A Superior Court judge, daring to go where even he fears to tread, declared unconstitutional state laws passed in 2011 that allowed large projects to be fast-tracked past the state’s landmark environmental law.

Alameda County Superior Court Judge Frank Roesch ruled last week that AB 900 and SB 292, which were meant to smooth the way for quick approval of a downtown football stadium in Los Angeles and other projects, inappropriately stripped the courts of their oversight functions by letting proponents bypass trial courts and go directly to appellate courts for review.

Roesch said he took his actions fully aware of their unusual nature, declaring, “The court does not lightly as a superior court declare statutes unconstitutional.”

Trial courts provide an opportunity for opponents of projects to challenge them under the 1970 California Environmental Quality Act (CEQA). In bypassing them, the new laws limited the review process to appellate judges who have less time and resources to consider complex environmental issues.

The ruling comes as the Legislature wrestles with proposals to revamp the law to facilitate development. CEQA mandates the ubiquitous environmental impact reports that require project developers to identify problems and mitigate them ahead of time. The Act makes environmental protection part of every government decision at the state and local level by mandating a process of analysis, mitigation and transparency.  

A hasty, rewrite of the Act was jettisoned last year as the Legislature barreled to a chaotic close, but Governor Jerry Brown and legislative leaders indicated they would revisit the issue. Although even CEQA’s biggest fans acknowledge that the Act is a bit creaky and due for some adjustments, they don’t go nearly as far as critics who say it is a costly, bureaucratic, jobs killer that is used to harass businesses while impeding worthwhile developments and advancing a political agenda.    

A report released last month by the University of Utah's Economics Department disputed conventional wisdom that CEQA’s demanding review process cripples development. Author Peter Philips found that CEQA actually speeds development by favoring a holistic, rather than piecemeal, approach.

“On a project-by-project basis, CEQA makes for better choices by letting more voices be heard, putting more information on the table, and letting a fuller calculation of the true price of each project and its alternatives be considered,” the report said. 

The government has already used the new laws to fast-track Apple’s new Cupertino campus and the proposed McCoy Solar Project in Riverside County.

The judge’s ruling from the bench did not invalidate the laws in their entirety; just the parts that leapfrog the Superior Courts. The case was brought by Bruce Reznik, a private citizen, and the Planning and Conservation League, a conservation advocacy organization.

–Ken Broder

To Learn More:

Judge Nixes Provision of CEQA Streamlining Law (by Rebekah Kearn, Courthouse News Service)

Court Finds “Streamlined” CEQA Court Review Unconstitutional (Planning and Conservation League)

CEQA Helping, Not Hindering Renewable Development (by Chris Clarke, KCET)

Rewrite of Landmark Environmental Act Fails, but Exemptions Chip Away at It (by Ken Broder, AllGov California)

The Economic and Environmental Impact of the California Environmental

Quality Act (by Peter Philips, University of Utah Department of Economics) (pdf)