What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction

by Miller Starr Regalia
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The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento. (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) ___ Cal.App.4th ___, 2014 WL 6533058.)

At issue was the constitutionality of Public Resources Code § 21168.6.6, a piece of special legislation added to CEQA as part of SB 743 (Stats. 2013, ch. 386, § 7) which modified – solely for construction of the new Sacramento downtown arena – general CEQA review and litigation deadlines. While section 21168.6.6 did not change CEQA’s substantive requirements for EIR analysis or content, it mandated – with respect to the arena project alone – an extremely accelerated CEQA review and litigation process including: preparation of the administrative record in expedited fashion and in readily-accessible electronic format, mediation of issues among the parties, informational workshops, and requiring the Judicial Council to adopt a rule to facilitate completion of judicial review of the project’s CEQA compliance, to the extent feasible, within 270 days. Significantly, the statute also restricted the courts’ power to grant injunctive relief in any CEQA case challenging the arena project to circumstances where a plaintiff showed construction or operation of the arena “presents an imminent threat to public health or safety, or would permanently and adversely impact unforeseen important historical, archaeological, or ecological resources.”

Plaintiffs challenged the City’s certified EIR for the arena project and sought a preliminary injunction to stay demolition of the downtown shopping mall in the area where it would be built. They claimed section 21168.6.6 was unconstitutional and violated the separation of powers doctrine because it deprived the trial court of power to grant injunctive relief and imposed unreasonably-short judicial review periods. The trial court denied the requested injunction.

On plaintiffs’ appeal, after rejecting the City’s mootness argument because the appeal presented issues of substantial and continuing public interest that were capable of repetition, but by their very nature evade review, the Court of Appeal went on to reject plaintiffs’ constitutional arguments on their merits; it affirmed the trial court’s denial of plaintiff’s preliminary injunction request. Key points the Court’s published opinion made in doing so include:

  • The separation of powers doctrine explicitly embodied in the California Constitution does not prohibit the commonplace interrelated functioning of the three branches of government (legislative, executive, and judicial), but, in pertinent part, “’prohibits the legislative branch from arrogating to itself core functions of the executive or judicial branch.’” (Citing Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298.) Thus, “[a]n unconstitutional invasion of the judicial power requires legislation that would ‘defeat or materially impair’ the court’s inherent power to decide cases.” Accordingly, the Legislature may – without violating separation of powers – legislate with regard to inherent judicial powers or functions so long as it does not defeat or materially impair their exercise.
  • “[T]here is a difference between constitutional rights and statutory rights such as those derived from CEQA.” Thus, while the Legislature can’t abridge the courts’ prerogative to grant injunctive relief to protect parties’ constitutional rights, this core function is not materially impaired by the legislature’s “additions or subtractions of statutory rights[.]”
  • Applying these principles in rejecting plaintiffs’ facial challenge to section 21168.6.6 – which was based on claims the statute made it “impossible” for courts to comply with CEQA and infringed their core judicial power of injunction – the Court of Appeal observed that “no matter how important its original purpose, CEQA remains a legislative act, subject to legislative limitation and amendment.” (Citing Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 376.) It is thus a policy choice within the Legislature’s prerogative, the wisdom of which courts cannot question, “to determine whether ‘an interest is important enough to justify foregoing the benefits of environmental review.’”
  • The Court of Appeal’s key reasoning and logic was encapsulated in the following passage of its opinion: “[Plaintiffs] properly concede[ ] the Legislature could entirely exempt the downtown arena project from any review under CEQA. Such complete exemption from CEQA would not implicate any constitutional right because “[t]he rights derived from the environmental quality act are not of constitutional dimension and the Legislature constitutionally may eliminate any of its requirements.” (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 299.) Because the complete elimination of any CEQA review for the downtown project is a public policy determination that would pass constitutional muster, so too the Legislature’s specification of the interests to be weighed in determining whether to halt construction of the project represents a determination of public policy the Legislature is entitled to make…. Consequently, we reject the argument that the Legislature’s determination, in section 21168.6.6, of factors justifying an injunction to stop work on the downtown arena project poses an unconstitutional infringement on the power of the courts.”
  • The Legislature’s instruction to the Judicial Council to adopt a procedural rule of court requiring CEQA challenges to the arena project to be resolved to the extent feasible within 270 days of certification of the administrative record was likewise neither improper nor unconstitutional. The Legislature may properly direct the Judicial Council to adopt rules of court that don’t defeat or materially impair core judicial functions, and there was no showing here that the statute’s “suggestive” 270-day timeline did so. The statute – which does not impose any penalty for review exceeding 270 days, does not declare the case moot, does not deprive any court of jurisdiction, and does not declare a particular winner on a certain date – was not shown by plaintiffs to materially impair the core function of the courts.
  • Having upheld section 21168.6.6 against plaintiffs’ constitutional challenges, the Court went on to hold that plaintiffs failed to meet their burden to secure a preliminary injunction under its terms. Plaintiffs’ arguments that respondents would not be disadvantaged by a stay of construction or that the statute itself caused public harm by its “corruption of CEQA procedure,” were irrelevant and failed to address the showing required by the statute for an injunction. Essentially, plaintiffs advanced an untenable argument, the acceptance of which “would mean the Legislature can only impose full-fledged CEQA review under sacrosanct existing deadlines or completely exempt a project from any CEQA review. This is an untenable argument in light of the Legislature’s power to make public policy determinations and amend existing laws.”
  • Finally, the Court denied the City’s request to sanction plaintiffs for a frivolous appeal because the City failed to file a motion for sanctions and supporting declaration as required by Rule 8.276(b)(1) of the California Rules of Court.

The Court of Appeal’s opinion serves as a sober reminder to zealous CEQA plaintiffs that – no matter how important they or others deem its original purposes – CEQA is only a legislative enactment, not a constitutional right or guarantee, and like any other legislation it can be amended – or even repealed – by the Legislature for policy reasons. In sum, just as Governor Brown once called CEQA reform “the Lord’s work,” the Third District has reminded us that what the Legislature giveth, it may also taketh away.

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Miller Starr Regalia
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