Wednesday, March 14, 2012

AB 900: Jobs and Economic Improvement through Environmental Leadership Act of 2011

Assembly Bill 900 has come up numerous times during the arena discussions. I thought I would provide you with a short summary so you know what all the hubbub is about.  

Assembly Bill 900  is entitled the “Jobs and Economic Improvement through Environmental Leadership Act of 2011.” AB 900 streamlines CEQA’s administrative and judicial review procedures for development projects that qualify as "environmental leadership development projects (leadership projects).” The point of the bill is this - projects that create high quality jobs and spur business will be fast tracked through the California Environmental Quality Act (CEQA), which is California’s main environmental statute.

In order for the project to qualify as a leadership project, the following criteria must be met:
1) The project must be either a development project on an infill site that is certified as LEED silver or better and achieves a 10% greater standard for transportation efficiency; an exclusively wind or solar energy project; or a manufacturing project that manufactures parts for renewable energy generation, energy efficiency, or the production of clean alternative fuel vehicles.
2) The project must results in a minimum investment of $100 million.
3) The project must create high-wage, highly skilled jobs that pay prevailing and living wages, and provide construction jobs and permanent jobs for Californians. The bill does not provide guidance on how to determine what is considered a “high-wage, highly skilled, permanent job.”
4) The project must not result in any net additional emissions of green house gas (GHG) including employee transportation.

If the project meets the above criteria then it will receive a streamlined CEQA administrative and judicial process. Basically the project will move through the court process faster and the delay to implementation, i.e. construction, of the project will be minimized.   

Provisions that streamline the administrative process include the following:

-          The lead agency must prepare the administrative record concurrently with the administrative process and certify the final administrative record within five days of approving the project. Preparation of the administrative record is always a time consuming process in CEQA litigation. All written material relied on or relevant to the development of the project must be gathered. This includes but is not limited to documents, reports, studies notices, comments, and correspondence. Typically the public agency has 60 days after a suit is filed to prepare the administrative record and extensions are liberally granted (PRC 21167.6).  It is not uncommon for the preparation to take months. Requiring the project proponent to prepare the administrative record concurrently with the administrative process and certify the administrative record within 5 days of project approval substantially cuts down on the time between filing a suit and actually beginning trial.  Essentially the litigants will get into court to argue their case faster and the project will be subject to a shorter delay.  

-          The lead agency must place documents (administrative record, Draft and Final EIR etc) and public comments on the internet on specific dates so that the public can access the information more easily. Although CEQA encourages the use of the internet, it does not make the posting of such information on the internet mandatory and does not provide specific time requirements. Hey CEQA, welcome to the 21st Century! I believe this will improve public participation, public disclosure and transparency. This is the type of amendment that should apply to all CEQA projects.   

Provisions that streamline the judicial process include:

-          All CEQA challenges will bypass the trial court and be filed directly with the applicable Court of Appeal. Typically CEQA litigation begins in the trial court and makes its way to the appellate court, this could take years. So skipping trial court and going straight to Appellate Court is a big deal. Further, it is highly unlikely that the California Supreme Court would ever exercise its discretion to listen to an appeal of the case. So it basically guarantees that you only have to go through one round of litigation in one court– the appellate court. But skipping the trial court could create other problems. For instance, the appellate court case will now take longer to litigate. Typically by the time the appellate court sees a case, all arguments on the administrative record have been decided by the trial court. Since the trial court has been bypassed, the appellate court now has to decide these questions. Depending on the number of leadership projects, the appellate court could be overrun with CEQA litigation, which would lead to delays undermining the fast track purpose of the bill. It is unclear whether there will be a flurry of leadership projects seeking streamlined review. Project proponents may be anxious to fast-track their projects thru the court. On the other hand, project proponents may be hesitant to use their project to test whether AB 900 achieved its streamlining goals or just creates new and different problems in the appellate court. 

-          The Court of Appeal must issue its decision within 175 days of the filing of the petition and the court may grant extensions of time only for good cause and in the interests of justice.  Normally there are no deadlines for the court to issue a decision.  Developers claim that investors are generally reluctant to sink money into a project that will be tied up in protracted litigation so shortening the litigation time will encourage investment and stimulate the economy.  Environmental groups claim that the 175 day time limit places incredible stress on community based groups and low income groups that often have smaller staffs and need a longer turn around period to review legal matters and file briefs. Again if the appellate courts are bombarded with litigation then the 175 day deadline will have to be extended, which again would undermine the basic streamlining intent of the statute.   

-          The Court may appoint a special master to assist it in managing and processing the case. All land use challenges must be filed concurrently with the CEQA challenge. Again both of these provisions will make litigation go faster.

Prior to the release of the Draft Environmental Impact Report (DEIR), the project proponent can petition the governor to have the project certified as a leadership project and receive streamlining benefits. The proponent must submit evidence to the Governor that the project qualifies as a leadership project. The information provided to the Governor is subject to a 15 day public review period. The Governor will make a determination as to whether the leadership project criteria have been met. This determination is not subject to judicial review. The Governor will submit the determination, and any supporting information, to the Joint Legislative Budget Committee (JLBC) for review and concurrence or nonconcurrence. If the JLBC fails to make a determination within 30 days the project is deemed certified. The bill is silent as to what occurs if the JLBC issues a nonconcurrence.

In order for a project to receive the streamlining benefits, the proponent must agree that all mitigation and monitoring obligations will be met. Further, the proponent must agree to pay the cost of the appeal, the special master, and for the preparation of the administrative record. Normally in CEQA litigation the costs are split between the parties. But under AB 900, if you have deep pockets, and these big developers do, then you can pay to cover these costs and have your case heard before other cases. Many have commented that this violates the main tenet of our justice system, that everyone should be treated equally in the court system, regardless of financial stature.

How all of this will play out in regards to the arena remains to be seen.  However, it does seem certain that the arena project will move more quickly through the environmental review process and because of that the public will have to act more quickly in objecting to the environmental review.

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