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Judge Nixes Provision of CEQA Streamlining Law

OAKLAND, Calif. (CN) - A section of a California law aimed at streamlining construction projects by moving jurisdiction to the appellate courts is unconstitutional, a state judge ruled Friday.

Ruling from the bench, Judge Frank Roesch of Alameda County Superior Court struck down Public Resources Code 21185 of Assembly Bill 900, which modified the review process for certain projects under the California Environmental Quality Act (CEQA).

Gov. Jerry Brown signed into law AB 900 and its companion bill SB 292, which proposed the building of a massive football stadium in downtown Los Angeles, on Sept. 27, 2011. Both bills took effect last January.

AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act, creates a fast-track judicial review process meant to get major construction projects off the ground sooner.

The law allows the governor to designate certain construction projects as "leadership projects," giving them an expedited CEQA review process in the appellate courts.

Projects can trigger the streamlined review process by agreeing to proceed with mandatory CEQA litigation in the state appeals courts rather than the trial courts, which usually have jurisdiction in CEQA cases.

Environmentalists challenged the provision altering CEQA review last April, claiming it strips trial courts of jurisdiction as a way to weaken CEQA. The bill's other provisions -- including minimum investment thresholds, and the requirement that projects create jobs and have net-zero greenhouse gas emissions -- remain unchallenged.

Judge Roesch said the challenged provision "is so inconsistent with the constitutional mandates of where writs of mandate can be brought as to be unconstitutional," according to a press release on the bench ruling. "The court does not lightly as a superior court declare statutes unconstitutional."

Environmental groups working to protect CEQA's review powers celebrated the ruling.

"The court was right to strike down this over-reach from the legislature into the judicial branch of government," said Antonio Rossmann of Rossmann and Moore in a statement. "Californians will now benefit from the best of this bill, and courts will continue to enjoy their independence when it comes to determining appropriate venues and managing case flow."

Apple's new campus at Cupertino was the first project Gov. Brown certified under AB 900 in June 2012.

Brown also used the law to fast-track the proposed McCoy Solar Project, a $1 billion, 750-megawatt solar energy project in Riverside County that the government estimates will supply power to between 225,000 to 264,000 homes when complete.

Enacted in 1970, CEQA requires state and local agencies to analyze a project's potential environmental impacts and identify a range of feasible alternatives and mitigation measures to minimize harm.

AB 900 shortened the list of topics subject to review and limited analysis to the project level.

Brown claimed AB 900 and SB 292 would generate job and investment growth, but the Judicial Council of California sided with the nonprofit Planning and Conservation League, which filed the underlying lawsuit.

"[T]he appellate courts are not well-suited for this process," the council argued in a letter to state Sen. Anthony Canella, R-Ceres. "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."

Bruce Reznik, executive director of the conservation league, also applauded Roesch's ruling.

"The litigation streamlining provision in AB 900 would have deprived average Californians of their right to hold public agencies and developers accountable who fail to prevent environmental damage caused by major projects," he said in a statement.

"We recognize that developers are hoping to simplify the environmental review process, but short-circuiting the judicial process is not the way to achieve that goal."

The ruling comes amid a debate in the California Legislature over whether and how to change, according to a release by Public Good PR. It says the Planning and Conservation League "has been working actively to keep CEQA strong and is a lead organization in CEQA Works, a coalition of more than 150 conservation and grassroots organizations working to protect CEQA's core tenets, including community enforcement of the Act."

"Judge Roesch's decision is expected to dampen efforts to force even more environmental cases directly into the appellate courts," the PR group says.

The conservation league was represented by Bart Lounsbury of Rossmann and Moore, with support from co-counsel Keith Wagner of Lippe Gaffney Wagner.

Calls seeking comment to Tony Rossmann were not returned.

The state was represented by Deputy Attorney General Sylvia Cates.

"We have no comment on this case," Lynda Gedhill with the attorney general's press department told Courthouse News.

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