When I wrote papers in law school, I often succumbed to a particular temptation– to write long, source-packed footnotes whose main purpose was to demonstrate that I’d read a bunch of interesting stuff, or managed to chase down a slightly difficult but ultimately irrelevant point. This is ultimately not a habit that is kind on the reader. (Sorry, Carol Rose and Bob Ellickson!) But consider this blog post an entry in the same genre.
The frantic “Save Trestles” stories from Surfrider sparked my curiosity about where “they” could possibly be building a road that would threaten a beach break, who “they” were, and what was going on. So far as I can tell, the following things are true. A state agency called the Transportation Corridor Agency had plans to extend the 241 toll road, which would fork off of I-5 and run north (and inland of the interstate). The road would have gone through San Onofre State Park, where it arguably would have impacted the sand and water drainage in a way that ultimately might have disturbed the beach break at Trestles. The California Coastal Commission and U.S. Secretary of Commerce ultimately invalidated the plans, in part because there was an alternate route for the road that didn’t go through the park.
The Transportation Corridor Agency now wants to build a small chunk of the road, presumably with plans to keep extending it in the future. The chunk may be consistent with both the original and alternate route (I can’t tell).
So far so good. One reason for Surfrider to be concerned is that the alternate route really is inferior– the new toll road wouldn’t actually intersect with the interstate, but would instead require a short drive over surface streets to get from one to the other. And for that reason, I find it easy to imagine that once the road has started, there will be strong political pressure to connect it to the interstate after all. But even imagining that to be true, I’m not sure which way it cuts. If the justification for for bidding Option 1 is the adequacy of Option 2, then the undesirability of 2 might just reinforce that 1 was okay all along.
There’s also room for an observation here about incentives, environmentalism, and the public trust. When the government wants to build a road through private property, the law of just compensation forces it to (roughly) internalize the costs it imposes on those whose land it takes. But when the government builds a road through public property with environmental benefits or uses, it imposes costs too. It’s just that those costs aren’t commodified and aren’t compensated. (Hence the idea of the public trust.) Ideally, the government would consider those costs too, but I rather doubt that it works that way.