An assemblywoman has introduced legislation that could seriously weaken developers' control over the environmental review process for their projects.
The bill was triggered by allegations that a homebuilder was able to conceal and destroy an endangered plant on the site of a planned subdivision in Los Angeles County.
If the bill overcomes significant opposition from the building industry -- which contends the approach would needlessly complicate the planning process -- it could radically alter the way developments are approved in many jurisdictions, including the city and county of Los Angeles. It could also be one of the first tests of the Legislature's willingness to support controversial environmental laws.
Under AB 406, introduced by Assemblywoman Hannah-Beth Jackson (D-Santa Barbara), developers would be prohibited from directly hiring the consultants who write environmental impact reports, which evaluate possible harmful effects of the development. The legislation would also prohibit developers from imposing confidentiality agreements on consultants who have done work on the project.
Los Angeles County and a number of other local governments now allow developers to write the documents themselves. Government officials say they do so because they lack the money and staff members to do the work on their own, though they insist they have the final say on the documents.
Environmentalists, however, have long maintained that the practice gives builders an unfair sway over the outcome of controversial building projects.
"In some of these cases there [are] millions and millions and millions of dollars at stake," said Sandy Spelliscy, general counsel to the Sacramento-based Planning & Conservation League. "And what makes more sense -- a neutral party hiring the consultant, or someone with a financial interest [the developer] hiring the consultant?"
To support their argument, activists cite the controversy surrounding the proposed 21,600-home Newhall Ranch subdivision in northwest Los Angeles County. The developer, Santa Clarita-based Newhall Land & Farming Co., forced its environmental consultants to sign confidentiality agreements that prohibited them from sharing study findings with anyone -- including government officials.
That became an issue in 2001, when state Fish and Game investigators began to suspect that Newhall Land had under-reported the number of endangered San Fernando Valley spineflowers on the Newhall Ranch property. The company denied investigators' requests to view the property. And when asked about the flowers directly, the consultants refused to cooperate, citing the confidentiality statements.
Fish and Game officials obtained a search warrant in May and allegedly found that Newhall Land had destroyed thousands of the tiny plants.
Newhall Land has denied any wrongdoing. Last month the company reached a settlement in the matter with the Los Angeles County district attorney's office, agreeing to create a preserve for the remaining plants, which were thought to be extinct.
Assemblywoman Jackson said she was concerned that similar problems could occur if state law is not changed to ensure that government -- not developers -- controls the environmental review process.
"It's in the interest of the [developer] to make sure the environmental report is most favorable to them," Jackson said. "But the goal is to have [the report] independent and unbiased."
In further reaction to the spineflower controversy, Jackson's bill, which was introduced last month, would also give government agencies improved access to development sites. Most important, it would ensure that local governments select the authors of environmental reports, with the developer simply picking up the tab.
That method has been used for years in Ventura County, part of which is in Jackson's 35th District.
In Orange County, the Planning Department enters into a three-way contract with developers and environmental consultants. Jan Chatten-Brown, an environmental attorney who helped draft AB 406, said that arrangement would also be outlawed under the bill, because it also makes consultants beholden to builders.
Orange County planner Richard Bailey disagreed. He said his county's system guarantees fairness by ensuring that all documents produced during an environmental review are automatically made public.
In Sacramento, such groups as the California Building Industry Assn. are gearing up to fight the bill. Brian White, a lobbyist for the trade group, said he was particularly concerned about another provision of the bill that prohibits the developer from reviewing and commenting on draft versions of an environmental report before they are made public. He said that could lead to an increase in unnecessary litigation and put a "stranglehold" on new development.
"Shutting off dialogue between [developers] and public agencies is not going to solve the problem," White said. "If there is a better way to approach [the California Environmental Quality Act], we don't think this bill's the way to do it."
Newhall Land spokeswoman Marlee Lauffer said the company supported the position of the Building Industry Assn. Other skeptics have said such a law might make little difference in cities and counties that are staunchly pro-development.
If the bill passes, it would supersede a 1991 ruling by a state appellate court, which found Los Angeles County's policy on environmental reports does not violate the California Environmental Quality Act.