Special CEQA provision regarding Sacramento downtown arena project is not unconstitutional.

This case stems from one of the many efforts by opponents of the City of Sacramento’s decision to approve a partially subsidized downtown arena project to stop the project. Here, the project opponents argued Public Resources Code section 21168.6.6, which shortens several CEQA deadlines for the project, is unconstitutional. The Third District Court of Appeal disagreed in a published opinion: Saltonstall v. City of Sacramento, Case No. C077031 (Nov. 20, 2014).

As a result of the City’s efforts to retain the Kings NBA team, the NBA blocked sale of the team to the city of Seattle. But the NBA reserves the right to acquire the team and relocate it to another city if the downtown arena is not opened by 2017. To address this timeframe, the Legislature passed Senate Bill 743. Relevant to this case, the bill added section 21168.6.6 to the Public Resources Code. This section accelerates the ordinary CEQA litigation timeline, with provisions addressing, for example, speedy preparation of the administrative record. The section also augments the proof of harm required to obtain a preliminary injunction against the project. Specifically, a preliminary injunction may only issue if proceeding with the project presents an “imminent threat to the public health and safety” or if unforeseen historical or archaeological artifacts are discovered on the project site. The section applies only to the downtown arena project.

The project opponents initially sought a preliminary injunction in the trial court to stop demolition and construction activities for the downtown arena. The trial court declined to grant the injunction, and the project opponents appealed on the grounds that section 21168.6.6 violates the state constitution.

Project opponents first argued section 21168.6.6 violates the state constitution’s separation of powers doctrine. Project opponents reasoned that, by passing this section into law, the Legislature infringed on the power of the state courts to grant injunctive relief. The appellate court noted that while the section does change the standard for granting injunctive relief, nothing in the section prevents a court from issuing such relief. Therefore, the courts may still fulfill their adjudicatory function under the section.

In reaching this outcome, the appellate court emphasized that CEQA is a legislative act, subjective to legislative limitation and amendment. In fact, the court pointed out that the Legislature could exempt the downtown arena project entirely from the requirements CEQA. Such an exemption implicates no constitutional rights because rights derived from CEQA are granted by the Legislature.

Nor does section 21168.6.6 impermissibly interfere with the judicial branch by requiring the Judicial Council to adopt procedures for resolving actions, “to the extent feasible,” within 270 days. The appellate court noted the time-line is suggestive and, therefore, does not materially impair the ability of state courts to adjudicate cases pursuant to the section.

In light of its determination that section 21168.6.6 is constitutional, the appellate court declined to overturn the trial court’s decision to deny the preliminary injunction. The appellate court also rejected the City’s request for sanctions for failure to comply with Rules of Court, rule 8.276(b)(1). Requesting sanctions pursuant to this rule requires that the moving party file a motion supported by a declaration. The City did not file such a supported motion.