As most developers and builders would agree, complying with the California Environmental Quality Act (CEQA) can be complicated. This Fall, Governor Brown has signed into law three pieces of legislation that attempt to reduce some of CEQA’s complexities and streamline the CEQA process. Many times, when the Legislature and Governor attempt to “simplify” and “streamline” CEQA, they end up achieving just the opposite. The goals of the new legislation signed into law this Fall certainly are laudable. Whether or not they achieve those goals, however, remains to be seen.
SB 226 (Simitian (D-Palo Alto)) seeks to streamline the CEQA process in several different ways.
SB 226 provides that a project’s greenhouse gas emissions shall not, by themselves, cause a project to be ineligible for a categorical exemption from CEQA review. As readers may know, even though a project may meet the basic qualifications for a categorical exemption, the local agency still must evaluate the project to determine whether it might result in a significant environmental impact or a cumulatively considerable impact. It is possible that a project could meet the basic qualifications for a categorical exemption, yet CEQA review is nevertheless required. Under this new law, a project’s greenhouse gas emissions shall not, by themselves, be the cause for CEQA review where the project otherwise qualifies for a categorical exemption.
The installation of a solar energy system on the roof of an existing building or at an existing parking lot under certain conditions is now statutorily exempt from CEQA review. This means that, unlike a categorical exemption, no CEQA review would be required under any circumstances.
Under the new law, the Office of Planning and Research must, by July 1, 2012, develop CEQA guidelines that expedite environmental review of certain urban infill development projects by allowing that review to “tier” off of previous EIRs under certain conditions. Requires the Secretary of the Natural Resources Agency to certify and adopt the guidelines by January 1, 2013.
AB 900 (Buchanan (D-San Ramon) and Steinberg (D-Sacramento)) expedites the judicial review of projects designated by the Governor and the Legislature as “environmental leadership development projects,” if they are legally challenged. To qualify as an environmental leadership development project, the project must be large ($100 million investment upon completion of construction) and fall into one of three categories:
(1) LEED silver or better “infill” projects (residential, commercial, sports, cultural, mixed use, etc.) that reduce vehicle trips by 10 percent as compared to similar existing projects;
(2) Clean, renewable energy projects that generate electricity exclusively through wind or solar, but not including waste incineration or conversion; or
(3) Clean energy manufacturing projects that manufacture products, equipment or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles.
Project applicants must undergo a certification process with the Governor and Legislature in order to qualify as an environmental leadership development project.
The bill expedites judicial review by requiring any CEQA lawsuit challenging a public agency’s approval of an environmental leadership development project be filed directly in the applicable Court of Appeal, thereby skipping the local Superior Court. Moreover, the Court of Appeal must issue its decision in the case within 175 days of the filing of the lawsuit, unless the Court finds good cause for an extension (“good cause” is not defined). The Court may appoint a special master to assist the Court in managing and processing the case, and the project applicant is responsible for the costs of the special master.
SB 292 (Padilla (D-Pacoima)) streamlines the EIR preparation process, provides for expedited judicial review (similar to that of AB 900), and requires implementation of specific traffic and air quality mitigation measures for a proposed downtown Los Angles football stadium and convention center project.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
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