CGF stops secret developer-agency contacts
Public Records Act helps open process
by Brian Schmidt

Committee for Green Foothills had a big success in February when Santa Clara County agreed to end its practice of sharing preliminary environmental documents with developers while excluding everyone else. This practice gave developers a chance to influence the environmental analysis that would affect their projects' approval and block public comment until much later in the process.

As an environmental lawyer with knowledge of California law requiring fair public access to documents, I was surprised by the County's biased practice, but I was even more surprised to find that many jurisdictions do the same thing.

How the project approval game works
For a project large enough to require an Environmental Impact Report (EIR), the standard process for any government agency begins with the developer's initial application for a permit. After the developer has supplied initial information and paid some fees, the government agency with jurisdiction (local, County, State or Federal) announces its plan to do an EIR and accepts public comments to help determine what should be analyzed in the document.

The agency then creates a preliminary Draft EIR for its internal use, revises that document into a Draft EIR to be circulated for public comment, and then incorporates that public comment in a Final EIR. Normally, a Final EIR is just the Draft EIR with minor alterations and responses to public comments. If significant flaws are found in the Draft EIR, the agency must go back and recirculate a revised Draft EIR so everyone has a chance to comment on the corrected version.
The key issue lies in agencies' reluctance to revise Draft EIRs, as revisions costs significant time and money, and developers complain loudly about any delays in receiving permits. Because of this reluctance to revise, agencies typically attempt to catch errors before a Draft EIR is released, and often refuse to acknowledge legitimate criticisms of Draft EIRs, knowing that lawsuits against the agency are unlikely and are difficult for plaintiffs to win.

Here enters the problem - agencies give developers a chance to review preliminary versions of the Draft EIR so they can suggest corrections before the document becomes public, and prevent the public from commenting until the draft becomes public. Because the agency is willing to change the preliminary Draft EIR on the basis of developer comments and less willing to change the public Draft EIR based on public comments, the end results biases the process and downplays project impacts. For this reason, the Committee made changing the process a priority.

How we attacked the problem
CGF decided to attempt to change this biased process in order to open the door to the review process and ensure that the public has a fair chance to comment. Our success on this issue makes it an interesting case study for solving similar problems in the future.
Over several months, CGF identified four strategies that we used to effect a change in Santa Clara County's process:

Bad policy: We argued that it was bad to have a policy that gives developers unfair access and an unbalanced opportunity to present their arguments.

Bad politics: We believed it would be difficult for anyone to argue publicly that developers had special rights to see documents owned by the people of Santa Clara County, but kept secret from the public.

Bad legal arguments: California's Public Records Act allows some preliminary documents to be withheld from the public, but nowhere does it say that an agency can reveal documents to one part of the public - developers - and conceal them from others. Arguing they could reassert the right to withhold documents after previously waiving that right is a bad legal basis for agency actions.

Good luck: We learned about this problem last September and began working on it shortly thereafter. In November, California voters passed Proposition 59, which basically told courts to side with the public's right to access documents whenever the law was vague. Proposition 59 landed in our laps as a welcome, additional argument in our favor.

What won the day
Somewhat to my surprise, it was not bad politics, but bad legal arguments and good luck (regarding the passage of Proposition 59) that proved decisive. Santa Clara County's chief attorney recommended that the County change its policy for legal reasons, including Proposition 59, a point that we had emphasized. The County Supervisors accepted the attorney's recommendation.

The County made the right decision here, and should be applauded for moving relatively quickly. In this case, having the law on our side produced the quickest results. However, I should not underemphasize the importance of having the political advantage as well. In the long run, political support will determine the outcome of all our environmental efforts. And of course, being on the right side of an issue is essential, and we will seize all the good luck that falls into our laps.

Finally, the success in Santa Clara County constitutes another piece of good luck. We will use it to make sure that other local governments fix any similar policies of giving unfair access to developers.

Published March 2005 in Green Footnotes.

Page last updated March 22, 2005.