California Governor Jerry Brown just signed AB 900, the Jobs and
Economic Improvement Through Environmental Leadership Act of
2011. This bill creates a streamlined litigation process for
challenges to environmental impact reports for certain projects
that are expected to create jobs and cause relatively few
environmental impacts. The bill allows these cases to be
heard directly by the court of appeal, on an expedited basis,
bypassing the trial court.
By contrast, the bill does not streamline – but instead
potentially complicates – the lead agency's
processing of qualified projects before litigation begins.
The bill requires that the lead agency prepare an administrative
record as the project is being processed and that it post record
documents online within days of receiving or creating them.
Many agencies may find these requirements difficult to
implement.
Solar and wind electricity-generating facilities are eligible for
the streamlined process under this bill, as are manufacturing
facilities that make products, equipment or components for
"renewable energy generation, energy efficiency or . . . the
production of clean alternative fuel vehicles."
Residential, retail, commercial, sports, cultural, entertainment or
recreational use projects are also eligible, but only if the
projects meet the following criteria:
- they are located on infill sites;
- they are certified LEED Silver or better;
- they comply with any existing sustainable communities strategy or alternative planning strategy that the State Air Resources Board has determined will achieve certain greenhouse gas emission reduction targets; and
- "where applicable," they achieve "a 10-percent greater standard for transportation efficiency [defined as trips per person] than for comparable projects."
In addition, the governor must certify that the eligible project
meets additional requirements. The project must provide an
investment of at least $100 million in California, pay prevailing
and living wages, and produce zero net greenhouse gas emissions
"as determined by the State Air Resources Board."
The applicant must also have agreed that mitigation measures will
be enforced, pay for the administrative record and pay "the
costs of the Court of Appeal in hearing and deciding any
case."
The bill's voluminous requirements, its lack of definitions for
many of the terms it uses, and its novelty all mean the bill will
require careful legal, political and practical evaluations to
determine whether it applies to a particular project and, if so,
how compliance is to be achieved.
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