Governor Gavin Newsom announced proposed major new infrastructure permitting reforms on May 19, 2023 in an effort to create thousands of jobs and build California’s clean energy future. The eleven-bill package seeks to expedite certain water, transportation, clean energy, semiconductor, and microelectronics projects, including water recycling and desalination plants, solar fields, offshore wind farms, the Sites Reservoir Project in the Sacramento Valley, and the plan to build a tunnel to transport water to Southern California beneath the Sacramento-San Joaquin River Delta (the Delta Conveyance Project). A Senate budget committee found the package was too complex for last-minute consideration before the June 2 cutoff for bills to pass out of their house, but there is still some hope that the plan could move forward.

The Governor’s proposal includes several provisions designed to expedite permitting and review of critical projects. First, the proposal would reduce litigation delay and cost by allowing litigation streamlining for qualifying projects certified by state agencies. Courts would be required to resolve CEQA challenges within 270 days, to the extent feasible. Preparation of the administrative record would also be expedited, and agencies would be required to compile records concurrently with environmental review. The bill would also grant agencies greater control over the contents of the administrative record and overturn Golden Door Properties, LLC v. Superior Court of San Diego (2020) 53 Cal.App.5th 733, which expanded the scope of documents required to be included. 

Second, the proposal would eliminate the California Endangered Species Act (CESA) fully protected species designation, which strictly limits the ability to move forward with projects in certain locations. The bill would require reclassification of such species as threatened or endangered under CESA, allowing the California Department of Fish and Wildlife to develop mitigation for impacts to those species and approve incidental take permits incorporating that mitigation. 

Third, to maximize federal dollars, the bill would establish a Green Bank Financing Program within the Climate Catalyst Fund, allowing the state to leverage federal dollars for climate projects that decrease pollution, focusing on projects that benefit low-income and disadvantaged communities. The bills were accompanied by Executive Order N-8-23, which creates an Infrastructure Strike Team that is tasked with creating working groups to prioritize funding for projects that achieve multiple benefits, each group focusing on one of the following issues: transportation, energy, hydrogen, environmental remediation, broadband, water, the CHIPS and Science Act, and zero-emission vehicles. 

Alluding to previous bills that have created similar procedures for sports arenas and other large projects, Governor Newsom said “I love sports . . . But I also love roads. I love transit. I love bridges. And I love clean energy projects. . . . It’s not just about stadiums. And we’ve proven we can get it done for stadiums. So why the hell can’t we translate that to all these other projects?”

However, critics of Governor Newsom’s proposal quickly spoke out, arguing it both weakened the state’s environmental protections and erred in limiting proposed reforms to specific types of projects. Laura Deehan, State Director for Environment California, appeared alongside Governor Newsom at the press conference, but warned of changing CEQA overnight and later regretting it. Assembly Republican Leader James Gallagher said that the focus should be more on across-all-board reforms. Barbara Barrigan-Parrilla, executive director of the advocacy group Restore the Delta, made her thoughts clear that the plan “guts” environmental review for the Delta Conveyance Project and that “Governor Newsom does not respect the people in communities that need environmental protection.” Ethan Elkind, director of the Climate Program at Berkeley Law’s Center for Law, Energy and the Environment, stated that California’s infrastructure construction process is unlikely to be revolutionized by the proposals and he expressed concerns regarding the changes in judicial review for the Delta Conveyance Project. However, he also stated that certain aspects of why projects are delayed are indefensible, like the cost of environmental documents.

A Senate budget committee in a 3-0 vote found the package was too complex for last-minute consideration as the cutoff for bills to pass out of their house of origin was June 2, but the bills could be re-introduced through the Legislature’s policy committees. 

Governor Newsom appears determined to push this initiative forward. At a solar farm in Stanislaus County where he announced the proposal and signed the executive order, he stated that “[t]he only way to achieve California’s world-leading climate goals is to build, build, build – faster. This proposal is the most ambitious effort to cut red tape and streamline regulations in half a century. It’s time to make the most out of taxpayer dollars and deliver results while creating hundreds of thousands of good jobs.” The Office of the Governor’s press release states, “[b]y streamlining permitting, cutting red tape, and allowing state agencies to use new types of contracts, these proposals will maximize taxpayer dollars and accelerate timelines of projects throughout the state, while ensuring appropriate environmental review and community engagement.” The press release also discusses the May 18, 2023 Infrastructure Acceleration Report which details a set of action items to expedite up to $180 billion worth of infrastructure projects to promote equity, sustainability, and economic growth in California over the next ten years, creating over 400,000 jobs.

It is indisputable that overly burdensome permitting processes and litigation obstruct development of critical projects in California, including housing, infrastructure, and alternative energy. While there are varying opinions concerning Governor Newsom’s proposed reforms, they are bringing about important conversations regarding large planned projects in California, CEQA reform, and progress toward the state’s climate, housing, and economic goals.

Photo of Kathryn L. Oehlschlager Kathryn L. Oehlschlager

With more than a decade of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counselling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance…

With more than a decade of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counselling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with all facets of environmental and land use law, including CEQA, NEPA, federal and state endangered species laws, contaminated site remediation, water quality and supply issues, and laws regulating solid and hazardous waste.  She routinely represents clients in all aspects of the California Environmental Quality Act (CEQA) project review process, including preparation, review, and analysis of negative declarations, draft environmental impact reports, and final environmental impact reports. (Read more…)