BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 900|
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THIRD READING
Bill No: AB 900
Author: Buchanan (D) and Gordon (D)
Amended: 9/8/11 in Senate
Vote: 21
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
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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
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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
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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
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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
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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
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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
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