BILL ANALYSIS Ó
AB 900
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CONCURRENCE IN SENATE AMENDMENTS
AB 900 (Buchanan and Gordon)
As Amended September 9, 2011
Majority vote
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|ASSEMBLY: | |(May 31, 2011) |SENATE: |32-7 |(September 9, |
| | | | | |2011) |
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(vote not relevant)
Original Committee Reference: ED.
SUMMARY : Establishes the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 (ACT), which creates an
expedited judicial review procedures under the California
Environmental Quality Act (CEQA) for various types of LEED
silver certified infill site projects, clean renewable energy
project, and clean energy manufacturing project.
The Senate amendments delete the Assembly version of the bill
and instead:
1)Make findings and declarations regarding CEQA and the need for
the bill.
2)Environmental Leadership Development Projects.
a) Defines "environmental leadership development project,"
"leadership project," or "project" (all of which are
hereinafter referred to as "leadership project") as a
project as described in CEQA that is one of the following:
i) A residential, retail, commercial, sports, cultural,
entertainment, or recreational use project that is
certified as LEED silver or better by the United States
Green Building Council and, where applicable, that
achieves a 10% greater standard for transportation
efficiency than for comparable projects.
(1) Requires that these projects be located on an
infill site.
(2) Requires a project that is within a
metropolitan planning organization for which a
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sustainable communities strategy or alternative
planning strategy is in effect, to be consistent with
the general use designation, density, building
intensity, and applicable policies specified for the
project area in either a sustainable communities
strategy or an alternative planning strategy, for
which the State Air Resources Board has accepted a
metropolitan planning organization's determination
that the sustainable communities strategy or the
alternative planning strategy would, if implemented,
achieve the greenhouse gas emission reduction targets.
(3) Defines "transportation efficiency" as the
number of vehicle trips by employees, visitors, or
customers of the residential, retail, commercial,
sports, cultural, entertainment, or recreational use
project divided by the total number of employees,
visitors, and customers.
ii) A clean renewable energy project that generates
electricity exclusively through wind or solar, but not
including waste incineration or conversion.
iii) A clean energy manufacturing project that
manufactures products, equipment, or components used for
renewable energy generation, energy efficiency, or for
the production of clean alternative fuel vehicles.
3)Certifying a Leadership Project for CEQA Streamlining.
a) Allows a person proposing to construct a leadership
project to apply to the Governor for certification that the
leadership project is eligible for streamlining provided by
this bill.
i) Requires the person to supply evidence and materials
that the Governor deems necessary to make a decision on
the application.
ii) Requires any evidence or materials be made available
to the public at least 15 days before the Governor
certifies a project pursuant to this bill.
b) Authorizes the Governor to certify a leadership project
for streamlining pursuant to this bill if all of the
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conditions are met:
i) The project will result in a minimum investment of
$100 million in California upon completion of
construction.
ii) The project creates high-wage, highly skilled jobs
that pay prevailing wages and living wages and provide
construction jobs and permanent jobs for Californians,
and helps reduce unemployment.
iii) The project does 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 pursuant to the California
Global Warming Solutions Act of 2006.
iv) The project applicant has entered into a binding and
enforceable agreement that all mitigation measures
required pursuant to this division to certify the project
under this chapter shall be conditions of approval of the
project, and those conditions will be fully enforceable
by the lead agency or another agency designated by the
lead agency. In the case of environmental mitigation
measures, the applicant agrees, as an ongoing obligation,
that those measures will be monitored and enforced by the
lead agency for the life of the obligation.
v) The project applicant agrees to pay the costs of the
Court of Appeal in hearing and deciding any case,
including payment of the costs for the appointment of a
special master if deemed appropriate by the court, in a
form and manner specified by the Judicial Council.
vi) The project applicant agrees to pay the costs of
preparing the administrative record for the project
concurrent with review and consideration of the project
pursuant to CEQA, in a form and manner specified by the
lead agency for the project.
c) Requires the Governor, prior to certifying a project, to
make a determination that each of the conditions specified
in 3 b) above has been met. These findings are not subject
to judicial review.
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d) Requires that if the Governor determines that a
leadership project is eligible for streamlining pursuant to
this bill, he or she shall submit that determination, and
any supporting information, to the Joint Legislative Budget
Committee for review and concurrence or nonconcurrence.
e) Requires that within 30 days of receiving the
determination, the Joint Legislative Budget Committee shall
concur or nonconcur in writing on the determination.
f) Deems the leadership project certified if the Joint
Legislative Budget Committee fails to concur or nonconcur
on a determination by the Governor within 30 days of the
submittal.
g) Authorizes the Governor to issue guidelines regarding
application and certification of projects pursuant to this
bill. These guidelines are not subject to the rulemaking
provisions of the Administrative Procedure Act.
4)Streamlining CEQA.
a) Requires that, notwithstanding any other law, any action
or proceeding alleging that a public agency has approved or
is undertaking a leadership project certified by the
Governor in violation of CEQA shall be conducted in
accordance with the following streamlining benefits:
i) The action or proceeding shall be filed in the Court
of Appeal with geographic jurisdiction over the project.
ii) Any party bringing such a claim shall also file
concurrently any other claims alleging that a public
agency has granted land use approvals for the leadership
project in violation of the law. The Court of Appeal
shall have original jurisdiction over all those claims.
iii) Requires that the Court of Appeal issue its decision
in the case within 175 days of the filing of the
petition.
iv) Authorizes the court to appoint a master to assist
the court in managing and processing the case.
v) The court may grant extensions of time only for good
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cause shown and in order to promote the interests of
justice.
b) Requires on or before July 1, 2012, that the Judicial
Council adopt Rules of Court to implement this bill.
5)Other Provisions.
a) Prohibits the Act from applying to a leadership project
if the applicant fails to notify a lead agency prior to the
release of the draft EIR for public comment.
b) Sets requirements for preparation and certification of
the administrative record for a leadership project
certified by the Governor.
c) Requires the draft and final environmental impact report
(EIR) to include a specified notice in no less than
12-point type regarding the draft and final EIR being
subject to the Act.
d) Provides that provisions of the bill 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.
e) Provides that nothing in this bill affects the duty of
any party to comply with CEQA, except as otherwise provided
in the bill.
f) Prohibits the bill from applying to a leadership project
if a lead agency does not certify an EIR for a project 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 bill has not been certified by
that date.
g) Provides that certification of the leadership project
expires and is no longer valid if, prior to June 1, 2014, a
certification issued pursuant to the bill has not been used
or the time period during which an action or proceeding
filed under the bill has not elapsed.
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h) Requires the Judicial Council to report to the
Legislature on or before January 1, 2015, on the effects of
the bill, which must include, but not be limited to, a
description of the benefits, costs, and detriments of the
certification of the leadership project pursuant to the
bill.
i) Provides that the bill becomes operative only if SB 292
(Padilla) is enacted and takes effect on or before January
1, 2012.
j) Contain related legislative intent.
aa) Sunset January 1, 2015.
EXISTING LAW
1)Requires, pursuant to CEQA, a lead agency with the principal
responsibility for carrying out or approving a proposed
discretionary project to evaluate the environmental effects of
its action and prepare a negative declaration, mitigated
negative declaration, or EIR. If an initial study shows that
the project may have a significant effect on the environment,
the lead agency must prepare an EIR.
2)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR does not comply with CEQA,
must be filed in the Superior Court within 30 days of filing
of the notice of approval.
AS PASSED BY THE ASSEMBLY , this bill authorized public schools
to adopt recycling and composting programs.
FISCAL EFFECT:
1)Unknown but likely absorbable costs to the Governor to review
and certify "leadership projects" and, potentially, to issue
guidelines regarding application and certification of
projects. (General Fund.)
2)Potential costs of an unknown amount to the state-funded court
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system to process and hear challenges to the project's
environmental review within the timeframes prescribed by the
bill. (General Fund.) These costs will be paid by project
applicants. It is possible that, absent this bill, the state
would face similar costs resulting from challenges to the
project that would occur over a period longer than timeframes
prescribed by this bill. In addition, it is possible this
bill will result in minor overall savings to the courts to the
extent the bill reduces the opportunity for the court to hear
legal challenges to the project's environmental review that
would otherwise occur.
3)Unknown but presumably minor costs, likely no more than
$50,000 to $150,000, to Judicial Council to adopt rules of the
court to guide implementation of the provisions of this bill
and to report to the Legislature.
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 on the environment, the
lead agency must prepare an EIR.
3)Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant environmental
impact expected to result from the proposed project, identify
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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.
4)Time extensions for the Court. 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.
This is a very important provision, especially for a court
that is overburdened with cases and needs extra time in a case
to promote the interests of justice. The intent of the
Legislature to provide this provision to the court is good
public policy.
5)Need for Letter to the Journal and Additional Legislation. On
Friday, September 9, 2011, the Senate Environmental Quality
Committee heard this bill. During testimony and debate, the
committee and the author agreed that a letter to the journal
may be necessary to clarify that a leadership project only
needs to be "designed" as LEED silver certified; the project
does not actually need to become certified as LEED silver.
Legislation may also be necessary to create a working group
and audits for the program. Additionally, the committee and
the author committed to future legislation to create a working
group for the program and to possibly authorize a review of
the first five leadership projects.
Analysis Prepared by : Mario DeBernardo / NAT RES / 916
319-2092
AB 900
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FN: 0002898