BILL ANALYSIS Ó
AB 900
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 900
AUTHOR: Buchanan and Gordon
AMENDED: September 8, 2011
FISCAL: Yes HEARING DATE: September
9, 2011
URGENCY: Yes CONSULTANT: Randy
Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act:
1) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA
includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines). (Public
Resources Code §21000 et seq.).
2) Sets requirements relating to preparation, review, comment,
approval and certification of environmental documents, as
well as procedures relating to an action or proceeding to
attack, review, set aside, void, or annul various actions
of a public agency on the grounds of noncompliance with
CEQA.
This bill enacts the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011, setting procedures
relating to an "environmental leadership development project"
(ELDP) which:
1) Require an ELDP to be one of the following (§21180(b)):
a) A residential, retail, commercial, sports, cultural,
entertainment, or recreational use project that is LEED
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certified (silver or better); achieves a 10% greater
standard for transportation efficiency (as defined) than
for comparable projects; located on an infill site; and,
if within a metropolitan planning organization where a
sustainable communities strategy or alternative planning
strategy is in effect, is consistent with certain
requirements specified for that project in the strategy
while meeting certain related requirements.
b) A clean renewable energy project that generates
electricity exclusively through wind or solar, but not
including waste incineration or conversion.
c) A clean energy manufacturing project that
manufactures products, equipment, or components used for
renewable energy generation, energy efficiency, or for
production of clean alternative fuel vehicles.
2) Define an "applicant" to be a "public or private entity or
its affiliates, or a person or entity that undertakes a
public works project, that proposes a project and its
successors, heirs, and assignees." (§21180(a)).
3) Prohibit the Act from applying to a project if the
applicant fails to notify a lead agency prior to release of
the draft EIR for public comment that the applicant is
electing to proceed pursuant to the Act. The lead agency
must notify the Secretary of the Natural Resources Agency
if the applicant fails to provide this notice. (§21181).
4) Set procedures relating to the governor for an ELDP which:
a) Authorize a person proposing to construct an ELDP to
apply to the governor for certification that the ELDP is
eligible for streamlining under the Act. The person
must supply evidence and materials that the governor
deems necessary to make a decision on the application,
which must be made available to the public at least 15
days before the governor certifies a project. (§21182).
b) Authorize the governor to certify an ELDP for
streamlining if certain conditions are met (e.g.,
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project will result in a minimum investment of $100
million; project creates high wage, highly skilled jobs
that pay prevailing wages and living wages; project does
not result in any net additional emission of greenhouse
gases, as determined by the State Air Resources Board;
project applicant has entered into a binding and
enforceable agreement that all mitigation measures will
be conditions of project approval; project applicant
pays Court of Appeal costs in hearing and deciding any
case, including costs for appointment of a special
master, and costs of preparing the administrative
record). (§21183).
c) Require the governor to make a determination that
each of the above conditions (4 b) has been met prior to
certifying a project, and these findings are not subject
to judicial review. If the governor determines that an
ELDP is eligible for streamlining pursuant to the Act,
that determination and any supporting information must
be submitted to the Joint Legislative Budget Committee
for review and concurrence or nonconcurrence. The
Committee must concur or nonconcur within 30 days of
receiving the determination, and failure to concur or
nonconcur on this determination within that period is
deemed ELDP certified. (§21184(a), (b)).
d) Authorize the governor to issue guidelines regarding
application and certification of ELDPs under the Act,
which are not subject to the Administrative Procedure
Act. (§21194(c)).
5) Set procedures that apply to any action or proceeding
alleging that a public agency has approved or is
undertaking an ELDP certified by the governor in violation
of CEQA (§21185) which:
a) Require the action or proceeding to be filed in the
Court of Appeal with geographic jurisdiction over the
project.
b) Require any party bringing a claim to file
concurrently any other claims alleging that a public
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agency has granted land use approvals for the ELDP in
violation of the law. The Court of Appeal must have
original jurisdiction over these claims.
c) Require the Court to issue its decision in the case
within 175 days of the filing of the petition.
d) Authorize the Court to appoint a master to assist the
Court in managing and processing the case.
e) Authorize the Court to grant extensions of time only
for good cause shown and in order to promote the
interests of justice.
6) Set requirements for preparation and certification of the
administrative record for an ELDP certified by the
governor. (§21186).
7) Require the draft and final EIR to include a specified
notice in no less than 12-point type regarding the draft
and final EIR being subject to the Act. (§21187).
8) Provide that provisions of the Act are severable, and if
any provision or its application is held to be invalid,
that invalidity cannot affect any other provision or
application that can be given effect without the invalid
provision or application. (§21188).
9) Provide that nothing in the Act affects the duty of any
party to comply with CEQA, except as otherwise provided in
the Act. (§21189).
10)Prohibit the Act from applying to an ELDP if a lead agency
does not certify an EIR for an ELDP on or before June 1,
2014, and the lead agency must notify the Secretary of the
Natural Resources Agency by July 1, 2014, if an EIR subject
to the Act has not been certified by that date.
(§21189.1(a)).
11)Provide that certification of the ELDP expires and is no
longer valid if, prior to June 1, 2014, a certification
issued pursuant to the Act has not been used or the time
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period during which an action or proceeding filed under the
Act has not elapsed. (§21189.1(b)).
12)Require the Judicial Council to report to the Legislature
on or before January 1, 2015, on the effects of the Act,
which must include, but not be limited to, a description of
the benefits, costs, and detriments of the certification of
ELDPs pursuant to the Act. (§21189.2).
13)Provides that this Act becomes operative only if SB 292
(Padilla) is enacted and takes effect on or before January
1, 2012.
14)Contain related legislative intent. (§21178).
15)Contain an urgency clause. (SEC. 4).
16)Sunset January 1, 2015. (§21189.3).
COMMENTS :
1) Purpose of Bill . According to the intent of the Jobs and
Economic Improvement Through Environmental Leadership Act
of 2011, AB 900 "provides streamlining benefits under CEQA
for a limited period of time to put people to work as soon
as possible" and these projects "present an unprecedented
opportunity to implement nation-leading innovative measures
that will significantly reduce traffic, air quality, and
other significant environmental impacts, and fully mitigate
the greenhouse gas emissions resulting from passenger
vehicle trips attributed to the project."
2) Brief background on CEQA . CEQA provides a process for
evaluating the environmental effects of a project, and
includes statutory exemptions, as well as categorical
exemptions in the CEQA guidelines. If a project is not
exempt from CEQA, an initial study is prepared to determine
whether a 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
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on the environment, the lead agency must prepare an EIR.
Generally, 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. Prior to
approving any project that has received environmental
review, an agency must make certain findings. If
mitigation measures are required or incorporated into a
project, the agency must adopt a reporting or monitoring
program to ensure compliance with those measures.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure
must be discussed but in less detail than the significant
effects of the proposed project.
3) Issues for consideration . AB 900 provides that an ELDP not
result in any net additional emission of greenhouse gases,
including greenhouse gas emissions from employee
transportation, as determined by the State Air Resources
Board. SB 292 (Padilla), approved by the Committee
September 8, 2011 (5-2), provides that the highest priority
is for measures that reduce these emissions on the project
site and in neighboring communities, while requiring any
offset credits to be employed only after feasible local
emission reduction measures have been implemented. SB 292
also requires the applicant to place the highest priority
on the purchase of offset credits that produce emission
reductions in the local area. Placing similar requirements
on an ELDP under AB 900 may ensure that an applicant, for
example, does not simply purchase offsets credits that
produce emission reductions in other states or countries.
It is not clear whether a project is no longer certified if
the Joint Legislative Budget Committee nonconcurs in the
governor's certification determination. Also, is it
necessary for the governor's determination that §21183
conditions have been met to not be subject to judicial
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review?
AB 900 authorizes the Court to "grant extensions of time only
for good cause shown and in order to promote the interests
of justice." According to the author, this provision
allowing the court to grant extensions of time for good
cause would apply to both requests by parties to the
litigation and to orders made by the Court, on its own
motion, upon finding that the necessary criteria are met.
Finally, although AB 900 requires an ELDP applicant to agree
to pay Court of Appeal costs in hearing and deciding any
case, as well as special master costs, there may be
concerns with setting Court deadlines and related Court
requirements for an ELDP when court budgets have been
reduced.
SOURCE : Assemblymembers Buchanan and Gordon
SUPPORT : None on file
OPPOSITION : Planning and Conservation League, Sierra Club
California