A new report from Environmental Defense, Everybody Wins: Lessons from Negotiating Community Benefits Agreements in Los Angeles, fleshes out some crucial differences between those pioneering CBAs and the "historic" CBA "negotiated" between Forest City Ratner and eight groups, most of them established after the Atlantic Yards project was announced.Notably, the groups participating in the Staples Center and Los Angeles Airport CBAs based their negotiating position on responses to flaws in the environmental impact review (EIR). The Atlantic Yards CBA was signed on 6/27/05, three months before the Empire State Development Corporation (ESDC) even issued its Proposed Scope of Analysis for the Preparation of a Draft Environmental Impact Statement (EIS) and more than a year before the Draft EIS was issued.
Bettina Damiani of Good Jobs New York made this point in her 5/26/05 testimony to the New York City Council, testimony that was ignored by the media at the time:
Perhaps the most striking is that elsewhere CBAs are negotiated by one broad coalition of groups that would otherwise oppose a project, a coalition that includes labor and community organizations representing a variety of interests.... In the BAY case, several groups, all of which have publicly supported the project already, have each engaged in what seem to be separate negotiations on particular issues.
Responding to the environmental review
In Los Angeles, according to the report, local organizations--environmental, labor, and community groups--had the power to disturb the environmental impact review process:
All new developments in the state are subject to the California Environmental Quality Act (CEQA). CEQA requires that a public agency, such as the City Planning Commission, evaluate a project’s environmental impact. A draft environmental impact report (EIR) contains this analysis and must be prepared and circulated for public comment before construction can be approved by the government body. This final approval may be challenged in court by groups on the grounds that it does not meet CEQA’s substantive and procedural requirements. A successful challenge forces the agency to repeat the EIR process to ensure that there is an adequate assessment of environmental impacts. The process is costly and time intensive for the agency.
In Los Angeles, the groups negotiating the CBAs cared about environmental impacts. In Brooklyn, well, ACORN's Bertha Lewis was candid: "But we decided if we could make one nudge, one impact, what we could do, what we could kick ass on, it would be housing. I can't kick ass on environment, just can't. Can't do it on density, just can't. It’s reality. Of all the things that are happening in central, downtown Brooklyn, throughout Brooklyn--this is like a goddamn tsunami... So if I could stop one iota of gentrification, I’ll do it. I can't do environment. I can’t do traffic."
Well, ACORN's expertise is housing; however, the group tasked with environmental guarantees, Brooklyn Endeavor Experience, doesn't have to do anything, since the developer is in compliance by following the state-mandated process.
The Staples Center CBA
The coalition of 29 groups, the Figueroa Corridor Coalition for Economic Justice (FCCEJ), saw that the Staples Center’s EIR lacked an energy analysis:
The FCCEJ’s EIR comments, supplemented with 40 pages of additional analysis, clearly demonstrated that FCCEJ could threaten to disrupt the entitlement process. Because the project required public financing, public hearings were required by law. At the very least, FCCEJ could use the public hearing process to ensure that the EIR appropriately accounted for impacts on the community and offered mitigations if the community was to be negatively affected by the project. An inadequate EIR and/or unwise project could be delayed by the community or derailed entirely—which gave FCCEJ considerable power.
One of the five lessons learned from the Staples Center CBA regards challenging the review:
4. Research, data, and a willingness to use them count. FCCEJ was able to present a level of professionalism through extensive EIR comments—demonstrating to both the city and the developer that they were serious about fighting the project. The energy omission in the EIR was enough to convince the developer that FCCEJ could file a winnable lawsuit, and that was not a risk that they were willing to take. Instead, the developer chose to sit down at the table with FCCEJ.
In Brooklyn, the groups challenging the project have filed a lawsuit, but it may be harder in New York state to win in court.
The LAX CBA
The CBA for the airport expansion also revolved around responses to the EIR:
Between February and June of 2003, [attorney Jerilyn] Lopez Mendoza and LAANE [Los Angeles Alliance for a New Economy] brought a breadth of knowledge about organizing and research to work by talking to churches, civic groups and school boards. “We looked at organizations that had previously fought against airport expansion and were traditional partners,” Reverend William D. Smart, Jr. of LAANE said. “We did our research on who had previously responded negatively on the EIR.”
The coalition had 25 members. The CBA grew out of comments on the EIR:
The LAX Coalition began by presenting a list of programs and studies that the airport could do in order to mitigate damage attributable to airport expansion. The initial list was comprised of the earlier EIR comments submitted by the groups. These composed the “wish list” of all of the mitigation measures and programmatic components that the groups wanted.
One of the eleven lessons learned:
10. Don’t narrow down your “wish list” too early. At the start of the process, the LAX Coalition walked in with a list of 80 items pulled out of EIR comments on the Master Plan. This was quickly narrowed down to a short list of 30 possible mitigation measures. In some respects the LAX Coalition gave up too soon.
Steps toward a successful CBA negotiation
A chapter titled "Steps toward a successful CBA negotiation" outlines a process far different than the developer-driven one that occured in Brooklyn. One piece of advice:
Get the facts to evaluate impacts and solutions. A clear list of impacts and potential solutions is needed on the community side. Sharing this information with project developers (particularly the effectiveness of specific solutions) is essential.
Another, on negotiations:
Don’t be afraid to play the “bad cop.” Utilize (or threaten to utilize) lawsuits and negative press as a way to slow down the development process. When groups flex their collective power, developers and government can be scared enough by the costs (both financial and political) of a slowed-down development to want to move the process forward.
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