SF Bar Assoc. Panel Asks Whether BCDC’s Sea Level Rise Proposal Is a Power Grab

[Post by Penny Johnson, 3rd year law student]

In March 2011, the San Francisco Bar Association’s Environmental Law Section hosted a panel entitled “BCDC’s Climate Change Proposal: Good Policy or Power Grab?” to discuss the shoreline agency’s proposed Bay Plan amendments to address sea level rise and climate change. With the twin goals of protecting the San Francisco Bay as a resource and promoting wise development along its shoreline, San Francisco Bay Conservation and Development Commission (BCDC) is a California state agency on the front lines dealing with climate change-induced sea level rise. BCDC currently has jurisdiction over the Bay, its salt ponds and wetlands, and a shoreline band which extends 100 feet landward of the mean high tide line.   As sea level rises, the Bay will expand and the shoreline will migrate landward thereby increasing BCDC’s jurisdiction to those lands newly inundated and within 100 feet of the shoreline.

In April 2009, BCDC released a staff report summarizing current scientific research on climate change and examining possible impacts on the Bay of sea level rising 16 to 55 inches.  Following this report BCDC began the process of amending the San Francisco Bay Plan and in the fall of 2010 proposed amendments to update its sea level rise findings and policies and to add a new section on climate change policy.

Joe LaClair, Chief Planner at BCDC; David Lewis, Executive Director of Save the Bay; and Dan Doporto, Partner at Jarvis Fay Doporto & Gibson LLP were the panelists who were supposed to debate the Amendments. Instead, the overall tenor was one of cordiality and cooperation, though this may be just the preliminaries for public consumption. Agreeing that the controversy surrounding BCDC’s climate change amendments had been exaggerated, the panelists attributed resistance to BCDC’s proposal to two primary sources: certain developers that would be at risk to sea level rise, and cities (those with land adjacent to the Bay) whose failure to participate in early BCDC comment periods led to concerns that their interests might not be considered as BCDC moves towards adopting the Plan Amendments.

Joe LaClair (of BCDC) began his BASF panel discussion by explaining the scope of BCDC’s jurisdiction and authority, the new proposals, and how these proposals will affect BCDC’s jurisdiction. Emphasizing that BCDC cannot expand its jurisdiction without a statute by the legislature, LaClair explained that the new proposal would not in fact expand BCDC jurisdiction and that BCDC has not approached the legislature with such a request.

David Lewis (of Save the Bay) maintained that the proposed BCDC amendments were not a “power grab” but were trying to be “good policy” which in the end will not have a profound effect on development. Lewis asserted that California is a leader in climate change policy and that BCDC’s proposal reflects that the state is now focusing on climate adaptation as opposed to just climate mitigation. Arguing that part of adapting to climate change should be discouraging development in areas that are at risk to sea level rise, Lewis explained that BCDC policies would help cities and counties that lack the resources to consider sea level rise on their own. Lewis also cautioned against an “ad hoc” pattern of development advising developers to “be careful what they ask for.” He further stated that if the developers want no guidance from BCDC on what to consider in making development decisions, they are then going to be left with the consequences of sea level rise.

Representing the interests of the cities, Dan Doporto explained that the main concern of the cities was having input on BCDC’s proposal and that a regional approach might not take into account the circumstances of the cities adjacent to the bay. Doporto clarified that while some cities have called the current proposal a “power grab” by BCDC, the cities that have been more involved in this process would not characterize it as such and support BCDC providing guidance and leadership on this question.

When asked directly if BCDC’s land use jurisdiction will in fact change due to sea level rise, Joe LaClair (of BCDC) suggested yes.  Noting that the law (California’s McAteer- Petris Act) governing BCDC’s jurisdiction is written consistently with the public trust doctrine, LaClair confirmed that as the mean high tide line migrates landward so too will BCDC’s jurisdiction. A more comprehensive discussion of how climate change and the public trust doctrine affect BCDC’s jurisdiction is provided in a recent law review article by BCDC Senior Counsel Tim Eichenberg in the GGU Environmental Law Journal.

BCDC’s climate change proposal recognizes that sea level rise is occurring. As Joe LaClair explained at the BASF panel: “We always thought of the Bay as static because it has been the same for the last thousand years. But now we are discovering that it is going to expand and we need to plan and prepare for rising sea levels.”

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