BILL ANALYSIS Ó
AB 953
Page 1
Date of Hearing: April 15, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 953 (Ammiano) - As Introduced: February 22, 2013
SUBJECT : California Environmental Quality Act
SUMMARY : Requires a lead agency preparing an environmental
impact report (EIR) pursuant to the California Environmental
Quality Act (CEQA) to analyze significant environmental effects
resulting from locating a proposed project near, or attracting
people to, areas with substantial existing or reasonably
foreseeable natural hazards or adverse environmental conditions.
EXISTING LAW:
1)Requires a lead agency, as defined, 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 adopt a
negative declaration if it finds otherwise.
2)Requires a lead agency to prepare a mitigated negative
declaration if revisions to a proposed project would avoid or
mitigate a significant effect on the environment and there is
no substantial evidence to indicate that the revised project
would have a significant effect on the environment.
3)Defines "environment" to mean the physical conditions existing
within the area affected by a proposed project, including
land, air, water, minerals, flora, fauna, noise, and objects
of historic or aesthetic significance.
4)Defines "significant effect on the environment" to mean a
substantial, or potentially substantial, adverse change in the
environment.
THIS BILL :
1)Amends the definition of "environment" in Section 21060.5 of
the Public Resources Code to include the health and safety of
people affected by existing physical conditions at the
location of a project.
2)Amends the definition of "significant effect on the
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environment" in Section 21068 of the Public Resources Code to
include people's direct or indirect exposure to a substantial
existing or reasonably foreseeable natural hazard or adverse
condition of the environment.
3)Requires an EIR to include a detailed statement setting forth
factual determinations of any significant effects that may
result from locating the proposed project near, or attracting
people to, existing or reasonably foreseeable natural hazards
or adverse environmental conditions.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background . Since its enactment in 1970 as a counterpart to
the federal National Environmental Policy Act (NEPA), CEQA has
emerged as the cornerstone of California's environmental laws.
CEQA, which applies to virtually every state and local
agency, establishes an environmental review process for a
discretionary project to be approved or carried out by a
public agency. California's Natural Resources Agency, through
the Office of Planning and Research (OPR), promulgates related
CEQA Guidelines and updates them every two years.
Before approving a discretionary project, a lead agency,
spearheads the following three-step environmental review
process: 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 and approve the
project.
A finding of significant environmental impacts, however,
triggers a lead agency's responsibility to prepare an EIR that
would analyze those impacts. The EIR must also outline
alternatives to the project or measures that would mitigate
significant impacts. CEQA requires the adoption of mitigation
measures where feasible. If a lead agency approves a proposed
project despite its significant environmental impacts, the EIR
must contain a statement of overriding considerations
explaining the economic, social, and other factors that
support this decision.
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2)CEQA Guidelines require lead agencies to consider the effects
of hazardous or adverse environmental conditions on a proposed
project . In addition to the required analysis of a proposed
project's significant effects on the environment, Section
15126.2(a) of the CEQA Guidelines states that "(t)he EIR shall
also analyze any significant environmental effects the project
might cause by bringing development and people into the area
affected." This "converse-CEQA" analysis is typically used to
evaluate and address problems caused by bringing people and
new development to areas with poor air quality, incompatible
land uses, or hazardous conditions such as heightened seismic
activity.
While not explicitly required by statute, this requirement in
the Guidelines promotes good planning and is thus considered
anyway by stakeholders throughout the environmental review
process. Appendix G to the Guidelines provides a sample
initial study checklist of items that an EIR must address
related to this concern. And as California continues its
efforts to address climate change, Section 15126.2(a) is also
used to analyze the effect of impacts arising from this
phenomenon, such as increased risk for flooding due to
sea-level rise.
3)This bill seeks to override a line of appellate court cases
that invalidates provisions in the CEQA Guidelines requiring
consideration of the effects of hazardous or adverse
environmental conditions on a proposed project. Ballona
Wetlands Land Trust v. City of Los Angeles, a 2011 decision by
the Second District Court of Appeal, held that the
aforementioned requirement in Section 15126.2(a) is invalid.
Finding that CEQA literally requires analysis of the project's
significant impacts on the environment-and not the
environment's impacts on the project-the Second District held
that the effects of preexisting environmental hazards on the
project and its users are not environmental impacts under
CEQA. According to the court, to hold otherwise would be
inconsistent with the statute's legislative purpose and
statutory requirements.
In writing the Ballona decision, the Second District joined
the First and Fourth Districts in undermining Section
15126.2(a) as unauthorized under CEQA and therefore invalid.
The California Supreme Court refused to grant a petition to
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review the Ballona case, effectively making this line of case
law binding on superior courts across the state.
According to the author, "AB 953 seeks to clarify legislative
purpose and statutory requirements for EIRs to include the
effects of locating a proposed project near, or attracting
people to, existing or reasonably foreseeable natural hazards
or adverse environmental conditions such as sea-level rise,
wildfire areas, and earthquake faults." This update to CEQA,
as the author also argues, would "ensure that future
environmental concerns and effects on the project site are
considered, thus protecting not only the project, but the
people who live, work, or visit in the area of that project."
The author's views seem to coincide with the Office of the
Attorney General's position on Section 15126.2(a) as it
relates to promoting environmental justice through CEQA. In
its legal background on environmental justice, the Attorney
General highlights how both Section 15126.2(a) and Appendix G
of the CEQA Guidelines would require a lead agency to, for
instance, carefully examine the effects of exposing
adversely-impacted populations to air pollution. The
background further points out that this supports CEQA's
overall legislative purpose.
REGISTERED SUPPORT / OPPOSITION :
Support
Planning and Conservation League (sponsor)
American Planning Association, California Chapter
Association for Environmental Professionals
Bay Area Air Quality Management District
California Coastal Protection Network
California Coastkeeper Alliance
California Native Plant Society
Center on Race, Poverty and the Environment
Clean Water Action
Coalition for Clean Air
Communities for a Better Environment
Communities for Green Foothills
Endangered Habitats League
Environment California
Environmental Defense Fund
Environmental Protection Information Center
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Foothill Conservancy
Friends of the Eel River
Grassetti Environmental Consulting
Laguna Greenbelt
Natural Resources Defense Council
Nichols-Berman Environmental Planning
North County Watch
Paw PAC
Santa Clarita Organization for Planning and the Environment
Sierra Club California
Surfrider Foundation
Transportation Solutions Defense and Education Fund
Opposition
American Council of Engineering Companies, California
Brea Chamber of Commerce
California Association of Realtors
California Building Industry Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Manufacturers and Technology Association
Palm Desert Chamber of Commerce
Simi Valley Chamber of Commerce
Southwester California Legislative Council
Analysis Prepared by : Melissa Sayoc / NAT. RES. / (916)
319-2092