Spring 2023

California Coastal Commission Goes the Extra Mile to Deal with Global Warming

Kirk Retz, Esq., Ryan Carvalho & Retz LLP

Rachel Story, 2023 J.D. Candidate, California Western School of Law

A ten-foot rise in sea level by the end of the twenty-first century.  No person or agency has predicted such a dramatic change but the California Coastal Commission (the “Commission”) has planned for it.  The Commission notes that numerous global warming predictions have been exceeded and that because infrastructure is so crucial to our way of life, a plan must be in place that will survive.

As a result, on November 17, 2021, the Commission adopted detailed guidelines, called Critical Infrastructure at Risk: Sea Level Rise Planning Guidance for California’s Coastal Zone[1] (“CIR”). The California Governor, Senate Rules Committee, and Speaker of the Assembly each appoint four commissioners to comprise the California Coastal Commission’s voting panel, likened to a jury of twelve.[2] CIR encapsulates California’s many concerns for the well-being of its coastlines and the public policies which address them. Focusing on rising sea levels, CIR encourages expensive inland relocation of important coastline facilities.

CIR is explicitly advisory, containing only recommendations for local governments’ use in addressing sea level rise concerns consistent with the Coastal Act. By its own terms, CIR “contains model policies that may need to be customized to address local contexts before they can be incorporated into individual [Local Coastal Programs].” Further, CIR provides that not all policies are applicable in every jurisdiction. As such, CIR is more like the Model Rules of Professional Conduct—unenforceable unless explicitly and voluntarily adopted by the appropriate jurisdiction. The Model Rules of Professional Conduct have been adopted, edited, as well as wholly disregarded and replaced with state-specific rules. CIR is intended to be treated just the same.

Instead of declaring itself sovereign, CIR consistently references The California Coastal Act of 1976[3] (“CCA”). CCA, ten chapters in length, begins in the same manner as CIR. CCA first declares that its overall purpose is to protect the California coastal zone, “a distinct and valuable natural resource of vital and enduring interest to all the people and [which] exists as a delicately balanced ecosystem.”[4] CCA continues, “[e]xisting developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state and especially to working persons employed within the coastal zone.”[5]

While CCA’s goal is to protect California’s valuable coastlines, it nonetheless admits the following, in the interest of preserving social welfare over preventing climate impacts:

[N]otwithstanding the fact electrical generating facilities, refineries, and coastal–dependent developments. . . may have significant adverse effects on coastal resources or coastal access, it may be necessary to locate such developments in the coastal zone in order to ensure that inland as well as coastal resources are preserved and that orderly economic development proceeds within the state.[6]

CIR, approaches conflicting goals differently. CIR identifies water and transportation sectors as its focus, but notes that “other critical infrastructure facilities, such as ports, harbors, airports, power plants, desalination facilities, and hospitals are outside this scope.” Yet, because CIR also notes that infrastructure types outside of its scope share common characteristics with those addressed, environmentalists have pushed for its broader application.

CIR highlights events with direct relation to its infrastructure approvals and denials, building its own authority for future debates. For example, CIR warns of a “high level of vulnerability for transportation-related infrastructure” in every coastal California county. The three most vulnerable counties are San Mateo, Orange, and Los Angeles, respectively.[7] However, while transportation infrastructure is currently more adaptable to weather-related concerns, CIR argues that the deferred threat of rising sea levels will eventually deny California and tourists access to its coastlines.[8] CIR supports this contention with the example of the 2017 collapse of a section of Highway 1 leading to Big Sur, which left thirty miles of coastline accessible only by helicopter.[9] More recently, Metrolink suspended a railway along the scenic coastline between San Diego and Los Angeles and other northern areas on September 30, 2022, based on dangerous movements of the slope supporting the railway. Only a few days later, the Orange County Transportation Authority, the rail’s owner between the Fullerton and San Diego borders, met with the California Transportation Commission to propose the emergency stabilization of the track, estimated to cost $12 million dollars. Due to ever-predictable construction project delays, the project’s expected completion date is now late March 2023.[10]

Despite detailed analysis of the vulnerability of transportation and other critical structures, the Commission’s adoption of CIR resulted in environmentalist outrage based on the guideline’s failure to impose its guidance on desalination plants.

CIR stated, “Although desalination facilities are located in the coastal zone, they are not covered in this Guidance due to the unique and complex issues associated with such facilities.”[11] After public outcry, CIR was quickly amended to explain that although desalination plants were not addressed in CIR, they “would generally be considered critical facilities if. . . they are integrated with other water systems, provide needed or emergency water supply to communities, or have the potential to cause significant environmental impacts or social consequences if damaged by future hazards.”[12] The contrasting history of two Californian desalination plants--before and after the adoption of CIR--exhibit the effect of this amendment:

Carlsbad, California

            In 2012, the San Diego County Water Authority entered into contract with the leading water-infrastructure developer, aptly named Poseidon Water, for a thirty-year agreement to purchase water from the nation’s largest desalination plant, located in Carlsbad, California. The Claude “Bud” Lewis Carlsbad Desalination Plant uses reverse-osmosis to transform sea water into drinking water. The billion-dollar facility was approved based on its location south of major Californian fault lines, “providing added water supply security in case an earthquake severs imported water supply lines” from California’s other major pipeline water sources, such as the Colorado River. This plant began to safely provide approximately ten percent of San Diego County’s water demand at rate of approximately $5.00 per household per month.[13]

Huntington Beach, California

In May 2022, however, the California Coastal Commission denied Poseidon Water’s application for a permit to construct a partnering desalination plant in Huntington Beach, California, located just south of Los Angeles County. The Commission unanimously rejected the project because it deviated from policies implemented in the California Coastal Act of 1976. The Commission noted the presence of “alternatives that would substantially lessen the significant adverse impacts of the development on the environment.”[14] The Commission claimed the location of the proposed site “will become increasingly at risk with sea level rise.”[15] Opponents of the plant’s construction in attendance at the hearing claimed that desalination plants are among the “most risky and costly ways to get water.” Commenting commissioners also claimed their decision favored the needs to protect marine life and save taxpayers money.

            Although CIR initially excluded desalination plants from the critical infrastructure , efforts by environmentalists have affected the California Coastal Commission’s stance on water security measures that prioritize the present. The decision to deny the Huntington Beach desalination plant permit displays the Commission’s newest policy of protecting against adverse effects on marine life rather than the more imminent and undeniable threat of drought and diminishing water supplies, significantly dependent on the mercy of the San Andreas fault line system. The wisdom of the California Coastal Commission’s forward-looking, climate-cognizant approach is to be determined.

[1] The California Coastal Commission, Critical Infrastructure at Risk: Sea Level Rise Planning Guidance for California’s Coastal Zone (2021).

[2] State of California, Our Mission (Nov. 25, 2022, 3:15 PM), https://www.coastal.ca.gov/whoweare.html.

[3] California Public Resources Code § 30000 et seq.

[4] Cal. Pub. Res. Code § 30001(a).

[5] Cal. Pub. Res. Code § 30001(d).

[6] Cal. Pub. Res. Code § 30001.2.

[7] The California Coastal Commission, Critical Infrastructure at Risk: Sea Level Rise Planning Guidance for California’s Coastal Zone, 172 (2021).

[8] Id. at 173.

[9] Id.

[10] Service Update, Southern California Regional Rail Authority (Nov. 25, 2022), https://metrolinktrains.com/rider-info/general-info/service-update/ .

[11] The California Coastal Commission, Critical Infrastructure at Risk: Sea Level Rise Planning Guidance for California’s Coastal Zone, 35 (2021).

[12] Id. at footnote 1.

[13] SDCWA, A Landmark Public-Private Partnership (Nov. 25, 2022, 3:16 PM), https://www.sdcwa.org/your-water/local-water-supplies/seawater-desalination/ .

[14] California Coastal Commission, Summary of Staff Recommendation, A-5-HNB-10-225/9-21-0488 (Poseidon Water), 15, https://documents.coastal.ca.gov/reports/2022/5/Th9a10a/Th9a10a-5-2022-staffreport.pdf .

[15] Id. at 4.