California special exemption for NFL stadium plan not so special

By Michael Hiltzik

Sept. 13, 2011 12 AM PT

Back in 2009, the California Legislature enacted a special exemption from state environmental laws for billionaire developer Ed Roski’s proposed NFL stadium in the City of Industry.

Just this once, we were assured. Special case. “Rarest of the rare,” Senate President Pro Tem Darrell Steinberg (D-Sacramento) called the occasion. No way the waiver would be a precedent for other big projects, he said.

Did you believe that? Me neither.

So no one has a right to be surprised that just last week the Legislature granted another environmental exemption, this time for Anschutz Entertainment Group’s proposed NFL stadium downtown.

And on the reasoning that what’s good for the AEG goose is good for the entire development business gaggle, the Legislature promptly passed yet another environmental exemption, this time a gift so open-ended that no one has any idea how many big construction projects will be shaded beneath its capacious boughs. Both bills are currently on Gov. Jerry Brown’s desk.

“You didn’t have to wait very long to see the domino effect” of the AEG bill, Bruce Reznik, executive director of the Sacramento-based Planning and Conservation League, told me. “It happened in 24 hours.”

The supporters of the two bills passed last week — hastily, in the final hours of the legislative session — have tried to downplay their impact. They say the bills don’t grant outright exemptions to the California Environmental Quality Act, or CEQA, like Roski got.

They just require that environmental lawsuits against the projects brought under CEQA start in the state Court of Appeal, rather than in Superior Court. Oh, and they limit the time the court can consider those lawsuits before rendering judgment to 175 days.

The AEG stadium and any projects designated under the second bill would still have to meet CEQA requirements for environmental impact reports. And it’s not like there’s no judicial review at all — in fact, most lawsuits under CEQA end up before the Court of Appeal sooner or later anyway. So it’s not like CEQA has been undermined.

I have one word of response to that: Baloney.

AEG and its chief executive, Tim Leiweke, contend that AEG needed a break to move the downtown stadium project forward. Specifically, it required “protection from frivolous lawsuits from those who are trying to get a competitive advantage or those who are just trying to destroy the process,” as Leiweke told The Times last month.

For those of you unfamiliar with the land developer’s dictionary, a “frivolous lawsuit” is defined as pretty much any lawsuit.

The palmed card in this deck is that court review of a big project’s environmental impact statement doesn’t “destroy the process,” as Leiweke would have it; it’s an essential part of the process. And eliminating the lowest rung of court review isn’t an innocuous change.

It increases the expense and complexity of legal challenges to big projects. That might not dissuade well-funded and high-profile environmental groups from going to court, but it may lock out the community groups and local organizations that operate on a shoestring and whose members feel the negative effects of big projects earliest and most severely.

“Smaller groups already have a very hard time getting to the courthouse doors, let alone getting through them,” says Doug Carstens, a leading environmental attorney in Santa Monica.

Carstens observes that even though the downtown stadium’s builders still have to prepare an environmental impact report, such reports are hardly the last word. And when the project under review is a mega-development such as the stadium with its vast potential for snarling traffic and filling the night sky with blazing billboards, community oversight is more, not less, important.

“Let’s say the EIR for the stadium is defective,” Carstens says. “Say it leaves out traffic impacts, is obviously in error and incomplete. If you are a person in the community who needs to bring one of these cases — we’re talking about people who see their children growing up with asthma — you won’t be able to do that with AEG, because the bar has been raised.”

Supporters and critics of the bills agree that they may have some virtuous aspects. For example, the AEG bill commits the company to an environmental standard of construction, including “best in the nation” traffic mitigation, more firmly than earlier versions of the measure.

That’s a real gain, argues David Pettit of the Natural Resources Defense Council, which negotiated the final version. “It was our assumption that some form of this would pass whether we liked it or not,” Pettit says. “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.”

There’s also some agreement that CEQA procedures could benefit from streamlining. Though if the latter is the case, why achieve the streamlining by steamrollering an unread bill through the Legislature minutes before adjournment?

The broader of the two bills approved, AB 900, allows the governor to designate certain projects for expedited court review, but doesn’t limit how many he can wave through before the measure sunsets at the end of 2014.

The most insidious aspect of these measures is that together they represent another step toward two-tier government: One tier for the wealthy and well-connected, one for the rest of us.

“In a country and state governed by the rule of law, a multibillion-dollar influential corporation shouldn’t be able to go to the Legislature and get a special law,” says Reznik of the Planning and Conservation League.

What about the all-purpose rationale advanced for these bills, that today’s economic climate demands special consideration for job-producing projects? “It’s wrong to pass a bill just for AEG,” the refrain goes, “but this project is just too good to pass up.”

Yet even the most cynical legislator or editorialist knows that big shots can always come up with a rationale to cut corners or silence inconvenient opponents.

Moreover, the development lobby has had the knives out for CEQA almost since its enactment in 1970. The blades are always honed especially sharp during recessions.

In 1983, for instance, developers goaded Gov. George Deukmejian into pushing through a number of “reforms,” including a rollback of judicial review.

When growth took off again later in the decade, California experienced buyer’s remorse about these changes, and the Legislature again strengthened CEQA’s enforcement and public review provisions. The cycle repeated itself the following decade, and here we are again today.

As for the effort by AEG or its fellow big developers to carve out special legal advantages, it’s what comes naturally, like dogs licking themselves.

But that doesn’t excuse our supposed tribunes of the people for capitulating so cravenly to threats and payoffs from big businesses like AEG, which has donated millions of dollars to state and local candidates, parties and political committees.

Nor should anyone take lightly the death by a thousand cuts of CEQA, which Reznik describes as “a vital law for 40 years giving the public a voice in decisions that impact them, their communities, and their air and water quality. There has been a gradual chipping away, and when we’re looking back for those protections we may find that we don’t have them anymore.”

Michael Hiltzik’s column appears Sundays and Wednesdays. His latest book is “The New Deal: A Modern History.” Reach him at [email protected], read past columns at latimes.com/hiltzik, check out facebook.com/hiltzik and follow @latimeshiltzik on Twitter.