The Biggest Flaw in the City's Stadium EIR Plan: Litigation

On Tuesday, July 14th, the City Council approved the expenditure of $2.1 million to fund a quickie, poorly designed EIR on a new proposed stadium.  There are all sorts of flaws with this plan, many of which have been discussed in depth and need not be repeated.  But it seems a lot of people, including the City, are ignoring the elephant in the room, always present when we are talking about CEQA: the resulting litigation.

Let's remember the context. The point of the EIR is to convince the NFL to force the Chargers back to the negotiation table.  The Chargers walked away, claiming that the current timeline is impossible and there can be no solid stadium plan in San Diego before they have to decide whether or not to move to LA early next year, if not sooner.  In essence, the expedited EIR is being completed only to prove that San Diego is progressing towards a risk-free stadium plan that will be final before the NFL owners vote on whether to allow an NFL team to relocate to LA.  If a solid plan is in place by then, the City contends, the Chargers don't need to apply to move and, if they do, the NFL owners should deny the request because San Diego came up with a workable plan to keep the team.

The timeline to fulfill this dream is tight.  The City concedes it needs to have a complete EIR done before the City can call a special election in December or January to approve any stadium deal.  Faulconer and Jan Goldsmith contend that an EIR can be completed by mid-September to allow the Council to call the special election for sometime in December or January.  According to Faulconer, if the voters approve the stadium in January, San Diego will have fulfilled its burden of proving the Chargers have a viable, dependable way to stay in San Diego.  Once that vote happens, the process is done. Or so the City contends.

The Chargers, however, have never really been concerned with whether there will be a complete, certified EIR by September to allow a vote in January.  The Council could certify a blank piece of paper as an EIR tomorrow.  Instead, the Chargers are focused on the resulting litigation. As Fabiani said in June: 

Based on all of this work and discussion, the Chargers have concluded that it is not possible to place a ballot measure before voters in December 2015 in a legally defensible manner given the requirements of the State’s election law and the California Environmental Quality Act. The various options that we have explored with the City’s experts all lead to the same result: Significant time-consuming litigation founded on multiple legal challenges, followed by a high risk of eventual defeat in the courts.

What Faulconer and Goldsmith are missing is that even if an EIR is completed, and even if the City Council calls a special election, and even if the voters approve it, the EIR will still be embroiled in litigation in January.  The Chargers will be able to argue that until that litigation is resolved, any San Diego plan is too risky to rely on and they cannot abandon their plans in LA.

At the latest City Council meeting, Jan Goldsmith mentioned that the City is working with Speaker Toni Atkins to pass legislation allowing for expedited litigation.  This is not unprecedented in California.  The first time the Legislature tried to create expedited CEQA litigation, they mandated that a legal challenge had to bypass the trial court and go straight to the Court of Appeal, essentially creating a shortcut.  But a judge struck down that law as unconstitutional.  The Legislature tried again for the new NBA arena in Sacramento, this time allowing the challenge to be first filed in the trial court.  In Public Resources Code 21168.6.6, codified by AB 743, the Legislature directed the courts to create a 270-day review deadline for any litigation challenging the EIR for the arena.  The Judicial Council complied, but its analysis seems to suggest that the 270-day timeline is nearly impossible, if not illegal.  As the Judicial Council also notes, the 270-day timeline doesn't include Supreme Court review, which could extend the litigation several years.

Even assuming everything works flawlessly in the EIR prep time and in the court litigation, 270 days from mid-September 2015 pushes the end of litigation to mid-June 2016.  The Chargers can accurately argue that any potential stadium in San Diego is on shaky ground until the end of litigation in June 2016.  If the EIR is invalidated in court, it seems like the public vote becomes invalid and a new election would have to be held, costing many millions more and ensuring even greater delay. The result is further delay and no stadium plan, as the Chargers foresee.

And that's assuming the Legislature passes such a law.  It doesn't appear any legislation has been introduced.  With the past statutes, the Legislature required the draft EIR to include certain language about the expedited litigation process.  The City is talking about having a draft EIR done in mid-August.  Knowing how our state Legislature works, it is impossible to have a new statute enacted by mid-August.  Most likely, the EIR will be subject to the normal timeline for CEQA lawsuits, which can take multiple years.  (The CEQA lawsuit over the EIR for SANDAG's RTP took over three years after filing to be resolved by the Court of Appeal, and is still under review by the Supreme Court.)

Thus, even if the EIR is done, nothing will change the Chargers' contention that if has to try to move to LA because San Diego cannot promise a risk-free stadium plan before January 2016.  Faulconer and Goldsmith will argue they will win any lawsuit, but the Chargers disagree.  After the City Council vote, Fabiani made this exact argument:

The most that stadium and arena projects have gotten is legislation that speeds up the judicial review of a completed and certified EIR. That is the most that San Diego could get. And of course this would not save the San Diego quickie EIR from judicial review –we are confident that it will be thrown out of court at the earliest opportunity because the way the EIR is being conducted, along with the extreme haste of the process, are direct CEQA violations.

The NFL seems like it has always accepted the Chargers' opinions over the City's since this stadium debacle started.  Nothing suggests a different result here.  Moreover, the Chargers don't even have to prove that the EIR will certainly fail.  All they have to do is convince the NFL that there is a substantial risk of an adverse outcome in the courts such that abandoning LA would be a bad business decision.  Jan Goldsmith can argue he will win, but he can't honestly guarantee a win.  Without that guarantee, it is unlikely the NFL will side with the City over one of its own owners.

Bottom line, any EIR in California cannot be considered to be "complete" until litigation is over, NOT when it is certified by an agency.  Faulconer and Goldsmith are ignoring this fact, and as a result wasting our City's money on a pointless EIR that, regardless of the merit, is inadequate to force the Chargers to stay.  It would be far better to abandon the plan for a new football stadium and move on to better uses of our money and resources.  Like redeveloping the stadium site and using the proceeds to fix Balboa Park.