BILL ANALYSIS �
AB 37
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 37
AUTHOR: Perea
AMENDED: March 18, 2013
FISCAL: Yes HEARING DATE: June 19,
2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):
RECORD OF PROCEEDINGS
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
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 dispute, review, set aside, void, or annul
various actions of a public agency on the grounds of
noncompliance with CEQA. At the time an action or
proceeding is filed, the plaintiff must file a request
that the respondent public agency prepare the record of
proceedings, which must be served personally upon the
public agency no later than 10 business days from the
date the action or proceeding was filed. (�21167.6(a)).
The public agency must prepare and certify the record no
later than 60 days from the date the request was made by
the plaintiff, and upon certification the public agency
AB 37
Page 2
must lodge a copy of the record with the court.
(�21167.6(b)). The plaintiff may elect to prepare the
record of proceedings or the parties may agree to an
alternative method of preparation of the record.
(�21167.6(b)).
3) Sets procedures relating to an "environmental leadership
development project" (ELDP) under the Jobs and Economic
Improvement Through Environmental Leadership Act of 2011
(part of CEQA)) (�21178 et seq.), which also includes
requirements for preparation and certification of the
administrative record concurrently with the
administrative process and certain related requirements
for an ELDP certified by the Governor. (�21186). These
ELDP procedures sunset January 1, 2015. (�21189.3)
This bill requires the lead agency, upon request of a
project applicant, to prepare and certify the record of
proceedings concurrently with the administrative process for
projects subject to CEQA review. Specifically, this bill :
1) Applies to specific types of projects, including: a)
projects of statewide, regional, or areawide
significance; b) infill and transit priority projects;
and c) projects for which the project applicant requests
and the lead agency consents to prepare the record of
proceeding concurrently pursuant to specified
requirements.
2) For concurrent preparation of the record of proceedings,
requires the lead agency to do the following:
a) Post all record of proceedings on a website.
b) Make publicly available, in a readily accessible
electronic format, the draft environmental review
document and related materials.
c) Make publicly available, in electronic format, a
document, which is either prepared by the lead agency
or submitted by the applicant after the release of the
AB 37
Page 3
draft environmental document and that is part of the
record of proceeding, within a specified time period.
d) For a written comment submitted in a readily
accessible electronic format, make the comment
publicly available in an electronic format within five
days of receipt. Provides that the lead agency does
not need to adhere to this requirement if the comment
is submitted less than five days prior to the decision
on the project.
e) For a written comment not in electronic format when
submitted, convert the comment into a readily
accessible electronic format and make publicly
available in an electronic format within seven days of
receipt. Provides that the lead agency does not need
to adhere to these requirements if the comment is
submitted less than seven days prior to the decision
on the project.
3) Requires the lead agency to certify the record of
proceedings within 30 days after the filing of the notice
of approval or determination with the Office of Planning
and Research (OPR) or county clerk.
4) Requires environmental review documents subject to the
provisions of this bill to include a specific notice
stating that the environmental review document requires
the concurrent preparation of the record of proceedings
with the administrative process and that the lead agency
will post the documents on its website "in a timely
manner."
5) Requires the project applicant to reimburse the lead
agency for costs incurred in preparing the record of
proceeding concurrently with the administrative process.
6) Sunsets these provisions on January 1, 2017.
COMMENTS :
1) Purpose of Bill . According to the author, "Environmental
AB 37
Page 4
documents that are prepared under CEQA are often
challenged if the construction project is controversial.
One specific delay that occurs during the litigation
process is that the record of proceedings, which is
required for litigation to move forward, can only be
prepared after a lawsuit is filed. Preparing the record
can take weeks and sometimes even months - currently the
statute provides 60 days to prepare the record of
proceedings. Delays in projects can increase
construction costs and prevent Californians from
working."
The author also notes, "This bill does not require that the
administrative record be concurrently prepared for all
projects under CEQA, because the vast majority of
projects are never subject to a lawsuit, and a record of
proceedings is unnecessary."
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.
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.
AB 37
Page 5
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) Concurrent preparation of the record of proceedings with
the administrative process . AB 900 (Buchanan and
Gordon), Chapter 354, Statutes of 2011, enacted The Jobs
and Economic Improvement Through Environmental Leadership
Act of 2011, to set procedures relating to an ELDP
selected by the Governor. An ELDP must meet certain
requirements and one of the provisions given for an ELDP
is that the record of proceedings must be prepared
concurrently with the administrative process.
Since the enactment of AB 900, the author states that
stakeholders have been interested in providing for the
record of proceedings to be prepared concurrently with
the administrative process at the request of the
applicant in order to save time and effort in the event
of a challenge to a project under CEQA review. This bill
requires that documents and other materials placed in the
record of proceedings be posted on the lead agency's
Internet website.
4) Late Comments and Document Dumping . AB 37 provides that
when preparing the record of proceedings pursuant to this
bill, the lead agency is not required to make written
comments, which are submitted five or seven days prior to
the decision on the project (depending on the format),
publicly available in an electronic format. This
provision attempts to address comments received late in
the process and document dumping. Sometimes opponents to
a project may submit comments late in the review process
and perhaps voluminous amounts of content in their
comment as a tactic to delay a project. The California
Supreme Court has stated, "We cannot, of course,
overemphasize our disapproval of the tactic of
withholding objections?solely for the purpose of
obstruction and delay," and stressed that strategically
AB 37
Page 6
delaying commenting on a project is not a "game to be
played by persons who?are chiefly interested in scuttling
a particular project." (Citizens of Goleta Valley v.
Board of Supervisors of Santa Barbara County (1990) 52
Cal. 3rd 553, 368).
However, this may not always be the case - interested
parties, who submit late comments, may be raising
genuine, significant issues that were not adequately
addressed in the environmental review or provide
important information that was not available earlier in
the process. Although this bill does not prevent
comments from being submitted late, AB 37 could
unintentionally penalize valid comments, regardless of
their importance or quality, simply due to their timing
and preventing such information from being readily
accessible in the same manner as other written comments.
5) "In a Timely Manner" . AB 37 requires an environmental
review document, subject to the provisions of this bill,
to include a specific notice stating that the review
requires the concurrent preparation of the record of
proceedings with the administrative process and that the
lead agency will post documents related to the project on
its website "in a timely manner." A question arises as
to what "timely" is - timely to whom? The phrase is
vague and could be subject to litigation.
6) Related legislation . SB 731 (Steinberg and Hill) makes
various changes and clarifications to CEQA, including
provisions related to concurrent preparation of record of
proceedings. AB 37 is mostly similar to SB 731 but does
contain significant conflicting elements to SB 731.
Specifically, SB 731 does not contain the provisions
found in AB 37, which are noted in Comments #4 (late
comments) and #5 (posting notices "in a timely manner.").
SB 731 passed out of this committee on May 1, 2013 with
a vote of 8-0 and was approved on the Senate Floor on May
29, 2013 with a vote of 39-0.
If both SB 731 and AB 37 are enacted, they will directly
AB 37
Page 7
conflict with one another as noted above. Because the
Senate Environmental Quality Committee supported SB 731,
the Committee should not support a conflicting measure
and therefore should hold AB 37.
SOURCE : Author
SUPPORT : American Council of Engineering Companies,
California
American Planning Association, California Chapter
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Council for Environmental and Economic Balance
California Grocers Association
City of Fowler
City of Mendota
City of Selma
Civil Justice Association of California
OPPOSITION : None on file