More on rejected CEQA "reform"

CEQA stream-lining declared unconstitutional

by Kathy Hamilton

April 4, 2013

In a stunning decision, March 27, 2013, Judge Frank Roesch of the Alameda Superior Court ruled that a key provision of AB 900 (Steinberg 2011) was unconstitutional. The part that was struck down concerned the requirement to have litigants bypass Superior Court and go directly to the Court of Appeal. It’s a separation of powers issue; the legislature can’t pass a law that precludes plaintiffs from going to the Superior Court. The constitution gives that power to the Superior Court and the citizens the right to access the court system.

The Planning and Conservation League (PCL) brought the state to court and challenged only the provision of the law that was struck down. The lawsuit argued that the Legislature overstepped its constitutional authority in dictating to the courts at what judicial level a specific case should be initiated, depriving citizens of their constitutionally guaranteed access to all the courts of California. 

Judge Roesch concluded in the oral ruling, “It is inescapable to me that the provision of AB900 found in Public Resources Code section 21185 [which would create exclusive jurisdiction in the California Court of Appeal] is so inconsistent with the constitutional mandates of where writs of mandate can be brought as to be unconstitutional." 

The judge also said that the Court does not lightly declare statutes unconstitutional. Note: Before the passage of the bill, there was an attempt by the Judicial Council to advise the legislature that it was overstepping constitutional authority, but the legislators didn’t listen.

Attorney Antonio Rossmann, whose firm represented the case for PCL, reminds us that when the law first passed, the statute was a product of last minute maneuvering by the legislature in late 2011. It was brought before the legislature in one day; in fact the last day of session therefore the bill did not have thorough examination by the members. 

The process is called “gut and amend,” which essentially means they take the content out of a seemingly harmless bill and substitute it for something that the legislator wants to get through fast and without the scrutiny of others...

This was similar to what to the bill that was tried at the end of 2012, authored by former Senator Rubio, which would have harmed CEQA had it passed. It was pulled at the last minute by Senate pro Tem Darrell Steinberg with a promise that he’d be back next session to improve and modernize CEQA. Many in the environmental community are skeptical and concerned about tampering with the CEQA law...

More on the decision at the Plannng and Conservation League 

Learn more about CEQA at CEQA Works.