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October 5, 2011

“Jobs and Economic Improvement Through Environmental Leadership” – Governor Brown Endorses AB 900 CEQA Reform

“Jobs and Economic Improvement Through Environmental Leadership” – Governor Brown Endorses AB 900 CEQA Reform

By Andrea A. Matarazzo

In late September 2011, a bill seeking to improve the state’s economy by streamlining the California Environmental Quality Act (“CEQA”) reached the desk of Governor Brown, who signed it into law.  As is the perennial hope in a weak economy, the law aims to curtail delays attributed to CEQA litigation and encourage economic growth, jobs and tax revenues.  “It’s time for big thinking and big projects that put Californians back to work,” said Governor Brown.  Citing the state’s “overall unemployment rate” of 12 percent, Assembly Bill 900 (“AB 900”) [The Jobs and Economic Improvement Through Environmental Leadership Act of 2011] attempts to think big by expediting court review for development projects that feature various environmental benefits.

 

AB 900 benefits large development projects with the potential to generate thousands of jobs while advancing certain environmental goals.  The law speeds along CEQA suits for large-scale, Governor-approved “green” projects by eliminating litigation in the local Superior Courts.  Instead, these projects will proceed directly to the Courts of Appeal for review on shortened timelines.  Specifically, AB 900 empowers the Governor to certify “environmental leadership development projects” for expedited judicial review, which are the following:

 

        Residential, retail, commercial, sports, cultural, entertainment, or recreational use infill projects that are certified LEED silver or better;

 

        Wind or solar energy projects; and

 

        Projects that result in renewable energy generation, energy efficiency or the production of clean alternative fuel vehicles.

 

Under the new rules, a developer with a proposed environmental leadership development project may apply to the Governor for expedited judicial review.  The Governor must confirm that the applicant’s project (1) results in a minimum investment of $100 million in California; (2) avoids creating net emissions of greenhouse gases; and (3) creates high-wage, high-skilled jobs.

 

If the Governor determines that a project is eligible for expedited judicial review, then the project is passed on to the Joint Legislative Budget Committee (“JLBC”), which consists of eight members of the State Senate and eight members of the State Assembly.  The JLBC has 30 days to review the Governor’s determination for concurrence or nonconcurrence.  If the JLBC fails to respond within 30 days, then the project is deemed certified.  The determination is not appealable.  If the project is certified as an environmental leadership development project, then (1) original jurisdiction will be in the Courts of Appeal for CEQA challenges and any associated land use or other legal challenges to the project approvals (bypassing the trial courts); and (2) the appellate court must render a decision within 175 days of the filing of the action.

 

The particulars of AB 900 reflect the fact that it was, itself, drafted and approved in an expedited manner.  It includes errors and ambiguities that should be corrected if it is to be implemented as intended. For example, one of the three classes of eligible projects requires LEED certification prior to the Governor’s approval of expedited judicial review, but the U.S. Green Building Council will not certify a project under the LEED system until after it is constructed.  As such, it would impossible to qualify for expedited judicial review on this basis.  Similarly, a general “good cause” exception allows the Court of Appeal to grant time extensions past the 175-day limit.  It is also notable that AB 900 applies only to projects that have not yet circulated an environmental impact report (‘”EIR”), which reduces its potential for immediate job creation.  Further, an EIR must be certified prior to June 1, 2014, to take advantage of the streamlined litigation process.  This relatively short window of opportunity could substantially limit the range of eligible projects.

 

By Andrea A. Matarazzo

Andrea advises and advocates for private and public clients in all aspects of project permitting and entitlements, environmental compliance, and litigation, particularly regarding environmental review under CEQA and NEPA, land use and zoning issues, air quality regulation, climate change law and policy, water supply and water quality mandates, state and federal endangered species laws, wetlands permitting, and other regulatory requirements.

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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