BILL ANALYSIS Ó
AB 543
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 543
AUTHOR: Campos
AMENDED: May 24, 2013
FISCAL: Yes HEARING DATE: July 3, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):
TRANSLATION
SUMMARY :
Existing law :
1) Under the California Environmental Quality Act (CEQA):
a) 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.). If there is
substantial evidence, in light of the whole record
before a lead agency, that a project may have a
significant effect on the environment, the lead agency
must prepare a draft EIR. (CEQA Guidelines
§15064(a)(1), (f)(1)).
b) Requires a lead agency to call at least one scoping
meeting for specific types of projects. (PRC §21083.9).
c) Requires a lead agency preparing an EIR or negative
declaration to provide public notice specifying the
period during which comments will be received on the
draft EIR or negative declaration; the date, time, and
place of any public meetings or hearings on the proposed
project; a brief description of the proposed project and
its location; the significant effects on the
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environment, if any, anticipated by the project; and the
address where copies of the draft EIR or negative
declaration, and all documents referenced in the draft
EIR or negative declaration, are available for review.
(PRC §21092).
d) Requires a state agency to file a notice of approval
or determination with the Office of Planning and
Research (OPR) and requires a local agency to file a
notice of approval or determination with the county
clerk in which the project is located. (PRC §21108 and
§21152).
e) Requires an EIR to contain a brief summary of the
proposed actions and its consequences. The language of
the summary should be as clear and simple as reasonably
practical. The summary must identify: a) Each
significant effect with proposed mitigation measures and
alternatives that would reduce or avoid that effect; b)
Areas of controversy known to the lead agency including
issues raised by agencies and the public; and, c) Issues
to be resolved including the choice among alternatives
and whether or how to mitigate the significant effects.
(CEQA Guidelines §15123)
f) Requires each public agency to include provisions in
its CEQA procedures for wide public involvement, both
formal and informal, to encourage the public to react to
environmental issues related to the agency's proposed
projects. (CEQA Guidelines §15201)
2) Defines "environmental justice" as the fair treatment of
people of all races, cultures, and incomes with respect to
the development, adoption, implementation, and enforcement
of environmental laws, regulations, and policies.
(Government Code §65040.12(e)).
This bill :
1) Requires a lead agency to translate specified information
in the language spoken by a group of non-English-speaking
people.
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2) Defines a "group of non-English-speaking people" as "a
group whose members either do not speak English or who are
unable to effectively communicate in English because it is
not their native language."
3) Specifies that a "group of non-English-speaking people"
consists of:
a) At least 25% of the population within the lead
agency's jurisdiction; and,
b) At least 25% of the residents located at or near the
proposed project.
4) Requires the following documents to be translated:
a) Notice for a scoping meeting, notice that a lead
agency is preparing an EIR/neg. dec. or making a
determination that a proposed subsequent project
following a master EIR will have no additional
significant effect on the environment that was not
identified in the master EIR and that no new or
additional mitigation measures or alternatives may be
required, notice of approval or determination with the
county clerk in the county in which the project is
located, notice of completion of an EIR filed with OPR.
b) Summary of a negative declaration, mitigated negative
declaration, or EIR.
COMMENTS :
1) Purpose of Bill . According to the author, "The California
Environmental Quality Act (CEQA) requires the public be
given the opportunity to address the impact of a proposed
project on their community. However, many Californians who
are limited English proficient?are effectively shut out of
this process?
New construction, infill projects, and other proposed
developments can have a major impact on a community. They
can impact the look, feel, character, and perhaps most
importantly, the environmental health of an area. They can
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create traffic problems, potentially cause air, water, and
noise pollution and impact many other aspects of everyday
life for residents and workers. One of the fundamental
underlying principles of CEQA is that people should be
aware of, and have the opportunity to weigh in on, such
changes in their community.
According to the 2010 Census, nearly 20% of Californians speak
limited to no English, yet there is currently no provision
that any CEQA notices or documents be translated. For
democracy to work, impacted communities need to understand
enough to fully participate in decision making.
AB 543 increases opportunities for minority communities to
participate in the CEQA process. Specifically, AB 543
requires foreign language translation of key CEQA notices
and document summaries regarding the environmental impact
of projects and development projects in communities with a
significant number of non-English-speaking residents.
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.
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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) Background: Federal and state environmental justice
efforts . Environmental justice refers to the fair
treatment of people of all races, cultures, and income with
respect to the development, implementation, and enforcement
of environmental laws, regulations, and policies.
On February 11, 1994, President Clinton signed Executive
Order 12898 regarding "federal actions to address
environmental justice in minority populations and
low-income populations." The executive order followed a
1992 Environmental Protection Agency report indicating that
"communities of color and low-income populations experience
higher than average exposures to selected air pollutants,
hazardous waste facilities, and other forms of
environmental pollution." President Clinton also directed
each federal agency to address effects of actions on these
communities when analysis is required under the National
Environmental Policy Act (NEPA).
SB 115 (Solis) Chapter 690, Statutes of 1999, enacted most
of the Office of Planning and Research and California
Environmental Protection Agency responsibilities and SB 89
(Escutia) Chapter 728, Statutes of 2000, enacted the
environmental justice working group, advisory group, and
implementation report requirements. SB 828 (Alarcon)
Chapter 767, Statutes of 2001, revised SB 89 deadlines and
renumbered the provisions. AB 1553 (Keeley) Chapter 762,
Statutes of 2001, required OPR environmental justice
general plan guidelines. AB 2312 (Chu) Chapter 994,
Statutes of 2002, created the Environmental Justice Small
Grant Program.
Prior to SB 115 and SB 89, several legislators attempted to
address environmental justice issues in California,
including AB 937 (Roybal-Allard) of 1991 (vetoed), AB 3024
(Roybal-Allard) of 1992 (vetoed), and AB 2212 (Lee) of 1994
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(refused passage on Senate Floor). These bills required
the submittal of "project site demographics" for a
"potentially high-impact development project" and
prohibited an application for such a facility from being
accepted as complete, deemed complete, or approved without
this information. SB 451 (Watson), SB 906 (Lee), SB 1113
(Solis), and SB 2237 (Escutia) addressed environmental
justice issues during the 1997-98 Regular Session. All
were vetoed except for SB 906 (Senator Watson canceled a
hearing on the bill).
4) Environmental Justice and CEQA . In May 2012, the
California Attorney General's office released a report,
"Environmental Justice at the Local and Regional Level -
Legal Background". The report construes existing law to
impose environmental justice obligations on public agencies
and states that local governments need to consider
environmental justice issues when approving projects and
planning for future development. In addition, the report
interprets CEQA and the CEQA Guidelines to mandate lead
agencies to consider the public health burdens of a project
as they relate to environmental justice for certain
communities. Although there is no mention of
"environmental justice" in CEQA, the report notes that
CEQA's main purpose is to evaluate whether a project may
have a significant effect on the physical environment, and
that "human beings are an integral part of the
environment." The report states that "by following
well-established CEQA principals, local governments can
further environmental justice."
1) "A group of non-English-speaking people" . AB 543 requires
a lead agency to translate specified information in the
language spoken by a group of non-English-speaking people.
This bill defines a "group of non-English-speaking people"
as "a group whose members either do not speak English or
who are unable to effectively communicate in English
because it is not their native language" and further
specifies that a "group of non-English-speaking people"
consists of: a) at least 25% of the population within the
lead agency's jurisdiction; and, b) at least 25% of the
residents located at or near the proposed project. This
subdivision is unclear and raises multiple questions and
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concerns:
a) "Group": Does a "group" consist of members who all
speak the same language or can a group consist of people
who speak a variety of non-English languages?
b) "Unable to effectively communicate in English because
it is not their native language": How is the level of
effective communication determined and who determines
this? What is the source of this data upon which a lead
agency must rely? Is being unable to effectively
communicate based on basic communication skills or
specifically for addressing environmental issues or
scientific information found in an environmental review?
c) Twenty-five percent of the population within the lead
agency's jurisdiction: If the lead agency is a state
agency, then this requirement would consist of 25% of
the people in the entire state. For example, is it
appropriate to base the calculation for translation on
the population of the entire state in determining
whether to translate a CEQA document for a levee project
in Butte County simply because the lead agency is the
California Department of Water Resources? Also, what is
the source for determining the number of people who are
non-English-speaking in a given jurisdiction?
d) Twenty-five percent of the residents located at or
near the proposed project: Why just residents - what if
the project affects a substantial number of workers who
are non-English-speaking and work at or near the project
site? What is the source for determining the number of
people "at or near the proposed project" who are
non-English-speaking? How does the lead agency
determine whether an area is located "near the proposed
project"? How near is "near"? Is the location of
"near" based on a particular radius 360 degrees around
the project or is it amorphous? Can there be clusters
of areas near a project in which 25% of the residents in
each cluster is considered?
As noted above, although this bill aims to address a
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laudable goal by attempting to improve public participation
for non-English-speaking citizens, the lack of clarity
outlined above makes it questionable as to whether or not
this bill can effectively be implemented.
1) Lost in Translation: Terms of art and technical,
scientific terms . An environmental review can be filled
with terms of art and technical, scientific terms that may
be difficult to accurately translate into a non-English
language.
For example, the word "project" - Merriam-Webster dictionary
provides the common definition of "project" as a specific
plan or design, a planned undertaking, or a usually public
housing development consisting of houses or apartments
built and arranged according to a single plan.
However, under CEQA, "project" means "an activity which may
cause either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the
environment, and which is any of the following:
(a) An activity directly undertaken by any public
agency.
(b) An activity undertaken by a person which is
supported, in whole or in part, through contracts,
grants, subsidies, loans, or other forms of assistance
from one or more public agencies.
(c) An activity that involves the issuance to a person
of a lease, permit, license, certificate, or other
entitlement for use by one or more public agencies."
(PRC §21065).
These are very different meanings of the same word and
concern is raised about the degree of accuracy in
translating CEQA-related documents. The potential for
facts and analyses to become lost in translation is very
much a possibility with the requirements of AB 543.
2) Logistics . Unless a public agency has on staff a
translator, or perhaps several translators depending on the
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languages needed for translation, the public agency will
likely have to contract for one or more translators
depending on the different languages required for
translation. How does a public agency know that the CEQA
document is translated correctly if there is no one on
staff with both the expertise in CEQA (or the approximately
17 environmental factors analyzed) and the proficiency in
the language the document is being translated?
3) Translating CEQA documents is not cheap . The CEQA
Guidelines recommend that a summary for an EIR not exceed
15 pages. This is not a requirement, so a summary may very
well surpass 15 pages.
For example, the Bay Delta Conservation Plan (BDCP) is a
large-scale project and the draft BDCP EIR/EIS (an EIS is
an environmental impact statement pursuant to NEPA) is
approximately 20,000 pages. According to the Assembly
Appropriations Committee, the draft summary is almost 50
pages already and still growing. Assuming current
translation services charge between $0.12 and $0.40 per
word and on average, each page contains about 750 words
($80 to $300 per page), translating the executive summary
for the BDCP EIR/EIS would range from $4,500 to $24,000 per
language. Most of the other notification documents, which
would also be required to be translated, are usually one to
five pages long and would cost up to $2,000 per
notification, per language.
4) Summaries for negative declarations and mitigated negative
declarations . AB 543 requires translation of a summary for
a negative declaration, a mitigated negative declaration,
or EIR. Current law does not mandate negative declarations
and mitigated negative declarations to include a summary.
Is it the author's intent to create a new mandate for
negative declarations and mitigated negative declarations
to include a summary in both English and other languages?
Or will this requirement result in summaries of negative
declarations and mitigated negative declarations in
non-English languages only?
5) Unintended Consequences . This bill is well-intentioned but
may negatively affect projects with limited funding. For
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example, a small community water system serving a
disadvantaged community receives a grant or loan from the
Safe Drinking Water State Revolving Fund to address water
contamination problems. The project would likely be
required to comply with CEQA. Pursuant to this bill,
translating multiple notices as well as a summary of an EIR
for the project would add thousands of dollars to the cost
of the environmental review for the project, which likely
has limited and scarce funding resources.
6) Potential liability issues . CEQA is meant to inform the
public and facilitate public participation in analyzing
environmental impacts. However, as noted above, how can a
public agency ensure that a CEQA document is translated
correctly if there is no one on staff with both the
expertise in CEQA as well as a proficiency in one or more
non-English languages to know whether the translation of
the CEQA document is accurate? Providing inaccurately or
incorrectly translated CEQA documents may have the
potential for creating additional civil actions against the
public agency responsible for the document. In addition,
because the requirements for determining whether to
translate based on the formula above are so nebulous, a
potential plaintiff may have a legitimate civil action
contending that translation should have occurred if it did
not for a project.
7) Public agencies' concerns raised . In response to AB 543,
the Public Works Coalition states, "We believe that the
issue is best addressed at the local level as public
agencies are better suited to identify and address the
needs of their constituents. CEQA documents, including the
summaries, can be both lengthy and highly technical
depending on the project?[P]ublic agencies?do not have
staff dedicated to translation or personnel who are capable
of accurately translating technical CEQA documents.
Furthermore, the difficulty translating these documents
into languages other than English, particularly with
varying dialects, opens the door to future litigation."
8) One size does NOT fit all . AB 543 requires translation
based on a blanket formula for determining the number of
non-English-speaking people in the vicinity of a project.
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However, this bill does not take into account the
characteristics of an individual project. Projects come in
all shapes and sizes, a multitude of purposes, and with
varying degrees of complexity and controversy. In
addition, even if a project does meet the population
thresholds of this bill, the project does not necessarily
warrant the need for translation - English-speaking or not,
some projects simply don't grab the attention of residents
enough for them to want to participate in the environmental
review process.
It would be prudent to tailor translation needs more closely
to each individual project, limit the prospect of
translation to specified notices, and let the lead agency
of a project decide whether translation is warranted.
Based on the concerns raised in the comments above and the
prudence of tailoring translation needs to individual
projects, amendments are needed to:
a) Delete the contents of this bill and instead
require OPR, on or before July 1, 2015, to prepare,
develop, and transmit to the Secretary of the Natural
Resources Agency recommended proposed changes or
amendments to the guidelines establishing criteria
for a lead agency to assess the need for translating
notices required pursuant to PRC §§21083.9, 21092,
21108, and 21152 into non-English languages for
projects considered pursuant to CEQA and requirements
for posting these notices in non-English languages.
b) On or before January 1, 2016, require the
Secretary of the Natural Resources Agency to certify
and adopt OPR's recommendations.
SOURCE : Author
SUPPORT : Asian Pacific Environmental Network
California Coastal Protection Network
California Coastkeeper Alliance
California Environmental Justice Alliance
California Native Plant Society
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Center on Race, Poverty, and the Environment
Clean Water Action California
Coalition for Clean Air
Committee for Green Foothills
Communities for a Better Environment
Endangered Habitats League
Environment California
Environmental Defense Center
Foothills Conservancy
Forests Forever
Friends of the Eel River
Laguna Greenbelt, Inc.
Nichols-Berman Environmental Planning
North Country Watch
Planning and Conservation League
Sierra Club California
Transportation Solutions Defense and Education Fund
OPPOSITION : American Council of Engineering Companies,
California
Associated Builders and Contractors of California
Association of California Healthcare Districts
Association of California Water Agencies
California Association of Realtors
California Association of Sanitation Agencies
California Association of School Business Officials
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Grocers Association
California Manufacturers and Technology Association
California Special Districts Association
California State Association of Counties
Irvine Ranch Water District
Orange County Board of Supervisors
Rural County Representatives of California
Three Valleys Municipal Water District
Urban Counties Caucus
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