Will AB 900 Provide a Fast Track for CEQA Challenges to HSR?
Last week Governor Jerry Brown signed two bills in Los Angeles designed to help get a new NFL stadium built near LA Live and Staples Center. The two bills, AB 900 and SB 292, provide for expedited review of lawsuits brought under the California Environmental Quality Act (CEQA) against certain kinds of infrastructure projects or developments valued at $100 million or more. Already questions are being asked about these bills and whether they apply to the Westside subway project:
Assembly Bill 900, the companion bill to SB 292 which gives Farmers Field protection against legal chalenges, provide the same protection to ANY project costing more than $100 million. Thus, any lawsuit filed under the California Environmental Quality Act (CEQA) against the Westside Subway will go directly to the Court of Appeals and be heard within 175 days. I’m sure the Expo Construction Authority is jealous.
“The subway is a natural from a job-creation standpoint, from an investment standpoint, from an emission reduction and air quality standpoint,” said Senator Alex Padilla, the author of SB2 292, to the Daily News.
If the Westside subway might benefit, what about high speed rail?
Let’s take a closer look at AB 900. Here’s what the bill’s intro text has to say:
This bill would enact the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 and establish specified judicial review procedures for the judicial review of the EIR and approvals granted for a leadership project related to the development of a
residential, retail, commercial, sports, cultural, entertainment, or recreational use project, or clean renewable energy or clean energy manufacturing project. The act would authorize the Governor to certify a leadership project for streamlining pursuant to the act if certain conditions are met.
Does HSR meet those “certain conditions”? Back to the text of AB 900:
(b) “Environmental leadership development project,” “leadership project,” or “project” means a project as described in Section 21065 that is one the following:
(1) A residential, retail, commercial, sports, cultural, entertainment, or recreational use project that is certified as LEED silver or better by the United States Green Building Council and, where applicable, that achieves a 10-percent greater standard for transportation efficiency than for comparable projects. These projects must be located on an infill site. For a project that is within a metropolitan planning organization for which a sustainable communities strategy or alternative planning strategy is in effect, the infill project shall be consistent with the general use
designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy, for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization’s determination that the
sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets.
(2) A clean renewable energy project that generates electricity exclusively through wind or solar, but not including waste incineration or conversion.
(3) A clean energy manufacturing project that manufactures
products, equipment, or components used for renewable energy
generation, energy efficiency, or for the production of clean
alternative fuel vehicles.
(c) “Transportation efficiency” means the number of vehicle trips by employees, visitors, or customers of the residential, retail, commercial, sports, cultural, entertainment, or recreational use project divided by the total number of employees, visitors, and customers.
Keep in mind that I’m not a lawyer. But as I read this…I am not seeing how HSR would qualify. And to be honest I’m not seeing how the Westside subway qualifies either. Neither seem to count as a “residential, retail, commercial, sports, cultural, entertainment, or recreational use project,” neither appear to be “infill,” and neither appear to be clean renewable energy projects or clean energy manufacturing projects.
When I first read about AB 900 last week I took a quick glance at the text and came to the same conclusion. Upon seeing Senator Alex Padilla’s comments I decided to take another look for the purposes of writing this post, and I am again coming to the same conclusion. But then he is much more familiar with this bill than I am, so maybe I am missing something, though it doesn’t seem that way.
This bill is clearly part of a broader effort in Sacramento to streamline CEQA review for large projects that could create jobs and help the environment. So even if the Westside subway and HSR don’t fall under the specific and narrow definitions of AB 900, a precedent has been set. Both projects are environmentally friendly, reduce greenhouse gas emissions, and will create desperately needed jobs for the state. If AB 900 is perceived to be a success, then political momentum could be generated in Sacramento to apply it to more projects, including rail projects.
That might be a good thing. As I have written before, CEQA is outdated and needs to be reformed. California needs land use planning law that promotes projects that help lower greenhouse gas emissions. CEQA, however, was written in the 1970s when those concerns didn’t exist. CEQA has had a positive impact on the environment, but over time NIMBYs have found ways to use it to stop projects they don’t like, including rail. And that has fueled sprawl and dependence on automobiles, increasing greenhouse gas emissions.
CEQA needs to be a tool to help fight global warming, not a tool to help wealthy people stop those fights. That means it’s time to bring it into the 21st century. AB 900 is one way we can get there. Even if it doesn’t apply to rail projects, it’s still a good way to get infill redevelopment moving more quickly, without actually preventing people from using the law as a basis to sue against projects they dislike.
Currently there are no discussions that I’m aware of regarding HSR and CEQA. That may change. In the early 1980s Jerry Brown exempted HSR from CEQA altogether. I doubt that would ever happen today. But an expedited lawsuit review process could. It may be something worth exploring, as part of the effort to bring jobs and economic recovery to California and improving CEQA without gutting it or undermining its positive aspects.