On September 30, 2010, Governor Arnold Schwarzenegger signed into law two bills, AB 231 and SB 1456, both of which took effect immediately as urgency statutes. Both laws address two significant burdens that the California Environmental Quality Act (CEQA) places on the mining industry: the complex CEQA review process and the abuses of CEQA through litigation. While stating in his signing message to the Legislature that both bills were “small steps in the right direction,” the Governor also lamented that “neither I, nor the Legislature should fool ourselves into thinking that these bills even make a dent in the problems caused by CEQA’s spaghetti-like requirements.”
Both bills simplify the process by which a lead agency may rely on an environmental review for a later project that was prepared and certified for an earlier project, program, plan, policy, or ordinance. Additionally SB 1456 also adds provisions to CEQA to encourage voluntary mediation at the outset of a “dispute” after a project has been approved, but before litigation has commenced. SB 1456 also contains provisions that expedite the CEQA litigation process by: (1) disallowing the suspension of CEQA litigation deadlines during a mediation occurring after litigation is initiated, and (2) permitting the Attorney General’s Office to request that the trial court expedite a litigation schedule, if it would be in the public interest to do so.
While both bills were authored by Democrats and passed a Democrat-controlled Legislature, whether these reform efforts are just the beginning of even bigger things to come, or will be flashes that fade over time after Governor Schwarzenegger leaves Sacramento, remains to be seen. The Governor-Elect, Jerry Brown, has a history of expansively using CEQA as a litigation tool in his former job as Attorney General to influence public policy decisions on everything from climate change, to housing density, to traffic patterns. What Governor Brown’s intentions are with respect to CEQA reform remains to be seen. If he is serious about consensus building and problem solving, he is probably the one person who has the ability to work with the Democrats in the Legislature and the interest groups that have a strangle hold over CEQA reform to demand changes in the law.