. Citizens argued that the court should invalidate the annexation because LAFCO did not include a statement of reasons for the annexation in a public notice of the protest hearing, relied on ambiguous maps, and improperly delegated statutory responsibilities to the Elections Division. The court determined the public notice's lack of a statement of reasons was inconsequential. Following the advisory vote, there were many public meetings, newspaper coverage was extensive, and supporters and opponents debated frequently in public. " s the trial court concluded, the overwhelming weight of evidence establishes that the public was aware of the arguments in favor and against the annexation and given a meaningful opportunity to participate in the protest process," Justice Stuart Pollak wrote for the court. As for maps, opponents said LAFCO used at least three different versions. The court determined a 160-acre parcel that was within the pre-existing boundaries was misidentified, but the error was of no consequence. The court also found that LAFCO staff's reliance on Skyline Boulevard as the eastern boundary in reports and a public notice map, when in fact the annexation boundary was a jagged line near the road, was acceptable. "As LAFCO explains, the map ‘was not intended to be a precisely surveyed guide to the exact limit of that annexation area, but a description of its external boundaries in a manner that would effectively inform the reader,'" Pollak wrote, noting LAFCO's formal resolution contained the precise boundary. On the issue of verifying protests, the court said LAFCO "appropriately delegated to the governmental division competent to perform the task." The LAFCO appealed the trial court's decision to re-instate protests that lacked a protester's residence address. This involved about 288 protests. Noting that many voters in the area rely on post office boxes, the trial court allowed the protests. But the First District said no and overturned the lower court on this point. " hat ultimately determines the right of a registered voter to protest the acquisition is the individual's residence within the affected area," Pollak wrote. "Receipt of mail at a particular post office box does not necessarily establish one's residence." Moreover, the court noted, "inclusion of the invalidated protests did not increase the number of protests to 25% of the registered voters and would not have affected the outcome of the protest." The Case: Citizens for Responsible Open Space v. San Mateo County Local Agency Formation Commission , No. A116825, 08 C.D.O.S. 1401, 2008 DJDAR 1708. Filed January 31, 2008. The Lawyers: For Citizens: Ronald Zumbrun, (916) 486-5900. For LAFCO: Carol Woodward, San Mateo County counsel's office, (650) 363-4250. For the Midpeninsula Regional Open Space District: Ellison Folk, Shute, Mihaly & Weinberger, (415) 552-7272.

A hot potato — or should I say a hot sugar beet — is headed back to the Delta Protection Commission, which is scheduled on March 27 to reconsider a proposal for the first housing development within the Sacramento-San Joaquin Delta's "primary zone" in 15 years. The hearing comes at a time when concern about Central Valley flood safety and the overall health of the Delta is at an all-time high, a setting that must have project proponents feeling like a smelt swimming too close to a State Water Project pump. A little more than a year ago, the 15-member commission of local elected officials, state appointees and special district representatives overturned Yolo County's approval of the Old Sugar Mill specific plan in the small riverfront town of Clarksburg, roughly 10 miles south of Sacramento. The matter was widely viewed as a test of how serious the state is about the Delta and flood safety. Although some commissioners spoke highly of the project, the final vote was 12-1 to send it back to Yolo County. Project developer Carvalho-Stanich Properties returned to the county and reworked the plan. The primary changes in the specific plan are a reduction in housing units from 162 to 123, a 15-foot expansion of a buffer between houses and agricultural land, and an agreement to raise the living areas of residential units 8 to 11 feet above grade. As before, the plan designates more than half of the 105-acre site (a former sugar beet mill) to commercial, industrial, office and hospitality uses. "Staff believes that the revised project fully addresses the concerns raised by the Delta Protection Commission in its remand to the county," says a Yolo County Planning and Public Works Department report to the Board of Supervisors. (Scroll down to Item 7.01 here .) Not so, says Greg Loarie, an attorney for the Natural Resources Defense Council, which has led opposition to the sugar mill project. "We're disappointed. We don't view the revisions as responding to the Delta Protection Commission concerns," Loarie said. Another 15 to 25 feet of buffer still leaves the buffer about 200 feet short of the 500-foot minimum the commission recommends. And raising houses a few feet higher does not address the basic concern about building residences in a location with questionable flood protection, he said. The Delta Protection Commission staff agrees with Loarie. The staff report for the March 27 meetings says that the project changes fail to satisfy the Commission's earlier concerns. Still, the revisions were enough for the Board of Supervisors, which approved the project on March 11. The project automatically returns to the Delta Protection Commission for a decision that may receive even more scrutiny than last year's. - Paul Shigley

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Will transportation and land-use planning get its share of dough from federal climate change programs? Not if the coal industry has its way. That was the message from a Capitol Hill staffer at a plenary session of the American Public Transit Association's annual legislative conference in Washington, D.C., on Monday. To combat the coal industry, smart growth and public transit lobbyists will have to prove they have an important national asset that can help meet the climate change challenge. Along with other panelists, Beth Osborne, an aide to Sen. Thomas Carper, D-Del., agreed that "smart growth" planning principles can help cut the growth in vehicle miles traveled and make a substantial contribution to reducing greenhouse gas emissions. But she warned that transportation and land use are unlikely to get much federal money for climate change because the electric utilities and coal companies are doing a better job of lobbying Congress. The money will likely come from the provisions of the so-called Leiberman-Warner bill now pending in the Senate, which would generate funds by capping carbon emissions and auctioning off a portion of the "right to pollute". "We are talking about as much as $4.5 trillion over 50 years, "Osborne said. "Right now the overwhelming majority is going to stationary sources, with about 1% going to transit." She added: "Impacted industries such as utilities, coal, and manufacturing have been extremely aggressive about making their case to us about the help they need to meet these standards.We've provided funding support to meet those standards. Noticeably absent from the debate is driving and transit alternatives – transportation interests have not been engaged in this climate change bill." She predicted that planning and transportation interests could get more money if they link their lobbying on the federal transportation reauthorization next year to lobbying on the climate change bill – which she said would not pass this year anyway. Steve Winkleman, a smart growth/climate change policy wonk with the Center for Clean Air Policy, said lobbyists in the transportation business are gradually coming around, but the public transit business has not been aggressive enough. He said, for example, that the American Association of State Highway Transportation Officials (AASHTO) has recommended an aggressive greenhouse gas reduction target associated with public transit – but the transit lobbyists have not been at the table. Winkleman – a co-author of "Growing Cooler," published by the Urban Land Institute – said that if market demand for smart growth were satisfied, the effect would be the same as a 35 mpg fuel efficiency standard. – Bill Fulton

Just about everyone has assumed that a "cap and trade" mechanism would be part of the implementation of California's AB 32, the greenhouse gas emissions reduction law. But cap and trade may not come about without a big, and potentially very political, fight from environmental justice advocates. Under a cap and trade system, the state would establish a maximum combined emission level of a greenhouse gas such as carbon dioxide. Polluters that come in under their allowance would then sell their credits to an entity that produces more than permitted. There's also the possibility that greenhouse gas emitters could buy offsets. Over time, the cap would get lower and lower. The concept is similar to the federal cap and trade system for sulfur dioxide, which affects more than 100 electricity generating plants around the country. Recently, a group of 18 environmental justice organizations calling themselves the California Environmental Justice Movement announced that it was firmly opposed to cap and trade. Their concern is that heavy polluters in urban areas would simply buy their way out of new emissions restrictions. The issue isn't so much the greenhouse gases that, say, a refinery generates. Gases such as carbon dioxide are a global problem, not local. The EJ group's biggest concern is the "co-pollutants," such as particulate matter and nitrogen oxides, that nearly always accompany the carbon dioxide emissions. These co-pollutants contaminate the air in the neighborhood. In other words, planting a forest in Canada or shutting down a factory in Idaho might offset the carbon dioxide produced by a refinery in Los Angeles. But those measures don't do anything about the soot, NOX, SOX (sulfur oxides) and other pollutants that residents of Wilmington have to inhale. The EJ organization argues that cap and trade turns the air everyone breathes into a commodity that wealthy corporations then pay to pollute, at the expense of poor people. The group calls the European Union's Emissions Trading Scheme a failure, arguing that it is establishing "carbon dumps" in poor and developing nations so that powerful companies and rich nations can continue polluting. Instead of mimicking the EU's venture, the EJ proponents argue, the state should tax greenhouse gas emissions. Under AB 32, the Air Resources Board is required to consider "market mechanisms" for reducing greenhouse gas emissions, and Gov. Schwarzenegger is an outspoken proponent of cap and trade. In a report to the Air Resources Board last year, the board's Market Advisory Committee endorsed the concept of cap and trade, but only if "localized effects or disproportionate impacts on low-income communities or communities already adversely affected by air pollution." A number of mainstream environmental groups, including the National Resources Defense Council, have endorsed at least the concept of cap and trade. For many businesses and political conservatives, market-based systems are the only acceptable way of reducing greenhouse gas emissions. That's a lot of momentum for cap and trade. But the EJ groups have friends in high places. Two of the group's leaders, Jane Williams of California Communities Against Toxics and the California Environmental Rights Alliance's Angela Johnson Meszaros, are on the Air Resources Board's Environmental Justice Advisory Committee. That committee's recommendations will not be easy for the board or the governor to ignore. More important is new leadership in the state Legislature. With a history of social justice activism, Assembly Speaker-to-be Karen Bass (D-Los Angeles) will be the first African-American woman to serve as speaker. Senate President Pro-Tem-to-be Darrell Steinberg (D-Sacramento) has cultivated an anti-business reputation as a defender of the working class. (He was a labor lawyer before becoming a state lawmaker.) Although they have not endorsed the California Environmental Justice Movement's cap and trade position, Bass and Steinberg are natural allies of the EJ group. Thus, the road to a greenhouse gas emissions cap and trade system in California will not be smooth. It might even be a dead end. - Paul Shigley

This is going to sound like sour grapes, I know. But it's not. Honest. It's a real policy beef – and one that I've had for a long time. I own a Prius. But I don't own an access sticker that gets me into the carpool lanes. That's because I bought my Prius in December of 2006 – the exact time when the State of California doled out the last of 85,000 "Clean Air Vehicle Stickers." Under AB 2628, the 2004 bill sponsored by then-Assemblywoman Fran Pavley (D-Agoura Hills), the stickers allow owners of high-mileage vehicles – mostly hybrids – to drive in high-occupancy vehicle (HOV) lanes. Even before I found myself crawling along in the regular lanes in my unstickered Prius, I thought this was a pretty dumb idea. Over time, it's proven dumber and dumber. Now, unfortunately, it's turned into a congestion pricing system, except the resulting revenue flows not to new transportation investments that benefit all of us, but to Prius owners clever enough to buy their cars before I did. The goal, apparently, was to encourage more people to buy hybrids, which use less gas and therefore emit fewer greenhouse gases. That's a worthy goal, but it's not the reason HOV lanes exist. The reason we have HOV lanes is to increase transportation capacity – and maybe reduce congestion and air pollution – by encouraging people to carpool or take buses instead of driving alone. Every time two or three people drive in a car instead of one, you've increased the capacity of the transportation system at no cost. Allowing single-occupancy hybrids into the carpool lane undermines this whole policy goal. Presumably there's a modest improvement in overall energy usage and greenhouse gas emissions – if the 85,000 drivers wouldn't have bought hybrids otherwise, which I doubt. But I can't figure out what other benefit there might be. Drive-alones add cars to the carpool lane no matter what kind of car they drive; but, unlike carpoolers, they don't add capacity to the system. (Something like 40% of the state's carpool lanes are already at capacity.) And the Internet is flooded with stories about how the granny-like habits of Prius drivers in search of high gas mileage slow down the carpool lane even more and therefore reduce everybody else's motivation to carpool. But here's the most perverse part: We've inadvertently created congestion pricing with this policy – and we're not getting any transportation investment out of it. Congestion pricing is a policy idea that's been kicking around for a while now . The idea is that people will pay money to drive faster on the freeway during periods of congestion. And the money they pay can be used to build more lanes or otherwise enhance transportation capacity. It's an idea worth thinking about, but except for the toll lanes on the 91 Freeway and the high-occupancy toll lanes on I-15 in San Diego County, it's not a policy that anybody in California has actually adopted. The "Clean Air Sticker" policy has proven that a congestion pricing policy would work. Why? Because a used hybrid with the stickers is worth $4,000 more than a used hybrid without one . In other words, the State of California gave away to owners of 85,000 hybrid cars a carpool access sticker worth $4,000. That value – somewhere around $300 million – is now in the hands of hybrid car owners. It is not in the hands of state and regional transportation agencies that could use it for other transportation improvements. With gas at close to $4 a gallon, I don't think anybody needs a $2,000 to $4,000 incentive to by a hybrid. In fact, I think the success of the Prius – a very sensible car in spite of its cache – suggests that Californians never needed such an incentive. When our state or our regional transportation agencies build an HOV lane, they are creating valuable real estate in the transportation system. The wisest use of this investment is to use it to increase our overall transportation capacity. We should do that either (1) by giving space in the carpool lane away for free to carpoolers who increase transportation capacity at no cost to the public, or else (2) by selling that space to drive-alones willing to pay the price, and using that money for other transportation investments. The one thing we should not be doing is giving it away for free to drive-alones based on the kind of car they drive. Sometimes we need to use our heads, not our hearts, in crafting environmental policy. – Bill Fulton