Building California: How will infrastructure agreement affect development and wildlife?
California lawmakers and Gov. Gavin Newsom are poised to enact a package of bills that aim to speed up lawsuits that entangle large projects, such as solar farms and reservoirs, and relax protection of about three dozen wildlife species.
Newsom and Senate and Assembly leaders unveiled the five bills as they negotiated the state's $310 billion 2023-24 budget. The deal ended a standoff over the governor's infrastructure package, which he unveiled in May in an effort to streamline renewable energy facilities, water reservoirs, bridges, railways and similar projects.
The package of bills will make its way through the Legislature on an accelerated schedule. The bills include an urgency clause — meaning they would take effect immediately when Newsom signs but they also will require a two-thirds vote to pass.
The package has been negotiated by Newsom and lawmakers behind closed doors.
The debate and negotiations focused on how California can speed up major projects that benefit the public while ensuring the environment is protected. The wideranging collection of bills takes aim at broad swaths of state environmental policies shaping how state agencies approve large projects.
One of the bills sets a time limit for legal challenges for specified water, transportation and energy projects under the landmark California Environmental Quality Act, which can entangle projects in court for years.
Another gives the state Department of Fish and Wildlife new authority to issue permits allowing species that are designated “fully protected,” such as the greater sandhill crane and golden eagle, to be harmed by similar types of projects.
Environmentalists who initially criticized Newsom's package say they are satisfied with the changes, and businesses and water agencies, which have backed the package from the beginning, support the changes, too.
The proposals “are really going to help move the needle on water infrastructure projects that are needed to address the impacts of climate change,” said Adam Quinonez, of California Water Agencies.
The changes won over the Natural Resources Defense Council, which had concerns about the potential environmental harms caused by Newsom's original proposals, such as provisions that might have expedited the deeply divisive Delta tunnel.
Although the wildlife bill would ease some existing protections, Mike Lynes, Audubon California's director of public policy, hopes that in practice it would actually increase enforcement. “Ultimately, it really will fall on the Department of Fish and Wildlife to make sure that these are good permits, and that the law is enforced,” he said.
What's happening with CEQA?
One of the bills, Senate B 149, takes aim at the often lengthy lawsuits brought under CEQA, which tasks public agencies with assessing possible harms of proposed development. Lawsuits by the public and advocacy groups can entangle projects for years.
The bill would set a 270day limit for wrapping up these environmental challenges for water, energy, transportation and semiconductor projects. The projects must be certified by the governor by 2033 and meet certain criteria. These could potentially include water recycling plants, aqueduct repair, bikeways and railways, wildlife crossings, solar and wind farms and zero-emission vehicle infrastructure, among others.
There's a big caveat, though: The 270-day limit only applies “to the extent feasible” — a decision that judges would make.
So will the time limit actually speed up cases? That remains to be seen, said David Pettit, senior attorney at the Natural Resources Defense Council. “I think it sends a signal to the judiciary that the Legislature wants these cases hustled up,” Pettit said.
But in practice, he said, there are other major time sinks for the legal process beyond the length of litigation, such as preparing the paperwork behind an agency's environmental assessment to create what's called the administrative record. This is critical ammunition in legal challenges.
What are the effects on wildlife?
SB 147 would allow projects to receive permits to kill certain wildlife species that are classified as “fully protected.” Thirty-seven species — including the golden eagle, greater sandhill crane, bighorn sheep, several coastal marsh birds, 10 fish and several reptiles and amphibians — are listed as fully protected.
Under the bill, only certain types of projects that are considered beneficial to the public could get the new permits, including repairing aqueducts and other water infrastructure, building wind and solar installations, and transportation projects, including wildlife crossings, that do not increase traffic.
State and federal Endangered Species Acts would still protect rare wildlife and be unaffected by the bill. But it would alter another, stronger protection under state law: “Fully protected” species began in the 1960s as part of an effort to protect California's animals, such as the California condor and southern sea otter. Of those, all but 10 are also listed under the California Endangered Species Act.
“Fully protected” species cannot be killed except in rare cases, such as scientific research.
To obtain the new permits, applicants would need to show that their plans to compensate for the harm to these species actually improve conservation.
Fish and Wildlife Director Chuck Bonham told a Senate committee that without a permit process to allow harm to fully protected species, project developers are left with little recourse if their projects could disrupt these animals.
Three species would also lose their status as fully protected: the American peregrine falcon, brown pelican and a fish called the thicktail chub. The falcon and pelican had been listed as endangered species but are now considered recovered, largely due to the 1972 ban on the pesticide DDT; the chub is considered extinct.
“We certainly don't want to be reducing protections for pelicans and peregrine falcons, but it's also understandable to be looking to transition them off the list,” Lynes said.
The new version of the bill explicitly says that a Delta tunnel project would not qualify for permits to take the crane or any other fully protected species.
Will this streamline projects?
The multi-billion dollar question is will these regulations actually help California build big things faster.
The Newsom administration said they are critical to bolster California's chances when competing against other states for $28 billion from the federal Infrastructure Investment and Jobs Act and the Inflation Reduction Act.
The Natural Resources Defense Council's Pettit is skeptical that this will in fact streamline lengthy and litigious approvals under CEQA. He pointed to the loophole establishing a 9-month time limit for court challenges only “to the extent feasible.”
“How do we know that this package will actually speed things up?” Pettit said.
Newsom's deputy communications director, Alex Stack, said he couldn't name any specific projects that would benefit or ones that had been specifically denied federal funding because of California's existing laws.
But he said he expects the bills to cut the timeline for major builds in California by up to almost a third. That includes transit projects, wind and solar installations, semiconductor plants and water storage projects.
“It's climate denial to preserve the status quo — to delay these projects is to delay climate action, clean energy, safe drinking water, and put millions more Californians at risk of devastating climate impacts,” Stack told CalMatters.