New court rules will significantly expedite the timeline for lawsuits brought under the California Environmental Quality Act (CEQA) to challenge the certification of the environmental impact report (EIR) or the granting of any project approvals that require the actions or proceedings for certain large "leadership" development projects certified by the Governor.
For these leadership projects, the CEQA lawsuit, including appeals, must be resolved within 270 days of certification of the administrative record.
On April 25, 2014, the Judicial Council, which is the policy-making body of the California state courts, approved court rules required by Senate Bill 743 (S.B. 743), signed into law by Gov. Jerry Brown on Sept.17, 2013 (S.B. 743 Rules). The S.B. 743 Rules will significantly expedite procedures for CEQA lawsuits challenging the certification of the EIR or the granting of any project approvals that require the actions or proceedings for certain large "leadership" development projects certified by the Governor.1 For these leadership projects, the CEQA lawsuit, including appeals, must be resolved within 270 days of certification of the administrative record. The typical CEQA litigation process can take from 3 to 5 years. By establishing the 270-day deadline, the S.B. 743 Rules are designed to shorten this litigation timeline by a notable 2 to 4 years.
Large Leadership Development Projects
The category of "environmental leadership development projects" or "leadership projects" eligible for an expedited CEQA litigation schedule under the S.B. 743 Rules was originally established by Assembly Bill 900 (A.B. 900)(2011). A.B. 900 was intended to provide CEQA streamlining for projects that would create jobs and implement innovative measures to significantly reduce traffic, air quality and other significant environmental impacts, and fully mitigate greenhouse gas (GHG) emissions resulting from passenger vehicle trips attributed to the project (Cal. Pub. Res. Code §21178).
Three types of "leadership projects" are eligible for expedited CEQA litigation under the S.B. 743 Rules (Cal. Pub. Res. Code §21180(b)):
A residential, retail, commercial, sports, cultural, entertainment, or recreational use project that is certified as LEED silver or better, located on an infill site in an urbanized area,2 and if located within a metropolitan planning organization for which a sustainable communities strategy (SCS) or alternative planning strategy (APS) is in effect (i.e., adopted, accepted by the California Air Resources Board and not the subject of a judicial challenge), the infill project must be consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in the SCS or APS.
A clean renewable energy project that generates electricity exclusively through wind or solar, but not including waste incineration or conversion.
A clean energy manufacturing project that manufactures products, equipment, or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles.
The Governor may certify a leadership project if specified conditions are met, including:
a minimum investment of $100 million in California upon completion of construction
creation of high-wage, highly skilled jobs that pay prevailing wages and living wages
no net additional GHG emissions
a binding and enforceable agreement providing that required mitigation measures will be enforceable conditions of approval
payment of Court of Appeals costs
payment of costs of preparation of the administrative record (Pub. Res. Code §21183)
To date, three leadership projects have been certified by the Governor and one certification application is pending.3
Expedited CEQA Litigation Schedule
Compared to the typical CEQA litigation timeline, the S.B. 743 Rules proposed a very abbreviated 270-day period for resolution of judicial challenges, including appeals. Normally, CEQA litigation through the appellate court level takes about 3 to 4.5 years in total. A trial court CEQA decision is usually issued within 1.5 to 2 years; if the trial court decision is appealed, the appellate court's decision is issued after another 1.5 to 2.5 years.4 Completing the CEQA litigation process, including the appellate court decision, in less than a year would be a significant change from the status quo.
The 270-day CEQA litigation schedule envisioned by S.B. 743 was characterized as "very aggressive" during the Judicial Council's April 25 meeting. In order to resolve claims within this timeline, the S.B. 743 Rules include various procedural requirements and incentives designed to expedite CEQA litigation. For example, additional briefing time is allowed for petitioners who file a complaint within 10 days of the issuance of a Notice of Determination, rather than waiting until the end of the 30-day statute of limitations period. Similarly, at the appeal stage, the briefing schedule for appeals is expedited. While the efficacy of these provisions has not yet been tested, the S.B. 743 Rules are anticipated to considerably expedite litigation for any CEQA lawsuit challenging a large "leadership project."
While the 270-day period for resolving legal challenges envisioned by S.B. 743 and the S.B. 743 Rules is ambitious, in the event of a CEQA lawsuit, qualifying large leadership development projects could benefit from greater certainty in the form of a significantly expedited judicial review process.
Our West Coast Land Use and Environment Group attorneys have extensive experience in obtaining entitlements and CEQA review for large-scale development projects, as well as in CEQA litigation at the trial and appellate court levels. We can provide comprehensive guidance on CEQA streamlining and expedited judicial review opportunities discussed in this alert.
1 The S.B. 743 Rules are available online at http://www.courts.ca.gov/documents/jc-20140425-itemM.pdf (last accessed May 1, 2014). Note that S.B. 743 and the S.B. 743 Rules also include provisions specifically applicable to the proposed new downtown Sacramento Entertainment and Sports Center (ESC); this alert focuses on provisions applicable to "leadership projects" and does not further discuss or analyze ESC-specific provisions.
2 An infill site is defined as a site located in an urbanized area that meets either of the following criteria: (a) the site has not been previously developed for urban uses and (1) is immediately adjacent to parcels that are developed with qualified urban uses, or at least 75 percent of the perimeter of the site adjoins parcels that are developed with qualified urban uses, and the remaining 25 percent of the site adjoins parcels that have previously been developed for qualified urban uses, and (2) no parcel within the site has been created within the past 10 years unless the parcel was created as a result of the plan of a redevelopment agency; or (b) the site has been previously developed for qualified urban uses. (Cal. Pub. Res. Code §21061.3). An "urbanized area" is defined as either (a) an incorporated city that has a population of at least 100,000 persons, or has a population of less than 100,000 persons if the population of that city and not more than two contiguous incorporated cities combined equals at least 100,000 persons; or (b) an unincorporated area that satisfies certain criteria. (Cal. Pub. Res. Code §21071).
3 The three leadership projects certified to date are: (1) the McCoy Solar Energy Project in unincorporated Riverside County, Calif.; (2) Apple Campus 2 in Cupertino, Calif.; and (3) the Soitec Solar Energy Project in Boulevard, unincorporated San Diego County, Calif. There is one certification application pending for a mixed-use residential and commercial project at 8150 Sunset Boulevard, Los Angeles, Calif. (See http://opr.ca.gov/s_californiajobs.php, last accessed May 1, 2014).
4 It should be noted that the 270-day period does not include petitions for review by the California Supreme Court. The Advisory Committee that prepared the S.B. 743 Rules determined that amendments to S.B. 743 reflected legislative intent that the 270-day period was not intended to cover petitions for review.