Ruling from the bench at a March 29, 2013 hearing, Alameda County Superior Court Judge Frank Roesch found a key provision of an ambitious CEQA reform law championed by Senator Darrell Steinberg to be unconstitutional. Specifically, Judge Roesch found “the provisions of AB 900 found in Public Resources Code [section] 21185 are so inconsistent with the constitutional mandates of where mandamus cases may be brought that it must be struck down as unconstitutional.” A detailed written statement of decision explaining the judge’s reasoning is expected sometime later this month.
As summarized in an earlier post (“Governor Signs AB 900 to Speed CEQA Litigation Challenging Massive ‘Green’ Projects” by Arthur F. Coon on September 27, 2011), SB 900 was signed into law by Governor Brown on September 27, 2011, and contained numerous provisions, the overarching gist of which was to expedite CEQA litigation over “green” mega-development projects certified by the governor as “Environmental Leadership Development Projects.”
The key provision struck down by Judge Roesch required litigation challenging such governor-certified Environmental Leadership Development Projects to “be filed in the Court of Appeal with geographic jurisdiction over the project.” (Pub. Resources Code, § 21185 (a)(1).) Opponents including the Planning and Conservation League had challenged this “bypass” provision on grounds that it overburdened appellate courts and denied citizens equal access to the courts.
Based on the limited scope of the judicial challenge, Judge Roesch’s tentative ruling, and AB 900’s severability provision (Pub. Resources Code, § 21188), AB 900’s other provisions (regarding certification of projects, expedited record preparation, expedited decision-making deadline, etc.) are not expected to be affected by the decision.
Given its expressly limited applicability and use to date, AB 900 was obviously never intended as a global CEQA reform applicable to all projects. Nonetheless, it would have radically expedited the resolution of CEQA litigation for a narrow class of large projects by bypassing the trial court altogether, and shortening litigation at the Court of Appeal level by, perhaps, a year. Now, however, given Judge Roesch’s ruling, and the law’s January 1, 2015 sunset date, it appears AB 900 will not achieve even those goals, nor will it serve as a sound template for future CEQA reform.