Arena development and environmental review reform under SB 743.

• Author: Kasner, Alexander J.
• Position: California

Introduction I. First Attempts at Reform II. If at First You Don't Succeed ... Try SB 743 III. Policy Considerations and Concerns INTRODUCTION

On September 27, 2013, California passed Senate Bill (SB) 743, an act purporting to pursue "Judicial Review Streamlining for Environmental Leadership Projects." (1) On its surface, the bill was mere special interest legislation intended to convince the National Basketball

Association to block the relocation of the Sacramento Kings to Seattle, Washington. In truth, however, SB 743's effects stretched far beyond expediting the construction of a new arena. For years, California had been considering steps to undercut its cumbersome environmental review regulations. In crafting SB 743, these dormant mechanisms--shortening litigation windows and limiting the subjects of review--were pulled off the shelf. The result is a commonly dismissed piece of legislation that quietly changes the course of state environmental review.

This Note begins by analyzing California's complicated history with environmental review in the form of the California Environmental Quality Act, including its provisions' need for reform, and past environmental review failures to untangle the snare of its regulations. It then proceeds to consider the context of SB 743, as well as its two major attempts at reform and empowerment of municipal development in environmental litigation. While the bill is a first step toward needed reform, especially in its more nuanced understanding of environmental mitigation, its gerrymandered reduction of access to environmental litigation is a concerning restriction of complainants' right to seek court review.

1. FIRST ATTEMPTS AT REFORM

   The California Environmental Quality Act (CEQA) was enacted in 1970 as one of many state legislative responses seeking to capitalize on the passage of the federal National Environmental Policy Act." (2) CEQA is undoubtedly the most important environmental protection law in California (3) and "[one] of California's most cherished institutions," (4) but it is also one of the state's "most controversial" (5) pieces of legislation. In the past few years, CEQA has come under sweeping scrutiny. Critics allege that CEQA has only exacerbated California's dramatic recession, turning the battle for "jobs and economic growth ... into an agonizing test" (6) as businesses bypass California for states with less burdensome environmental regulations. In addition, CEQA has been employed superfluously and invidiously. For example, one lawsuit delayed San Francisco's painting of new bike lanes by alleging that the lanes "could cause pollution," (7) while other CEQA challenges were brought to squeeze out competitors or undesirable projects based on reasons "unrelated to environmental impacts." (8)

   Against this backdrop, the California State Legislature has sought to trim back CEQA in hopes of modernizing the state environmental review system. The opening salvo came in the passage of AB 900 in 2011. (9) The legislation, enacted in a furious last-minute legislative session with two accompanying reform bills, was explicitly designed to grant preferential review to environmentally sound, job-creating projects. (10) The most famous of these construction endeavors--and the raison d'etre for AB 900--is the new headquarters for Apple in Cupertino, notoriously dubbed the "Mothership." (11)

   In particular, the legislation allowed certain projects to obtain (1) expedited binding review by the Governor and the California state legislature, and (2) expedited consideration of challenges by the judiciary. Specifically, the expedited judicial review provided that all CEQA claims challenging these large-scale projects would bypass California's trial courts and instead need to be filed in the California Court of Appeals, which would be granted original jurisdiction to hear the controversy. The Court of Appeals would be required to issue its determination within 175 days of the petition's filing. AB 900 was dealt a significant blow, however, when a state judge ruled the jurisdictional circumvention of the Superior Court was unconstitutional. (12)

2. IF AT FIRST YOU DON'T SUCCEED ... TRY SB 743

   Even with the jurisdictional component of AB 900 out of the picture, the legislation still provided a blueprint for methods of future attempts to shield major development projects from the exacting standards of CEQA. It was a model employed by California Senate President Pro Tern Darrell Steinberg later that year. Senator Steinberg hails from Sacramento, which found itself...