The California Coastal Commission’s political retribution against Elon Musk

On Tuesday, SpaceX founder and CEO Elon Musk filed a federal lawsuit against the California Coastal Commission. The past week has been a mix of successes and setbacks for Musk, who celebrated the victorious test flight of the SpaceX Starship rocket on Sunday, just days after the California Coastal Commission put the kibosh on plans to launch more rockets from the California coast. His lawsuit is challenging this decision and asks the court to bar the CCC from regulating the program.

The Falcon 9 rocket launch program has been enthusiastically supported by both the Air Force and Space Force, both of which assured the CCC that their respective organizations would closely monitor the impacts the rocket launches may have on nearby wildlife. The CCC’s official duties include overseeing “plans and regulates the use of land and water in the coastal zone.” However, by their own admission, the decision to reject the Falcon 9 program appears to be less about wildlife concerns and more about Musk’s personal political opinions.

Citing a reason for their rejection, Commission Chair Caryl Hart stated, “We’re dealing with a company, the head of which has aggressively injected himself into the presidential race.”

Commissioner Gretchen Newsom added, “Elon Musk is hopping about the country, spewing and tweeting political falsehoods and attacking [the Federal Emergency Management Agency] while claiming his desire to help hurricane victims with free Starlink access to the internet.”

Commissioner Mike Wilson piled on the anti-Musk commentary, saying of SpaceX, “This company is owned by the richest person in the world with direct control of what could be the most expansive communications system in the planet. Just last week that person was talking about political retribution.”

Wilson choosing to use the term “political retribution” seems like an odd choice of words. After all, is the CCC not engaging in “political retribution” against Musk by rejecting his plans based on his political beliefs?

Prior to the CCC making its decision, there was some debate as to whether the Commission should have any say in the Falcon 9 plans at all. Vandenberg Space Force Base contracts with SpaceX, because the rocket launches provide useful information that aid military objectives. Considering the relationship between SpaceX and the military, this should classify the Falcon 9 program as federal activity and thus not subject to the CCC’s regulatory discretion, as Space Force officials argue. The only obligation the military has to the CCC in this instance is to agree to mitigate the effects to wildlife—which it has already agreed to do.

The Commission has repeatedly argued against the military, asserting that because Falcon 9 also serves Musk’s own ends, it is private activity and falls under their authority. It would be one thing if the CCC had any substantial and legitimate concerns about the coastal environment that have not already been addressed by both the Air Force and Space Force. But their decision appears rooted in disdain for Musk’s comments on social media, which are completely irrelevant to Falcon 9.

Punishing unfavorable opinions

While Musk’s accomplishments with SpaceX are, as he calls it, “science fiction without the fiction part,” the CCC’s actions could be described as “dystopian fiction without the fiction part.”

The government is not allowed to deny opportunities to individuals because they disagree with their political opinions. We have a word for that in our legal system: unconstitutional. Yet, California has continuously passed laws that punish people who are deemed to have “unfavorable” opinions.

In 2022, Governor Gavin Newsom signed into law Assembly Bill 2098, which penalizes any medical professional who disseminates “misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” In this case, “misinformation” is defined as “false information that is contradicted by contemporary scientific consensus.”

As for who determines scientific consensus, that is left to an unelected board of government bureaucrats. As Pacific Legal Foundation attorney Ethan Blevins warned:

Scientific consensus is not as simple as counting heads. ‘Consensus’ will be whatever the medical board deems. And enforcement is almost sure to target specific viewpoints—for example, by targeting doctors who underestimate COVID risks but not doctors who overestimate risks, even though overreaction has serious costs, too.

And then there is the case of PLF client Dr. Azadeh Khatibi. The Iranian-born Dr. Khatibi, whose first name coincidentally means “freedom,” is fighting back against a California mandate known as AB 241. In an alleged effort to reduce healthcare disparities based on race, ethnicity, gender, or sexual orientation, the law requires that all continuing medical education (CME) courses involving direct patient care include implicit bias training—regardless of who teaches the course or what is taught. Under the mandate, all California physicians must complete 50 hours of CME courses every two years or they will be denied license renewal.

Doctors use their medical expertise to serve patients based on their medical needs. Threatening to jeopardize a person’s career unless they complete courses that are based not on improving medical skills but, rather, on pushing specific and social agendas sounds exactly like the sort of “political retribution” of which the CCC accused Musk. But unlike Musk, the government is bound by the Constitution.

The CCC’s long string of abuses

Musk has never been one to take government bullying lying down. In SpaceX’s lawsuit, Musk accuses the Commission of “egregiously and unlawfully overreaching its authority” by claiming the power to regulate federal activity and by using political bias to reject the Falcon 9 program. “Rarely has a government agency made so clear that it was exceeding its authorized mandate to punish a company for the political views and statements of its largest shareholder and CEO,” the complaint says.

With the SpaceX lawsuit now underway, Musk and Pacific Legal Foundation have something in common—we are both challenging the CCC’s unconstitutional actions in court, albeit for different reasons.

PLF has a longstanding history of keeping the CCC accountable to the rule of law when it attempts to abuse its power and circumvent the Constitution, which it often does. One of our most notable cases began in 1982 when the CCC denied Marilyn and Patrick Nollan the permits they needed to convert their one-story bungalow into a modest two-story home.

The CCC blocked the couple’s building permit, claiming that the addition of a second story would obstruct motorists’ view of the water, thus creating a “psychological barrier” to the ocean. If the Nollans wanted their building permit, they would have to hand over one-third of their land to the state.

The Nollans won in trial court but lost in appellate court, and the California Supreme Court declined to take the case. In 1987, Nollan v. California Coastal Commission went before the United States Supreme Court and the Nollans finally were vindicated. The Court struck down the California Coastal Commission’s demands for land as unconstitutional and called it an “out-and-out plan of extortion.”

More recently, the California Supreme Court agreed to hear the case of another PLF client, Shear Development, which was denied building permits by the CCC even though the project had already been approved by the local county. By denying the permits to Shear, the Commission violated the state’s Coastal Act, which specifically limits their power in the matter.

Yet, the Commission injected itself into the permit process by appealing the County’s decision, claiming enforcement power based on the project’s purported location in a sensitive habitat area. The CCC also claimed it could appeal any permit in a zoning area that had more than one principally permitted use—a claim that would make every single project in the County’s coastal zone appealable to the CCC.

Under state law, sensitive habitat determinations are made only through the local legislative adoption of an official designating map, which never happened. The case will soon make its way to the California supreme court. But Nollan and Shear are just two examples of many.

Elon enters the ring

Whether it’s overstepping its regulatory authority or using political biases to deny opportunities to individuals, ignoring both its governing regulations and the Constitution is “business as usual” for the CCC. That is why it is so important that we hold the Commission to its statutory and constitutional obligations.

Our PLF clients have been challenging this overreach for decades, and it’s both refreshing and encouraging to see others standing up to the CCC in their respective legal battles. Welcome to the fight, Elon.