Of all the major sports, baseball is the only one that is not played “on the clock.”  So it’s only fitting that the First District recently held the special legislation (AB 734; Pub. Resources Code, § 21168.6.7) enacted to provide fast-track judicial review benefits to the Oakland A’s baseball park/mixed use development project (Howard Terminal Project) likewise had no terminal time limit.  In a published decision filed August 10, 2021, the First District Court of Appeal affirmed the trial court’s judgment rejecting petitioners’ claim that the clock ran out on January 1, 2020 on Governor Newsom’s authority to certify the project as meeting the statute’s qualifying criteria.  Pacific Merchant Shipping Association, et al. v. Gavin C. Newsom, etc., et al. (Oakland Athletics Investment Group, LLC, Real Party in Interest) (2021) 67 Cal.App.5th 711.  The Court held that because AB 734 itself contains no deadline for certification, and the Legislature did not intend to incorporate the January 1, 2020 deadline from the Governor’s AB 900 Guidelines, Governor Newsom’s authority did not expire prior to his exercise of it, meaning that his subsequent February 11, 2021 certification (made shortly after the trial court’s favorable decision) was valid and effective.

As brief context, AB 734 generally followed the playbook for environmental leadership projects laid out in AB 900 (the 2011 Jobs and Economic Improvement Act) and in several other pieces of single-project special legislation providing expedited CEQA litigation benefits in exchange for the projects’ extraordinary economic, cultural, environmental, and other important benefits.  Under AB 900, the Governor was required to certify that a proposed “environmental leadership project” met the statute’s environmental and other qualifying criteria to get the “streamlined litigation” benefits (i.e., resolution of all judicial challenges within 270 days to the extent feasible), and the Governor was authorized to issue guidelines regarding application and certification of projects.  As amended and extended through the years, the now-expired AB 900 set deadlines for Governor certification and lead agency approval of projects; the Governor’s 2018 Guideline amendments incorporated the most recent (and final) January 1, 2020 certification deadline for AB 900 projects, and his 2019 amendments stated the Guidelines applied to AB 734 and another piece of single-project special CEQA legislation (AB 987, for the Inglewood Clippers arena project) “to the extent . . . applicable” and not in conflict with those statutes’ language.  AB 734, unlike AB 900 and some other special legislation, contained no express deadlines for Governor certification or lead agency approval, but it provided the Guidelines apply to the “implementation” of the Howard Terminal Project “to the extent . . . applicable” and “not [in] conflict with [AB 734’s] specific requirements.”

The Court of Appeal undertook a lengthy exegesis of AB 734’s legislative history to resolve the Legislature’s rather sloppy draftsmanship in failing to expressly address the certification deadline while at the same time offhandedly incorporating gubernatorial guidelines containing a deadline under expiring legislation (AB 900) that would have been fatally inconsistent with the Howard Terminal Project’s objectives and timeline.  The Court ultimately concluded that the most reasonable and practical statutory interpretation was that the Legislature intentionally omitted any certification deadline from the statute, and could not have intended for the AB 900 January 1, 2020 deadline to apply to the Governor’s certification under AB 734.  A contrary interpretation holding the short 1-year AB 900 certification deadline applied would have been totally inconsistent with the Howard Terminal Project’s timeline – which required 16 months just for CARB’s verification that the project met the required no-net-GHG emissions criterion – and rendered the special legislation a nullity based on a deadline from another expiring law that was never mentioned in the statute and that the bill’s author recognized the project could never meet.

While A’s fans, the City of Oakland and the Howard Terminal Project developers are no doubt cheering the ruling as a “home run” for their team, and the opinion is interesting for its extensive consideration and analysis of legislative history materials in a context where the court found that the plain statutory text did not resolve the issue, the case has no real impact on CEQA law generally since it deals with single-project special legislation.



Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit www.msrlegal.com.