It was a classic Coastal Commission moment – cheers, jeers and white-hot media scrutiny.
When the Commission denied a controversial development in Newport Beach last September, the crowd shrieked and clapped. A two decades-long fight to build 895 homes, a 75-room resort and 45,000 square feet of retail space was over – at least for the moment.
It makes difficult, high-dollar decisions under the glare of intense media coverage — decisions that roil the staff, too.
And it all came down to the western burrowing owl.
After testimony from scientists, developers and activists, the Commission weighed in on one of its largest projects building atop oil fields along the coast.
The owl needs large open spaces for its underground nests, and the Commission staff discovered their habitat needs late in the game.
“This is a project we have to get right,” said Commissioner Mary Shallenberger, a former chair of the 12-member Commission, said of the Banning Ranch project. “We’ve heard this is the only intact coastal bluff ecosystem in Southern California. It is the largest concentration of endangered and threatened species in Orange County,” she said.
“If we don’t get it right, it will be lost forever,” Shallenberger added.
To backers and critics alike, the decision represents the essence of the Coastal Commission’s role: It makes difficult, high-dollar decisions under the glare of intense media coverage — decisions that roil the staff, too.
Even for a regulatory panel accustomed to high-profile battles, 2016 was a turbulent year.
“Hopefully, they’ll continue to do what they’ve done for decades, which is to uphold the Coastal Act.” — Charles Lester
The Commission invariably goes head-to-head with some of the wealthiest land-owning interests in the state, who often contend the panel and its staff abuse their authority guarding California’s coast.
Last year, long-simmering tensions erupted when the Commission fired executive director Charles Lester in what was publicly described as a struggle between pro-development interests and pro-environmental interests. Internally, the issues were far more complex, allegedly involving project scheduling and time management, among other factors. (Click here and here to see Capitol Weekly’s earlier stories.)
“There’s been a lot of attention on the Commission’s decisions over the past year,” Lester said in an interview. “They’ve obviously made some strong decisions in the Newport Banning Ranch case and a couple of enforcement orders,” he said, sipping coffee at a Midtown Sacramento Starbucks. “Hopefully, they’ll continue to do what they’ve done for decades, which is to uphold the Coastal Act.”
Lester, several commissioners and other agency watchers spoke with Capitol Weekly about the tenor of the commission since his ouster, which marked the first forced departure of a commission executive director in decades.
Lester’s predecessor, Peter Douglas, served 26 years as executive director, from 1985 until his 2011 retirement spurred by illness. The Commission named Lester as executive director in the fall of 2011; he served about five years.
The Commission is responsible for land-use planning along 1,271 miles of California’s coast, covering a zone from 1,000 yards to five miles inland.
Clearly, the Commission is in the midst of a more tranquil period than last year. But there is uncertainty about what lies ahead.
There may be three new commissioners over the next three months, depending on whether any existing members are reappointed.
Challenges include Trump administration policies, proposed federal budget cuts, the state’s affordable housing crisis and sea-level rise from climate change.
The Commission is responsible for land-use planning along 1,271 miles of California’s coast, covering a zone from 1,000 yards to five miles inland. It oversees and approves local planning documents that govern city and county governments’ polices around the coast and ultimately decides whether development can occur.
The Commission is also charged by voters to ensure public access to the coast, investigate violations of the Coastal Act and protect the coast’s natural beauty. It has some authority over offshore oil and and gas projects.
“The whole firing, what the commission was trying to do, was about overall management and not developer-versus-enviro.” — Wendy Mitchell
With California in the spotlight more than ever and its unspoiled coast powering a $45 billion a year ocean economy, supporters say the commission’s mission is critical.
The turmoil over Lester’s departure left wounds, but they are being healed and the commission’s operations are proceeding apace, commission-watchers say.
“It was a rough period, but I’m hoping we’re now in good period of leadership and stability at the commission,” said Susan Jordan of the Coastal Protection Network. “We have a new executive director, a new chair and vice chair, and I see a different tone at the commission than I saw a year ago.”
Lester worked as a senior deputy director before becoming executive director of the Coastal Commission. Before that, he was a student intern at the commission. Since his departure, he’s focused on his research at UC Santa Cruz on adapting to sea-level rise and protecting public access to the shoreline.
Accounts differ on why he was forced out.
Wendy Mitchell, a government and coastal consultant and former commissioner who supported Lester’s leaving, said the board took the action because he lacked political acuity and management skill.
“The whole firing, what the commission was trying to do, was about overall management and not developer-versus-enviro. Our positions haven’t changed — it was about managing an organization into the 21st century and prioritizing protection of the coast,” said Mitchell, who served on the commission as an appointee of former Gov. Arnold Schwarzenegger.*
Sara Wan, a former chair of the commission, believed Lester’s firing may have been the result of a shift by the commission to be more accommodating to developers and exert more influence over staff.
Mary Shallenberger spent 13 years on the Coastal Commission, the longest-serving commissioner until last month.
“Some of the commissioners were pushing for change and may have overstepped things a bit,” she said. “Even though that pushed the Commission, it’s since settled down into it’s old ebb and flow of philosophy.”
Regardless of the reason, Lester invoked his right under the state Bagley-Keene Act to request a public hearing on his firing, which put an intense media spotlight on the Commission’s deliberations.
“The public trust was damaged by the way Lester was fired,” said Richard Charter of the Ocean Foundation, “but going forward, commissioners change, they come and go. It was designed that way, a built-in system of checks and balances. People are back to the way they trust Commission.”
Shallenberger spent 13 years on the Coastal Commission, the longest-serving commissioner until last month. She could have asked to stay, pending a Senate appointment.
However, she chose not to. She believes the Commission is in a good place between new Executive Director Jack Ainsworth, new commissioners and the scrutiny of the transition.
Owners of an expensive oceanfront rental in Malibu were fined $4.2 million in December for blocking public beach access over nine years.
“This is a good time,” Shallenberger said. “There are significant challenges ahead … . But the last meeting I went to, the tenor was so positive. It was a breath of fresh air to have the Commission so focused on coastal protection and good public policy.”
In February, the Commission made Ainsworth executive director. Ainsworth, who had served under Lester, had worked for the Commission for 29 years.*
The Commission has also taken advantage of a new authority since Lester left, granted by the Legislature in 2014, to impose heavy fines to Coastal Act violators.
Owners of an expensive oceanfront rental in Malibu were fined $4.2 million in December for blocking public beach access over nine years. Another property owner was fined $500,000 last March after a long-standing dispute over non-permitted building expansions.
“The coastal Commission is very unusual. It’s quasi-judicial – the independence of staff is essential.” — Susan Jordan
Shallenberger said many other cases were settled quickly after the Commission sent out letters to longtime rule-breakers.
For Mitchell, the enforcement division is one of the Commission’s most effective roles in need of funding.
“Having the ability to fine people blatantly disregarding the laws is great. We spend a lot of time with individuals who want a sea wall, but the reality is sometimes it never gets built. That’s habitat saved,” Mitchell said.
Jordan said efforts to influence the agency remain, and it’s always hard to measure it on smaller projects. But, she added, as long as the staff works to uphold the landmark Coastal Act, it doesn’t matter.
“The coastal Commission is very unusual. It’s quasi-judicial – the independence of staff is essential,” she said. “It’s like telling people to drop the Flynn investigation – you’re not supposed to influence staff in that respect,” she said, referring to former national security adviser Michael Flynn, who was forced to resign under a cloud from the Trump administration.
“Staff must bring impartial analyses of whether or not projects are consistent with the Act,” Jordan added.
On March 17, the Commission, the Coastal Conservancy and the San Francisco Bay Conservation and Development Commission sent a letter railing against the Trump administration’s plans.
Voters in the 1970s saw the need to protect the coast’s bird-filled sanctuaries, rocky shorelines and endangered species while maintaining public access to beaches. They passed the Coastal Act, establishing the California Coastal Commission. Environmentalist and Capitol staffer Peter Douglas wrote the Act and led its passage.
Yet, some say the scope of the Commission has outgrown its original purpose.
Climate change was not perceived as a crucial public issue 40 years ago, nor was low-cost visitor accommodations that allow equitable access to beaches for all Californians, an effort that has become more urgent in the wake of growing wealth inequality.
President Trump has proposed cutting grants from the National Oceanic and Atmospheric Administration, which would amount to 9 percent of the Commission’s $22.4 million budget and would result in layoffs.
On March 17, the Commission, the Coastal Conservancy and the San Francisco Bay Conservation and Development Commission sent a letter railing against the Trump administration’s plans. The state matches those grants to fund critical scientist training grounds, coastal laboratories and “peerless” ocean data monitoring.
At one time, there was no enforcement officer north of San Francisco.
Some programs allow communities to plan for flooding and sea level rise, which could reach up to 10 feet by 2100 if the worst predictions come true due to climate change.
“Eliminating NOAA’s core state grants program when California and all other coastal states are at increasing risk from these growing threats is shortsighted at best,” the letter said. “Most important, it will put California’s economy, coastline and quality of life for millions of residents at risk.”
The budget has been an issue since deeps cuts of the 1980s brought on by Republican Gov. George Deukmejian. According to the L.A. Times, the federal government also cut its annual contribution of taxpayer money to the Commission by 50 percent to 75 percent in varying years.
At one time, there was no enforcement officer north of San Francisco, said Shallenberger, who researched the budget cuts for the Senate in the 1980s.
Since then, the budget has gone largely unrecovered, with governors providing inconsistent funding prey to recessions and deficits.
According to the Times, the Commission’s budget would need to be nearly doubled, to $40.5 million, to equal its buying power of 1980, even with a 159-member staff 50 members fewer. In 2013, the state began sending $3 million annually to help the agency’s central goal of helping governments with local plans. Thirty-four of 126 coastal programs have not been completed and only 19 of 92 approved plans have been reviewed.
While the federal government may have the ultimate authority on offshore activities, California and the Commission have appealed, and even won, such cases in the past.
That’s why Wan and Jordan said the budget is the largest challenge, in their view.
Others loom, however.
Charter spoke fresh off a plane from Washington working against Trump’s executive order efforts to unravel national marine sanctuaries and drilling off the coast, particularly in Southern California.
“It’s just the end of the world,” he said.
While the federal government may have the ultimate authority on offshore activities, California and the Commission have appealed, and even won, such cases in the past.
But it’s not easy.
Once the Commission finds a project inconsistent with the state’s coastal zone management plan, the U.S. Secretary of Commerce – now a powerful billionaire with oil stock – can override that with cause.
The government would have to prove the commission did not act properly, Charter said. And any action on shore would also require permits for distribution facilities the Commission could work against.
The Commission will have to decide whether to more often “armor” the coast with rip-rap, protecting often-expensive homes, or allow natural beach flows, thus ensuring access.
State Sen. Hannah-Beth Jackson, D-Santa Barbara, announced in May that she plans to amend SB 188 to prohibit the State Lands Commission from allowing any new leases in state waters. Three miles off the coast would be protected.
“If that passes, then Trump would have to lease three miles off Malibu and bring it on shore in Mexico or Canada,” Charter said. “We’ve crossed some Rubicon, a new era, where protecting the California coast becomes a partisan issue. There are plenty of representatives though in the U.S. Senate finding their marine sanctuaries and coast in the crosshairs, though.”
Affordable housing also remains an issue statewide, which Lester considers a paramount issue for the Commission. The state removed mandates for inclusionary housing in 1981 and it remains in the Legislature’s control to change that.
“It’s an urgent need. But the Commission is constrained by the lack of clear legal authority to take it on,” Lester said.
The Coastal Act orders the Commission to “protect, conserve, restore and enhance” the state’s coastal resources. The Commission also is governed under the state’s major climate-change legislation, including AB 32, the Global Warming Solutions Act that identified deadlines for greenhouse gas reduction, and SB 375, the Sustainable Communities and Climate Protection Act.
Warming temperatures are melting ice in the Arctic, causing sheets and mountain glaciers to break off and melt, contributing to sea-level rise.
That means the Commission will have to decide whether to more often “armor” the coast with rip-rap, protecting often-expensive homes, or allow natural beach flows, thus ensuring access.
“The Coastal Act asks us to see beyond narrow, short-run interests or parochial concerns to the greater public good of protecting the coast.” — Charles Lester
“Sea level rise is going to force us to confront, in many ways, the fundamental tension between protection of private property in upland and the protection of public shoreline space – the beach – for everyone,” Lester said.
The planning for that rise needs to happen now, which was part of the reason the Commission saw a $3 million more per year increase in 2014. However, local planning is far behind and the Commission faces its own backlog.
Douglas, the Commission’s longest-serving executive director, worked through six state administrations. Charter has served multiple masters, as well — including a stint under U.S. Interior Secretary James Watt, who strongly supported offshore drilling.
“The Coastal Act prevails and it managers to help the California Coast maintain its majestic wonder. If we didn’t have it, we’d look like New Jersey,” Charter said.
When asked if the Commission should uphold Douglas’s legacy, Lester said absolutely, but that Peter was the first to emphasize it was the Coastal Act’s legacy – not that of anyone one individual – that must be protected.
“The Coastal Act was an inspired piece of legislation that has helped the state protect some of its most precious coastal resources,” Lester said. “The Coastal Act asks us to see beyond narrow, short-run interests or parochial concerns to the greater public good of protecting the coast.”
At the Banning Ranch hearing last year, Shallenberger paused before giving her motion. She looked across the hundred or more in attendance and thanked them for sticking around for the Commission’s vote.
“Thirteen years is a long time to travel one week a month.” — Mary Shallenberger.
Green signs waved in the audience of the packed house, reading “Save Banning Ranch”.
“You don’t come out to these meetings and at this hour if you don’t deeply care about these projects and about this land,” she said and went on to thank the developers for participating over the long and bumpy road that surely wasn’t over.
In the end, she added, the responsibility for coastal protections rests with the people.
“What is going to save our coast is the public, in the long run,” she said. “This Coastal Act was created by an initiative the public passed because there was no political will 40 years ago. That public must still be involved.”
Months later, Shallenberger spoke at her house in the California foothills, one of the few commissioners to live so far inland.
Asked if she would keep an eye on the Commission, she said, of course. But she is glad to step down now.
“Thirteen years is a long time to travel one week a month,” she added with a laugh.
“I’m sure they’ll make decisions I like and some I don’t. But I’m fine with that when it’s a real decision based on law, not someone else’s agenda.”
*Ed’s Note: Corrects 26th graf to show Schwarzenegger as appointing authority, sted Brown.