By Kristen Kortick

AB 734 (Bonta)

Since the 2003 publication of the book, Moneyball: The Art of Winning an Unfair Game, by Michael Lewis, the A’s franchise made a name for itself as a franchise utilizing creative tactics to keep fans in the stands and the players in the dugout. Enter construction of the new A’s stadium and the California Environmental Quality Act (“CEQA”) review process and that creativity is now looking rather pedestrian. When undertaking construction of a new stadium, the A’s have instead looked to other examples of utilizing CEQA exemptions for construction of new stadiums throughout California rather than forge a new path. The Los Angeles Rams (2009 [City of Industry stadium that never materialized]), Sacramento Kings (2013), Golden State Warriors (2015), and Los Angeles Clippers (2017), all received Legislature approved exemptions from the full CEQA process for construction of new stadium or arena projects, and the A’s now hope to receive the same.

In February 2018, the A’s franchise asked lawmakers to pass a similar bill shielding the organization from elongated environmental suits while streamlining the CEQA process to construct their new stadium. Under Assembly Bill 734, the new A’s stadium needs a completed and certified environmental impact report (“EIR”) or a mitigated negative declaration outlining how the finalized project poses the least harmful impacts to the environment.  The bill further outlines administrative and judicial review procedures including limiting appeals of the project to 270 days from the filing of the certified record to completed Court opinion. All contested cases for the project would bypass the superior court and move straight to appellate review. Costs to the court and lead agencies brought into court for litigation would be subsumed by the project applicant. The project requires LEED certification for all new construction and sets out express benchmarks for projects approvals, public comments, and the timeline for judicial review.

The project has yet to finalize a site, but the organization has narrowed the search to the location of the pre-existing stadium or nearby to Jack London Square in Oakland. The Ballpark is earmarked to open in 2023. Opponents to the CEQA legislation have concerns that various CEQA safeguards would be gravely overlooked by fast tracking the project. In response, the President of the A’s has alleged that the bill asks for the same exemption as its predecessors, such as the Warriors’ San Francisco arena and the Kings’ Sacramento arena and entertainment complex.

Many California residents and concerned environmental advocacy organizations throughout the state have expressed concern over CEQA exemptions for these large scale development projects. These CEQA exemptions, initially championed by Governor Schwarzenegger and continued under Governor Brown, have seen no shortage of opposition. A group of California residents have traveled throughout the state to litigate cases utilizing similar exemptions from CEQA for sports arenas. Although the provisions of past CEQA exemptions contain varied mitigation protocols, the procedures and judicial review of each project remain consistent in each of the prior versions of such legislation. For example, the Kings stadium obtained the CEQA exemption in 2013 for the construction of Golden One Center Arena. The legislative approval of the project included mitigation measures for traffic mitigation and air quality impacts differing from the bill proposed for the A’s stadium. Consistent with the A’s stadium, the Kings arena implemented a 270 day judicial appeal timeline, LEED certification, and schedule for completion of the project’s planning and construction. The Los Angeles Clippers arena in Inglewood also included similar CEQA benchmarks. However, the Clippers arena also included language to fast track needed public transportation infrastructure in furtherance of the 2028 Olympic Games set to take place in Los Angeles.

These CEQA exemptions pose a unique set of hurdles and some would argue a weakening of CEQA law. First, although these exemptions have not allowed for bare bones EIRs or CEQA review, they shorten the comment periods and judicial review of large ticket items. Many opponents to these CEQA exemptions allege the approval allows deep pocket projects to pay their way through environmental protections in the state. So far, Courts have held that past projects with these CEQA exemptions consistently met the commitments under CEQA without needing to implement additional mitigation measures. (See our link to the Court’s opinion in Saltonstall v. City of Sacramento.) Second, the CEQA exemption prioritizes challenges to exemption projects in the courts thus pushing other cases on the court’s docket lower. As one of the most litigation heavy states in the United States, California court dockets are already at full capacity averaging one-and-a-half to two years from filing to finalized opinions. While the exemption may speed up the process of judicial review for a stadium, it is at the cost of all other docketed civil cases on the jurisdictional court’s calendar. Though this has not likely had a tangible burden on the court calendar overall so far (this would be only the fifth of these CEQA exemptions in the last ten years), if this approach were to expand to cover other large-scale projects the courts could see more CEQA cases impacting the appellate court’s docket in the future.

Currently, AB 734 sits in the Senate Appropriations Committee. Voting from the Assembly Floor and Committees would suggest the project is likely to pass and proceed to the Governor’s desk for signature by end of August. Time will tell whether Governor Brown is ready to sign it.

Bill Abbott, the firm’s resident curmudgeon noted: “It is reassuring that CEQA reform exists for the financial upper crust. Perhaps the Legislature will throw a few crumbs to us commoners.

Kristen Kortick is a law clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.