BILL ANALYSIS SB 1456 Page 1 Date of Hearing: June 28, 2010 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Wesley Chesbro, Chair SB 1456 (Simitian) - As Amended: June 10, 2010 SENATE VOTE : 35-0 SUBJECT : Environmental quality: cumulative effects and mediation SUMMARY : Clarifies the circumstances under which cumulative effects are not required to be examined under the California Environmental Quality Act (CEQA) and makes several revisions to mediation and judicial review procedures. EXISTING LAW : 1)Requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. 2)Authorizes a lead agency to use a tiered EIR (based on a prior EIR) for a project when the prior EIR has been prepared for a program, plan, policy or ordinance and the project is consistent. Provides that the tiered EIR is not required to examine effects that were examined at a sufficient level of detail in the prior EIR. 3)Authorizes judicial review of CEQA actions taken by public agencies, following the agency's decision to carry out or approve the project, subject to statutes of limitations ranging from 30 to 180 days: a) Challenges alleging improper determination that a project may have a significant effect on the environment, or alleging an EIR doesn't comply with CEQA, must be filed within 30 days of filing of the notice of approval. b) Challenges alleging improper determination that a project is exempt from CEQA must be filed within 35 days of filing of the notice of exemption, or 180 days if no notice has been filed. SB 1456 Page 2 c) Challenges alleging an agency has failed to determine whether a project has a significant effect on the environment must be filed within 180 days. THIS BILL : 1)Amends CEQA as follows until January 1, 2015: a) Provides that a cumulative effect is not required to be examined in an EIR or other CEQA document if a lead agency finds that it has been adequately addressed in a prior document, unless the lead agency finds that the incremental effects of the project are cumulatively considerable according to specified criteria (this incorporates existing provisions of the CEQA Guidelines into the statute). (Section 3) b) Authorizes the Attorney General to request an expedited schedule for resolution of any CEQA lawsuit. (Section 5) c) Provides that a mediation proceeding conducted pursuant to the law governing mediation and resolution of land use disputes (Government Code Section 66030, et seq.) is intended to be conducted concurrently with any judicial proceeding (consistent with a settlement meeting conducted pursuant to CEQA). (Sections 1 and 7) d) Requires any person wishing to file a CEQA lawsuit to first request, within five business days, mediation with the lead agency and the real party in interest. Provides that the request is deemed denied if the lead agency does not respond within three business days. If mediation is conducted, provides that CEQA's statute of limitations shall be tolled until the mediation is completed. (Section 9) e) Authorizes a party to a CEQA lawsuit to request the court impose a penalty on any party making a "frivolous" claim, and authorizes the court to impose a penalty up to $10,000. Defines frivolous as "totally and completely without merit." (Section 10) f) For an organization formed after the approval of a project to have standing to file a CEQA lawsuit, requires SB 1456 Page 3 the organization to have had a member present the alleged grounds for noncompliance to the lead agency during the public comment period or public hearing on the project (in addition to the requirement in current law that a member of the organization simply has objected to the project). (Section 11) 2)Sunsets the above changes and reenacts existing law effective January 1, 2015. (Sections 2, 4, 6, 8, 10 and 12) 3)Contains an urgency clause. (Section 13) FISCAL EFFECT : Unknown COMMENTS : 1)Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR. An EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project. Generally, CEQA actions taken by local public agencies can be challenged in Superior Court once the agency approves or determines to carry out the project. CEQA appeals are subject to unusually short statutes of limitations. Under current law, court challenges of CEQA decisions generally must be filed within 30-35 days, depending on the type of decision. In addition, CEQA requires the courts to give CEQA cases preference over all other civil actions, so that the cases are quickly heard and determined. According to the author, this bill responds to the need for mediation to resolve CEQA disputes to avoid litigation while ensuring that mediation after an action is filed does not SB 1456 Page 4 affect the timing of any judicial proceeding; establishing a process for an expedited schedule to resolve cases while allowing any party to request imposition of a penalty for frivolous litigation; ensuring more accountability for an organization challenging a project that is formed after project approval; and establishing procedures for tiering environmental documents. 2)Should mediation be mandatory for one side and optional for the other? Pre-litigation mediation sometimes works to settle disputes and avoid costly and time-consuming litigation, but it's not appropriate for every case and it only works when both sides want to do it. This bill (Section 9) requires all potential petitioners to submit a request for mediation within five days of the filing of a notice of determination on the project by the lead agency, but permits lead agencies to reject the request by not responding within three days. This seems unfair and a potential burden for petitioners in cases where mediation isn't appropriate. The author and the committee may wish to consider whether the request for mediation should be optional for petitioners (by replacing "shall" with "may" on page 11, line 30). In addition, the author and the committee may wish to consider whether the very short deadlines in the bill are reasonable (five days for the petitioner to request and three days for the lead agency to respond). 3)When should ad hoc organizations have standing? Ad hoc organizations often form to participate in the review of proposed projects and sometimes to challenge projects after they are approved. Currently, CEQA provides that an organization formed after the approval of a project may sue as long as one of its members objected to the project during the public comment period or at the public hearing on the project before it was approved. This bill would further require that a member of such an organization also present the alleged grounds for noncompliance, while current law provides that any person may do so (no affiliation with the organization is required). Parties participating in project review commonly divide up tasks - one person or group commenting on air quality, another commenting on traffic, etc. This provision of the bill may lead to every party repeating objections made by other parties to avoid losing standing to sue. The author and the committee may wish to consider amending the bill to alleviate this potential problem by providing that "the SB 1456 Page 5 grounds for non-compliance may be presented directly by the person or by that person agreeing with or supporting the comments of another person" (on page 13, line 10). 4)Leaving so soon? This bill sunsets each of its several amended and added sections in 2015, then restores current law. For many of the bill's sections, such as incorporating tiering conditions from the CEQA Guidelines, authorizing the AG to request an expedited schedule, and coordinating CEQA and land use disputes mediation schedules, it's not clear why a sunset is appropriate. SB 1456 Page 6 REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition None on file [Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916) 319-2092