Ways to Rein in the California Coastal Commission

There is a growing bipartisan consensus even here in California that environmentalist restrictions have gone too far. It would be a dishonest oversimplification to pretend environmentalists have outlived their usefulness, or that many of the accomplishments of environmentalists over the past 50 years weren’t magnificent and necessary. But when special interests define and exploit environmentalism in order to consolidate industries, destroy small competitors, raise the cost of living, create scarcity for profit, deny upward mobility, and lower the quality of life for everyone apart from themselves and their elite counterparts, a restructuring is in order.

A prime candidate for restructuring is the California Coastal Commission, a state agency that wields an astonishing degree of control over how any homeowner or business operating within five miles of the Pacific Ocean can manage their property. For people who had not previously thought environmentalist regulations went too far, the fires that destroyed thousands of homes in Pacific Palisades and Malibu were a clarifying moment. But even if Newsom’s executive orders prevent the Coastal Commission from stopping rebuilding in this one case, a bright light now shines on the Coastal Commission’s entire long history of abusing its authority.

It would be easy enough to focus on all the examples of this, from attempting to restrict Space X launches out of Vandenberg AFB in 2024, or denying final approval for a desalination plant in Huntington Beach in 2022, to the years spent harassing homeowners who just wanted to build a rock wall to protect their homes from storms. The whole premise of the Coastal Commission is flawed – they favor “managed retreat” from the coast, as if erosion and storms haven’t been managed on coasts since the dawn of civilization.

If the Coastal Commission were founded a century earlier, there wouldn’t be any homes occupied by middle class residents along the coast. A handful of powerful corporations and billionaire investors would own whatever developments were permitted. Nobody else could have possibly navigated the process. But if you’re one of the growing millions in California who now recognize the Coastal Commission is a problem, let’s focus on solutions. Here are some ways to attenuate their power.

Starting with the state, the Coastal Act can be amended by the Legislature. They can:

• Narrow the scope of “development” as defined by the Coastal Act to classify minor repairs, agricultural operations, accessory structures, and seawalls, as exempt from permitting.
• Place firm deadlines on Commission staff for processing permits, deeming them approved if they aren’t processed within 90 days.
• Require the Commission to submit an annual property rights impact report, and to issue cost-benefit analyses to justify any denied permits, subject to appeal.
• Exempt from permitting any projects that are already approved by local governments pursuant to certified Local Coastal Programs (LCP).
• Tie administrative funding to measurable performance, such as permit processing times, appeals backlog reduction, and LCP update approvals.
• Introduce a constitutional amendment, subject to voter approval, that would read as follows “No state agency may condition the use, development, or enjoyment of private property in the Coastal Zone in a manner that constitutes a regulatory taking without just compensation or clear legislative authority.”
• Add a 10 year sunset provision to the Coastal Act, requiring joint oversight hearings where commissioners would have to justify their broad authority in order to obtain legislative reauthorization.
• Transfer Appellate Authority to the Office of Administrative Hearings (OAH) in order to remove the Commission’s ability to act as both regulator and judge. Instead, require that permit appeals or enforcement proceedings go before neutral administrative law judges under OAH.
• Reconfigure the Commission into a purely advisory or planning body, stripped of direct permitting authority and instead limited to an oversight role focused on plan reviews, LCP certification, and environmental data.

And then there are actions the federal government can take. California’s own Congressman Kevin Kiley has introduced legislation to amend the US Coastal Zone Management Act in order to “limit the scope of state authority to review certain activities, including national security-related activities, critical infrastructure projects, and activities with high economic impact, including post-disaster recovery and rebuilding.” If Kiley’s bill becomes federal law, it will make a difference.

But there is an even more transformative reform that can be done immediately by the Trump Administration without requiring an Act of Congress.

One of the roles of the California Coastal Commission is to implement the US Coastal Zone Management Act (CZMA), which applies to all coastal states. The federal government can use fiscal strings and/or an Executive Order to require the Commission to only implement federal CZMA requirements, and to submit for federal agency review and approval any state law or state regulations that impose restrictions and compliance obligations not set forth in CZMA. The federal government can specify that, until such time as such process has been completed, the California Coastal Commission is prohibited from implementing CZMA or receiving funding from CZMA.

The federal rationale for disapproval of California Coastal Commission implementation of any state laws or regulations would be their infringement of Constitutionally-protected property rights, and violation of public safety provisions of CZMA, which require protection of the coast and not “managed retreat” and oceanic erosion.

The federal government could even put the California Coastal Commission into receivership. The National Oceanic and Safety Administration is the federal agency that oversees the CZMA, and NOAH could appoint a California administrator within NOAH to take over the Coastal Commission. NOAA also administers the Endangered Species Act for fish occurring in the ocean and freshwater (e.g., salmon), which means NOAA along with Federal Fish and Wildlife Service also has authority over the Delta. NOAA’s California administrator can take the lead for freshwater fish (smelt, salmon) – so the NOAA point person could take over the Coastal Commission, as well as the Endangered Species Act for all aquatic species.

If California and the Coastal Commission were to refine the state regulatory requirements to conform with Constitutionally-protected property rights and the public safety provisions of the Coastal Zone Management Act, the state would then be able to apply to recover state administration of Federal CZMA authority. But until then, there would be no federal funding and the Commission would have no authority. Under this approach local land use authority would be restored without Commission oversight.

As it is today, the California Coastal Commission is just one of the bigger tentacles on a regulatory green octopus that is squeezing the life out of the state’s small businesses and low/middle income households. We may hope that growing bipartisan recognition of the need to rein in the Coastal Commission is just the first step in what may become a broader movement toward balance.

Edward Ring is the director of water and energy policy for the California Policy Center, which he co-founded in 2013 and served as its first president. He is also a senior fellow with the Center for American Greatness, and a regular contributor to the California Globe. His work has appeared in the Los Angeles Times, the Wall Street Journal, the Economist, National Review, City Journal, and other media outlets.