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.








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             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  








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               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  








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            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  








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            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
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           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          None on file
           
            Opposition 
           
          None on file


           [Analysis Prepared by  :  Lawrence Lingbloom / NAT. RES. / (916)  
          319-2092