Supersized “Green” Projects May Now Enter the CEQA Litigation Fast Lane

Stating that it was “time for big thinking and big projects that put Californians back to work,” Governor Jerry Brown recently signed into law two bills, AB 900 and SB 292, aimed at streamlining the judicial review process for large-scale development projects. Introduced in the final days of the legislative session, AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act of 2011, amends the state’s landmark environmental protection law, the California Environmental Quality Act (“CEQA”), to allow litigants to bypass superior court trials and have environmental legal challenges to certain “environmental leadership projects” heard directly by the Court of Appeal under a shortened decision-making time frame.

“Environmental leadership development projects,” the only type of projects that may seek qualification for AB 900’s streamlined CEQA litigation process, are defined by the new law as either 1) a residential, retail, commercial, sports, cultural, entertainment, or recreational use infill project that is certified as LEED silver or better, that “where applicable” will achieve a “10-percent greater standard for transportation efficiency than comparable projects,” 2) a wind or solar renewable energy project, or 3) a manufacturing facility that manufactures products, equipment, or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles.

Upon application, Governor Brown may certify Leadership Projects for streamlined litigation if the project will, among other things, 1) result in a minimum investment of at least 100 million dollars in California, 2) create high-wage, highly skilled jobs, and 3) result in zero net additional emissions of greenhouse gases. A project applicant must agree to pay the costs of the Court of Appeal in hearing and deciding any legal challenge to the project and pay the costs of the lead agency to prepare the administrative record concurrently with the administrative process. Governor Brown’s certification findings are not subject to judicial review.

Although, AB 900 is not likely to have broad application given its numerous requirements and relatively short-time frame, (the legislation sunsets January 1, 2015), some environmental groups consider AB 900 to be a troubling precedent and fear that it may encourage additional special exemption legislation. Others have questioned the law’s constitutionality and noted that a legal challenge to AB 900 itself may be in the future. Developers of large-scale “green” urban infill projects will therefore need to carefully review the applicability, benefits and risks of this new legislation before seeking entrance to the CEQA litigation fast lane.