BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 617|
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THIRD READING
Bill No: SB 617
Author: Evans (D), et al.
Amended: 5/28/13
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 7-2, 5/1/13
AYES: Hill, Calderon, Corbett, Hancock, Jackson, Leno, Pavley
NOES: Gaines, Fuller
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/23/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
SUBJECT : California Environmental Quality Act
SOURCE : Author
DIGEST : This bill requires assessments under the California
Environmental Quality Act (CEQA) to consider the exposure of
people to natural hazards or adverse environmental conditions;
makes various changes to CEQA reporting requirements; requires
the Office of Planning and Research (OPR) to make CEQA notices
publically available on an online database; and repeals obsolete
exemptions.
ANALYSIS :
Existing law, under CEQA:
1.Requires lead agencies with the principal responsibility for
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carrying out or approving a proposed discretionary project to
prepare a negative declaration, mitigated negative
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).
2.Provides exemptions from the requirements of CEQA for the
California Men's Colony West Facility, a prison facility at or
in the vicinity of Corcoran, a prison facility in the County
of King, and the Napa Valley Wine Train.
3.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 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.
4.Requires a lead agency to call at least one scoping meeting
for specific types of projects.
5. Requires a state lead agency to file a notice of approval or
determination with OPR, and requires a local lead agency to
file a notice of approval or determination with the county
clerk in which the project is located. Requires a public
agency to file a notice of completion for an EIR with OPR.
This bill:
1.Adds to the definition of "environment" to include "the health
and safety of people affected by the physical conditions at
the location of a project."
2.Adds to the definition of "significant effect on the
environment" to include "exposure of people, either directly
or indirectly, to substantial existing or reasonably
foreseeable natural hazard or adverse condition of the
environment."
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3.Requires a notice of determination be filed with both the OPR
and the county clerk where the project is located. Requires
OPR and the county clerk to return the notice to the filing
agency with a notation showing the period of time the notice
was posted.
4.Requires a lead agency to post a notice of a public scoping
meeting and provide copies of the notice to specified
entities, including tribal governments.
5.Expands the requirements for posting of notices to include
electronic posting of notices by OPR, requires OPR to retain a
physical copy of the notice for a specified period of time,
and return the notice to the filing agency with a notation of
the period it was posted. Authorizes OPR to require the
filing agency to pay an administrative fee not to exceed $10
per notice.
6.Requires an EIR to include a statement on "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."
7.Requires lead agencies, both state and local, to file a notice
of approval or determination and notice of completion with the
county clerk of each county the project is located in and OPR.
Background
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, then the lead
agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed project,
identify and analyze each significant environmental impact
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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 an 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.
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.
Ballona Wetlands . In the case of Ballona Wetlands Land Trust et
al. v. City of Los Angeles (Ballona Wetlands), the petitioners
alleged that the revised EIR failed to adequately analyze the
impacts of potential sea level rise from global warming on the
project under CEQA Guidelines. The appellate court held that
CEQA does not require analysis of the effects on a project
caused by the environment. On March 21, 2012, the California
Supreme Court denied the petition for review and requests for
depublication of the Second District Court of Appeal's opinion
in Ballona Wetlands. Some have referred to this as a converse
CEQA analysis.
The provision at issue is in the CEQA Guidelines, and states:
The EIR shall also analyze any significant environmental
effects the project might cause by bringing development and
people in to the area affected. For example, an EIR on a
subdivision astride an active fault line should identify as
a significant effect the seismic hazard to future occupants
of the subdivision. The subdivision would have the effect
of attracting people to the location and exposing them to
the hazards found there. Similarly, the EIR should
evaluate any potentially significant impacts of locating
development in other areas susceptible to hazardous
conditions (e.g., floodplains, coastlines, wildfire risk
areas) as identified in authoritative hazard maps, risk
assessments or in land use plans addressing such hazard
areas.
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It should be noted that although the Second District Court
of Appeals held that CEQA does not require analysis of the
effects on a project caused by the environment and may be
considered persuasive in the other district courts of
appeal, the holding is not necessarily binding on those
other appellate districts. Also, it is unknown whether
California Supreme Court's decision not to hear the case is
an endorsement of the holding in Ballona Wetlands.
OPR and the Natural Resources Agency have kept the
provision in Section 15126.2(a) in place after previous
decisions with similar conclusions. For example, in 1995,
the First District Court of Appeals in Baird v. County of
Contra Costa, 32 Cal.App.4th 1464, held that the effect of
the environment on the project is "beyond the scope of
CEQA." It appears that OPR is not currently planning on
repealing the challenged language and may be relying on
footnote 9 in Ballona Wetlands to support its position.
Footnote 9 states: the statement in Guidelines Section
15126.2, subdivision (a) that 'the EIR should evaluate any
potentially significant impacts of locating development in
other areas susceptible to hazardous conditions (e.g.
floodplains, coastlines, wildfire risk areas) as identified
in authoritative hazard maps, risk assessments or in land
use plans addressing such hazard areas' is consistent with
CEQA only to the extent that such impacts constitute
impacts on the environment caused by the development rather
than impacts on the project caused by the environment.
SB 617 addresses Ballona Wetlands by requiring an EIR to include
"any significant effects that may result from locating
development near, or attracting people to, existing or
reasonably foreseeable natural hazards or adverse environmental
conditions."
Related /Prior Legislation
SB 436 (Jackson), clarifies the entities that must receive
public notice regarding the period to comment on an
environmental document. Each bill amends different provisions
of the same section. If SB 436 and SB 617 are both approved by
the Senate, double-jointing language will be necessary to amend
each bill in the Assembly.
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AB 209 (Ammiano, Chapter 171, Statutes of 2011), requires a lead
agency preparing an EIR or negative declaration under CEQA to
include a description of how the draft EIR or negative
declaration could be provided in an electronic format
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Ongoing costs, varying annually in the hundreds of
thousands of dollars, from the General Fund and special
funds, depending on the project, for additional analysis
under CEQA with some costs being recovered through fees.
Possible one-time costs, likely in the high tens of
thousands to low hundreds of thousands of dollars from the
General Fund for OPR to create an expanded database for
CEQA notices.
SUPPORT : (Verified 5/28/13)
California Coastkeeper Alliance
Center on Race, Poverty & the Environment
Clean Water Action
Endangered Habitats League
Environmental Protection Information Center
Laguna Greenbelt, Inc.
League of Women Voters of California
Nichols Berman Environmental Planning
Planning and Conservation League
Santa Clarita Organization for Planning and the Environment
Sierra Club California
OPPOSITION : (Verified 5/28/13)
American Council of Engineering Companies, California
Associated Builders and Contractors of California
Association of California Water Agencies
California Apartment Association
California Association of Realtors
California Chamber of Commerce
California Grocers Association
California League of Food Processors
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California Manufacturers and Technology Association
California Special Districts Association
Chemical Industry Council of California
Civil Justice Association of California
Large-Scale Solar Association
Rural Counties Representatives of California
South Coast Air Quality Management District
ARGUMENTS IN SUPPORT : According to supporters, "SB 617
updates CEQA and uses available technology to ensure public
access to the CEQA process."
"CEQA is meant to be an environmental bill of rights, allowing
people to comment on projects that may affect their communities.
This bill ensures that the law can actually function as it is
intended, by making four critical changes:
1.This bill fixes the misguided decision in Ballona Wetlands
Trust, in which a court decided that environmental review
could not take into account the effects of the physical
environment on the project. That decision could lead to
projects being built on floodplains, areas of high seismic
activity, or areas of high wildlife risk - without these risks
even being permitted to be discussed in the environmental
review.
2.This bill consolidates and clarifies the confusing
notice-posting requirements of CEQA. These notices are
critical to the process, since they alert the public to short
periods to comment on projects. SB 617 will ensure that
notices are timely posted and are available both
electronically and in a physical copy.
3.SB 617 provides that a record of the entire proceedings will
be prepared, and made available electronically, as soon as a
case is filed, minimizing delays in project review.
4.Finally, with all the changes made to CEQA over the years, a
number of now mooted or repealed provisions remain in Code,
making it more difficult to read. SB 617 will delete these
mooted or repealed provisions."
"SB 617 (Evans) is a logical step towards keeping the state's
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cornerstone environmental review functional and accessible."
ARGUMENTS IN OPPOSITION : Opponents write, "SB 617 is an
attack on the core of the CEQA, namely that CEQA requires
consideration of the impacts of a project on the environment,
not the other way around. A variety of other California laws
already address issues such as floods, fire hazards, and
earthquakes (eg., natural issues that may impact projects). SB
617 ignores these robust bodies of law and injects into CEQA
further uncertainty and increased litigation costs for projects
ranging from affordable housing and hospitals to schools and
infrastructure."
"Compliance with CEQA imposes considerable costs on project
proponents, and the state is one of the largest project
proponents. By expanding the range of factors that must be
considered under a CEQA analysis, AB 953 increases the cost to
the state for performing those analyses. In addition, AB 953
would provide new opportunities for litigation, allowing project
opponents to challenge the adequacy of an EIR for a host of
reasons."
They continue, "The natural hazards SB 617 seeks to address are
already addressed in a myriad of substantive laws in
California." [These include flood hazards, fire hazards, and
seismic hazards.] "All three of these are covered in the
Natural Hazards Disclosure Statement and many more are covered
in other disclosure laws. These are a myriad of potential
impacts of the existing environment on a project that are
required to be addressed in substantive ways outside of, and
more effectively than by injecting them into CEQA, in order to
protect the occupants of new development."
"Furthermore, this issue has been litigated multiple times and
courts have repeatedly held that CEQA is not concerned with the
effect of the environment on proposed projects. Consideration
of the effect of the environment on the project is beyond the
scope of CEQA."
"The review and approval of proposed projects in California are
governed by a host of laws to ensure the health, safety, and
environmental protection of our citizens and the communities in
which we live. SB 617 ignores these laws and assumes CEQA is
the only law in the land. Ironically, one of the results of SB
617 would be to drive development away from infill sites and
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towards the urban fringe- a dynamic that flies in the face of SB
375 and a host of smart growth policies throughout the state."
"SB 617's requirements duplicate existing laws that are more
effective than CEQA. Finally, SB 617 also imposes additional
requirements to file notices of approval and notices of
determination with both the Governor's Office of Planning and
Research and the county clerk's office. While public notice is
important, there is no need to have both posted. These notices
are issued after the CEQA process is complete and no further
public comment is possible. The notice serves only to begin the
running statute of limitations to file a lawsuit. Dual public
notification could act to delay litigation over projects rather
than streamline the process. If it makes sense to post these
notices on OPR's Internet Web site, then the requirement to post
at the county clerk's office should be deleted."
RM:ej 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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