California Governor Jerry Brown is attempting to draw large-scale developers back to the state with a promise: If they can deliver net-zero projects—and well-paid jobs for state residents—they won’t get tied up in long, costly environmental lawsuits.
Brown signed two bills into law last week that, he said, “strike the right balance between protecting our environment and kick-starting jobs and investment in California.”
Assembly Bill 900 fast-tracks the judicial review process for large, urban infill developments that are designed to meet Leadership in Energy and Environmental Design (LEED) Silver standards or higher, bring $100 million in investment into the state upon completion, and create permanent, living-wage jobs for state residents.
These “environmental leadership projects”—to be designated by the governor—will still have to go through California’s rigorous environmental review process and must stay carbon-neutral right down to auto emissions from employees’ daily commutes.
But if a project’s environmental permit is challenged in court, the case will go straight to the appeals level, rather than the county-level superior courts where it would normally be heard. The appellate judges will then have 175 days to issue a decision.
The second law, Senate Bill 292, designates the proposed Farmers Field stadium in downtown Los Angeles as the first leadership project. On top of the net-zero emissions requirements, it also commits the developer—Anschutz Entertainment Group—to keeping spectator vehicle trips to the stadium at least 10 percent lower than those to any other National Football League stadium.
With $1 billion in private funding, Farmers Field also includes an expansion of the Los Angeles Convention Center, with the 68,000-seat stadium integrated into the complex.
Initial reactions to the new laws are mixed, among developers as well as environmentalists.
Margaret L. Cafarelli, founder of Urban Developments, a real estate investment firm in San Francisco, sees Assembly Bill 900 as a creative response to providing developers and investors with the certainty they need and spurring more large infill projects.
“Jerry Brown is a realist,” says Cafarelli, who is also a member of ULI’s Sustainable Development Council. “He’s always been interested in making sure developers know what the rules are going in. Development takes a long time anyway. With certainty, you’re willing to play.”
Meea Kang, president of the California Infill Builders Association, also sees the laws as a step in the right direction.
“It’s the first time we’re looking at performance-based criteria so we’re defining what a good infill project is,” said Kang, who is also president of Domus Development in San Francisco.
But others expect the law to have little effect, since few projects will be able to meet its high financial and environmental standards and short timeframes.
“It’s so limited in terms of the type of project it applies to, there aren’t going to be big changes,” says Paige Gosney, a land use attorney with Jackson DeMarco Tidus Peckenpaugh of Irvine, California.
Gosney and others point to additional provisions of the law as further narrowing its impact. For example, developers will have to pay for the extra costs for the expedited judicial review and create a digital paper trail on their projects so that all reports, filings, and public comments are easily available online.
And it sunsets at the end of 2014—a relatively short timeframe for large projects.
More to the point, the laws skirt the real issue – long overdue reform of the California Environmental Quality Act (CEQA), said Kate White, executive director of ULI’s San Francisco office. “The irony of CEQA is that it has done more environmental damage than if it didn’t exist,” she said. “The law is utilized as a tool by NIMBY groups to oppose very responsible infill developments. It’s much easier in California to build sprawl.”
On the environmental side, some groups have supported Senate Bill 292 and Farmers Field, while opposing or staying neutral on Assembly Bill 900, calling it hastily drafted and a threat to public input in the environmental review process, if not unconstitutional.
CEQA already mandates at least two opportunities for public input on projects, a 30-day “scoping” period before an environmental impact report (EIR) is compiled, and a 30- to 90-day public comment period after an EIR is issued.
Not enough, says Kathryn Phillips, executive director of Sierra Club California. Local legal challenges, heard by judges with special expertise on CEQA, are a critical tool for bringing developers to the table to negotiate better project mitigations, she says.
She also argues that streamlining the judicial review will have minimal impact, because only a very small number of projects undergoing a CEQA environmental review ever go to court—about one out of 354, according to the most recenly available numbers—a 2005 report from the Public Policy Institute of California.
Equally troubling to Phillips is “the implication that environmental review is standing in the way of jobs.” She adds: “The ability to get funding is standing in the way of jobs; the bad economy is standing in the way of jobs.”
Warner Chabot, CEO of the California League of Conservation Voters, is less concerned about foreshortening the judicial review process than tightening up language in AB 900 to ensure that the performance standards in the bills are met and maintained.
Both LEED and EIRs are upfront standards that don’t always address long-term building performance, so periodic audits of leadership projects should be written into the law, he says.
Assembly Bill 900 is, Chabot concludes, “a constrained mechanism if it works. We need to find ways to encourage big projects but ensure environmental performance at exceptional levels.”
