Memoir about the California Coastal Act of 1976 legislative process.

 

 

On the Edge: Stories about the Creation and Early Years of California’s Monumental Coastal Protection Program.

The 1976 California Coastal Program in the Legislature: Sheep in wolf’s clothing or the art of the dealing.

In early 1976 the California State Senate, Resources Committee narrowly rejected SB 1579 containing the most controversial portion of the California Coastal Program*, the proposed regulatory regime intended to govern development in California’s 1500 mile long Coastal Zone.

Following that defeat the environmental leaders intimately involved in the legislation (Including John Zierold, lobbyist for the powerful Sierra Club) settled upon a minor piece of legislation, authored by a little known freshman Senator, Jerry Smith a Democrat from pro-environment suburban Santa Clara County, that had already passed through the State Senate in which to resuscitate the coastal protection legislative efforts (SB 1277).

SB 1577 had failed in the State Senate primarily because of the opposition of several liberal Democratic Senators including David Roberti, a powerful Democratic State Senator from Los Angeles. Their public rational included their fear that regulation of the coastline would cause escalating land costs creating an enclave for the rich and freezing out the poor and middle class from living and enjoying the coast. In fact, their position depended to a great extent on the fierce opposition to coastal regulation by the building trades unions, strong campaign contributors to the Democratic Party.

Roberti had demanded additional protections for low and moderate housing within the Coastal Zone as his price for voting for the bill. Several of the leaders of citizen groups that supported Coastal Protection legislation, but who also believed that the legislation was deficient in this regard, worked with members of the Coastal Commission‘s Senior Staff to prepare the requisite amendments which were then given to Roberti. He offered the amendments in committee and Beilenson accepted them. Roberti voted against the bill anyway sending it down to defeat.

Interestingly, Peter Douglas, a consultant to the Assembly Natural Resources Committee (who over a decade later became the long-serving Executive Director of the Coastal Commission) angrily denounced the amendments, insisting, “social issues don’t belong in environmental legislation.” Mel Lane the Chairman of the Coastal Commission publisher or the iconic California magazine “Sunset,” echoed this opinion and furiously accused one of the citizen leaders of, “Killing my Coastal Act.”

A few months previously, I had left my position as Chief Counsel to the Coastal Commission to join Smith. I became Chief Consultant to the Select Committee on Land Use Management Organizations, created by the Senate Rules Committee at Smith’s request in order to enhance his environmental credentials. Also with my appointment, Smith hoped to improve his chances to play a significant role in the Coastal Program legislative process that would otherwise be denied him because of his lack of seniority.

Almost a year prior, the California Coastal Commission adopted the California Coastal Plan, completing a three-year process begun by a 1972 citizen passed initiative called “Proposition 20” that set up the Coastal Commissions in order to create a plan to govern the development of California’s 1500 mile coastline. Following the adoption of the Plan, several members of the senior permit staff were concerned that most of the Coastal Commissioners believed their job was done and now the future of Coastal Protection was solely in the hands of the California State Legislature. Those concerned staff believed, however, that such a hands-off approach would inevitably lead to the defeat or emasculation of the Plan in the hurly-burly of power politics in which he with the most money at risk often prevails. Most of the senior permit and legal staff were experienced enough to recognize that complex and controversial matters such as the Coastal Program, in the legislative context, tended to be dealt with as a series of broad compromises and tradeoffs among those with the greatest economic interests at stake. The hands-off attitude of the Commissioners, they believed, would leave the program to which they had dedicated three years of their lives without a knowledgeable advocate in the private negotiations where most legislative activity gets done.

In addition, the staff realized that the only legislative staff member in Sacramento that one could point to as having an interest in the passage of coastal protection legislation was a man who appeared to them to be so limited in knowledge and competence that he rarely was entrusted with much beyond observing and reporting on the Commission‘s activities.

During the three-year coastal planning process, the much of staffs experience with this legislative aide amounted to little more than receiving periodic warnings from him of political catastrophe should the staff actually attempted to protect a resource that offended one or another of the capital’s more aggressive legislators. In addition, the staff had the clear impression that his goal was to eliminate most of what was in the plan and replace it with what he called the “coastal essence,” that reminded most of them more of a noxious odor than a regulatory program. It had been said that Peter Douglas (the same person who would later so vociferously oppose the inclusion of social issues into coastal protection legislation) had never met a political objection so small for which he would not be willing to surrender someone else’s interests.

To make matters worse, the Chairman of the Commission, its Executive Director and Chief Planner as well as the aforementioned Douglas favored a simple bill that would continue the Coastal Commission as it was with watered down authority and jurisdictional reach containing vague references to the Coastal Plan that the public had labored to fashion trough innumerable hearings over the previous three years.

As a result, these members of the Commission Staff along with those community based so-called citizen advocates who also had devoted much of their lives during the past three years to developing the program, decided it was necessary that they somehow become directly involved in the legislative process, not simply as cheerleaders but as active participants defending their own interests in the Plan. These activists were a diverse lot including the Coastal Coordinator of the establishment Sierra Club, Joe Edmiston, a group of teenagers from the bay area energized by the encouragement to participate in Commission business as well as many others some of whose activities on behalf of local community, social justice and environmental concerns eventually led to distinguished careers in politics, finance, government and business.

We evolved over time a few basic overriding strategies and precepts upon which we would move from the planning and administrative process of the Coastal Commission to the legislative wars. Among these precepts were:

1. The need to have our own model legislation that reflected the Plan precisely, so that all would know not only the specific provisions that interested them, but everything else and how it all fit together. In other words these mostly novice citizen lobbyists would become, not simply interested supporters appearing at hearings with signs and slogans, but participants pushing their own particular interests as well as their common ideals. They would flood the halls of the Capitol and be as knowledgeable in the process and the specifics of the legislation as any of the legislators, legislative staff or their opponents and often more so.

2. An informal rapid communication process among those involved, rapidly apprising them of everything that could affect the legislation was created. The informal network among the activists that already existed and had existed for a while formed its basis. The Commission staff increased their direct participation and often kept the rest informed of fast changing events.

3. The placement of a senior member of the staff in a position in the State Capitol that allowed that person to take an active and daily role in the negotiations and control the drafting of any amendments to the bill.

As for the model legislation, I persuaded the executive director to allocate funding to two attorney’s (Barrie and Robert Girard) to draft a prototype bill. The staff instructed them to include as much as possible of each and every provision in the Coastal Plan. Bill Boyd, a member of the Commission’s senior permit staff and my successor as Chief Counsel, was chosen to work with them to assure the final product met our goals. Although the resulting draft effectively reflected the provisions contained in the governance element of the Coastal Plan that I had written, the Executive Director and Chief Planner had managed to eliminate the substantive policies elements and replace him with vague references to the Coastal Plan document. A meeting among the environmentalists and the Executive Director to discuss the draft was met with the strong objection, by Joe Edmiston and others to the absence of the Plan’s substantive policies, and resulted in the inclusion of what would ultimately become Chapter 3 in the final bill.

Meanwhile, I had agreed to leave the Commission staff and try to find a way to work into the legislative process. I was the likely choice since, I wanted to do something different, approached political conflict as war by other means, and most of the staff welcomed relief from my mercurial and often overbearing management style. So I joined Smith.

As it turned out the Democratic leadership and John Zierold chose the liberal warhorse, but diffident State Senator, Anthony Beilenson. He and his able, but inexperienced assistant, Gail Osherenko, consented essentially to insert the staffs model bill into the proposed legislation.

Meanwhile, Smith, Zierold and I agreed to work a minor piece of environmental legislation through the Senate so that, should the main legislation fail, it could be resuscitated in the other house thereby keeping it alive. This was not an unusual parliamentary ploy for major legislation. It allowed a bill, defeated in a committee of one house, to be revived, moved through the more obliging chamber and brought back to the entire membership of the original chamber for “concurrence” in the other chambers amendments thereby avoiding the recalcitrant committee and hopefully increasing the legislation’s chances for passage.

The defeated legislation was amended into Smith’s bill that had already passed the Senate and was awaiting action in the appropriate Assembly committees.

The first thing everyone involved agreed upon was that the legislation required a principal co-author who was a powerful member of the Assembly. Assemblyman Charles (Charlie) Warren was chosen. Smith and I, who had hoped the Speaker of the Assembly McCarthy would agree to be co-author were not overly enthusiastic about this. Warren, although a powerful member of the Assembly was considered by most as somewhat of a loose-cannon with touches of megalomania. His aide on coastal matters was the afore-mentioned Peter Douglas. Smith, members of the senior staff as well as many within the environmental community and I feared that Warren and Douglas would attempt to wrest control of the bill and weaken it. Fortunately, both were also generally considered not all that effective.

As the previous bill moved through the Senate prior to its defeat, Osherenko and I attempted to neutralize Douglas by assigning him the job of editing the amendments that Osherenko or I had negotiated. Again Bill Boyd was selected to work with him to make sure that what we had won in negotiations was not lost in the drafting.

The first order of business was for the two principal authors to meet and agree on the provisions of the bill that would appear in the first committee. A day or two before the meeting Smith and I met to develop our negotiating strategy for that meeting. We had learned that the main thrust of Warren and Douglas’ expected demands was directed to what most of us considered would be the emasculation of the legislation by among other things:

1. removing all jurisdiction regarding Coastal Agriculture,

2. eliminating the substantive policies and replacing them with the “coastal essence,” and

3. reversing some of the hard-won agreements with several interest groups, such as the League of California Cities, that had in response to the agreement removed their opposition to the legislation releasing several legislators to vote for it.

(Also see note below)

Now before proceeding, some comments on a few of the negotiation tactics we had developed and implemented to move the bill along. They were:

1. To negotiate with each interest group opposed (Both public and private), separately and technically. (Almost every significant interest group had a staff member assigned to the technical negotiations. For example, the ever-present and indefatigable Bill Boyd was assigned to the League of California Cities.)

2. To try to focus the discussions on procedural issues and away from substantive ones.

3. To use the complexity of the bill and our superior knowledge to our advantage.

Smith and I discussed our approach to the coming negotiations with Warren and Douglas. In regard to the coastal agricultural policies and jurisdiction, the Coastal Zone boundary had been proposed to be extended many, many miles inland of the Coastal Zone that had been created by the initiative. Within that zone, essentially Commission planning and not permit authority would apply. We had always considered this to be one of the most vulnerable provisions in the Plan. Nevertheless, we were committed to obtaining a substantial offset were we to be forced to surrender it. Now Smith and I were presented with two supposed environmentalists, Warren, and Douglas who, despite the fact that throughout the movement of the predecessor legislation through the Senate the Coastal Agriculture provisions resisted attack, insisted on its unilateral surrender in a private meeting.

Smith and I assumed that this demand was a function of Warren’s ego. He was the author of another piece of pending legislation whose goal was to protect California’s Agriculture from urban encroachment. We were prepared to argue that, the provision in the proposed Coastal Act had not been under severe attack by any group with which we could obtain a global settlement, and that passage of protection of coastal agriculture could help and not hinder his legislation, especially should his bill include subsuming Coastal Zone agriculture into the less severe state-wide agriculture protection legislation (And we suggested this option to him at our meeting). Nevertheless, we assumed that Warren wanted no competition for the title of “Protector of California’s Agriculture,” and that would be the price of his support.

As for the settlements we had eked out with the League of Cities and others, that Douglas apparently was so opposed to, what we had negotiated, in keeping with our strategy, was in our opinion essentially procedural relief and not a substantive weakening of the legislation. Also, we tended to be dubious about the standard economic model that indicated that development would move from areas with more stringent regulation to those areas less restrictive. Even if it were correct, movement of development pressure from undeveloped areas into already developed ones was a staple of environmental planning. So easing procedural requirements in heavily urbanized areas was not unreasonable. Douglas appeared not to understand this.

Nevertheless, we were confident the accommodation would be proposed again in the first committee hearing, so agreeing with Douglas at the meeting had no adverse consequences that we could see.

As for the substantive provisions of the proposed legislation, we would stand firm for their retention as payment for the other two concessions.

That evening, I prepared on a yellow legal tablet a list of inconsequential demands, should the discussion require additional give and take, but we considered them all give-a-ways should the meeting go as we expected.

In fact, they did go as suspected. Douglas came in with an extensive memorandum justifying their positions. After presenting his conclusions, he and his memorandum were mostly ignored. Warren seemed to lose interest in prolonging the discussions once we agreed to his demands on the agriculture policies and appeared to be eager to move things along and avoid arguing over some the technical proposals in Douglas memo. Following our feigned unhappy acceptance of the demand to eliminate the League of Cities accommodation, he rapidly agreed, over Douglas’ objection, to retain the substantive policies and the meeting rapidly ended. Douglas was requested to memorialize the results of the meeting which he did with his usual penchant for self-aggrandizement.

The legislation containing the agreed upon amendments then went into the hearing process before the two Assembly Committees where, as we intended, the League of Cities amendment was re-proposed and Smith accepted it without objection. Thereafter, the most significant changes to the legislation occurred during a marathon 13 hour hearing in front of the Assembly Committee on Ways and Means. At this hearing, the official maps delineating the significantly expanded Coastal Zone were displayed along the back wall of the Committee room. Having declined an opportunity to review the maps in detail, the Committee directed those with issues regarding the jurisdictional maps meet with Zierold and the ever-present Bill Boyd and try to work them out. This resulted in an orgy or fluttering maps and flying magic markers and Zierold and Boyd negotiated almost every inch of the jurisdictional line during those 13 hours. In keeping with our standard practice Boyd’s superior knowledge and our approach of giving nothing without getting something in return, the final maps had for the most part surrendered some inland urban areas in return for massive extension of jurisdiction in some rural counties (In an ironic sidelight, the massive increase of The Coastal Zone in the rural counties recaptured almost all the area lost in the negotiations with Warren and Douglas except that now they were subject to the Commission‘s entire regulatory control and not just planning).

When offered an opportunity to review the final maps the Committee demurred, and so the legislation passed out of the Committee and through the Assembly. No significant changes occurred until after being brought back to the Senate floor it languished until the last moment intervention of then-Governor Jerry Brown.

Note: Douglas while working as Consultant to the Assembly Natural Resources Committee during this period shepherded hearings in that committee that emasculated the Commission‘s authority over developments conducted by other agencies of the State explaining that it was politically expedient to do so in one fell swoop and not continue the agency by agency negotiations the Commission staff was already conducting with promising results. For example Osherenko and I in negotiations with the Energy Commission represented by Richard Maullin an extremely disagreeable man whose arrogance far exceeded his abilities, agreed to give up the Commission‘s permit by permit review authority over electric power plants, in return for the ability of the Commission to designate areas where those power plants could not be sited. In my opinion, a sensible compromise given the fact that the complexity of power plant permitting requires addressing many issues outside of the Coastal Commission‘s purview. This was however not Douglas position. He held the curious position that one can best save the Coast by surrendering it. In any event, due to the hard work of Boyd and other Commission staff members, we were able to retain most of the accommodations that we had previously negotiated with the Agencies.

* The California Coastal Program had three parts:

1. Funding for the State’s parks and wildlife agencies to purchase those lands where no development should occur. This was accomplished by the legislature placing a bond act on the ballot, that was passed by the people, to fund this acquisitions.

2. The creation of a coastal environmental restoration and public access agency called the Coastal Conservancy.

3. Passage of the California Coastal Act containing the policies by which future development in the Coastal Zone would be regulated.