Note: This is the sixth update in our series covering AB 130 and SB 131, two bills that work substantive changes to the California Environmental Quality Act (CEQA) and California housing law. Click here to learn more about other recent updates in these bills.
On June 30, 2025, Gov. Gavin Newsom signed two budget trailer bills—AB 130 and SB 131. These bills, which took effect immediately, create major changes to the California Environmental Quality Act (CEQA).
This alert focuses on two changes that affect CEQA litigation practice—a reduction to the volume of agency emails in the administrative record and an expansion to the range of housing projects that qualify for litigation streamlining.
Common Sense Comes to the Administrative Record
CEQA litigation is decided based on the administrative record before the lead agency at the time the project was approved. CEQA defines what must be included in the administrative record. (See Public Resources Code Section 21167.6.) For decades, CEQA petitioners have required lead agencies to produce extensive agency staff emails as part of the administrative record, arguing it is “internal agency communications” under Pub. Res. Code Section 21167.6(e)(10). This broad inclusion, called the “kitchen sink” by CEQA litigators, leads to—from the authors’ experience—costly production of large volumes of emails despite providing negligible value that rarely, if ever, matters to the resolution of a CEQA case. While petitioners may seek a “smoking gun” in these emails, a reviewing court’s focus is on the sufficiency of the CEQA document, not what staff wrote in an email months or years before project approval.
SB 131 amends Pub. Res. Code Section 21167.6(e)(10) by splitting subdivision (e)(10) into two parts, distinguishing between: (A) distribution center and oil and gas projects, and (B) all other types of projects. For distribution center and oil and gas projects, the text of subsection (e)(10)(A) remains relatively unchanged. Presumably, voluminous agency staff email will remain part of the administrative record for those types of projects.
For all other types of projects, however, subsection (e)(10)(B)(iii) clarifies that:
… internal agency communications does not include electronic internal agency communications, including emails, that were not presented to the final decisionmaking body, other than those communications and documents consulted, or reviewed by the lead agency executive or a local agency executive, as defined in subdivision (d) of Section 3511.1, or other administrative official in a supervisory role who is reviewing the project. The public agency may, but is not required to, include any documents in the record of proceedings that are not specifically set forth in this subparagraph.
While not completely eliminating the possibility of email becoming part of the administrative record, this text clarifies that, to qualify, the emails must be reviewed by a “local agency executive” under Gov. Code Section 3511.1—someone who is the chief, deputy, assistant executive officer, the head of a department or is subject to an employment contract .
More Housing Projects Now Qualify for Litigation Streamlining
The Jobs and Economic Improvement through Environmental Leadership Act of 2011 (Pub. Res. Code Sections 21178-21189.3), originally adopted to incentivize development during the Great Recession, introduced litigation streamlining for CEQA cases. Under this act, a project qualified for streamlining if it: (1) was valued at $100 million or more, and (2) had strong environmental attributes and a demonstrated ability to not emit any net additional greenhouse gases (GHGs). A qualifying project is entitled to have any CEQA litigation lodged against it be resolved within 270 days of submission of the administrative record to the trial court. Since 2011, the range of projects that qualify for litigation streamlining, whether under this act or similar statutes, has steadily been expanded.
For example, SB 7 (2021) amended Pub. Res. Code Section 21180 to extend litigation streamlining to “housing development projects”—defined as residential, mixed use (with at least two-thirds residential), or transitional/supportive housing projects—with an investment value of $15–$100 million. To qualify, the projects also had to be:
- located on an infill site (see Pub. Res. Code Section 21061.3);
- consistent with any applicable Sustainable Communities Strategy or Alternative Planning Strategy;
- at least 15% of units dedicated to lower income households;
- include no short-term vacation rental unit or hotel use;
- include no manufacturing or industrial uses; and
- meet the no net additional emission of GHGs standard.
(Pub. Res. Code Section 21180(b)-(c).)
AB 130 makes two important changes to SB 7 that expand the range of qualifying projects. First, it removes the $100 million investment cap, opening the door for higher value projects to qualify. (Pub. Res. Code Section 21180(b)(4)(iii).) Second, it amends Section 21183(c)(2) to clarify that a housing development project no longer needs to prove “no net additional emission of greenhouse gases” so long as the project “demonstrates consistency with the most recent scoping plan adopted by the State Air Resources Board pursuant to Section 38561 of the Health and Safety Code.”
Since the passage of the Global Warming Solutions Act of 2006, the California Air Resources Board (CARB) has produced four scoping plans, with the most recent being released in 2022. However, it remains to be seen what constitutes a sufficient consistency demonstration with the CARB scoping plan under Section 21180(b)(4)(iii), especially in light of the recent appellate decision in Center for Biological Diversity v. County of Los Angeles (2025) ___ Cal.App.5th ___, 2025 WL 1766368. In this case, the appellate court found that a large mixed-use project’s showing of consistency with CARB’s cap-and-trade program, to demonstrate adequate mitigation of GHGs, violated CEQA as the project did not qualify as a “covered entity” under the cap-and-trade program.
Conclusion
The administrative record reform and litigation streamlining for housing development projects implemented in AB 130 and SB 131 will work important changes to CEQA litigation going forward. For questions about these two developments, please do not hesitate to contact the authors.
