An eco-stadium? Promises, promises
Feelings of betrayal dividing friends, lovers, and political allies have provided grist for Shakespeare and Verdi, among other great scrutinizers of the human condition.
It’s intriguing to ponder what they would have made of the breakup between the Natural Resources Defense Council and Anschutz Entertainment Group, the would-be developer of a downtown Los Angeles football stadium.
Last September, the NRDC’s Los Angeles office did the stadium developers a big favor by throwing its weight behind a gift bill streamlining the environmental review process for the stadium project, and only for the stadium project. The bill, SB 292, eliminated one whole level of court review otherwise provided for by the California Environmental Quality Act. For this project alone, litigation would have to start at the Court of Appeal level, rather than in the lower courts, and the judges would face tight deadlines. That was a big giveaway to the developers, for whom time is money.
The NRDC’s involvement in the stadium project grows out of its interest in promoting mass transit and energy efficiency in urban communities, and therefore in seeing that the stadium be “green” in its construction and operational phases, and not encourage more automobile traffic. But its dalliance with the developers roiled environmentalists, many of whom are concerned about the impact of the huge project and anticipated going to court, if necessary, to make sure their views would be heard. The NRDC explained that it had negotiated several safeguards into SB 292, including the commitments from AEG.
“It was our assumption that some form of this would pass whether we liked it or not,” NRDC Senior Attorney David Pettit, director of its Southern California air program, said at the time. “So we made the decision to be at the table rather than just say no. At the end of the day, we got what we wanted.”
Plainly, NRDC now feels it did not get what it wanted. Earlier this month, Pettit complained in a letter to the city that the draft environmental impact report submitted by AEG for the stadium project lacks numerous commitments the builders had made to the group.
Studies that AEG promised to conduct of alternatives to bringing fans to the stadium by car were missing, for instance. Promises AEG made to the Clinton Global Initiative, a climate change program sponsored by the former president, were mysteriously scaled back; AEG told the Clinton group it would recycle 90% of solid waste produced during construction, NRDC says, but the draft report promises only 50%.
“We also have concerns about air quality, health risk, green construction practices and sustainability relating to the project,” NRDC wrote.
“The letter does accurately portray that we’re disappointed in what we see in the [draft environmental impact statement],” Pettit told me last week, “when you compare it to what AEG promised to do in connection with SB 292.” This sounds like a tactful way of saying “we got rooked,” though Pettit says he still favors the stadium project.
But he also acknowledges that the absence of some studies AEG had committed to conducting for the report means leaving the public in the dark about many of AEG’s environmental plans. That’s something that Pettit thought he had negotiated into SB 292 in return for shutting the courthouse door to the public at the ground floor.
Both parties to this dispute say it’s amicable and may yet be resolved without ugliness, sounding like some divorcing couples resolved to remain friends for the sake of the kids (or in this case, a bouncing baby NFL stadium). AEG says it’s as committed to environmental mitigation as ever at the future site of Farmer’s Field, but that it’s simply premature to write into the impact report some of the specifics the NRDC expected to see there.
Both sides say they will be sitting down before a mediator as early as this week, pursuing an alternative to litigation written into SB 292. Pettit says he’s satisfied that mediation will serve as a “path forward” to getting its wish list back into the environmental impact report. Similarly pacific sounds come from AEG. “We not only welcome the mediation process, we urged that it be put in the law and we’re encouraging people to participate,” says William F. Delvac, AEG’s land-use lawyer. “We’d rather be in a conference room than a courtroom.”
Yet the dispute between the environmental group and the stadium builders underscores the most important shortcoming of SB 292: It opened the door to more one-time-only giveaways shifting the balance of power in land-use policy further away from the average citizen and more in favor of wealthy and politically powerful developers. When the latter try to bull their way over the concerns of the former, often the only place where the community can be heard is the courtroom. Indeed, SB 292 was followed almost instantaneously by a second bill, AB 900, which allows the governor to short-circuit California Environmental Quality Act, or CEQA, review in the courts for many more projects.
Judges detest these bills, as is evidenced by statements from the Judicial Council of California, the administrative office of the court system. In letters to legislators back in March, the council attacked two attempts to extend the reach of AB 900 even further. Like AB 900, they would force environmental challenges to construction projects to start at the appeals court level.
The letters objected that appeals courts are “not well suited” to function like trial courts: They have fewer judges and therefore can handle fewer cases, they have fewer locations and therefore are harder for litigants (especially poor litigants) to get to. Because appeals court cases are heard by panels of three judges, reaching a decision takes a long time. Combine that with a tight statutory deadline for a ruling, and you’re asking for slipshod judicial workmanship.
The council also observed that giving CEQA cases special access means pushing all other cases to the back of the line, including “juvenile cases, criminal cases, and civil cases in which a party is at risk of dying.”
All that so land developers, uniquely among litigants in the state of California, can get a break. “The courts are charged with dispensing equal access to justice for each and every case on their dockets, without regard to the economic position of the parties,” the council wrote. “Singling out this special category of cases for such preferential treatment appears at odds with how our justice system has historically functioned.”
That’s politely put. But if you strip away the veneer of civility that we expect judges to display in their public commentary, it sounds like California judges are supremely ticked off. This hasn’t been lost on the Legislature, which killed both bills the judges opposed. But AB 900 and SB 292, which were enacted before the judicial council had a chance to comment, live on.
There’s reason to doubt that either is even constitutional. In April, the Planning and Conservation League, a Sacramento nonprofit, filed a lawsuit calling AB 900 an unprecedented intrusion by the Legislature into the courts’ jurisdiction and noting that state courts have ruled earlier attempts “patently unconstitutional.”
“The evils of the bill are twofold,” explains Antonio Rossmann, the San Francisco land-use attorney handling the league’s case. “One is it penalizes environmental challengers by eliminating a level of judicial review. But the graver damage is to the judiciary itself, by disabling the Court of Appeals from managing its own docket.”
He might have added that the evil lies deeper. The real issue raised by laws like these is one that increasingly appears in a society where money talks ever more loudly: Who really owns California?
Michael Hiltzik’s column appears Sundays and Wednesdays. Reach him at mhiltzik@latimes.com, read past columns at latimes.com/hiltzik, check out facebook.com/hiltzik and follow @latimeshiltzik on Twitter.
