What originated as legislation to expedite anticipated CEQA challenges to the proposed Farmers Field football stadium project in Los Angeles (SB 292) transformed under Senator Darrell Steinberg’s political leadership into more ambitious legislation (SB 900) that will expedite CEQA litigation over “green” mega-development projects certified by Governor Brown as “Environmental Leadership Development Projects”. Governor Brown signed both bills into law on September 27, 2011.
Premised on the need – in California’s current high unemployment climate – to streamline CEQA litigation delaying large, job-creating projects with “cutting edge environmental benefits,” AB 900 amends CEQA by:
- Defining “Environmental Leadership Development Project” or “Leadership Project” as a “residential, retail, commercial, sports, cultural, entertainment, or recreational use project” on an infill site, certified LEED Silver or better by USGBC, achieving ten percent (10%) or greater transportation efficiency than comparable projects, and consistent with SB 375 plans and GHG reduction targets or a clean renewable energy or clean energy manufacturing project.
- Allowing project applicants for Leadership Projects to request the Governor to certify such projects as eligible for certain CEQA litigation “streamlining benefits.”
- Empowering the Governor to certify a Leadership Project for the CEQA litigation “streamlining benefits” if he finds that upon completion it will result in a minimum $100,000,000 investment in California, create high wage, highly-skilled jobs, both construction and permanent, also help reduce unemployment, not result in net additional GHG emissions, and meet certain other requirements.
- Expressly providing the Governor’s certification findings are not subject to judicial review, but would be submitted to the Joint Legislative Budget Committee for an expedited concurrence or non-concurrence determination (although the statute is unclear regarding the effect of non-concurrence).
- Authorizing the Governor to issue guidelines – which would not be subject to the rule-making provisions of the APA – regarding application and certification of Leadership Projects.
- Mandating that where a certified Leadership Project is challenged in court under CEQA, any action would have to be filed in the Court of Appeal with geographic jurisdiction over the Project, and any CEQA plaintiff would have to concurrently file any other land use violation claims it had against the defendant public agency in that litigation.
- Requiring the Court of Appeal to issue its decision within 175 days of the filing of the CEQA mandate petition, authorizing that Court’s appointment of a special master to assist in its case management and processing, and limiting extensions of time to only those for which good cause is shown.
- Requiring the lead agency in the administrative proceedings for certified Leadership Projects to prepare the Administrative Record concurrently with the administrative process, placing the contents on a downloadable internet website maintained for this purpose, and to certify the administrative record for such projects within five (5) days of project approval.
- Requiring the Judicial Counsel on or before July 1, 2012, to adopt implementing Rules of Court (presumably concerning expedited briefing and hearing schedules, similar to those set forth in SB 292) for Leadership Projects.
During his tenure as Oakland’s mayor, Governor Brown often expressed a negative view of CEQA as so much “red tape” hindering productive projects. It is thus unsurprising that he has signed AB 900, considering the powers it confers upon him, in essence, as a CEQA litigation “czar” selecting major projects for “fast track” treatment, as well as its companion bill SB 292, passage of which was a condition of AB 900’s effectiveness.