BILL ANALYSIS �
AB 37
Page 1
ASSEMBLY THIRD READING
AB 37 (Perea)
As Amended March 18, 2013
Majority vote
NATURAL RESOURCES 9-0 APPROPRIATIONS 17-0
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|Ayes:|Chesbro, Grove, Bigelow, |Ayes:|Gatto, Harkey, Bigelow, |
| |Garcia, Muratsuchi, | |Bocanegra, Bradford, Ian |
| |Patterson, Skinner, | |Calderon, Campos, |
| |Stone, Williams | |Donnelly, Eggman, Gomez, |
| | | |Hall, Ammiano, Linder, |
| | | |Pan, Quirk, Wagner, Weber |
| | | | |
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SUMMARY : For certain projects and upon a project applicant's
request, authorizes a lead agency to prepare concurrently with the
administrative process the record of proceedings that would be
used in a judicial challenge to an agency's action or decision
under the California Environmental Quality Act (CEQA).
Specifically, this bill :
1)Authorizes a lead agency to prepare the record of proceedings
for certain projects concurrently with the administrative
process, upon written request of a project applicant received no
later than 30 days after that lead agency makes a determination
pursuant to any of the following:
a) An environmental impact report (EIR), negative declaration
(ND) or mitigated ND is required for a project.
b) The significant environmental effects specific to an
infill project were not described or are more significant
than originally described in a prior EIR.
c) A transit priority project, which meets specified
environmental and affordable housing criteria, is a
sustainable communities project pursuant to SB 375
(Steinberg, 2008).
2)In preparing the record of proceedings, requires a lead agency
to:
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a) Beginning with the date of the release of the draft
environmental document for certain projects, make all
documents and other materials that would be placed in the
record of proceedings available on and downloadable from a
Web site maintained by the lead agency, or provide a link on
the lead agency's Web site to another Web site containing the
materials.
b) Make available online to the public and in an accessible
electronic format:
i) The draft environmental document and all other
documents submitted to, cited by, or relied upon by the
lead agency in preparing the draft environmental document.
ii) Any document prepared by the lead agency or submitted
by the applicant after the date of the release of the draft
environmental document that is part of a record of the
proceedings, within five business days after the document
is received or released by the lead agency.
c) Encourage the submission of written comments on the
project in a readily accessible electronic format and make
any comment available to the public within five days of
receipt, unless the comment is submitted less than five days
prior to the decision on the project.
d) Convert written comments received in a non-electronic
format to a readily accessible electronic format within seven
business days of receipt, unless the comment is submitted
less than seven days prior to the decision on the project.
e) Certify the record of proceedings within 30 days after the
filing of a notice of determination filed with the Office of
Planning and Research (OPR) or the county clerk.
3)Specifies that disclosure is not required for a trade secret,
the location of an archaeological site or sacred land, or any
other information subject to the disclosure restrictions in the
California Public Records Act.
4)Requires the project applicant to reimburse the lead agency for
the costs incurred in complying with the above requirements.
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5)Applies the above requirements to the preparation of records of
proceedings for projects determined to be of statewide,
regional, or areawide environmental significance; infill
projects for which an EIR was certified for a city's or county's
planning level decision; a project implementing a sustainable
communities strategy pursuant to SB 375; or any other project
for which the lead agency consents to prepare the record of
proceedings pursuant to the above requirements.
6)Sunsets the above requirements on January 1, 2017.
EXISTING LAW :
1)Requires a lead agency to prepare and certify the completion of
an EIR for a proposed project that it finds would have a
significant effect on the environment, or if it finds otherwise,
adopt a ND, or mitigated ND.
2)Authorizes a judicial challenge to an agency's act or decision
on the grounds of noncompliance with CEQA, including an improper
determination that a project is not subject to CEQA or the
failure to prepare an EIR for a project that has a significant
effect on the environment.
3)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondences prepared by or submitted
to the public agency regarding the proposed project.
4)Establishes a procedure for the preparation, certification, and
lodging of the record of proceedings. Specifically, the law:
a) Requires a plaintiff or petitioner to file a request that
the respondent public agency prepare the record of
proceedings, and serve this request, together with the
complaint or petition, personally upon the public agency
within 10 days of the date the action or proceeding was
filed.
b) Requires the respondent public agency to prepare and
certify the record of proceedings not later than 60 days from
the date that plaintiff or petitioner served the request;
lodge a copy of the certified record with the court; and
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serve on the parties a notice that the record of proceedings
has been certified and lodged with the court.
c) Authorizes the plaintiff or petitioner to prepare the
record subject to certification by the respondent public
agency, or the parties to agree to an alternative method of
preparing the record of proceedings, within the time limits
specified in the law.
d) Requires the parties to pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.
e) Authorizes the plaintiff or petitioner to move the court
for sanctions, and the court to grant the plaintiff's or
petitioner's motion for sanctions, if the public agency fails
to prepare and certify the record within the time limits
specified in the law.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Unknown costs to state agencies, to the extent they are lead
CEQA permitting agencies for projects for which the lead agency
must, or agrees to, concurrently prepare the record of
proceeding. The project applicant is required to reimburse the
lead agency for the costs incurred but it is unclear how the
real costs will be determined and passed along.
2)Unknown, significant one-time and ongoing General Fund and
special fund costs, likely in the millions of dollars, to state
agencies, to the extent they are lead CEQA permitting agencies
for projects, to upgrade electronic data management capabilities
to allow for the functionality required by this bill, such as
posting downloadable forms online and making draft environmental
documents available electronically.
For example, the Department of Conservation estimates $250,000
one-time and $205,000 in ongoing staffing costs and unknown
significant information technology costs. CalFire estimates
significant one-time and ongoing staffing and information
technology costs totaling over $1 million.
COMMENTS : Before approving a discretionary project, a lead agency
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spearheads the following three-step environmental review process
under CEQA: first, establish that the proposal is a "project" for
the purposes of the law; second, determine whether the proposed
project is exempt from CEQA's requirements; and third, identify
any significant environmental impacts caused by the project. If
there are no significant impacts, the lead agency may file a
negative declaration or mitigated negative declaration and approve
the project. Meanwhile, a finding of significant environmental
impacts triggers a lead agency's responsibility to prepare an EIR
that would analyze those impacts.
Over the course of the environmental review process, lead agencies
prepare notices of actions or decisions undertaken, written
statements of findings, and staff reports or recommendations that
are usually also subject to public comment. These materials,
which document the agency's compliance with the CEQA process,
later form the record of proceedings used in CEQA challenges.
CEQA authorizes judicial challenges to an agency's action or
decision for failure to comply with the CEQA process. To ensure
fair and prompt resolution, both trial and appellate courts are
required by statute to give CEQA cases calendar preference in
setting hearings or trials. CEQA cases are subject to statutes of
limitation as short as 30-35 days, depending on the type of agency
action challenged. Moreover, superior courts sitting in
jurisdictions with populations of over 200,000 residents are
required to designate one or more judges that would develop
expertise in CEQA and related land-use or environmental laws.
Courts rely on the record of proceedings to evaluate whether an
agency action or decision failed to comply with the CEQA process.
Usually, a record is prepared after a CEQA case is filed in court.
In 2011, the Legislature enacted two bills that authorized a lead
agency to prepare and certify the record of proceedings
concurrently with the administrative process and required the
project applicant to reimburse the lead agency for those costs.
AB 900, the Jobs and Economic Improvement Through Environmental
Leadership Act of 2011, applied to large-scale projects meeting
extraordinary environmental standards and providing significant
jobs and investment. SB 292 (Padilla) applied to a proposed
downtown Los Angeles football stadium and convention center
achieving specified traffic and air quality mitigations.
This bill would allow project applicants and lead agencies to
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anticipate and prepare for CEQA litigation. Describing the need
for this bill, the author states that "(d)uring legislative
deliberations on (AB 900 and SB 292), all stakeholders agreed that
the opportunity to have the administrative record prepared earlier
than current law required would expedite the judicial process. In
fact, some parties believe that preparation of the record delays
judicial review more than any other factor."
Litigants, especially project applicants who know or have good
reason to believe that their proposed developments may be
challenged in court, would primarily benefit from having a record
of proceedings prepared concurrently with the administrative
process. Having a record ready and available upon the filing of a
CEQA lawsuit would allow a court to set a case for hearing at the
soonest possible time. This could reduce uncertainty and costs.
The general public would also benefit from the bill's requirements
to post CEQA notices, reports, environmental documents, and public
comments online. Especially for large and controversial projects,
the ability to access information about the project and the
ongoing CEQA process would enrich discussions and contribute to
informed decision-making. Project applicants would also reimburse
lead agencies for the costs they incur in complying with the
online posting requirements, reducing the burden for lead
agencies.
This bill is substantially similar to SB 984 (Simitian, 2012),
which was contingent on the enactment of AB 1570 (Perea, 2012).
Neither bill was enacted. This bill would also amend similar
sections and provisions as SB 617 (Evans), which is currently
pending on the Senate Floor.
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
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