The Legislature recent passed, and the Governor signed into law, the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 (“2021 Leadership Act”), which would extend the ability for certain qualifying projects to obtain streamlined judicial review for certain projects and would expand the types of projects that qualify.
Previously under the former 2011 Leadership Act, in order for projects to qualify for streamlining provisions, projects had to be of a certain specified type, be located on an infill site, result in $100 million or more in investment in California, meet LEEDs Gold standards, and pay prevailing wage to construction workers, among other requirements. If a project met the qualifications, it could obtain streamlined judicial review of any challenges to the project. These streamlining provisions included a requirement that the lead agency prepare the administrative record concurrently with the administrative process, certify the administrative record within 5 days of approval of the project, and that disputes regarding the administrative record be resolved through motions to augment filed concurrently with initial briefs in the trial court. In addition, the 2011 Leadership Act required, to the extent feasible, that lawsuits filed challenging qualifying projects be resolved within 270 days of the certification of the administrative record, including any appeals. The 2011 Leadership Act expired by its own terms on January 1, 2021.
The 2021 Leadership Act would reenact the 2011 Leadership Act, with certain changes, and would authorize the Governor, until January 1, 2024, to certify projects that meet the specified requirements to obtain the same streamlining benefits. New in the 2021 Leadership Act is the inclusion of infill housing developments, which include a minimum 15% of the units dedicated to affordable housing, and which result in investment in California of between $15 million and $100 million. Except for these housing development projects, the 2021 Leadership Act requires the quantification and mitigation of the impacts of a project from the emissions of greenhouse gases as provided in the statute. In addition, the 2021 Leadership Act would allow the Governor to certify the project prior to the certification of the final EIR by the lead agency, and would allow the Governor to certify a project alternative to a project as described in the EIR.
Like the 2011 Leadership Act before it, the 2021 Leadership Act will likely apply only to a small range of projects. The inclusion of more moderately-sized residential projects may, however, increase the number of qualifying projects. In any event, with the passage of the 2021 Leadership Act, qualifying projects will continue to benefit from streamlined judicial review for another three years.