California’s Program to Streamline Litigation Challenging Renewable Energy and Infrastructure Projects – Early Evidence of Success
In July 2023, the Governor signed SB 149, expanding the judicial streamlining program created in 2021 pursuant to SB 7 (the Jobs and Economic Improvement Through Environmental Leadership Act of 2021).[1] This program is designed to require that lawsuits challenging certain type of projects are resolved quickly. Under SB 7, judicial streamlining benefits previously were available to renewable energy projects (excluding battery storage) and certain housing and mixed-used projects. SB 149 expanded the scope of projects which could seek judicial streamlining to include various “infrastructure projects,” including wind, solar, and battery energy storage projects, as well as other transmission, water, and transportation infrastructure projects.
The primary benefit for projects certified by the Governor under SB 149 or SB 7 is expedited court review once a lawsuit is filed—both bills require state courts to resolve California Environmental Quality Act (CEQA) litigation challenging a project approval within 270 days of filing of the certified record of proceedings, to the extent feasible, including any appeals to the Court of Appeal or Supreme Court. Resolving a CEQA challenge through the Court of Appeal (and Supreme Court) in 270 days is near lightning speed, cutting the standard litigation timeline in half, as most CEQA cases typically take between two to three years to resolve.
Since taking effect, only a handful of projects have sought certification under SB 7 and SB 149—three under SB 7 and only one under SB 149. However, early evidence suggests that the streamlining benefits are playing out in the courts. The Sites Reservoir Project, a massive water storage project proposed in Northern California, was challenged under CEQA in December 2023. On May 31, the Yolo County Superior Court rejected the challenge, and it did so 148 days after the lawsuit was filed.[2] This timeline is largely consistent with new California Rules of Court that were created for certified projects, which establish strict schedules for parties to prepare written briefs and require trial courts to hear the merits of the case within 110 days of the lawsuit being filed and issue a decision 30 days thereafter (for a total of 140 days). The Yolo County Superior Court followed those requirements almost “to a T.” The Rules of Court also require that an appeal be filed within five days of the decision, but no appeal appears on the Superior Court’s docket, suggesting this case may be final.
Given the early success of judicial streamlining under SB 7 and SB 149, the program could be a game changer for many projects in California, particularly for large-scale wind, solar, and battery energy storage projects which often have strict operational deadlines that can be turned upside down by a CEQA lawsuit. Although certification under the program imposes additional costs, such as paying the costs of the trial court and Court of Appeal (if litigation is actually filed) and the costs of preparing the administrative record concurrently with project processing (even if litigation is never filed), the significant benefit of avoiding litigation delays, particularly when delay alone often is the primary tactic for project opponents, may be worth the extra expense. As demonstrated by the Sites Reservoir lawsuit, the streamlining program appears to be working, potentially removing a major hurdle for the continued development of much-needed renewable energy projects in California.
For more information on SB 7 or SB 149, or for help getting certified under these programs, please reach out to Cox Castle’s renewable energy team.
[1] SB 7 was itself an extension of the provisions created for “environmental leadership development projects” (ELDPs), which were adopted in 2011 under AB 900. AB 900 sunset in 2021 and had primarily been used for professional sports venues.
[2] See the Governor’s press release at https://www.gov.ca.gov/2024/06/04/sites-reservoir-project-clears-hurdle-thanks-to-streamlining-law/.