09.27.2011

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Updates

AB 900 creates a new chapter of the California Environmental Quality Act (CEQA) that provides streamlined litigation procedures for qualifying “Environmental Leadership Development Projects.” It contains extensive and detailed requirements.

TYPES OF PROJECTS. The types of projects that qualify as Environmental Leadership Development Projects are:

  1. Residential, retail, commercial, sports, cultural, entertainment or recreational use projects that:
    • are certified LEED Silver or better by the United States Green Building Council;

     

  2. “where applicable” (which is not explained), achieve a “10-percent greater standard for transportation efficiency than for comparable projects” (the bill defines "transportation efficiency" as the number of vehicle trips by employees, visitors or customers divided by the total number of the project's employees, visitors or customers);

     

  3. are located on an infill site; and

     

  4. comply with any sustainable communities strategy or alternative planning strategy that has been adopted for the area, if the California Air Resources Board has determined that the strategy would achieve certain greenhouse gas emission reduction targets.

     

  5. Clean renewable energy projects that generate electricity “exclusively through wind or solar, but not including waste incineration or conversion.”

     

  6. Manufacturing facilities that manufacture products, equipment or components used for renewable energy generation, energy efficiency or the production of clean alternative fuel vehicles.

GOVERNOR’S CERTIFICATION. All projects must obtain the Governor’s certification that the project meets the following additional criteria:

  1. The project will result in an “investment in California” of at least $100 million.

     

  2. The project will create high-wage, highly skilled jobs that pay prevailing wages and living wages, provide construction jobs and permanent jobs for California and help reduce unemployment.

     

  3. The project will result in zero net additional emissions of greenhouse gases, as determined by the State Air Resources Board pursuant to the Global Solutions Warming Act of 2006. That Act charged the State Air Resources Board with formulating a plan and rules and regulations designed to reduce California’s greenhouse gas emissions to 1990 levels by 2025.

     

  4. The applicant has entered into a “binding and enforceable agreement” that all mitigation measures shall be enforceable conditions of approval and that ongoing obligations shall be monitored and enforced by the lead agency “for the life of the obligation.”

     

  5. The applicant agrees to pay “the costs of the Court of Appeal in hearing and deciding any case.”

     

  6. The applicant agrees to pay the costs of preparing the administrative record.

The Governor’s decision that the project meets these requirements is to be based upon information the Governor “deems necessary,” and the decision is not subject to judicial review. If the Governor determines that the project qualifies, he or she must then submit his or her findings and supporting information to the Joint Legislative Budget Committee “for review and concurrence or nonconcurrence.” The bill does not indicate that the Committee’s concurrence is required for applicability of the chapter.

STREAMLINED LITIGATION PROCESS. The benefits provided by the bill are intended to streamline litigation by bypassing the trial court and by requiring a prompt decision from the court of appeal.

  1. Any CEQA action regarding a project the Governor has determined qualifies must be brought directly in the court of appeal.

     

  2. Any other challenges to the project must be joined with that CEQA claim. 

     

  3. The court of appeal must issue its decision in the case within 175 days of the filing of the petition. 

     

  4. The court of appeal may appoint a special master “to assist the court in managing and processing the case.”

     

  5. The court of appeal may grant extensions of time only for good cause.

ADMINISTRATIVE RECORD. The lead agency must prepare the administrative record as the project is processed (rather than after litigation is filed), and documents contained in the record must be posted online by the lead agency within a few days of receipt or creation by the lead agency. (Although the applicant is required to pay for the lead agency's effort, it should be noted that many local agencies do not have staff or resources to accomplish these tasks.)

SUNSET DATE. The bill sunsets on January 1, 2015, and it states that it does not apply to a project if the following circumstances exist as of June 1, 2014:

  1. The lead agency has not certified an Environmental Impact Report for the project.

     

  2. A certification that the project qualifies has not “been used.” 

     

  3. The time period for bringing a lawsuit alleging that a public agency has approved or is undertaking a project certified by the Governor in violation of CEQA has not yet elapsed.

© 2011 Perkins Coie LLP