With the enactment of Senate Bill 1456 (SB 1456) and Assembly Bill 231 (AB 31) on September 29, 2010, the California Legislature has taken preliminary steps to streamline the rigorous environmental review process under the California Environmental Quality Act (CEQA), while also addressing the growing problem of costly and time-consuming lawsuits filed under CEQA. This legislation is intended to promote a more efficient process for CEQA review and litigation by discouraging frivolous CEQA actions, promoting the use of mediation and expedited litigation schedules, strengthening the requirements for exhaustion of administrative remedies and allowing project applicants and public agencies greater latitude to use prior environmental analyses.
Hoping to curb abuse of the CEQA process, SB 1456 allows a court to impose sanctions of up to $10,000 if a party is found have filed a claim that is frivolous, or “totally and completely without merit.” Allowing the imposition of sanctions for frivolous CEQA claims will make it harder for opponents to delay or defeat worthy projects. SB 1456 also provides a party the option to request mediation prior to the inception of a CEQA action and allows the Attorney General to seek an expedited CEQA litigation schedule when the public interest requires it. Finally, SB 1456 requires that an organization challenging the approval of a CEQA document that is formed after project approval must include at least one member who had claimed before the approval that the CEQA review was deficient.
To allow for greater use of prior environmental analyses, AB 231 provides public agencies more discretion to decide that certain environmental issues do not need to be restudied under CEQA if a project is modified. Specifically, an agency may now incorporate by reference in a subsequent environmental impact report a previous finding of overriding considerations for an earlier project if certain conditions are met. Likewise, SB 1456 allows an agency to forgo the examination of a cumulative effect of a later project if the agency finds that it has been adequately addressed in a prior CEQA document, unless the lead agency finds that the incremental effects of the project are cumulatively considerable.
These CEQA amendments will likely allow pending and future projects, including renewable energy projects, the ability to navigate the California permitting process in a more efficient manner. But project developers hoping to take advantage of the provisions of this legislation should be aware that both SB 1456 and AB 231 are set to expire in 2016 and should therefore adjust their permitting schedule accordingly.
A more detailed analysis about this recent legislation can be found here.