Nevada’s Grand Bluff (or Clever Sting): SB 271

The Setting:

In contrast to California, Nevada doesn’t have very many people. And, it doesn’t have much of an economy outside of gaming and mining. Politically, its delegation in Washington DC is tiny. The members of its state legislature represent districts populated by very few people. California, on the other hand, is the most heavily populated state in the union and roughly the 9^th largest economy in the world.

Unfortunately, however, many people in both of these states are not really aware of these realities. Moreover, many people in each state also don’t understand governmental processes. And, as it turns out, that ignorance can and does allow Nevada, which actually has very few cards in its deck, to pretend otherwise

The Set-up:

Disgruntled by restrictions on development in the Lake Tahoe Basin by the Tahoe Regional Planning Agency (“TRPA”) created in 1969 by a Congressionally approved bi-state Compact (“Compact”), and experiencing declining gaming revenues, Nevada signed into law SB 271, in an effort partly to bolster its economy. A bold tactic worthy of praise from card sharks and high rollers, the statute promises the destruction of the TRPA by Nevada’s withdrawal from the Compact unless certain economic and political demands are met.

That the Compact and the TRPA were created exclusively for the environmental protection of the fragile ecosystem of Tahoe via the establishment and enforcement of “environmental thresholds” and not for economic stimulation is irrelevant. Wishing to appear to be doubling down on this threat, Nevada’s message was that the TRPA would become an engine of economic growth at Nevada’s behest or cease to exist.

Among the most central demands are two:

First: The TRPA would have to draft and approve a new Regional Plan Update (RPU) as a 20 year blueprint for unprecedented growth. The counties that border the lake, along with the City of South Lake Tahoe (referred to as “the local jurisdictions”), would have greater authority over development than ever before in the history of the TRPA.

For environmentalists, such a plan would restore the urban forces of environmental destruction of the 50s and 60s that resulted in the creation of the TRPA. For developers, it is their dream come true: unrestricted development (rhetorically greenwashed in language to make it sound rooted in modern science and environmental protection). It would be “build baby, build!”

In a very subjective fashion, Nevada would monitor the nature of the RPU and rescind this particular threat for withdrawal if the RPU coincides with Nevada’s economic wishes.

Second: California would have to agree that the current TRPA governing board voting arrangement which requires a majority of representatives of both states to approve development in the Basin would end. Nevada would no longer need California’s approval to do what it wants on its shoreline.

This, however, is an entirely different threat. Regardless of what happens in response to #1 above, since this demand is a structural governance change, it would require the approval of California’s legislature and Congress. And, all parties understand and agree that California will NEVER approve of this change.

Most believe that this was a foolish oversight born of hubris on the behalf of Nevada’s legislature because it automatically put the states on a collision course requiring Nevada’s withdrawal from the Compact or the removal of this provision from the statute. Oops.

The Fearsome Scare Tactic of a Stacked Deck:

Absent the acquiescence of the TRPA and California to these demands, Nevada will terminate with prejudice the federal agency by pulling out, officially restoring the 50s and 60s.

This threat led California’s Senate Pro Tempore, Darrell Steinberg, in a letter written in 2012 to the bill’s author to state: SB 271 is both unnecessarily inflammatory and deeply counter-productive to the collegial relationship our two states have had on these matters. One can only imagine how leaders in Nevada would react if California were to take similar action. It is both surprising and disappointing to see a national treasure as important as Lake Tahoe become a political hostage to the agenda of special interest groups who have little interest in the many values the region provides.

And, remember, it isn’t just Nevadan developers who are eager for the profits of ravaging this national treasure. The Resort Industry (particularly the ski industry) is now nationally organized and funded by Wall Street. Tahoe is just the latest target for elite corporate acquisition.

The Bluff and a Sleight of Hand Worthy of a Con Man’s Praise:

In spite of the awkward commitment to have to repeal all or part of SB 271 due to the voting change mandate that California would never approve, development supporters, in and out of the TRPA, cleverly structured the debate to ignore this inconvenient fact by focusing exclusively on the RPU demand.

They make it appear that the Compact can be saved if the RPU allows for the economic growth demanded; they ignore the dilemma of the collision course prompted by the voting issue. It appears that their assumption is that since most people are not politically astute, this will be forgotten; the public mind will come to believe that providing the RPU is satisfactory no action will need to be taken regarding SB 271 at all.

This, of course, is not true. The fact is that Nevada must repeal the legislation regardless of the RPU, due to the voting change mandate in order to preserve the compact. And, they will do that because they do want to keep the compact. They are not really interested in destroying the bi-state agency for three reasons: 1) Its delegation generally gets what it wants; 2) They don’t want the multi-faceted

calamities that would follow the end of the TRPA; 3) There are plenty of Nevadans who are embarrassed by SB271 and don’t want the TRPA destroyed.

It was always just a hollow threat, a bluff, masterfully carried out with superb dexterity. There is nothing for Nevada to gain by dismantling the bi-state compact. If it were it to be dissolved, there would have to follow the cumbersome creation of a Nevada TRPA and a California TRPA. In addition, it would terminate the Basin as a Metropolitan Planning Organization able to obtain federal dollars. Similarly, it would cease to qualify for California money consistent with SB 375 as a supposedly sustainable community. Then there is also the matter of the myriad governmental existing and proposed contracts regarding everything imaginable that would have to be rewritten since the agency in charge of governance since 1969 would no longer exist. And, as a testament to a general revulsion of the tactic of threats, the author of SB 271, Senator John Lee (Las Vegas), was massively defeated in his primary election by an unknown and grossly under-funded opponent largely due to SB 271 – a message was not missed by other legislators in Carson City.

Betting on Political Ignorance and Naivety in Response to Fear and Propaganda to Bankroll the Bluff:

If, however, people don’t understand these facts, then Nevada, with the TRPA as a willing accomplice that has been co-opted by resort developers, can argue the validity of the threat. They can argue that RPU isn’t so bad and is needed to save the Compact. Essentially, they believe that few will understand that the RPU guts the environmental protections of the Compact to the point that “saving it” is irrelevant.

Indeed, it is unfortunate, for example, that some in influential leadership positions on the Board of The League to Save Lake Tahoe, who dogmatically imagine themselves as politically astute but aren’t, have bought into this scam, forcing their organization to foolishly support the RPU in order to “save” the Compact. Isolating themselves from the rest of the environmental and citizen action community because of their failure to recognize the bluff, The League to Save Lake Tahoe no longer knows how to do that.

For some who are distant observers, and others who are easily confused by the poker game, the TRPA’s massive public relations campaign (funded by tax dollars), coupled with the propaganda machines of resort developers, has sold the greenwashed RPU as a fairy tale of epic proportions that promises an environmentally sustainable paradise with full employment. It isn’t true, but it sounds good.

Success for Developers! On 12/12/12, the Governing Board of the TRPA, most of whose members were in on the game and sanctioned the bluff as a significant tactic, approved the disastrous RPU. Later that day, the Sierra Club and its legal ally, Earth Justice, issued a press release under the heading “Lake Tahoe Protections Abandoned by Tahoe Regional Planning Agency” and explained how “Lake Tahoe took a body blow today” with the TRPA abandoning its mission to protect the law preserving the lake. See: http://earthjustice.org/news/press/2012/lake-tahoe-protections-abandoned-by-tahoe-regional-planning-agency

The Bluff Continues, now regarding “Litigation”

In a very clever effort to continue the bluff and move it forward to its next station, Nevada’s Secretary of State, Ross Miller, a member of TRPA’s Governing Board, released a statement shortly before the vote on the RPU, claiming: “If the regional plan is adopted and not litigated, I intend to support any legislation that would rescind SB271 in the next legislative cycle.” He pointed out that the threat had worked and resulted in the RPU that Nevada desired. He sounds noble but is actually hedging his bet. See: http://www.sierrasun.com/article/20121210/NEWS/121219995/1066&ParentProfile=1051

Now that the RPU has been approved, Miller correctly understands that the game is not yet over, and the bluff must therefore continue. What happens if some entity (such as the Sierra Club) chooses to sue in federal court over the RPU having provisions that violate of the Compact or other laws, including the California Environmental Quality Act? Such litigation would unravel the plan to grant developers and the “local jurisdictions” (counties) unprecedented authority in both states to ravage the Basin.

The TRPA, while established to protect and enforce environmental regulations, has become the most consistent violator and was recently (January 4, 2013) found, one more time, GUILTY in federal court for doing just that in terms of Homewood Mountain Resort on the West Shore.

Consequently, does Miller have additional cause for concern now that Nevada’s Grand Bluff may go “poof” due to another suit and show itself to be little more than the huffing and puffing of political gamblers without a hand to play? Yes.

Contrary to what he and his colleagues believed when they began this game, playing in this fashion, was the possibility that they might actually have to “put up or shut up.” Given this latest court decision that shows again that the TRPA’s Board has not paid adequate attention to the legal claims and environmental concerns of the conservation community, it may very well come to pass that they will have to fold, acknowledging their weak hand. The RPU will murder the lake and therefore must be halted with a lawsuit. There is no choice since the discussion is over and the RPU has been approved. Their bluff needs, therefore, to be called through litigation. And, they will fold for the reasons cited.

Alternatively, it would be fascinating to see the response of the entire United States, the Congress, each state’s legislature and legislative member, in addition to the global community that shares the love of the lake, if Nevada’s decides to throw a real tantrum and begin the process of the spiteful and nihilistic destruction of the bi-state Compact and the TRPA by taking its chips and leaving the game. Somehow, it is difficult to imagine the folly of such an action taking place. Does that lonely Nevada legislator in the east desert actually have anything to gain by incurring the wrath of the nation by supporting such an action? No. Again, it is, and always has been, a bluff.

Lastly, would it really be all that bad for Lake Tahoe, and particularly California, if the Nevadans were to take their ball and go home? Would life without the TRPA and the Compact really result in an environmental catastrophe for the region worse than the posture of the current majority on TRPA’s governing board? They did, after all, approve a terrible RPU that will urbanize the lake. Is it not possible that a separate California TRPA could protect the lake better by not approving dangerous projects and suing Nevada when they do? Many local, state, and national environmentalists and politicians think so. Consequently, for many, they welcome both the departure of Nevada and the termination of the TRPA. We’ll examine this in a later article for Friends of Lake Tahoe’s website. Watch for it!