Jerry Brown’s Regulatory Capture at the CA Coastal Commission

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Jerry Brown, once known as Governor Moonbeam who signed into law the California Coastal Commission, now can be seen as the man behind handing it over to developers. Governor Brown must fire his four at-will commissioners with significant lapses of judgement and ethics, as well as his powerful backroom dealer from the Resources Agency.

Idle No More LA, Jack Eidt, California Coastal Commission

Indigenous activist Lydia Ponce from Idle No More LA demonstrates while Fred Collins from the Northern Chumash Tribal Council testifies before the California Coastal Commission in Morro Bay in Feb 2016. Their call to retain Charles Lester as Executive Director of the Commission went unheeded. Photo By Jack Eidt.

Jerry Brown’s Role in the Coastal Commission Coup

By Jack Eidt, Published By Voice of OC

You might have heard that the California Coastal Commission (CCC) has been undergoing “regulatory capture,” where industry, real estate interests, and ambitious politicians have subverted its power by forcing the firing of its Executive Director Charles Lester, and move it toward a more development-and industry-friendly model.

This all happens at the expense of our coast, our communities, and probably very soon, the 401-acre Banning Ranch, the last open bluffs and wetlands along the Orange County Coast.

The first order of business for the new CCC staff?

In a reversal of its October 2015 position, the staff report on Newport Banning Ranch released last week recommended approval of the hotel and housing complex on coastal grasslands, officially protected Environmentally Sensitive Habitat Area (ESHA), and home to the Burrowing Owl among other endangered wildlife.

Who is to blame for the Coastal Commission takeover?

Despite protestations that the firing of Lester was “a personnel matter,” the buck stops with avowed climate crusader Governor Jerry Brown.

He could immediately rescind his four appointments, all whom voted in secret to fire Lester and all with spotty environmental voting records. More on the sordid details later, and the well-enumerated lobbyists actively gaming the rules and regulations in favor of the profit-focused bulldoze-and-build set. Additionally, the Governor must deal with another appointee from the State Resources Agency whose commitment to conservation is questionable at best.

Governor Jerry Brown, Sacramento Bee

In 1976, a year into his first term as governor, Jerry Brown signed a bill that came to be seen as one of the strongest environmental protection laws in the country. The California Coastal Act limited development along the 1,100-mile shoreline and guaranteed public access to the beach. A few years later he became less enchanted with it, calling commissioners “bureaucratic thugs.” Today, he is responsible for a development-friendly commission and a threatened Coastal Act. Photo from the Sacramento Bee.

Brown’s Political Insider Making Exceptions

These political operators work behind the scenes, so let’s take a look at Jerry Brown’s backroom dealer extraordinaire, Janelle Beland. Brown appointed Beland, a communications/public relations type as the Undersecretary of the California Natural Resources Agency in 2011.

How could the woman charged with “protecting and managing the state’s natural, historical and cultural resources for current and future generations” be working to undermine the Coastal Act and limit the power of the Coastal Commission?

Two words: regulatory capture.

Do we have proof?

Well, at the October 2015 hearing on Newport’s Banning Ranch, she may have inadvertently outed herself by stepping into procedural matters regarding the designation of Environmentally Sensitive Habitat Areas (ESHA). It is that very designation that the Coastal Act explicitly protects and now the post-Lester CCC Staff wants to exempt. ESHA designation, the bane of home builders’ and coastal resort designers’ existence, led to the legally-secured protection of much of the Upper Bolsa Chica wetlands.

Moreover, the courts will have to decide the fate of the 895-ocean view homes with hotels and shops at Newport Banning Ranch, given the discrepancy of 2015 and 2016 designations of protected coastal sage scrub and vernal pools, one of the last places in Southern California endangered gnatcatchers and cactus wren, and the aforementioned Burrowing Owl, can thrive.

STORY: Power, Influence, and Obfuscation: A Plan to Game the California Coastal Act

Banning Ranch, Newport Beach

The bluffs at Banning Ranch in Newport Beach are covered with protected Environmentally Sensitive Habitat Areas (ESHA), but how much will the newly captured Coastal Commission actually protect? Photo from The Nature Commission.

State Natural Resources Boss Pulling Rank

Why did Ms. Beland, who rarely speaks up at hearings as a non-voting member of the Commission, publicly denounce a biologist from the California Department of Fish and Wildlife (CDFW) for rendering an opinion in a memo about the existence of ESHA on the Banning Ranch site when asked to do so by the Coastal Commission biologist? Commissioner Beland questioned whether the biologist should be writing memos for the CCC and whether she was able to render an opinion about ESHA without a full site inventory. Effectively, Ms. Beland wanted to declare that CDFW was not equipped to make an ESHA determination, that the developer was not required to do a Section 1600 Streambed Alteration Agreement, and denied that the application was incomplete.

Understand that projects seeking to build on coastal wetlands generally require a Streambed Alteration Agreement. It would be out of the ordinary to exempt a development of this magnitude from having to detail their impacts and establish a list of mitigation measures that would be acceptable to the State Fish and Wildlife Agency (CDFW). In fact, the CCC staff report released September 25 first said the Section 1600 application was incomplete, but then in a Sept. 30 addendum, said that CDFW decided they didn’t even need to issue it.

One has to guess Commissioner Beland was annoyed that this staff member did not get the memo that they had agreed to exempt Newport Banning Ranch LLC (NBR) from the requirement.

Now, Ms. Beland, in her remarks, said that CDFW “deemed the application complete 60 days before September 30” — yet CCC was under the impression as of September 25 that the CDFW application was not deemed complete. It took them until the 30th of September to state that NBR was exempt. And a CDFW employee was still issuing memos to the contrary a week later.

The Bigger Question

Okay, at this point, if you are lost, you are not alone. So I decided to do some digging. I did a Public Records Act request searching the paper trail on how CDFW and the Natural Resources Agency got together to exempt a developer of a massive project from a permit that almost every builder of a project of this size must deal with. And why was the story not straight with Coastal Commission staff? The public has a right to know.

While I am reviewing CCC documents and await information from CDFW, the attorney for California Natural Resources responded thus: “My client does not maintain documents responsive to this that are not covered by the attorney-client privilege, and therefore has nothing to produce.”

Where does the attorney-client privilege apply when a representative from a major state agency makes public assertions about exempting developers from regulation? Okay, one can only surmise here that Commissioner Janelle Beland has something to hide.

STORY: Reform California’s Environmental Quality Act? Not Now

California Coastal Commission, Robert Garcia, Jack Eidt

Robert Garcia from The City Project in Los Angeles leads the coalition of groups calling for more citizen involvement in the Coastal Commission decision making at the March hearing in Santa Monica. Photo By Jack Eidt.

The Rogues Gallery: Four Jerry Brown Appointees

Furthermore, Governor Brown has a slate of commissioners (Wendy Mitchell, Erik Howell, Martha McClure and Effie Turnbull-Sanders) with lapses of ethics and judgement, as well as just poor performance. These commissioners are at-will appointees and serve at the pleasure of the Governor. They should be replaced immediately.

On February 10, 2016 around 200 speakers expressed unanimous support for Charles Lester, who by the way, backed up the claim that the Banning Ranch developer had not fulfilled the requirements for a streambed alteration agreement, and then lost his job a few months later. What about Brown’s appointees ignoring the wishes of 30,000 letter writers, 100 environmental and social justice groups, 35 former Commissioners, 10 members of Congress and 18 California legislators, calling for Dr. Lester to keep his job? Where is their accountability to the public?

Of course, lobbyist Susan McCabe from McCabe & Company has been recently outed in the Los Angeles Times as “the most influential person on the Coastal Commission.” McCabe specializes in Coastal Commission cases with a variety of clients including home builders, a New York hedge fund, a builder of liquid natural gas terminals, a builder of desalination plants (Poseidon), SeaWorld, Pepperdine University, the ports of Los Angeles and San Diego, aging Rock Star David Evans (a.k.a. The Edge), and entertainment moguls Barry Diller and Jeffrey Katzenberg.

McCabe’s go-to Commissioner is Brown’s at-will appointee Wendy Mitchell, herself a paid-lobbyist for the very real estate and energy interests that she is charged to regulate. Her recent vote in favor of a Santa Barbara desalination project involving one of her consulting company clients, Carollo Engineers, is just one glaring example of her conflicts of interest.

Commissioner Erik Howell, another Brown at-will appointee, is the subject of a Fair Political Practices Commission complaint over his support of a Pismo Beach project two weeks after receiving a campaign donation for his Pismo Beach City Council campaign from Susan McCabe’s domestic partner, an employee of McCabe & Co.

Brown’s third troubled commissioner is Martha McClure, who accepted a campaign donation to her Del Norte County supervisorial campaign from the same McCabe & Co. employee.

And Governor Brown’s final at-will appointment, Effie Turnbull-Sanders, joined Ms. Mitchell, Mr. Howell, and Ms. McClure in voting anti-conservation in favor of the Bay Cities Subdivision by the Sea in Seal Beach, The Ranch Hotel-in-a-Creek in Laguna Beach which I wrote about here, the Monterey Bay Resort-in-a-Sand-Dune, and The Edge Multi-McMansions on sensitive habitat in Malibu. The list can continue.

Is their next vote to approve Newport Banning Ranch’s mega-development on ESHA?

Californians love their coast, and have faith that the 1976 Coastal Act will protect their pelicans, sand dunes, and ability for all of us, two- and four-legged alike, to enjoy it forever.

Governor Brown, we ask you to do your part.

Replace these commissioners with ones that will enforce the laws that have served our coast so well. It’s time to clean house and get the Coastal Commission once again protecting and enhancing California’s coast and ocean for present and future generations. Four new appointments, and replace Janelle Beland at Natural Resources. Contrary to their performance with Charles Lester, we have provided actionable reasons for firing them.

The future of our state depends upon it.

Jack Eidt is director of Wild Heritage Planners, editor of WilderUtopia.com.

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About Jack Eidt

Novelist, urban theorist, and environmental journalist, Jack Eidt careens down human-nature's all consuming one-way highway to its inevitable conclusion -- Wilder Utopia. He co-founded Wild Heritage Planners, based out of Los Angeles, California. He can be reached at jack (dot) eidt (at) wilderutopia (dot) com. Follow him on Twitter @WilderUtopia and @JackEidt