BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 900| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 900 Author: Buchanan (D) and Gordon (D) Amended: 9/8/11 in Senate Vote: 27 - Urgency PRIOR VOTES NOT RELEVANT SUBJECT : Jobs and Economic Improvement Through Environmental Leadership Act SOURCE : Author DIGEST : This bill enacts the Jobs and Economic Improvement Through Environmental Leadership Act of 2011, and establishes specified judicial review procedures for the judicial review of the environmental impact report (EIR) and approvals granted for a leadership project related to the development of a residential, retail, commercial, sports, cultural, entertainment, or recreational use project, or clean renewable energy or clean energy manufacturing project. The Act authorizes the Governor to certify a leadership project for streamlining pursuant to the act if certain conditions are met. This bill repeals the Act as of January 1, 2015. ANALYSIS : Existing law, under the California Environmental Quality Act (CEQA): 1. Requires lead agencies with the principal responsibility CONTINUED AB 900 Page 2 for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated declaration, or 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 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 AB 900 Page 3 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., 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 AB 900 Page 4 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 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 AB 900 Page 5 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 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). Background AB 900 Page 6 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 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. Comments 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." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes AB 900 Page 7 Local: Yes SUPPORT : (Verified 9/9/11) California Labor Federation California State Association of Electrical Workers California State Pipe Trades Council State Sheet Metal Workers OPPOSITION : (Verified 9/9/11) Planning and Conservation League Sierra Club California DLW:mw 9/9/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****