Property Rights v. Endangered Species : The American Dream and the Common Good by Charles Timothy Shates - HTML preview
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The new marketing approach is to build a brand not a product—to sell a lifestyle or a personality, to appeal to emotions. But this requires a far greater understanding of human psychology. It is a much harder task than describing the virtues of a product. The attempt by brands to adopt a social component—to embrace a lifestyle—is giving consumers a lever to influence the behaviour of the companies that stand behind them. The No Logo proponents are correct that brands are a conduit through which influence flows between companies and consumers. But far more often, it is consumers that dictate to companies and ultimately decide their fate, rather than the other way round (Ibid.).Ahmad concluded the article with the following statement, “The founders of some of the world's oldest [brands]—Hershey, Disney, Cadbury and Boots, for example— devoted their lives and company profits to social improvements, to building spacious towns, better schools and bigger hospitals. The difference in the future will be that it will be consumers, not philanthropists, who will dictate the social agenda” (Ibid.). In the age of globalization, countervailing power to multinational corporations is being provided not only by consumers and governments, but by civil society organizations (CSOs), whose actions were described by Oliviero and Simmons (2002, p. 77), as being responsible for the increased expressions of corporate social responsibility in recent corporate publications. “Global corporations did not wake up one morning and decide to become socially responsible citizens, however. They were instead awakened, sometimes roughly, by the concerted efforts of civil society organisations (CSOs), which can today boast a global reach equal to that of their corporate counterparts.”
Despite the spreading faith in corporate good citizenship, investment analysts are notably unmoved. Corporate leaders have repeatedly complained that analysts, whose interpretations of a company’s effectiveness influence stock prices, focus on quarterly earnings. The benefits of investments that are associated with corporate citizenship are not usually evident in the short term, and analysts are often hard-pressed to pay attention to much else; and reputational risk, a significant consideration in corporate board rooms, is not yet on the list of issues that concern analysts (Ibid., pp. 79- 80).
Civil society is pushing the concept of partnership yet further, attempting to establish social reporting instruments comparable to the financial reporting instruments now standard throughout the world. Some CSOs are attempting to establish voluntary, industry-specific reporting mechanisms that measure the social and environmental performance of companies. Other CSOs labour to establish a process of social audits and the certification of auditors. A few CSOs propose an instrument that would transcend national boundaries and maintain a professional uniformity from country to country and business sector to business sector. Coalition for Environmentally Responsible Societies (CERES) is the author of one standard-setting initiative. CERES, which came to prominence in the wake of the 1989 Exxon Valdez disaster in Alaska, is a coalition of environmentalists, corporate executives, and concerned citizens who have promoted an agenda for environmental sustainability. Its Global Reporting Initiative (GRI) emerged in response to the increasing number of examples of environmental and human rights abuses committed by corporations, incidents which have resulted in no penalty or even challenge by national or international agencies (Ibid., p. 90).
Monitoring may take several forms, but at the core it is the delivery mechanism for the transparency so essential to any society that aspires to be open and free. The process usually focuses on two broad areas: working conditions, including freedom of association, and the environment….While civil society is filling an important gap through its role in monitoring and standard setting, in a perfect world this work might be led by official international agencies or governments…One need only to look at the Enron scandal in the United States to see that even institutionalised methods of accountability (e.g. compliance with domestic regulations and oversight by a board of directors) and the presence of an active and unfettered press can fail to prevent massive fraud and deception. Civil society faces a daunting task, not the least part of which is establishing what should be monitored and what constitutes corporate responsibility (Ibid., p. 91).
Ultimately what may win over the corporate world is the profit motive. Profits are affected by both negative and positive publicity, and in the case of the former it seems that, even if the publicity does not have a great impact on sales, it can still alter the corporate mindset (Ibid., p. 99).According to the study, however, civil society is limited in what it can do. For example, in order for negative publicity to have an impact target corporations must be “large and visible companies with brand names” but not so large that one division of the organization can be socially responsible and mask the questionable activities of another division…Finally, “there are some…campaigns the public refuses to embrace. Americans continue to buy highly inefficient sports utility vehicles, manufacturers are unrepentant about making them, and elected representatives resist imposing higher gasoline taxes and increasing automobile fuel efficiency standards” (Ibid., pp. 100-101). The study concluded, “In the end, of course, social values and norms will have to change if the world is to become a safer, healthier place, and it is here that CSOs will always play one of their most important roles. Multinational corporations will not institute change, nor will governments legislate it, if the public does not care. By changing the way that people think about the world and their place in it, civil society organisations are creating the conditions under which human rights, environmental integrity, and social progress may be fully realised” (Ibid., p. 105). Americans will eventually realize that there is a distinction between “free enterprise” and “democratic freedom.” The material comforts we take for granted today came about largely as a result of the fusion of the Protestant work ethic with the corporate form of organization. But this work ethic led to what Innes has called the Protestant dilemma, i.e. “industriousness and frugality brought wealth, which in turn brought temptation and worldliness” (Beatty, 2001, p. 14). Much has been gained through the industrial revolution and the coming of the scientific age. If we assume that Maslow’s hierarchy is relevant, then the increase in material well being of more and more people may enable them to rise above the struggle for the basic necessities of life to become “self actualizing.” But what has been lost in the balance? According to Korten, early American culture was “the mass marketer’s worst nightmare. Frugality and thrift were central to the famed ‘Puritan ethic’ that the early Puritan settlers brought with them to America. The Puritans believed in hard work, participation in community, temperate living, and devotion to a spiritual life. Their basic rule of living was that one should not desire more material things than could be used effectively. They taught their children, ‘Use it up, wear it out, make do, or do without.’ The Quakers also had a strong influence on early America and, although more tolerant and egalitarian, shared with the Puritans the values of hard work and frugality as important to one’s spiritual development. Ralph Waldo Emerson and Henry David Thoreau, both important early American writers, viewed simplicity as a path to experiencing the divine” (2001, p. 152). Modern Western Civilization is sorely lacking a consumer ethic, without which a consumer democracy will have little power. Beatty (2001) suggested that the time has come for a world government. “The countervailing power wielded against the corporation by the federal government and the labor union between the Civil War and World War II took place in the context of a nationalizing economy. Regulation and the union wage became part of the cost of doing business in America. But today’s multinational corporations don’t necessarily have to do business in America. Given the mobility of capital and technology, they can in theory and increasingly in practice escape American countervailing power. In relation to the globalizing economy, perhaps, we are at 1900 in the nationalizing economy, with the corporation-domesticating reforms of the TR/Wilson era and the New Deal still ahead of us. Only what’s needed now is a global version of the New Deal—a task to occupy the first half of the twenty-first century. The dimensions and duties of government were transformed to match the power of the corporation. A new kind of national sovereignty had to be fashioned. Will the global corporation, in the dialectic of countervailing power, usher in the kind of global sovereignty its critics see in embryo in the World Trade Organization?” (p. 407). The corporation does serve a vital function. No other force could have produced the vast number of products for satisfying society’s basic necessities. This enables greater numbers of individuals to become more or less independent of the struggle for mere existence and to be able to approach Maslow’s concept of self-actualization. The downside has been the unnecessary proliferation of brands and luxury products that add little to the satisfaction of basic needs. Another downside is the exportation not only of products, but of culture and lifestyle. To those who value diversity, there is a danger of worldwide homogenization through the process. American society has not yet evolved to the point where it is ready for pure democracy. That time will not come until the majority of the people prove they have individualized to the point that they are no longer able to be led like herd animals. At that time, consumers themselves will become a countervailing power, avoiding products that are harmful or unnecessarily wasteful, and supporting products that are beneficial. This ‘ethical consumption’ is the flip side of corporate ‘social responsibility.’ The exercise of property rights unfettered by the community and its notion of the common good, has led to increasing degradation of the environment. In one resource extraction industry, excessive clear-cutting of trees for lumber has created a blighted countryside. Runoff from timber activities, including road building, has silted once pristine streams and rivers, and threatened the habitat of threatened species of salmon and trout. Many species, including the now famous spotted owl, depend on old-growth forest
as their primary habitat. CHAPTER FOUR
TREES AND WATER: THE PACIFIC LUMBER CASE
The document’s only direct mention of just what Charles Hurwitz had in mind for Pacific Lumber once it was his came in a paragraph on page eighteen, under the heading “Debt Service”: “The Purchaser expects to require funds substantially in excess of the amounts currently generated by the operations of the company in order to pay the principal of the bank loans and Notes [so] the Purchaser has considered…increasing the Company’s annual lumber production…to a level which…would equal two times or more the Company’s 1984 production [and] may consider selling some or all of the Company’s cutting and welding operations [and] taking…action…to cause surplus assets held by the Company’s defined benefit [pension] plan to revert to the Company” (pp. 55-56).Before Hurwitz acquired it, PL was a model of sustainable forestry. It was owned by the Murphy family for several generations before becoming a publicly traded company. One of the Murphys, Albert Stanwood (Stan), who became president of the company in 1931, laid the foundations for “the identity assumed by Pacific Lumber for the next half-century” (Ibid., p. 17). One of the policies Stan Murphy put in place was the “selective cut,” at a time when “clear-cutting—felling every one of the trees in any stand during harvesting, leaving behind a bald patch of mountainside—was the industry’s standard technique. …PL cut a maximum of 70 percent of the mature trees in a stand, leaving the younger, most vigorous redwoods to hold the hillside and seed a new generation of forest” (Ibid.). The other significant policy Stan Murphy instituted was “sustained yield”: “…[PL’s] annual cut would always be limited and never exceed its timberland’s new growth” (Ibid., p. 18). As a result of these policies, in 1985 “…PL…was timber rich…[and] having limited its cuts, [it] now owned almost 70 percent of the remaining ancient redwood forest that was still in private hands” (Ibid., p. 19). Harris wrote, “Using the company’s own timber estimates, Salomon Brothers calculated that Pacific Lumber was worth between $60.28 and $77.96 a share. In light of calculated that Pacific Lumber was worth between $60.28 and $77.96 a share. In light of 74). Hurwitz was offering $840 million for a company worth between $1.3 and $1.7 billion. When valuable resources are so undervalued, there is clearly a market failure. The reason is that the market only values short-term profit, return on investment, not long-term assets. As a matter of public policy, assets which are important to the American people should be protected—but the market fails to provide a mechanism for doing so. Because of the market, Pacific Lumber went from being managed for sustainability to being increasingly managed for liquidation. (See Table 1).
Seral Type Decade 0 % Decade 6 % Decade 12 % Forest Opening 12,616 6 16,012 7 21,732 10
Young Forest 38,502 18 66,199 31 58,575 27
Mid-successional 87,772 41 96,027 44 77,030 36
Late Seral 53,236 25 20,973 10 41,886 19
Old Growth 6,444 3 2,136 2 2,136 2
Hardwood 4,266 2 1,489 1 1,477 1
Prairie 3,832 2 3,832 2 3,832 2
Non-timber 5,038 3 5,038 3 5,038 3
Total 211,706 100 211,706 100 211,706 100
Table 1. Projected Forest Seral Type by [Selected] Decades. Old growth (already seriously depleted by 1998, the date of the draft document), late seral, and mid-successional forests will have all declined, while young forest and forest opening will have increased, over the 120-year life of the plan. Additionally, the plan describes buffer zones (also called WLPZs, or Watercourse and Lake Protection Zones) along Class I and Class II streams and lakes, but Forest Practice Rules require only “equipment exclusion and limitation zones” on Class III streams, which happen to make up 76% of the watercourses on PALCO lands, capable of “sediment transport” into Class I or II watercourses. Close examination of the plan reveals a corporation willing to meet legal minimum requirements, but nothing more. (Source: Headwaters Habitat Conservation Plan/Sustained Yield Plan. http://resources.ca.gov/headwaters/hcp/v1.pdf).
Defendants' actions deprived the public, the director of CDF, and all other affected public agencies of an administrative process and of permits untainted by fraud. The review process was so tainted by fraud as to lack all legitimacy, and constituted a fraud and a sham. As a proximate result of the aforesaid conduct of defendants, (a) the public and the government have been deprived of the benefits of a fair administrative process, …(Supplemental Brief, 2004, p. 5).In the same document, the D.A. emphasized the “corporate nature” of the defendant, as shown in the following passages:
Defendant, a corporation, is charged with engaging in a fraudulent business practice with the government and public. If, therefore, this Court in this case were to disallow the district attorney from bringing this action under the UCL, it would be sending a catastrophically cynical, harmful invitation to every dishonest corporation dealing with government: no DA will get you--so lie as you please (Ibid.).
…if district attorneys were prevented from prosecuting UCL actions against corporations committing fraud in public dealings, such corporations would then be encouraged to commit fraud in their private dealings (Ibid., p. 8).One of the casualties of PL’s abuse of corporate power is the democratic process. Of course there are the usual problems of corporate influence through lobbying and political contributions, but when a corporation, because of its access to greater resources and political connections, attempts to circumvent the law by engineering a recall election, the people need to wake up. Just before Governor Gray Davis was recalled from office, he signed SB 810 into law, much to the chagrin of lumber companies operating in Northern California. Up until that time, lumber operators primarily had to concern themselves only with the California Department of Forestry. Now, the California Water Board was going to get a chance to get into the act. As reported in the Sacramento Bee,
Over the objections of the state’s timber industry, Gov. Gray Davis has signed legislation that gives regional water boards new powers over logging on private land, particular on the North Coast.
The measure, SB 810, probably will have little impact in the Sierra Nevada… But it represents a major victory for North Coast
environmentalists, who have a new tool in blocking Pacific Lumber Co. and other firms that are logging coastal redwoods.
Introduced by Senate President Pro Tem John Burton, D-San Francisco, SB 810 allows regional water quality control boards, for the first time, to veto any harvest that could degrade a waterway already listed as “sediment-impaired” (Leavenworth, 2003).In Pacific Lumber Company v. California State Water Resources Control Board (2004), PL disputed the water control board’s ability to monitor water quality from timber harvest operations. The trial court held that “the Department of Forestry’s jurisdiction was exclusive” and issued a writ of mandate. On appeal, however, the First
Appellate District reversed, stating in part, The Legislature’s grant of final authority to the Department of Forestry and State Board of Forestry to decide on THPs (Pub. Resources Code, § 4582.7, subd. (e)) does not alter its equally clear grant of final authority to the State Water Board to decide on water quality monitoring (Wat. Code, §§ 13267-13268).On June 16, 2004, the California Supreme Court granted a review of the case. Pacific Lumber has threatened to file bankruptcy if new regulations cause a reduction in the amount of lumber it can cut, which may invalidate environmental protections on its land that were part of the Headwaters Agreement (Reiterman, 2005). Under the Clean Water Act, the Environmental Protection Agency (EPA) is empowered to establish standards for sediment impaired waters. This was upheld by the federal courts in Pronsolino et al. v. Marcus et al. (2000) and on appeal in Pronsolino et
al. v. Nastri et al. (2002) which considered
…whether Section 303(d) of the Federal Water Pollution Control Act of 1972, later renamed the Clean Water Act, authorized the Environmental Protection Agency to determine “total maximum daily loads” for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources rather than by any municipal sewer and/or industrial point sources [emphasis added].According to the North Coast Regional Water Quality Control Board fifty-nine percent of the waters in the covered watershed are “sediment impaired” because, in part, the water quality does not support “certain beneficial uses.” As stated on its website, “The Clean Water Act…requires the establishment of total maximum daily loads (TMDLs) for the water bodies that do not meet applicable water quality standards” (North Coast, 2004). There has been a push at the regional level to establish these standards. This trend was foreshadowed in an earlier EPA memorandum which stated, in part, “We—meaning each of you, each of our State, local, and Tribal partners, and all of us in the Office of Water—are making the transition from a clean water program based primarily on technology-based controls to water quality-based controls implemented on a watershed basis” (Perciasepe, 1997). One novel solution to the market undervaluation of timber assets would be the enactment of a progressive timber yield tax. Such a tax, by being progressive, could dynamically balance the resource’s short-term value against its long-term value. By fine tuning the tax rate tables, lawmakers could make unsustainable extraction prohibitively expensive, and similarly, continue to provide tax incentives for preservation. Section 38115 of the California Timber Yield Tax Law provides for a flat 6% rate on the “total immediate harvest value” (2003, p. 8). In addition, land zoned as Timberland Production Zone (TPZ) is exempted from property taxation (Ibid., p. 50). This special zoning is subject to certain rules and regulations (Government Code, §51100, et seq. and Revenue and Taxation Code, §423, et seq.) similar to restrictions placed on agricultural land under the Williamson Act (Ibid., p. 58). The Pacific Lumber case illustrates how a resource extraction industry can cause harm to the environment and diminish the amount of a resource available for the common good. Resource extraction is not the only industry having a large effect on the environment. Another example is the large-scale development of real estate to build at the edges of our cities. These developments create sprawl, leading to traffic congestion and increased air pollution, and decrease the amount of available open space. In addition, development often occurs on floodplains of river valleys, which is the best agricultural
land, so we lose productive farmland in the bargain. CHAPTER FIVE
RIVERS AND HIGHWAYS: THE NEWHALL RANCH CASE
I think the issue of sprawl in this county and in this region is one of the biggest if not the biggest environmental issue that we face as a region. …When is enough enough? That's the question that this board should be asking itself, and for those who say, "Well, we waited nine years, why at the 11th hour?" I'm reminded of the words of Barbara Tuckman, the great historian, who defined folly, in her book The March of Folly, as “a perverse persistence in a policy that is demonstrably the wrong course,” and we are on a course that is demonstrably wrong. And I would suggest not just this development and not just this specific plan, but that we need to take a look regionally at what's going on in terms of development in the outlying areas of our county.
…beyond the environmental issues that are generic to the property and to that area, there is the issue of traffic. And while the public hearing was going on, we called Caltrans. And I just want to give you just a kind of an order of magnitude, just to give you a little flavor of what's coming. …This development, on the average, by the testimony of our own public works traffic engineer, will generate 340,000 trips and taking his ridiculous figures at face value that only 10% of those 340,000 are going to ever leave the Santa Clarita Valley on any given day, let's say 35,000 trips a day, and taking his figures that 85% of those or close to 30,000, in the peak hour I should -- sorry, average daily trips, 85% of those 35,000 are going to come down the I-5, that will add to the current estimate of traffic on the I-5 and the 405 somewhere between 10 and 20% to the traffic on those two freeways.
Now, why is that significant? It's obvious -- I think it's self-evident why it's significant. But what really was the straw that broke the camel's back for me was this experience I've had in the last four to six weeks…out in the Conejo Valley…when it came to the issue of widening the 101 freeway through Studio City, Sherman Oaks, Encino and Tarzana, they had no problem with us, with Caltrans and the MTA voting to wipe out a thousand homes to make room for them. So talk about increasing the housing stock? Excuse me? Increasing the housing stock? We are now building a constituency in the North L.A. County area for freeway widening, for home destruction, for condemnation, for double decking, for all of the things that none of us want to see happen in our own backyards, and we're seeing that develop as we saw it now in the Conejo Valley. That's what's coming, and that's not smart growth. …I would urge that this be the last time that we go down this road and that next time, if there is a next time, that somebody comes in with a development plan of this magnitude, the biggest in the history of the county, a 10-fold increase in their entitlements, 10 times: 2000 to 21,000 [homes], that the next time we have something like this happen, that we take a closer look…I know that we have differences of opinion and reasonable people can differ on something of this magnitude, no question about it, and I suspect this'll be resolved some day outside of this room and probably in a court of law, but I do think it deserves a closer look and a closer look at [previous] experience (Meeting Transcript, 2003, pp. 108-114).
Angeles, 2002). The specific plan establishes the development regulations, policies and programs for the implementation of the proposed Land Use Plan. The plan allows for the
following types of land uses:
• 21,615 dwelling units
• 423 second units
• 630 acres mixed use development, including 4,493 of the 21,615
• 67 acres of Commercial uses
• 256 acres of Business Park land use
• 37 acres of Visitor-Serving uses
• 1,106 acres of Open Area
• 5,032 acres in Special Management Areas (permanent open areas)
• 55 acres in 10 neighborhood parks
• a 15-acre lake
• a public trail system
• an 18-hole golf course
• 2 fire stations
• 1 public library
• 1 electrical substation
• 5 elementary school sites
• a 6.9-million gallon per day Water Reclamation Plant
• other associated community facilities, such as roads and bridges
Figure 2. The eventual fate of the orange trees. Once upon a time, Orange County and the San Fernando Valley were known for their luscious orange orchards (taken February, 2005).
Figure 3. A cross-section of the Santa Clara River Valley; if Newhall gets its way, this area will soon be a sprawling development project (taken February, 2005).
Figure 4. Industrial park development in the town of Castaic. The eastern portion of the Santa Clara River Valley can be seen in the distance (taken February, 2005).The Newhall Project involves a myriad of governmental agencies. Table 2 on the following page lists the agency approvals, consultations, or permits that Newhall must obtain before commencing with construction. The film End of Suburbia (Silverthorn, 2004) described how the suburbs began and evolved into what they have become. At first, the suburbs were an escape from the new factory cities that had grown out of the nascent industrialism of the mid- to late nineteenth century. The first suburbs, places such as Llewellyn Park, consisted of large homes in a park-like setting. In the early part of the twentieth century, the street car suburb made its appearance. Developers paid for streetcar lines in order to make the Government Agency Permits or Approvals by Agency U.S. Army Corps of Engineers Sec. 404 permit under the Clean Water Act
U.S. Fish and Wildlife Service
Sec. 7 and/or Sec. 10 consultations as required by the Endangered Species Act
California Dept. of Fish and Game
California Dept. of
Regional water control board
South Coast Air Quality Management District Local Agency Formation Commission
Sec. 1601/1603 permit under state fish and game code
National Pollution Discharge Elimination System permit and Sec. 401 permit under the Clean Water Act Various permits for air emissions regulation found in the Air Quality District Management Plan
Approval of new county sanitation district
The obstacles to energy efficiency in the 1950s and 1960s were tremendous. The postwar housing industry was driven by the demand to produce as cheaply as possible: For both builders and buyers of homes, theFigure 6. On the other side of the river from the housing, office and light industrial space (taken February, 2005).
mortgage payment was the critical concern, not the cost of utilities. By the early 1950s, the price of energy had reached all-time lows, so the economic argument for conservation lost force. The postwar economic boom brought the first taste of affluence to millions of Americans, and the conservation ideal soon ran up against a powerful desire to enjoy pleasures that once seemed extravagant or simply inconceivable for working-class families (Ibid., p. 47).The mass democratization of housing led to a conformity in housing developments that can be easily discerned. These developments are sometimes disparagingly called ‘cookie cutter communities,’ because of the lack of variation in the design of houses, the uniformity of lot sizes, and other factors. Conformity in commercial developments has taken several directions, depending upon whether development occurs within a downtown area (redevelopment) or in a suburban area. Newhall Ranch is of the latter type, and one need only look at Santa Clarita (and Valencia) to see the kind of commercial development offered there: (1) the outdoor strip mall which usually includes a grocery store but may or may not also feature one or more ‘big box’ stores, (2) the large indoor mall shopping center with its host of large anchoring department store chains, (3) the small ‘neighborhood’ strip mall, and (4) clusters of light industrial/office space. There is not much, if any, ‘mixed use’ within this suburban development model, uses are irrationally separated from one another and the car is king, without it one cannot easily get to work or buy food and other necessities. Duany et al. (2000) offered sharp criticism of the suburban model, writing, “Americans may have the finest private realm in the developed world, but our public realm is brutal. Confronted by repetitive subdivisions, treeless collector roads, and vast parking lots, the citizen finds few public spaces worth visiting. One’s role in the environment is primarily as a motorist competing for asphalt” (p. 41). The development that is called Newhall Ranch is described as a self-contained community that will be home to 60,000-70,000 people. Critics complain of the impacts such a large project will have on the environment and that it is a continuation of the urban sprawl model. Figure 7. Traffic makes its way over a bridge across the Santa Clara River to shopping centers in Santa Clarita (taken February, 2005). The suburban model of development continues to be popular for several reasons. First, it is fed by fear. And fear is promoted by the present system. It began with ‘white flight’ from inner cities. While not as blatantly racially motivated as it once was, it is featured on the nightly news broadcasts—it is fear of crime. The suburban model of development suggests that one can be safe locked in one’s home, far from the urban center of unrest. There is a sense of isolation, and not knowing one’s neighbors, a sense of distrust. This way of thinking carries over to the most popular mode of transportation: the private automobile—the second reason the suburban model is so successful. Its opponents have accordingly renamed the project as ‘Newsprawl Ranch.’ Figure 8. Shopping center along one side of the river. Land uses are widely separated, requiring automobile travel (taken February, 2005). According to David Magney, “Newhall has a long history of violating environmental laws, and getting away with it because the state and federal agencies are understaffed, their consultants are gagged, and Newhall contributes handsomely to local, regional, and statewide politicians” (Newhall Ranch Development, 2003, p. 4). Newhall was charged with illegal grading in an area where an endangered plant that was thought to be extinct since 1929, the San Fernando Valley Spineflower, was discovered. Because the grading was intentional, the California Department of Fish and Game (DFG) filed criminal charges against Newhall, but the charges were eventually dropped when Newhall entered into an agreement to dedicate 64 acres as a preserve where the spineflower had been found. CEQA documents reveal that Newhall knew about the endangered plant on the Newhall Ranch property. According to a document entitled “Spineflower Chronology,” (Final Additional Analysis Vol. III, 2003, pp. 803 et seq.) in May 2000 the spineflower was ‘confirmed’ “…in one location, with ‘unconfirmed’ spineflower colonies found elsewhere. Details of the find were not provided to CDFG [California Department of Fish and Game], although they requested it. Access to the colony was also denied.” According to a pre-2002 survey, 2,874,286 spineflower plants were counted at three locations; after grubbing, terracing, and illegal grading by Newhall, 44,063 plants were counted in the same locations (Ibid.). In June 2002, Marlee Lauffer, a Newhall spokesperson, was quoted as saying “we had no knowledge that spineflower were growing in the area…” And, in another article she was quoted, “…we have continued farming operations that have historically been done on that site” (Ibid.). A fax cover sheet dated May 25, 2002, from Steve Zimmer, a Newhall executive, to “Dillon, Worthington” (Tom Worthington is the principal of Impact Sciences, the firm under contract to prepare Newhall’s Environmental Impact Report) was discovered in the documentation for the court case (Newhall Ranch Additional Administrative Record, pp. 118435-118438) containing a hand-written note that said “Interesting article. Check out ‘Routine and ongoing agricultural activities.’” The note referred to a May 2002 California Water Law and Policy Reporter (p. 209.) which stated, in part, “Landowners who participate in … ‘local programs’ by implementing wildlife-friendly agricultural practices are not prohibited by the California Endangered Species Act from incidentally taking non-fish listed species during routine and ongoing agricultural activities.” Responding to the allegation that Newhall had violated the Writ of Mandate issued by Judge Randall on August 2, 2000, the company stated in “Topical Response 8: Compliance with the Court’s Decision” (Final Additional Analysis, 2003, p. TR-60) that “Newhall’s position is that the activities conducted on its Newhall Ranch Property, which gave rise to CDFG and District Attorney concerns, were part of its legitimate on-going agricultural activities.” The Writ had suspended “any or all specific Project activity or activities that could result in an adverse change or alteration to the physical environment…” (Ibid.). After obtaining a search warrant in May 2002, CDFG surveyed “800 acres of ranch at Grapevine and Airport Mesas. CDFG confirmed the extensive presence of spineflower on both mesas…areas surveyed by CDFG…are almost exclusively planned for development…Consequently the great majority of the ‘take’ of spineflower…occurred on land planned to be developed under the Newhall Ranch Specific Plan. CDFG staff concluded that based on the evidence, spineflower would have extended into the flat mesa area (i.e. the development areas) if the areas had not been graded and grubbed” (Final Additional Analysis Vol. III, 2003, pp. 803 et seq.). The Newhall case is distinguished from the Pacific Lumber case in one very important regard: the Los Angeles District Attorney refused to go after Newhall, whereas the Humboldt County District Attorney did go after Pacific Lumber. According to one reporter, the Newhall case was simply a matter of political influence:
Newhall hands $70,000 in campaign contributions to L.A. County Supervisor Mike Antonovich over the course of his career. Antonovich helps invent D.A. Steve Cooley. And Cooley’s minions call off the dogs. …And Deputy Dist. Atty. Diana Callaghan and her supervisor, Richard Sullivan…wanted to throw a felony perjury and conspiracy case at Newhall, arguing the company wasn’t telling the truth about the spineflowers on its property. But they were shoved aside by Cooley toadies who blocked a planned search of Newhall offices, and then filed a single misdemeanor charge against the company. But Cooley wasn’t done blowing kisses at these guys. His office dropped the charge in exchange for the sweetheart 64-acre deal (Lopez, 2003).In contrast, the Humboldt County D.A., Paul Gallegos, refused to drop his case against Pacific Lumber. In an interview for California Connected he said he feared the consequences if he didn’t do what was right, of having to live with himself (Shelley, 2003). The botanist who submitted a specimen of spineflower to the Santa Barbara Botanic Garden for identification was “prohibited from disclosing the exact location [where it was found] by her client, Newhall” (Magney, 2003, p. 3). Newhall’s use of confidentiality agreements with their consultants was an issue of contention, and one of the conditions imposed by the Los Angeles County Board of Supervisors in the final approval of the project was that Newhall make all information available to the County. It is amazing that the County certified the initial Environmental Impact Report (EIR) without knowing all the details about the property. Environmental groups filed a lawsuit (United Water Conservation District vs. County of Los Angeles, et al. 2000), joined by neighboring Ventura County, and the Kern County court determined that the EIR was inadequate. Nonetheless, after additional analysis had been performed to address the court’s specific issues, the Los Angeles County Board of Supervisors approved the “Draft Additional Analysis” in May 2003 and gave the project the go ahead. It was reviewed by the Kern County court and was finally given the court’s blessing in October 2003, after Ventura County dropped out of the suit. In return for Ventura County’s dropping out, “Newhall Land will dedicate to the public 1,517 acres of the Salt Creek wildlife corridor, a natural animal travel route in Ventura County” (Sullivan, 2003). Now, “The Army Corps is the last regulatory body that must sign off on the Newhall Ranch project as a whole” (Stillar, 2004). The Corps of Engineers filed a Notice of Intent in the Federal Register, January 29, 2004. On February 19, 2004 the Army Corps and the CDFG jointly held a public meeting “to accept comments on possible environmental concerns and other issues of public interest for the proposed Newhall Ranch project” regarding issuance of a Section 404 Permit from the Corps and an Incidental Take Permit from the CDFG (US Army Corps of Engineers, 2004). As a direct response to the Newhall Ranch spineflower incident, Assembly Member Jackson filed Assembly Bill 406 (Jackson & Pavley, 2003) to have the environmental review process strengthened. In particular, confidentiality agreements would be disallowed. The bill passed in the Assembly but did not have sufficient support in the Senate and died in committee at the end of the 2003-2004 legislative session. The California Chamber of Commerce opposed the measure because it “impeded affordable housing by placing more restrictions on project applicants”; specifically, it prohibited “enforceability of confidentiality agreements” and mandated “unrestricted property access for public agencies, staff or consultants” (Floor Alert, 2004). Joining the Chamber of Commerce in opposition to AB 406 were the following organizations:
• California Association of Realtors
• California Building Industry Association
• California Business Properties Association
• California Cattlemen’s Association
• California Council for Environmental & Economic Balance
• California Farm Bureau Federation
• California Manufacturers & Technology Association
• California State Council of Laborers
• Construction Materials Association of California
• Consulting Engineers and Land Surveyors of California
• Home Ownership Advancement Foundation
• Resource Landowners Coalition
• Sempra Energy
• Southern California Edison
• Tejon Ranch Company
• Western States Petroleum Association (Ibid.)
Federal designation for the species is important because the state and federal governments analyze development impacts differently…, the federal part of the process is coming up, primarily with the Army Corps of Engineers. The Corps analyzes impacts on wetlands under the Clean Water Act. The spineflower isn’t a wetlands species, but if it has endangered status, it is something that would be considered during the federal analysis. We hope the Army Corps will look more broadly (than the state) to protect the spineflower. And if enough species in the area are federally protected, it could create a nexus that would prompt a higher level of federal involvement through a habitat conservation plan, a tool used to protect multiple endangered species. EDC eventually intends to seek such a plan for the Newhall Ranch (Worden, 2003).Another, and arguably the more important, aspect of Newhall is the availability, or rather the lack of availability, of water. The scope of conflict involving water has quickly moved into the courts. In order to satisfy Newhall’s demand for water, the Castaic Lake Water Agency (CLWA) entered into an agreement to purchase water from the Kern County Water Agency. CLWA certified an EIR which was based upon an earlier EIR. This practice is known as tiering. A public interest group, Friends of the Santa Clara River, filed a lawsuit challenging the adequacy of the EIR prepared by CLWA. Friends was unsuccessful in trial court, but while appeal was pending, the Court of Appeal for the Third Appellate District found the earlier EIR inadequate and ordered it decertified. Since the CLWA EIR was tiered upon this now decertified EIR, the Court of Appeal for the Second Appellate District reversed and vacated the CLWA EIR (Friends
of the Santa Clara River v. Castaic Lake Water Agency, 2002). The Santa Clara River Valley, is eloquently described by Mike Davis in his book Ecology of Fear (1999):
More than a generation after the last fruit trees were bulldozed to make way for tract houses in the San Fernando and San Gabriel Valleys, the Santa Clara River Valley still looks much as it did before 1940. Here, the formal order of the orchards offsets the wild angularity of the sedimentary hills. The citrus towns of Piru, Fillmore, and Santa Paula initially strike the hyperreality-hardened visitor as movie sets or nostalgia theme parks with all the hackneyed charm of Norman Rockwell paintings. There are no mini-malls or fast-food strips, just quiet main streets with old-fashioned stores, soda fountains, and the town movie theater. It is shocking to realize that these are, in fact, real towns, homes to orchard owners and their Mexican workers, and not just clever simulations designed for the pleasure of tourists (p. 59).Davis described the geography of Los Angeles—how the L.A. basin was a huge alluvial floodplain subject to flooding from the Los Angeles River. He wrote,
Olmstead and Bartholomew emphasized…that flood control could be accomplished by different combinations of landuse [sic] planning and public works. Their preference was to strictly limit private encroachment within the 50-year floodplain. They wanted to conserve broad natural channels in which storm waters could spread, irrigating and fertilizing the riverside landscapes that out of flood season would serve the public as nature preserves, recreational parks, and scenic parkways.
The opposing solution was to deepen and ‘armor’—that is, pave— a narrow width of the river’s channel in order to flush storm runoff out of the city as efficiently as possible, and thus to allow extensive industrial development within the floodplain. Beneficial to large landowners, this strategy would force the natural river into a concrete straitjacket— destroying the riparian ecology and precluding use of the riverway as a greenbelt (Ibid., p. 69).The Santa Clara River is the last wild river in Southern California. We now know that all of the area’s other rivers have been “hardened.” Opponents to the Newhall Project have focused on endangered species that inhabit the river as a way to slow the development. The project is now seeking its Section 404 permit from the U.S. Army Corps of Engineers. Environmentalists are hoping the presence of endangered and threatened species will help to make Olmstead and Bartholomew’s vision of limited encroachment on the floodplain a reality. Figure 9. Southern California’s last wild river, the Santa Clara River (taken April, 2004). Figure 10. The Santa Clara River in Los Angeles County (taken April, 2004). Figure 11. In the same general vicinity, the Santa Clara River—after the heavy rains of December, 2004 and January, 2005 (taken February, 2005). Finally, another quality of life issue, traffic, is already a problem on Interstate 5. Another city of 60,000-70,000 people is not going to make things any better. The Southern California Association of Governments (SCAG) has recently adopted its 2004 Regional Transportation Plan, Destination 2030. This plan covers a huge geographic area—it is truly a regional effort, involving six counties and numerous towns, cities, and unincorporated communities—and is the type of planning that must be done in response to such huge development projects as Newhall.
Figure 12. The relatively lightly traveled Highway 126. In the near future this section of the highway will be heavily traveled. The tower in the distance marks the location of Six Flags Magic Mountain amusement park. The author’s shadow appears in the foreground (taken April, 2004).Although the Newhall Ranch Project is in Los Angeles County, the scope of conflict with regard to traffic tends to be regional. The Newhall Ranch Project is a good example of this concept: The Los Angeles County Board of Supervisors approve a project that will have spillover effects on the residents of the City of Santa Clarita and Ventura County. Of course air quality and traffic go hand in hand. So another player enters the picture: the Air Quality Management District (AQMD). This represents yet another change in the scope of conflict. Clearly a project the size of Newhall has impacts well beyond the immediate project area. It is understandable that litigation would be taking place, given the spillover effects the project will have on other areas. Ventura County has been a party to many of these proceedings because it neighbors the project to the West, and the Santa Clara River flows through Ventura County on its way to the Pacific Ocean. It meanders through Ventura County’s “citrus belt,” and one of the fears is that any changes to the hydrology of the river could affect agriculture in the area. The effect on the residents of the nearby municipality, the City of Santa Clarita, will be tremendous. Although the project may afford some opportunities to these residents, it is not clear whether those benefits will be worth it, given the impacts on their quality of life—particularly traffic and air quality.Figure 13. Zoning began with the best of intentions. But today it seems that cities are saddled with irrational compartmentalization (taken February, 2005). CONCLUSION The usual approaches to environmental problems are largely symbolic and often ineffectual. This is because the existing paradigm relies on development for its very existence. As Smith (1998) wrote, “…we are unable to engage in a profound reassessment of this productivist/industrialist/expansionist ethic because its utopian profile is central to the very construction of Western consciousness” (p. 6). “It is neither possible nor necessary to exhaust the content or totalitarian character of productivist discourse. It is the air we breath. It is the blood in our veins” (Ibid., p. 11). The prevailing view of reality has prevented people from even being able to see the problem. According to Smith, we continue to see the problem as the type of consumption, rather than consumption itself as the problem. Our cultural environment is so pervasive that we are in many ways simply blind to it. In the popular film, The Matrix (Wachowski & Wachowski, 1999), the character Morpheus says to the character Neo, “You have been blinded by the world that has been pulled over your eyes.” We are like the fish whose last discovery is water. As some writers suggest, perhaps only through a complete paradigm shift will a lasting solution will be possible. It is doubtful, however, that the prevailing viewpoint can be turned on its head—resulting in a completely new way of looking at reality. In order for such a shift to take place and become the norm, a majority of people would need to adopt a more ecocentric perspective. Given the political climate in America, such a shift indeed seems unlikely. Is a paradigm shift even possible? The radical ecologists, representing the ecocentric point of view, offer the only other paradigm—generally the viewpoint held by indigenous people before industrialization. This viewpoint continues to be marginalized, however, primarily because it contradicts the basic thrust of Enlightenment thinking: the idea of progress. The alternative viewpoint is seen as a regression to a more simple primitive state from a more advanced technological state. Given that advanced technology has already “proven” itself through many improvements offered by modern life—the many conveniences Westerners take for granted—there is no incentive for overthrowing the industrial hegemony. As quality of life deteriorates, and more people question the status quo, the industrial hegemony tends to accommodate those challenges through green marketing, symbolic legislation, and restructuring through globalization, permitting industry to relocate externalities to underdeveloped countries that are more accommodative. Underdeveloped countries are not likely to restrain themselves, in the name of the greater good, from seeking a higher quality of material life. As seen after the depression in postwar America, middle class people wanted to avail themselves of the new conveniences that industrial society afforded them. As Brown (2001) noted in his book Eco-Economy, the Chinese plan to base their economic growth on the automobile (p. 17). Can the world really afford to double the number of cars without straining existing oil supplies and increasing greenhouse gasses? There is no new technology on the horizon to solve this dilemma. As pointed out in the film, End of Suburbia (Silverthorn, 2004), hydrogen fuel cells are not the answer for the simple reason that it takes electrical energy to create hydrogen. The hydrocarbons that we burn to produce much of our energy are a form of stored sunlight that took many millions of years to accumulate. Yet, the West is consuming this resource at an alarming rate. How can we expect the underdeveloped world to show restraint when we have not? In the West, a growing minority continues to be dissatisfied as quality of life continues to deteriorate. Much of this deterioration is caused not so much by the industrial processes as by the products themselves. Much of the air pollution is caused by the vast number of cars and trucks congesting the nation’s highways. This congestion also contributes to long commutes—another loss in quality of life. As a result, the pace of life has increased, as more people try to accomplish their goals in less time. This malady of haste has led some to seek the simpler way of life represented by the alternative viewpoint. Some books have been published, and there are a few proponents of this lifestyle, but the mainstream media does not embrace the idea that “less is more.” The mainstream media, if anything, seems to have accelerated its pace to an even more distracting level. Those who are caught up by the mainstream media seem to exist in what Kunstler called “the consensus trance” (Ibid.). Those who oppose such development projects as Newhall Ranch, oddly enough, have something in common with those who protest globalization at World Trade Organization (WTO) meetings. What these two groups oppose is the herd conformity— or consensus, if you prefer. This acquiescence to the prevailing viewpoint was expressed by Lessig (2002) in his book, The Future of Ideas, when he wrote about the future of the Internet—the direction we are taking. “The one we are taking is easy to describe. Take the Net, mix it with the fanciest TV, add a simple way to buy things, and that’s pretty much it. It is a future much like the present. … The promise of many-to-many communication that defined the early Internet will be replaced by a reality of many, many ways to buy things and many, many ways to select among what is offered. What gets offered will just be what fits within the current model of the concentrated systems of distribution: cable television on speed, addicting a much more manageable, malleable, and sellable public” (p. 7) [emphasis added]. Smith wrote “According to many who write about consumerism, most people are trapped by their own herd instincts in obedience to advertisers. At the same time, it seems that the captains of capitalism feel compelled to reassure shoppers that they are responding to the demands of their customers” (1998, p. 28). And who are these customers? “It seems that the consumer is much like a goat … the aimless creature, with its attraction to glittering trinkets, wanders erratically about, consuming anything ...” (Ibid., p. 8). The kind of conformity protested at WTO meetings is that of the American business model exhibited by the large, successful corporations: chains of stores and fast food restaurants. It is also expressed by the large brands. Brand imaging allows the seller to differentiate a product which is really quite homogeneous—such as cola. Defenders of branding argue that the brand breeds confidence—and if the product injures there is recourse to the seller of the brand. One could argue that money spent advertising different brands could instead be spent just making sure the product was safe in the first place. Conformity is one of the key forces of conservatism. It is the illusion that everyone is the same: the same as everyone else around and also the same as everyone was yesterday. The psychology of conformity is deeply rooted in the psyche, it’s an ‘us’ versus ‘them’ phenomenon that has much to do with how we identify ourselves. But if one is always the same, how does one change? Change is inevitable. It is said that it takes seven years for all the cells of the human body to completely replace themselves. If that is the case, the body is literally not the same seven years later. Yet, we still have the perception of being the same person. Apparently conformity is important for maintaining that sense of self, as well as the culture that the self exists within, that continues “unchanged” from day to day. It simply is not possible to be a completely new person every day; though the idea may have appeal to some, it would result in chaos. Instead, change usually occurs incrementally, almost unnoticed, in front of our very eyes. There have been rare occasions of radical change throughout history, brought on by new inventions and sudden innovations. But as Lessig argued, innovation tends to be stifled as “the kings of yesterday…protect themselves against the kings of tomorrow” (2002, p. xix). Rather than argue for radical change, I believe that a model for “accelerated” incremental change may point the way to a solution. The first component of such a model is Callicott’s notion of stewardship:
The Judeo-Christian stewardship environmental ethic…has much greater potential than so far tapped to enlist the support and energies of a sizable segment of the public on behalf of environmental concerns. For the very large community of people who accept its premises—who believe in God, divine creation, a preeminent place and role for human beings in the world, and so on—it represents, in my opinion, the most coherent, world, and so on—it represents, in my opinion, the most coherent, 194).As Wallis wrote, “God’s politics challenges narrow national, ethnic, economic, or cultural self-interest, reminding us of a much wider world and the creative human diversity of all those made in the image of the creator. God’s politics reminds us of the creation itself, a rich environment in which we are to be good stewards, not mere users, consumers, and exploiters” (2005, p. xv). The second component of the model for accelerated incremental change is Dryzek’s notion of environmental problem solving, which relies on traditional liberal democratic problem-solving methodologies:
Environmental Problem Solving is defined by taking the politicaleconomic status quo as given but in need of adjustment to cope with environmental problems, especially via public policy. Such adjustment might take the form of extension of the pragmatic problem-solving capacities of liberal democratic governments by facilitating a variety of environmentalist inputs to them; or of markets, by putting price tags on environmental harms and benefits; or of the administrative state, by institutionalizing environmental concern and expertise in its operating procedures (1997, pp. 13-14).
In particular, market-based solutions are beginning to show promise. The Kyoto
Know Anyway? (Arntz, 2004) introduced the ideas of quantum physics to the masses. I believe this film represented an attempt by the producers to set a paradigm shift in motion. Their goal was to reach 100 million people and to begin a dialog about the ideas in the film. In the competing marketplace of ideas represented by the media, however, the film is perhaps only a bleep on the radar screen. But at the very least the film may suggest a more “spiritual” direction in the science education curriculum. According the Buhner,
Public schools are completely enveloped in the perspective that the universe is not alive. The entire curriculum, except for a rare literature course or unique teacher, contains this embedded communication. Every day for the twelve to twenty years of formal schooling children are taught that they are alone on a ball of rock hurtling around the sun and that the other residents of that ball of rock are ‘resources’ to be used or managed. The textbooks, their authors, and the teachers are all presented as authorities on the nature of reality, and the universe-as-machine epistemology is carefully inculcated in the children. Despite the fact that increasing numbers of scientists acknowledge that mechanistic reductionism is either incorrect or has serious limitations, it continues to be taught (2002, p. 67) [emphasis added].If science educators can embrace the human need for spiritual meaning in life, and allow for the mystery of life to have a place in the science curriculum, then change for the better is possible. By bringing on board the intelligent design contingent and the Christian stewardship contingent, a critical mass could be achieved, leading from incremental change to a true paradigm shift, a new way of looking at reality. Individuals need to start learning to give up some of those material luxuries that set them apart from their common fellow men; the sooner they do so, the faster they will embrace the change in their world. Rifkin wrote of this change in his groundbreaking new book, The European Dream:
Stripped to its bare essentials, the European Dream is an effort at creating a new historical frame that can both free the individual from the old yoke of Western ideology and, at the same time, connect the human race to a new shared story, clothed in the garb of universal human rights and the intrinsic rights of nature—what we call a global consciousness. It is a dream that takes us beyond modernity and post-modernity and into a global age. The European Dream, in short, creates a new history. …If the European Dream represents the end of one history, it also suggests the beginning of another. What becomes important in the new European vision of the future is personal transformation rather than individual material accumulation (2004, pp. 7-8).Not all writers are as optimistic as Rifkin. In an alternative vision of the future, Reg Whitaker, in his book The End of Privacy, painted a harsh picture of the new “political economy of cyberspace”:
Neither individual free enterprise nor an aggressive interventionist state are particularly relevant to the new political economy of cyberspace. Hardware and software are produced by corporate giants such as IBM and Microsoft, and the infrastructure of the Internet is currently a bone of contention between the telephone and media/cable giants. The real frontier is the commodification of information by capital. To shift metaphors, cyberspace is like the commons under attack from enclosures. The relentless emphasis in recent years on 'intellectual property' as a crucial element in international trade agreements points us clearly in the direction that the so-called Information Revolution is traveling. The architecture of cyberspace may well look very much like William Gibson's fictional vision: vast, mysterious collections of data looming like megafortresses fiercely guarded by giant corporations—while the 'real world' wallows in urban squalor, petty criminality, violence, and tawdry escapism (1999, pp. 68-69).This evokes the image of the siege mentality—one of holding the gates against the barbarian hoards. Davis (1998) wrote that “Los Angeles alone has adopted an official nightmare” (p. 359) and pondered “…what kind of dystopian cityscape, if not Blade
Runner’s, might the unchecked evolution of inequality, crime, and social despair ultimately produce?” (p. 362). Davis then proceeded to “…offer an extrapolative map of a future Los Angeles that is already half-born”:
…the spatial hierarchy into which the struggle for the survival of the urban fittest supposedly sorts social classes and their respective housing types. As imagined by academic social Darwinism, it portrays a “human ecology” organized by the “biological” forces of concentration, centralization, segregation, invasion, and succession. My
remapping…preserves such “ecological” determinants as income, land value, class, and race but adds a decisive new factor: fear.
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