Greens Challenge Alleged| CA Job Creation Law

OAKLAND, Calif. (CN) - California's newly enacted AB 900 is supposed to create jobs, but environmentalists claim the law undermines California's environmental law.

The nonprofit Planning and Conservation League and its executive director Bruce Reznik sued the state and Controller John Chiang in Alameda County Superior Court. They claim the law is unconstitutional because it changes the original jurisdiction of the California Environmental Quality Act, taking it away from state trial courts as a way to weaken it.

Gov. Jerry Brown signed AB 900 and its companion SB 292 in September 2011 and the law took effect on Jan. 1.

According to the environmentalists' complaint, the purpose of law is to "provide unique and unprecedented streamlining benefits under the California Environmental Quality Act for projects that provide the benefits described [in the legislation] for a limited period of time to put people to work as soon as possible." (Brackets in complaint.)

The Conservation League says there are three components to AB 900 - called environmental leadership development projects - which are worth keeping. "These criteria include a minimum threshold of investment ($100 million), creation of jobs, net-zero greenhouse gas emissions, inclusion of mitigation measures and agreement to pay for court costs and preparation of the administrative record. Such positive features of AB 900, and any potential projects that qualify to use the bill's procedures, are not at issue in this action."

But the League says that AB 900 alters the CEQA review process and makes it more difficult to pursue legal action to test environmental compliance.

"Rather than following the constitution, which authorizes actions to commence in superior court, the courts of appeal, or the supreme court, the bill obligates CEQA petitioners to file their original actions only in the court of appeal with geographic jurisdiction over the project," the complaint states.

"Apart from establishing the courts of appeal's original jurisdiction over all CEQA cases that result from the approval of a leadership project's environmental impact report ('EIR'), AB 900 assigns to the courts of appeal original and exclusive jurisdiction over all associated claims that a public agency has granted land use approvals for the leadership project in violation of the law. ...

"Almost all CEQA petitioners pursue their claims in superior court; no more than a handful of CEQA actions have commenced in the courts of appeal or supreme court. Thus, AB 900's application would prove unconstitutional in the overwhelming majority of cases."

The League claims that AB 900 requires non-CEQA claims to be tethered to CEQA claims in courts of appeal, "thereby subjecting these claims to the same unconstitutional fate as CEQA claims."

The Judicial Council of California agrees. In a letter to state Senator Anthony Canella, R-Ceres, opposing SB 1214, which would substantially expand the scope of AB 900, the Council addresses potential impacts on the court system.

"First, the appellate courts are not well-suited for this process. The court of appeal is not designed to be the court of first resort. ... The courts of appeal are much smaller than the superior courts, with fewer judicial officers and fewer locations," the Judicial Council wrote in a letter attached as an exhibit to the League's complaint.

"If the first level of the court system is skipped over, the court of appeal will quickly be overwhelmed, especially given the anticipated high volume and complex nature of the cases" prompted by the new law, according to the Council.

"[P]roceeding directly in the court of appeal is a very inefficient method of handling these complex CEQA cases," the Council said.

The League wants AB 900 declared unconstitutional and void, and California and its controller enjoined from spending state money to implement it.

It is represented by Antonio Rossmann with Roger with Rossmann and Moore, and Keith Wagner with Lippe Gaffney Wagner, all of San Francisco.

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