Implications of Senate Bill 149 for Judicial Review of CEC Decisions and CEQA Litigation

With the passage of Assembly Bill 900 in 2011, the California Legislature authorized judicial streamlining of litigation brought pursuant to the California Environmental Quality Act (“CEQA”) for a certain category of projects certified as Environmental Leadership Development Projects (“ELDPs”) by the Governor. Project applicants seeking ELDP designation are required to meet specific eligibility standards, including greenhouse gas emissions and labor standards. In July of 2023, the Governor signed a number of new laws intended to streamline the construction of critical infrastructure projects including Senate Bill (“SB”) 149. SB 149 extended the Governor’s authority to certify a project as an ELDP for an additional eight years, through January 1, 2032.

Significantly, and in addition to extending the “sunset” of the ELDP process, SB 149 includes a second, new set of projects eligible for streamlining. Specifically, SB 149 also establishes procedures for expedited judicial review within 270 days, to the extent feasible, for the following four categories of public and private “infrastructure projects,” as defined in SB 149:

  1. Energy infrastructure projects, including new energy storage systems of 20 megawatts or more, excluding pumped hydro
  2. Semiconductor or microelectronic projects
  3. Certain transportation-related projects
  4. Certain water-related project

To qualify for expedited judicial review, projects must be “certified” by the Governor as eligible infrastructure projects. The original ELDP designation process requires projects to meet certain labor and greenhouse gas emissions standards, as mentioned above. New provisions added by SB 149 also require Applicants to meet certain other requirements, such as avoiding or minimizing impacts to disadvantaged communities; and undertaking any necessary mitigation measures, if needed, in, and directly benefiting, affected communities.

SB 149 also includes language pertaining to the preparation of the administrative record in CEQA cases.

This significant new law’s provisions and implications involve some putative benefits associated with potentially streamlined/expedited processes, but a number of open questions and unresolved issues also remain. Exactly how SB 149 will be implemented is not clear. It is clear, however, that eligible SB 149 projects will be subjected to a complex new process involving, at a minimum, the Governor, the Joint Legislative Budget Committee, the California Energy Commission (“CEC”) as lead permitting agency, the Applicant’s project development team, the CEC Staff as an independent party, Californians for Reliable Energy (“CURE”) as an Intervenor, and very likely the Governor’s Office of Planning and Research, charged with the authority but not the obligation to develop SB 149 “guidelines” (not regulations), and others.

For further information, please contact Jeffery Harris, Samantha Neumyer, or Christopher Ellison