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UCLA Journal of Environmental Law & Policy, Winter, 2009 by John Darakjian

  I. INTRODUCTION

 II. TRANSPORTATION, LAND USE AND GLOBAL
     WARMING

III. THE SMART GROWTH PEDIGREE: THE SLOW
     GROWTH MOVEMENT, AB 857 AND THE SACOG
     BLUEPRINT
     A. The Slow Growth Movement
     B. AB 857
     C. The SACOG Blueprint

IV.  SB 375: STRUCTURE, IMPLEMENTATION AND THE
     ROLE OF CARB
     A. The Role of CARB
     B. The RTP and SCS
     C. The APS
     D. CEQA Exemptions and Streamlining
        i.   Residential or Mixed-Use Projects
             Consistent With SCS/APS
        ii.  Transit Priority Projects
     E. Housing Element Reform

V.   OBSTACLES TO IMPLEMENTATION
     A. Transportation Infrastructure: Smart Growth's
        Missing Link
     B. APS, Feasibility and the Breakdown of Internal
        Consistency
     C. California's Land Use Status Quo: Loose Ends,
        Local Ties
     D. California's Changing Landscape

VI.  RECOMMENDATIONS
     A. Infrastructure
     B. Actions by CARB
        i. Compliance Clarity
        ii. Provision of GHG Emission Evaluation
            Guidelines
     C. Consider Amendment

VII. CONCLUSION

I. INTRODUCTION

On September 27, 2006, California Governor Arnold Schwarzenegger signed into law AB 32, (1) the Global Warming Solutions Act, widely considered the most comprehensive and progressive piece of legislation ever drafted to address the causes of anthropogenic climate change. The statute gives the California Air Resources Board (CARB) broad authority to regulate any source of greenhouse gas emissions (GHGs), including those from the transportation and land use sectors. (2) The eleventh-hour enactment of SB 375 in September, 2008 represents the first legislative step towards aligning the state’s future land development with AB 32′s emissions reduction goals. (3) Vaunted as a “trifecta of the impossible” by one of the statute’s contributory drafters, (4) SB 375 seeks to harmonize three distinct areas–regional housing need, transportation infrastructure development and statewide air quality goals–in one comprehensive program. The law builds upon existing regulatory structures and seeks to incentivise compact development through a mix of project funding and process streamlining all targeted toward one end: reducing vehicle miles traveled (VMT) among California’s 23 million licensed drivers. (5) Whether SB 375 will herald a new era of smart growth or simply add additional strata to an already complex planning process remains to be seen.

This Comment will look to past failures and present successes to determine what potential obstacles may arise in implementing the nascent law. Additionally, the Comment provides recommendations, both legislative and administrative, intended to bridge the gap between the untested language of the statute and practical achievement of its goals.

Understanding both the promise and potential pitfalls of SB 375 requires analyzing the law’s overall structure to find the balance between what its language mandates and what the statute hopes to achieve through incentive–determining what must be done and what is still left to the caprice of local and regional governments. Beginning with Part II, this Comment will atlanta real estate explore the environmental crisis and regulatory context under which the statute was conceived and ultimately enacted. The global and regional effects of climate change will also briefly be discussed. Part III will look to California’s historical attempts to legislate smart growth, evaluating both the efficacy and structure of previous programs. These early state efforts to constrain suburban sprawl are presented as the evolutionary predecessors to SB 375, informing our understanding of this newest legislative species and providing an historical base from which to evaluate its potential for success or failure.

Part IV provides an overview of the statute’s basic functional structure. The bill is not a stand-alone law but instead amends current regional transportation and environmental statutes. SB 375 inserts additional documentation into the regional transportation plan (RTP) already required under state and federal law (6) and adopts new regulatory procedures under the California Environmental Quality Act (7) (CEQA) for those projects meeting specified criteria. The section will also discuss how and by what time frame emissions-reduction targets will be assigned by CARB to each of the state’s seventeen metropolitan planning organizations (MPOs) as well as the relative authority and obligations assigned to each of these various agencies. Additionally, the means by which the statute seeks to align the previously discrete housing-need allocation and transportation planning processes will be explored. Consideration of the workings of SB 375 illustrates the extent to which the new statute transforms the landscape of land use regulation in California and the degree to which previous structuring remains unchanged. The consequences of these issues will be discussed in detail in the subsequent sections.

Viewed from any perspective, SB 375 is legislation born of compromise. The statute endured fourteen amendments between its introduction and eventual adoption as its author attempted to appease the many stakeholders–builders, environmentalists, local and regional governments–whose concerns and concessions are now embodied in the law’s text. As a result, the law is far less robust than it might otherwise have been, sacrificing strict mandate for incentive and suggestion in a bid for adoption. Part V will explore the effects of this compromise on regulatory consistency under SB 375 and the end run around compliance provided via the statute’s alternative measures