Environmental land use, indirect source controls and California's south coast plan; is the day of attainment coming?

I. INTRODUCTION

From the beginning, land use boards and environmentalists have butted heads, each perceiving the other as its prime competitor in a race for a limited resource. However, this historic feud has generated necessary compromises from its adversarial tensions. As testimony to this developing relationship, the land use reform movement of the 1970s sprang from the friction between a rapidly expanding society and the need to preserve the environment. Thus land use planning began to weigh, balance and account for more than just commercial, localized interests. It recognized that land ownership provided not only capital and power to the landowner, but responsibility for the land's public value. This responsibility, ideally, encompassed a vision of the public interest and the environment.

Reformers of land use control urged that land use planning become centralized, that federal, state, and regional viewpoints be used to counterbalance local ones.(1) This led to a change of land use control from being a patchwork, local-level political tool to a comprehensive state-level vision.(2) Various state programs, spurred by this 1970s critique, remain positive models.(3) They provided the starting point for analyzing the benefits of centralized authority and the meaningful compromises between business and environmental groups that can be achieved.(4) One land use model is California's South Coast Plan.

This comment will focus on California's South Coast Plan after a preliminary discussion of the historical and present role of the federal, state and local government in land use planning and the evolution and current relationship between land use planning and environmental protection through the example of the South Coast Plan.

II. THE HISTORIC INTERSECTION OF LAND USE PLANNING AND ENVIRONMENTAL LAW

The scope of land use is dictated in large part by our historic view of private property rights, as borrowed from the English and expressed in our Constitution. So important were these rights, that the Founding Fathers narrowly substituted "happiness" for "property" in the lead of the Declaration of Independence. Indeed, property was synonymous with wealth and political privilege. For the yeoman, one's property boundaries were tangible expression of an individual's freedom. In the 19th century, "[l]and ownership and economic liberty were equated with civil liberty, and governmental interference of any sort was anathema."(5)

Yet, our understanding of private property is not complete without recognizing its reliance on the social order to uphold it.(6) Private property, it can be persuasively argued, is maintained for social purposes.(7) Thus, to the degree that private property contradicts the general welfare, government has been deemed the valid agent for addressing this contradiction.

Land use, in the form of zoning, first evolved in the United States in the 1920s, thanks to Herbert Hoover, then Secretary of Commerce.(8) Hoover helped draft guidelines for an enabling act by which states could delegate zoning to local municipalities.(9) This concept of local zoning was challenged by private interests as an unconstitutional deprivation of liberty and property in Village of Euclid v. Ambler Realty Co.(10)

By upholding Euclid's zoning law, the U. S. Supreme Court confirmed that land use was a valid exercise of the state's police power.(11) Zoning, the Court found, was an acceptable governmental tool when done in the service of public health, welfare, and environment.(12) Thus the Court allowed the government some control over private property, fashioning over time constitutional limitations on that role, primarily through the takings clause.(13)

As courts carefully draft and redraft the line between land use regulation and regulatory taking, they bear witness to society's changing perspective toward private property, one which accepts an expanded role for government in the affairs of the individual. Through motivating government to control private property, society shows its awareness that individuals often lack an incentive to use their property consonant with the greater public good. As environmental concerns become more closely associated with this public good, so will government's role continue to expand. At present, the federal government and most states lack a comprehensive land use policy.(14) A primary obstacle to any notion of a national or even state land use policy is the enduring fiction that localities are the best level for any land use implementation strategies.(15)

Regardless of who controls the planning, land use is most aptly considered as a tool rather than a separate body of law or social policy. Its goals vary according to the party wielding it. Thus environmental land use should be distinguished from other forms of land use because it represents a separate land use ethic.(16) The environmental land use ethic presumes that a comprehensive plan is precisely what is needed to achieve public interest. The environmental land use ethic operates to inform each of us that our actions must be viewed in the larger context of external effects upon nature and society. If we accept that some land use decisions are governed by a separate ethic, that the value of land, in the environmental context, is based on society's need for cleaner air or water, we have the justification to begin our analysis as to where authority for environmental land use controls should lie.

To summarize, land use has become an accepted infringement upon private property rights. As government continues to find reason to regulate our use of land, society's environmental concerns are quite properly interjected into government's concept of land use, making it less a question of whether environmental land use is a legitimate goal, given competing interests, and more a question of which level of government is best suited for implementing this form of land use. Informing this environmental land use is the development of a changed land use ethic. This ethic promotes the "public" value of land over the private one, and undergirds government's use of land control for environmental ends.

III. IS LOCAL DECISIONMAKING OVER LAND USE CONTROLS BEST?

Since the 1920s and Euclid, states have habitually delegated authority for land use decisions to those municipalities directly affected. The courts have accepted this as proper economic and social policy.(17) Because of the sheer number of decisions that need to be made, it was felt that the federal government lacked the resources, knowledge, and techniques to properly assume authority.(18) Further, "many of the decisions are too trivial to justify federal intervention."(19) The practical difficulties of the task were also supported by philosophical resistance allowing a centralized body to become involved in planning the complexion of a neighborhood. "Local land use control powers are an almost unassailable article of faith embodied in such catch phrases as home rule, local control, and participatory or grassroots democracy."(20) The Thoreauvian ideal, "that government governs best which governs least," remains a tenacious part of American political philosophy.(21) Increasingly, however, this premise has come under criticism.(22)

Problems quickly became apparent in communities under home rule. Besides ignoring the environmental effects of development,(23) local decisions were uniquely susceptible to local special interests, prompting Ralph Nader to label local regulation of land use "the developer's best friend."(24) Localities, needing a healthy tax base, erred on the side of more development rather than wiser development.(25) This inherent preference for development was often fueled by competition with neighboring communities for commercial and residential projects.(26) "Often localities fail to recognize the regional importance of natural areas and ecosystems. And even if they are sensitive to environmental imperatives, they frequently lack the personnel and expertise necessary to handle the complexities of environmental land use planning."(27) Thus, by virtue of their own myopia, local communities were ill-equipped to either notice broader environmental needs or muster the discipline to meet them.(28)

As a result of these failures, land use reformers have looked toward greater centralization either at the state or federal level, while preserving a diminished role for localities.(29) A more centralized form of land use decisionmaking has many virtues. Because of its broader scope and constituency, it can deal more objectively with development. It "insure[s] . . . uniformity and a more indepth development of the range of standards."(30) Nonetheless, the issue remains as to what is the most appropriate level for centralization. There is no simple response to this question, mainly because the solution is tied to the type of problem being confronted.(31) In the case of environmental problems whose boundaries and effects range beyond neat political borders, some overlap between local, state and federal authority may be necessary.(32) The question becomes what is the proper harmony between the various levels of government?

In looking where to establish a baseline, states have frequently received the most attention. In comparison to local or regional agencies, "[t]he state is a much more powerful, better recognized political division, far more capable of succeeding at a politically controversial task."(33) States are at the proper distance both to appreciate the impact local communities have on each other and to have a vested interest in regulating that impact. They can respond to environmental problems that spillover across local government jurisdictions and remain reasonably well insulated from the attendant conflicts of interest.(34) Further, many local governments in undeveloped, rural parts of states lack effective land use controls, leaving them open to exploitation from quick-thinking developers.(35) Finally state investment in public facilities, such as highways, can have tremendous effect on local land development.(36)

Regional land use planning has received much attention as well,(37) particularly because of the unpredictable geographic boundaries of many types of pollution. States and regions share the advantage of greater political independence and thus can be more flexible in responding to large-scale environmental problems. Moreover, from their higher vantage point, they can better see the external costs of pollution.(38) Regional land use control boards, ideally, should be elected and hence responsive to the public will; this affords them the greatest credibility.(39) Without political accountability, land use boards are viewed warily by industry and public alike. Regions, like states, are an appropriate level at which to overcome this concern and meet the administrative needs of environmental land use.

There are good reasons for downplaying the federal government's role in environmental land use. First, land use control was derived from state exercise of its police power, reinforcing the notion that state government is the proper focal point.(40) The Constitution could stand in the way of a federal challenge to this state-based authority. Under the Supremacy Clause, the U.S. Supreme Court "has held that, if Congress legislates |in a field which the States have traditionally occupied, . . . we start with the assumption that the historic powers of the States [are] not to be [preempted] by the Federal government unless it was the clear and manifest purpose of Congress.'"(41) Given Congress's inclination to defer to the states' sovereignty, focusing land use decisions at the state level seems particularly apt.(42) Second, even if Congress altered this tendency, the drastic departure from local to federal control would inhibit compliance.(43) Lastly, decision-makers in Washington are so far removed from local communities that they are not likely to have a very clear view of the local land use problems.

The federal government's role in environmental affairs should not, however, be dismissed. For one thing, state land use programs are "inadequate for control of interstate spillovers."(44) Federal influence is needed where the scope of the problem exceeds a state's political boundaries. Also states, regardless of their good intentions, sometimes need to be prodded to preserve and protect their resources.(45) The federal government is in a position to act where a state comes under economic pressure from one of its major industries not to adequately regulate.(46) In such situations the federal government is uniquely suited to establish nationwide environmental goals and shape land use indirectly by providing states with economic incentives

Even local authorities can compliment a centralized approach. They are in the best position to supervise and monitor compliance with specific pollution standards. They can make choices in response to broader state objectives, such as creating limited density residential zones or designing a transportation system to meet state congestion concerns. "With a plan or guidelines to consult, localities are placed on notice of state requirements, and the state agency can avoid the burdensome and politically awkward task of continuously overruling local decisions."(48) Further, localities might aid in enforcement and lend credibility to the decision through their limited involvement in review of development proposals.(49)

The state is the appropriate focal point from which to implement land use controls in service to achieve broader environmental goals. Local-level land use control has shown itself inherently incapable of responding to environmental issues, especially large-scale regional ones, such as air pollution.(50) The federal government, while able to fashion national pollution standards, resists usurping state authority to meet these goals. Local politicos can be retained, not to pass final judgment on environmental land use decisions, but to facilitate them and review their effectiveness.

IV. THE EVOLUTION OF LAND USE CONTROLS IN THE CLEAN AIR ACT

The Clean Air Act(51) aptly illustrates the quandaries surrounding environmental land use. Since 1970, Congress has wrestled with the role land use should play in helping states achieve the national air quality standards set by the U.S. Environmental Protection Agency (EPA). Congress's confusion over this issue is demonstrated by an overview of the Clean Air Act's origins and many revisions.

The Clean Air Act of 1970 authorized land use controls as part of State Implementation Plans (SIPs) to meet federal air quality standards.(52) EPA was responsible for determining the primary and secondary national air quality standards for specific pollutants and approving, disapproving, or modifying each state's SIP.(53) Emission levels for each pollutant were an integral aspect of EPA's standards.(54) These statutory provisions made reference to land use controls in several contexts, "requir[ing] state implementation plans to include: emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary and secondary standard, including, but not limited to, land use and transportation controls."(55) The Act also required SIPS to anticipate a review of the location of new sources--in essence a form of state environmental land use.(56) Notwithstanding this congressional mandate, the Act did not particularize what form the land use controls were meant to take, giving the state latitude in choosing which measures, if any, to use to in reaching the air quality standards.(57)

Land Use planning, besides having an obvious role in determining the location of major stationary pollution sources, is an effective tool in controlling "indirect" sources of pollution.(58) As defined in the 1977 Amendments to the Clean Air Act, indirect sources include:

a facility, building, structure, installation, real property, road, or

highway which attracts, or may attract, mobile sources of pollution.

Such term includes parking lots, parking garages, and other facilities

subject to any measure for management of parking supply ...

including regulation of off-street parking . . . .(59) Indirect sources of air pollution are transportation-related and include "special event facilities"--facilities which attract consumers and their automobiles.(60) They create the demand for using cars in the first place.(61) Such sources account for anywhere from ten to twenty-five percent of certain types of pollution.(62)

However, in light of the permissive language of the provisions, it is clear that Congress wanted to avoid any direct conflict with the states over the issue of land use controls. As one author noted, "EPA's failure to require or even encourage the states seriously to consider comprehensive land use regulation is no incentive to state development of land use programs which are needed to achieve air quality standards."(63)

These hesitations have caused problems. In 1973, in response to California's inability to meet air quality standards and its hesitation to apply land use controls on indirect sources or curtail personal automobile use, EPA disapproved California's SIP.(64) EPA also attempted to implement land use measures as part of its substitute Federal Implementation Plan (FIP).(65) Then-EPA Administrator, William Ruckelshaus, commented, "faced with the choice between my freedom and your mobility, my freedom wins."(66) The measures Ruckelshaus called for to limit motor vehicle use in Los Angeles included a gas rationing plan designed to reduce supplies by eighty-two percent.(67) EPA also sought to implement parking bans and surcharges, mandatory bus and carpool lanes, and various stationary source controls.(68) In the end, however, mobility won.

EPA's plan failed for a number of reasons. "The manner in which the plans were adopted and the types of restrictions chosen did not foster public understanding and acceptance of the individual's role in achieving healthful air."(69) Put more bluntly, Los Angeles wanted General Motors to design more energy efficient cars.(70) EPA felt its regulation of indirect sources failed for three reasons: (1) political opposition; (2) the lack of resources to implement the regulations; and (3) failure to offer technical resources to states to help carry out the regulations.(71) Land Use control seemed a victim of its own past, where local authority remained king. In this fiasco, EPA experienced firsthand the maxim, "where [land use] lacks political support it cannot succeed."(72)

Moreover, Congress acted to remove EPA's ability to compel state land use control over indirect sources. In section 110(a)(5) of the 1977 amendments,(73) Congress prohibited EPA from regulating indirect sources(74) and removed the term "land use" from the Act's language.(75) This decision reflected Congress's uneasiness in centralizing air quality control at the federal level(76) and industry's uneasiness over the creation of a "super land use planning agency."(77) Ultimately, Congress found that "the risk of adverse effects could be minimized only if the program is designed, implemented and enforced by state and local governments."(78) This prohibition remains in the Clean Air Act Amendments of 1990.(79) By preventing EPA from having authority to require that states include land use control measures over indirect sources, Congress refused to address their importance as environmental tools.

V. AIR POLLUTION IN CALIFORNIA'S SOUTH COAST BASIN AND THE GOVERNMENTAL RESPONSE

California's South Coast Basin's air quality continues to be EPA's worst case scenario for the country. The challenge it poses for all levels of government is a formidable one. The Basin covers a 6600-square-mile area (the size of Connecticut and Rhode Island combined),(80) has the sixth largest economy in the world,(81) and has a population of thirteen million people.(82) Locked in by the San Bernardino Mountains, it was dubbed "The Valley of Smokes" in Pre-Columbian times because of its sluggish air circulation.(83) The South Coast Air Quality Management District (SCAQMD), the chief agency responsible for developing and implementing the SIP component for the South Coast, has measured the pH of fog in the downtown area at the battery-acid level.(84) The South Coast violates four of the six national ambient standards, meeting only those set for lead and sulphur, and substantially violating those for ozone, carbon monoxide and particulates.(85) Although the Clean Air Act set the carbon monoxide frequency level to one allowed excudance per year, one South Coast monitoring station found the level was exceeded forty times in 1987.(86) Ozone is even worse. The one-hour standard, not to be violated more than once per year, was exceeded on 135 days at one monitoring station.(87)

SCAQMD and its sister local-level organization, the Southern California Association of Governments (SCAG), estimate the annual cost of implementing its South Coast Plan at $4.8 billion.88 More than a clearer view of the San Bernardino mountains rides on the success of California's South Coast Plan.(89) The health and well-being of the residents are at issue.(90)

Because air pollution controls of stationary sources and motor vehicles are already aggressive, many argue that indirect source controls must be addressed in order for California to stand a chance of complying with the National Ambient Air Quality Standards by the year 2010.(91) Yet, as EPA's experience suggests, implementation of air quality control measures must be approached cautiously.

In response to this problem, California has had to be innovative and has taken a hard-line approach. Accepting responsibility to formulate a SIP, California passed the California Clean Air Act (CCAA) in 1988.(92) In addition to requiring stricter air quality standards than the federal version, the Act creates a hierarchy of agencies charged with devising a plan to meet these standards.(93) The Act gives district (regional) and local governments the right to regulate indirect sources subject to approval by the Air Resources Board (ARB) which then become part of the state SIP.(94)

In delegating various authorities, the Act opens the door of contradiction, by adding that "[n]othing in this section constitutes an infringement on the existing authority of counties and cities to plan or control land use, and nothing in this section provides or transfers new authority over such land use to a district."(95) Thus the power given is undermined by the statutes' own words.(96) This could be a legislative ploy, merely offering localities a voice while turning a deaf ear, or it could reflect genuine confusion over where the appropriate land use authority lies. Sadly, the legislature of California, like Congress, seems to be unwilling to enunciate a clear policy on who has environmental land use authority.

The California Health and Safety Code, in effect, has split the baby. The state granted SCAG and SCAQMD a form of joint responsibility for developing and implementing an air quality plan for the South Coast.(97) SCAG, a council of local governments, is empowered to develop land use and transportation control measures. SCAQMD, more regionally oriented, is given statutory authority to regulate indirect and mobile source controls and to construct the Air Quality Management Plan ultimately to be submitted to ARB.(98) This compromise between regional and local land use planning remains speculative, a hybrid whose success has yet to be determined.

VI. THE 1991 SOUTH COAST PLAN

The first tangible product of this hybrid, the South Coast Plan, underwent a third and final revision before submission as part of California's SIP.(99) It is designed to be implemented over a five to twenty-five year period,(100) involving a "partnership of governmental agencies at the federal, state, regional, and local level."(101) The regional Air Quality Management Districts (SCAQMD in this case) are charged with the "overall" development and implementation of the Plan, including indirect and mobile source control measures, while the local levels (SCAG) implement the transportation and land use measures of the Plan.(102)

The South Coast Plan offers a three-tiered approach to cleaning up the Basin's air pollution, enabling California to achieve attainment status by 2010. Tier I is "action-oriented."(103) It mandates further applications of existing pollution control techniques over the next five years, "with nearly all measures achieving full implementation by the year 2000."(104) The 132 measures are very specific. Among the more novel of AQMP's measures are: Control of Emissions from Large Commercial Bakeries,(105) Eliminate Excessive Car Dealership Cold Starts,(106) and Control of Dust Emissions from Agricultural Tilling.(107) The Plan leans heavily on twenty-four Tier I transportation and land use control measures to effect change in vehicular emissions.(108) Thus, Tier I has a broad sweep and is designed to dramatically alter Californians' private and commercial behaviors. Tier II measures, likewise to be fully implemented by 2000, combine existing control technologies with more speculative "on the horizon" technologies that "require advancement which can reasonably be expected in the near future."(109)

The Tier III control strategy "depends on substantial technological advancements and breakthroughs that are expected to occur throughout the next two decades."(110) Besides being wildly optimistic, Tier III's reliance on a technology standard does little to inspire responsible change at the individual level. Further, it poses "the environmental problem as a technological one,"(111) perhaps leading Los Angelenos to once again focus their frustration on the General Motors Company and, in the process, further delay achieving the goal of clean air.

VII. THE RIDDLE OF WHO CONTROLS LAND USE REMAINS

While the magnitude of the effect of indirect controls is in dispute, one thing is clear: without actual implementation of the Tier I measures no improvement will occur. Thus the central issue relating to environmental land use controls in the Plan remains: who is empowered to implement and enforce them?

The SCAQMD envisions itself as an umbrella organization responsible not only for drafting the bulk of the plan but for gathering together portions of the plan contributed by SCAG and other specialized agencies.(112) Despite this centralized view, there is significant overlap in the duties and expectations of SCAQMD and SCAG. This is most clearly revealed by comparing the separate appendices both agencies submitted with the 1991 Plan.(113)

The SCAQMD's final draft of Appendix IV-C contains eight Tier 1 indirect source controls (ISCs). These include: (1) the Environmental Review Program under which SCAQMD creates minimum standards to be used in assessing a proposed project's air quality impacts, (2) Trip Reduction for Schools to increase average vehicle ridership (AVR) to 1.5 persons per vehicle, (3) Supplemental Development Standards involving urban tree planting to conserve air conditioning and electricity and design standards to adopt bicycle-pedestrian friendly zoning, (4) Special Activities Centers such as special event centers, airports, and regional shopping centers whose parking arrangements could be altered to favor shuttles or preferential parking for high occupancy vehicles, (5) Enhanced Regulation XV designed to require businesses employing one hundred or more to meet the 1.5 AVR during commute hours, (6) Truck Programs which require new and existing facilities generating truck trips to reduce truck related emissions, (7) Registration Program for commercial and light industrial facilities to register trip data so as to improve the District's emissions inventory, and (8) Sensitive Receptor Review for Risks from Toxic Air Contaminants which focuses on protecting those exposed to pollutants rather than reduction of emissions by reviewing potential health impacts on sensitive receptors.(114) Despite statutory authority to implement ISCS, SCAQMD has deferred to SCAG and local governments for the implementation of many of them.(115)

SCAG's contribution to the AQMD, Appendix IV-E, dealing with transportation and land use control measures, contains twenty-two transportation controls and one for land use.(116) Most of the foreseeable overlap between SCAQMD and SCAG authority lies in the area of certain transportation controls, which are in actuality types of ISCS. For example, the parking management measure was created to increase carpooling and mass transit use by "reallocat[ing] costs from the land use rental to the user of parking."(117) The merchant transportation incentive measure attempts to reduce the number of single auto-occupant non-work trips by using bicycle and pedestrian design improvements.(118) The airport ground access measure, which SCAG recognizes as an ISC under SCAQMD's jurisdiction, requires local airports to comply with various trip reduction conditions in order to get a permit.(119) The only conspicuous land use measure, Growth Management, "involves establishing contractual agreements between local governments in order to improve the job/housing balance between the job-rich western basin and the relatively housing-rich eastern basin."(120)

The language used by the California legislature as interpreted by both agencies has caused confusion over which agency is in charge. Therefore, tracing the division of power to its present point is necessary. SCAQMD has authority to implement indirect controls and can do so two ways: (1) by writing its own rule, or (2) by getting local government (SCAG) to adopt these controls. SCAQMD can always implement its own rule if SCAG drops the ball.(121) Each measure contains a specific trigger provision for when SCAQMD may substitute its rule for SCAG's.(122) The 1991 Draft Plan comments, "[l]ocal government |certification' is suggested as a model rule with a delay period prior to implementation. During this window, local governments that adopt a comparable regulation would be |certified' to implement the rule."(123) Thus the 1991 Draft re-emphasizes the importance of local involvement in designating indirect source controls, while providing SCAQMD power to override local hesitations to voluntarily adopt them. However, given the inherent volatility of this issue, SCAQMD and SCAG have worked hard to build a consensus with each other. This attitude is evident. An intra-agency letter where the Executive Director of SCAG, Mark Pisano, in responding to SCAQMD's comments on Appendix IV-E, closes by saying:

Thank you for the comments on the local government portion of

the 1991 AQMP. I ask that you and your staff give careful consideration

to the actions of the SCAG Executive Committee which

were responding to amendments that were developed to meet the

concerns of many commentators.... There is an opportunity,

still, in the spirit of the 1989 and 1991 AQMP, to allow and encourage

local governments to exercise their responsibility in the

context of Tier 1 and 1994 timeframe and for SCAG and SCAQMD

staffs and decisionmakers to continue to forge a partnership with

local governments and one another to realize state and national

goals for air quality, mobility, and balanced communities.(124)

SCAG has assiduously responded to SCAQMD criticism on its measures, just as SCAQMD has accommodated SCAG's comments.(125) The fact that the South Coast Plan has been approved by the ARB and awaits EPA's scrutiny testifies to the working nature of this relationship. However, if history provides a lesson, local governments easily lose sight of broader environmental goals and balk. In trying to build a consensus, has SCAQMD been too accommodating in its revision of certain control measures? This answer is only as forthcoming as the day of attainment. Perhaps most telling is the concurrence between SCAG and SCAQMD, in discussing the Growth Management measure, that "[l]ocal governments' efforts to properly direct future development will determine tomorrow's quality of life."(126) Despite the history of home rule, both agencies still give the local level first dibs at implementing environmental land use measures. So long as local governments comply with the terms of the Plan, this balance will be struck. But the unthinkable problem remains. If local governments refuse to comply with these hard won consensual measures, can SCAQMD legally assume the mantle and force implementation? On this issue the legislature has effectively passed the baton to the courts and in so doing, they have perpetuated the myth of home rule over environmental land use.

VIII. CONCLUSIONS

Environmental land use planning falters not for a lack of imagination, but because political will fails. Through the South Coast Plan, California has begun the planning process.(127) However, harder questions of implementation still remain because of the persistent tension between public welfare and private autonomy.

While home rule seemed to be the ideal focus for land use at one time, it is highly unsuited for dealing with the complexities of environmental problems.(128) The conflict between SCAG and SCAQMD is more than a semantic one; it is symbolic. On a positive note, it reveals that the uneasy balance between private ownership and the public welfare is changing as the stakes get higher. The Plan's measures require significant changes in lifestyle and property use. One problem with the South Coast Plan is its inability to adopt distinct regional centralization; a change prophesied twenty years ago by those monitoring the abuses of home rule.(129)

While the Tier approach is ambitious, innovative, and concerted, it needs to build momentum and produce results in its earliest stages if it is to give Californians the gumption to make further sacrifices. Tier I measures, because they are rooted in the present and within the control of the existing structure, must be implemented aggressively. Obviously, transportation issues and land use, their corollary, are vital elements to Tier I short- and long-term gains. By instituting a bicameral system without clearcut statutory authority to implement these changes, the California legislature fractures the Plan.

The federal government consistently balks at initiating indirect source controls at the state level, perhaps for fear of constitutional challenge and perhaps out of deference to state autonomy.(130) No such hesitations befall states, which nonetheless typically delegate most of their land use authority to cities and towns. Given the urgency of environmental concerns and changing perceptions toward private property, states are in a unique position to reassume environmental land use authority. As smaller political units they retain high credibility; as larger geographic entities they exercise greater dispassion in their reasoning.

Few can predict what role the South Coast Plan will ultimately have in cleaning the skies of the Basin. Perhaps by leaving the land use and indirect-source wording vague, California's legislature feels it has resolved the jurisdictional issue, either by leaving it to the courts or to be sorted out at the administrative level. Certainly in delegating this responsibility it has delayed effective implementation of the Plan.

While inherently deficient, the Plan is one step closer to meeting the complex demands of a large-scale environmental problem. The Plan has placed environmental land use in the limelight and strengthened the shift toward regional implementation; a necessary move if the United States is to address other environmental crises. The most important achievement of the Plan may not be clearer skies over San Bernadino, but the emancipation of land use controls from provincialism.

Barry T. Woods(*) Student, J.D. 1993, Northwestern School of Law of Lewis and Clark College. B.A. 1983, Bowdoin College. The author wishes to thank Professor Craig Johnston for his helpful comments on this article. (1.) Frank J. Popper, The Politics of Land Use Reform 16 (1981). (2.) Peter W. Schroth, The Impact of Environmentalism on Land Use Control, 30 Am. J. Comp. L. 491 (Supp. 1982). (3.) Popper, supra note 1, at 76, 234. Popper profiles state land use programs in California, Florida, Maryland, New York, Pennsylvania, and Vermont. His summation of their success is qualified but optimistic. See also Daniel R. Mandelker & Roger A. Cunninghum, Planning and Control of Land Development 791 (3d ed. 1990) (discussing other successful regional and state land use programs.) See also Schroth, supra note 2, at 509-10 (as of 1982, 29 states had some type of land use planning in effect, most of which offered some type of environmental protection.) (4.) Popper, Supra note 1, at 115-116. Popper observes that centralized programs which implement some type of comprehensive land use legislation, experience difficulty in states with more complex constituencies. Many state-level land use programs, which endured the 1970s in part because they expanded their focus from a narrow environmental one to dealing with broader growth management issues, have suffered because of the many accommodations made. Id. at 208. (5.) Schroth, supra note 2, at 493. (6.) R.T. Ely, Property and Contract in Their Relations to the Distribution of Wealth, 165-66 (2d ed. 1971) (1914). (7.) Id. at 165-169. (8.) Arthur E. Paimer, Environmentally Based Land Use Planning and Regulation, 2 Pace Envt'l L. Rev. 25, 25-26 (1984). (9.) Id. at 26. (10.) 272 U.S. 365 (1926). (11.) Id. at 387. (12.) Id. at 391-95. (13.) Michael F. Reilly, Transformation at Work: The Effect of Environmental Law on Land Use Control, 24 Real Prop. Prob. and Tr. J. 33, 42 (1989). See also Schroth, supra note 2, at 496; see also U.S. Const. Amend. V (stating "nor shall private property be taken for public use, without just compensation.") (14.) Developments in the Law--Zoning, 91 Harv. L. R. 1427, 1591 (1978) [hereinafter Zoning]; See also Orlando E. Delogu, Local Land Use Controls: An Idea Whose Time Has Passed, 36 M. L. Rev. 261, 276 (1984). (15.) Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); See also Reilly, supra note 13 at 39; Delogu, supra note 14 at 265. (16.) Mark Sagoff, Do We Need a Land Use Ethic?, 3 Env' Ethics 293, 293-295 (1981). Sagoff argues that the present land use ethic is an economic one placing property owners in the position of consumers who wish to make the land more efficient. Land value is defined according to what people are willing to pay for it. An ethic based on moral and aesthetic principles would recognize the value in preserving land as distinct from the notion of "property." Id. (17.) Delogu, supra note 14, at 266-67. Dicta in the Euclid opinion took on life of its own in supporting several erroneous assumptions about the benefits of local land use: [T]he exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are[:] promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to location of stores, shops and factories. See Euclid, 272 U. S. at 391. See also Reilly, supra note 13, at 39; Zoning, supra note 14, at 1590. (18.) Popper, supra note 1, at 15. (19.) Id. (20.) Delogu, supra note 14, at 262. (21.) Henry David Thoreau, Civil Disobediences 1 (1849). (22.) Delogu, supra note 14, at 261. Delogu states that "[l]ocal land use control powers are being abused at worst and too restrictively utilized at best, leaving area-wide problems unresolved." Id. (23.) Palmer, supra note 8, at 27. (24.) Popper, supra note 1, at 25; In too many localities . . . neither the procedures for determining land use nor the individuals making the decisions have the public confidence. . . . [C]itizens suspect that the people making regulatory decisions are thinking more about themselves and their cronies, than about the general welfare. These suspicions are sometimes inaccurate; builders proposing a project and neighbors opposing the same project may both privately complain that the cards are stacked against them. Far too often, though, the suspicions are well grounded. Id. at 15. (25.) Zoning, supra note 14, at 1590. (26.) Id. (27.) Id. at 1591. (28.) Id. at 1591-92; see also Delogu, supra note 14, at 265-78 (attacking the premises offered for local land use controls). See also Popper, supra note 1, at 46-55. (29.) Popper, supra note 1, at 6-7. (30.) Delogu, supra note 14, at 302. (31.) Zoning, supra note 14, at 1590. (32.) Id. at 1608. For example, federal input may be critical to respond to interstate environmental spillovers, just as state authority may be needed to force the cooperation between intrastate municipalities. (33.) Zoning, supra note 14, at 1592. (34.) Mandelker & Cunningham, supra note 3, at 797-98. (35.) Id. (36.) Id. (37.) Reilly, supra note 13, at 48. Reilly states that an accepted regional definition of the general welfare reads: What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within municipalities and its needs, . . . but also on the nature of the entire region in which the municipality is located and the use to which the land in that region had been or may be put most advantageously. For the purpose of this comment no dramatic distinction is made between the regional and state level as both represent geo-political areas in the middle of the spectrum. To the degree that a region--such as California's South Coast basin--contains a highly diverse constituency and large land area it more closely resembles a state. (38.) Zoning, supra note 14, at 1587-88. (39.) Id. at 1591. (40.) Popper, supra note 1, at 16. (41.) Reilly, supra note 13, at 39. (42.) Del Duca, infra note 60, at 1153 n.132. As part of its stated policy in the Clean Air Act, the U. S. Environmental Protection Agency specifically points to state and local authority as the proper level of implementation to meet federal air standards. See also Zoning, supra note 14, at 1612-15 (supporting the notion that Congress prefers to defer to states on land use issues). (43.) See discussion infra text accompanying notes 50-79 (Section IV) (where EPA's attempt to force the state of California to adopt certain land use measures was met with massive resistance). (44.) Zoning, supra note 14, at 1608. (45.) Id. at 1609-10. (46.) Daniel R. Mandelker & Susan B. Rothschild, The Role of Land Use Controls in Combating Air Pollution Under the Clean Air Act of 1970, 3 Ecology L. Q. 235, 258 (1973). (47.) See Reilly, supra note 13, at 60. (48.) Zoning, supra note 14, at 1604. Obviously for this scenario to work properly the state must draft guidelines with an explicit bottom line and allow localities no power to provide variances from this line. (49.) Popper, supra note 1, at 226. Local officials have the public trust in land use matters. Id. See also Delogu, supra note 14, at 307-08. (50.) See infra, notes 51-79. (51.) 42 U.S.C. [subsections] 7401-7461 (1988), amended by Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (1990). (52.) Mandelker, supra note 46, at 238-2. (53.) Id. at 236-237. (54.) Id. (55.) Id. at 238; 42 U.S.C. [sections] 1857c-5(a)(2)(b) (1970). (56.) Mandelker, supra note 46, at 238. (57.) Id. at 240. (58.) See discussion infra note 90. (59.) Schroth, supra note 2, at 507; 42 U.S.C. [sections] 7410(a)(5)(c) (1977). (60.) Patrick Del Duca & Daniel Mansueto, Indirect Source Controls: An Intersection of Air Quality Management and Land Use Regulation, 24 Loy. L. A. L. Rev. 1131, 1138-39 (1991) (suggesting that land use controls in California's South Coast Basin might contribute 9.3% of the total required reactive organic gases reduction set for 2010); Thomas J.P. McHenry, The Land Use/Air Quality Connection, 12 L.A. Lawyer, Jan. 1990, at 22, 29 ("Direct sources of air pollution are smokestacks and other point sources; indirect sources increase air pollution because of the polluting activities they attract."). See also South Coast Air Quality Management District and Southern California Association of Governments, Draft Air Quality Management Plan, Los Angeles; South Coast Air Basin 431 (1990) [hereinafter Draft AQMP]. (61.) Del Duca, supra note 60, at 1132. (62.) Id. at 1139. (63.) Mandelker, supra note 46, at 274. (64.) Del Duca, supra note 60, at 1149 ("EPA disapproved every SIP in the nation because it concluded that no plan without indirect source controls could adequately assure maintenance of air quality in the face of growth."). (65.) Id. at 1140. (66.) Id. (67.) Id. (68.) Martin Bern, Government Regulation and the Development of Environmental Ethics Under the Clean Air Act, 17 Ecology L. Q. 539, 546 (1990). See also Del Duca, supra note 60, at 1140-1141 nn.51-52. (69.) Bern, supra note 68, at 547. For additional history see 53 Fed. Reg. 49, 494-60 (Dec. 7, 1988). (70.) Bern, supra note 68, at 547. (71.) 53 Fed. Reg. 49,494-97 (1988). (72.) Palmer, supra note 8, at 64. See also Bern, supra note 68, at 546 n3; Del Duca, supra note 60, at 1139; Schroth, supra note 2, at 507. (73.) 42 U.S.C. [sections] 110(a)(5) (1977). (74.) McHenry, supra note 60, at 25. (75.) Thomas J. Schoenbaum & Ronald H. Rosenberg, Environmental Policy Law 544 (2d ed. 1991). (76.) Clean Air Act, supra note 51 (The preamble of the CAA states EPA's intent to keep clean air implementation at state and local level); see also Del Duca, supra note 60, at 1153 n.132. (77.) McHenry, supra note 60, at 22. See also Clean Air Act Amendments of 1977: Hearing before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 95th Cong., 1st Sess. 35 (1977) (testimony of Donald M. Manzelli appearing for the Associated General Contractors of America) ("Gentlemen, quite frankly we fear that the [1977] act is being unwisely used as a vehicle for Federal land use control over private lands"). (78.) McHenry, supra note 60, at 25. These adverse effects, the 1977 House Report stated, were the "Potentially serious consequences and potentially socially and economically disruptive impacts" caused by implementing indirect source controls. Id. (79.) 42 U.S.C. [subsections] 7401-7671q (West Supp. 1991). (80.) Paul R. Portney, et al., To Live and Breathe in L.A., Issues in Sciences and Technology, Summer 1989, at 68. (81.) Alan Weisman, L.A. Fights For Breath, N.Y. TIMES Magazine, July 30, 1989, at 15-16. (82.) Id. (83.) Id. at 17. (84.) Id. at 33. (85.) Portney, supra note 80, at 69. (86.) Id. In 1991, the South Coast Basin's air pollution exceeded federal health standards on 131 days of the year, with peak ozone levels 2.5 times higher than the health standard and exceeded the more stringent state standards on 184 days, with peaks of more than three times the standard. South Coast Air Quality Management District, Path to Clean Air: Progress and Strategies 3 (1992) [hereinafter SCAQMD Clean Air]. (87.) Portney, supra note 80, at 69; see also Draft AQMP, supra note 60, at 2-3 (providing detailed report of the current air quality as measured in 1989). (88.) SCAQMD Clean Air, supra note 86, at 15. (89.) The list of maladies associated with various air pollutants is long. Smog can increase the susceptibility to a variety of diseases including pneumonia, bronchitis, bronchiolitis, emphysema, and tissue scarring and has recently been linked to lung cancer. It reduces the oxygen carrying capacity of red blood cells and promotes and aggravates heart and blood disease. SCAQMD Clean Air, supra note 86, at 2-3. (90.) Dr. Russel P. Sherwin has found through autopsies of pulmonary tissues of accident victims that 15 to 25 year old residents have lungs that resemble those of 40 year old emphysemics. Weisman, supra note 81, at 33. (91.) Del Duca, supra note 60, at 1139. See also Draft AQMP, supra note 60, at 3-8. This chapter sets out the various timetables for complying with the federal ambient air standards. Under the 1990 Amendments, Congress has attempted to fashion realistic dates for compliance based on individual states present non-attainment status. The South Coast Plan projects 2010 AD as the final stage for compliance. Id. See also Clean Air Act Amendments of 1990, [subsections] 103-106, 104 Stat. 2399, 2423-64 (1990). (92.) Air Pollution--Districts--Ambient Air Quality Standards, 1568, A.B. No. 2595, 1988 Cal. Legis. Serv. 4397 (West) (codified as amended in scattered sections of Cal. Health & Safety Code). (93.) SCAQMD Clean Air, supra note 86, at 8-9. (94.) Del Duca, supra note 60, at 1143. (95.) Cal. Health & Safety Code [sections] 40716(b) (West Supp. 1993); See also Mc-Henry, supra note 60, at 25. (96.) Del Duca, supra note 60, at 1162 n.194. (97.) Cal. Health & Safety Code [sections] 40460(a) (West 1986). (98.) Id. [sections] 40420, 40468 (West 1986); see also Id. [sections] 40414 ("No provision of this chapter [which provides for the authority of the SCAQMD] shall constitute an infringement on the existing authority of counties and cities to plan or control land use, and no provision of this chapter shall be interpreted as providing or transferring new authority over such land use to either the South Coast District, the Southern California Association of Governments, or the state board.") (99.) Draft 1991 AQMP supra note 60 (The final 1991 AQMD was set to have been adopted by June 30, 1991. It was not adopted by the ARB until September 1992, delayed in part by the acceptance of an amendment providing more aggressive market incentives to meet various control measures). (100.) Bern, supra note 68, at 574; see also Draft AQMP, supra note 60, at 7-1. (101.) Draft AQMP, supra note 60, at 7-1. (102.) Id. (103.) Id at 7-2. (104.) Id. at 7-30. (105.) Draft AQMP, supra note 60, at 7-15 (measure A-C-1 in Table 7-3). (106.) Id. at 7-17 (Measure M-G-6 in Table 7-3). (107.) Id. at 7-24 (measure A-E-3 in Table 7-4). (108.) Draft AQMP, supra note 60, at 4-29. (109.) Bern, supra note 68, at 575. See also Draft AQMP, supra note 60, at 7-36. (110.) Draft AQMP, supra note 60, at 7-40. (111.) Bern, supra note 68, at 575. (112.) SCAQMD Clean Air, supra note 86, at 9. (113.) South Coast Air Quality Management District Final Air Quality Management Plan, 1991 Revision, Final Appendices IV-C, IV-E (1991). SCAQMD released Appendix IV-C discussing specific mobile and indirect source controls. SCAG released Appendix IV-E dealing with land use and transportation control measures. (114.) Id. Appendix IV-C at H-1-43. (115.) Of the eight measures, SCAQMD retains original implementation authority over only one, Trip Reduction for Schools. Here SCAQMD states in its implementation strategy that "schools have not had to comply with local planning ordinances or codes except in cases where a school building would be used for purposes other than education-related uses. . . . This has left local governments with little opportunity to address the problem of traffic congestion around schools. Since there are legal constraints to local government's requiring trip reduction programs for students, the District would enact a regional rule." Id. Appendix IV-C, at H-11. In all the other ISCs, SCAQMD has endeavored to share or convey implementation authority to SCAG. SCAQMD's rationale will be discussed subsequently. (116.) Id. Appendix IV-E, at I-1. (117.) Id. at I-57. (118.) Id. at I-68, 69. (119.) Id at I-178. (120.) McHenry, supra note 60, at 27; see also Del Duca, supra note 60, at 1166. (121.) Id. at 1169. (122.) For example, under Transportation Control Measure 2.d, Merchant Transportation Incentives, "local governments must increase non-work related transit mode split by 10% annually (or approximately 52,000 trips per year) over 1984 levels. Set local objectives and provide commensurate mode shift opportunities through carpooling, walking, and bicycling incentive programs. Divert 1% of all trips of 3 miles or less to the bicycle mode, divert 10% of all auto trips of 0.5 mile or less to walking trips. Divert 12% of single occupant auto trips to carpools of more than 2 persons." See Appendix IV-E, supra note 113, at I-69. If the local government fails to meet this Tier I objective, SCAQMD will implement an Indirect Source Rule of comparable controls. Id. In practice the SCAQMD provides backstop measures for all of SCAG's, usually derived from Regulation XV or adoption of a separate ISC. One of the chief reasons SCAG receives first option to implement land use and ISCs is its history (since 1965) of coordinating local government action to address a variety of issues from water quality to housing. Given its experience in dealing with a plurality of local-based issues, SCAG sees itself as retaining a healthier perspective when it comes to implementing air quality measures. This is one reason for splitting up the authority. Interview with Paul Hatanaka, SCAG, Principal Planner, Forecasting, Analysis, and Monitoring Department (November 2, 1992). (123.) Draft AQMP, supra note 60, at ES-11. (124.) Letter from Mark Pisano, Executive Director of SCAG, to Dr. James Lents, Executive Officer of SCAQMD, (June 12, 1991), in Appendix IV-E, supra note 113, at A-10, A-17 (1991). (125.) For instance, SCAQMD accepted SCAG's recommendation to delete a proposed ISC, Wastewater Conformity, because a SCAG measure already addressed this issue. Id. at A-7. SCAG, in turn, responded to a SCAQMD recommendation that the Growth Management Plan use vehicle miles traveled (VMT) targets as a means of quantitatively relating the job-housing balance to air quality. Id. at A-12. (126.) Id. at A-12. (127.) Stationary source controls are in place and direct source polluters are identified; under the CCAA, the state requires a more stringent "new source review" than the federal government, requiring that virtually any increase in emissions from a stationary source be offset. McHenry, supra note 60, at 27. The issue is now the automobile which is accused of contributing as much as 70% of the mess into L.A.'s skies. Weisman, supra note 81, at 48. (128.) See supra text accompanying notes 17-51 (Section II). (129.) Popper, supra note 1, at 12. Popper provides one of the best summaries of the land use reform movement in this country. He mentions specifically that "[i]n 1973, the Rockerfeller Brothers Fund Task Force on Land Use and Urban Growth produced a report, The Use of Land, that became one of the best known documents of the land use reform movement. It declared: 'Important development should be regulated by governments that represent all the people whose lives are likely to be affected by it, including those who could benefit from it as well as those who could be harmed by it. Where a regulatory decision significantly affects people in more than one locality, state, regional, or even federal action is necessary.'" Id. (130.) In the 1990 Amendments to the CAA, Congress continued to prohibit EPA from requiring states to use indirect source regulation in their SIPs. Del Duca, supra note 60, at 1154.