BILL ANALYSIS Ó
AB 953
Page 1
ASSEMBLY THIRD READING
AB 953 (Ammiano)
As Introduced February 22, 2013
Majority vote
NATURAL RESOURCES 5-3 APPROPRIATIONS 11-5
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|Ayes:|Chesbro, Garcia, Skinner, |Ayes:|Gatto, Bocanegra, |
| |Stone, Williams | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Ammiano, |
| | | |Pan, Quirk, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Grove, Bigelow, Patterson |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Linder, Wagner |
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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.
Specifically, this bill :
1)Amends the definition of "environment" in Public Resources
Code Section 21060.5 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
environment" in Public Resources Code Section 21068 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.
AB 953
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FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill has minor, if any, state costs.
COMMENTS : 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: establish that the proposal is a "project" for the
purposes of the law; determine whether the proposed project is
exempt from CEQA's requirements; and, 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.
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 "the 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
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activity.
While not explicitly required by statute, this requirement in
the CEQA Guidelines promotes good planning and is thus
considered by stakeholders throughout the environmental review
process. Appendix G to the CEQA 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.
This bill overrides a series of appellate court cases that
invalidate 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 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,
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or visit in the area of that project."
The author's views coincide with 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.
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092
FN: 0000505