BILL ANALYSIS Ó
SB 787
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 787
AUTHOR: Berryhill
AMENDED: April 18, 2013
FISCAL: Yes HEARING DATE: May 1, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
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.). 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)).
2) Requires thresholds of significance adopted as part of a lead
agency's environmental review process to be developed through
a public review process. A threshold of significance is "an
identifiable quantifiable, qualitative or performance level
of a particular environmental effect, non-compliance with
which means the effect will normally be determined to be
significant by the agency and compliance with which means the
effect normally will be determined to be less than
significant." When adopting thresholds of significance, a
lead agency may consider thresholds of significance
previously adopted or recommended by other public agencies or
recommended by experts. (CEQA Guidelines §15064.7).
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This bill creates the Sustainable Environmental Protection Act
(SEPA), which does the following:
1) Provides legislative intent that:
a) States CEQA was enacted in 1970 to maintain a quality
environment, and that in the 40 years following enactment
"Congress and the Legislature have each adopted more than
100 laws to protect environmental quality" in 17
environmental topical areas.
b) References various environmental laws, "all enacted
after 1970 . . ." while asserting that environmental laws
and regulations identify compliance obligations of general
applicability and provide greater clarity or are beyond
the ad hoc review process created by CEQA, and in enacting
these measures avoids "the sometimes conflicting and often
duplicative ad hoc environmental review and mitigation
requirements."
2) Requires an environmental document prepared under CEQA to
disclose all applicable environmental laws, and defines
"applicable environmental laws" to be those referenced in the
measures legislative intent and meets certain requirements.
3) Specifies that the above "disclosure obligations" are
intended to foster environmental and public participation in
the public review process required under CEQA or other
applicable laws, including the Ralph M. Brown Act.
4) Limits environmental review under those topical areas listed
in the legislative intent.
5) Prohibits a cause of action under CEQA based on an
environmental topical area listed in the legislative intent
if the environmental document discloses a requirement of
compliance with an applicable environmental law or
regulation, plan, permit, license, or authorization
application and approval processing procedures.
6) Prohibits a cause of action under CEQA if the project
"conforms to the use designation, density, or building
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intensity in a land use plan or was included in another
applicable plan [as identified under the measure] and the
lead agency conditions project approval on compliance with
applicable mitigation measures contained in the
[environmental document] for the applicable plan."
7) Provides that the above prohibition of causes of action does
not prohibit a cause of action to enforce compliance with
other existing local, state, and federal law.
8) Provides that a lead agency is not required to evaluate
aesthetics under CEQA and that the lead agency is not
required to make findings on or relating to aesthetics unless
a project has potentially significant aesthetic impacts on an
official state scenic highway.
9) Provides that SEPA does not change a lead agency's duty to
evaluate effects on Native American resources.
10)Provides that SEPA applies only to projects for which the
lead agency or applicant has agreed to provide an annual
mitigation compliance report in electronic format.
11)Provides that the above provisions do not preclude an agency
from requiring information or analysis, or imposing
conditions of approval, under other laws or CEQA.
12)Requires that an environmental review document prepared
pursuant to CEQA is limited to considering only the
environmental topical areas listed in the legislative intent
and only to the extent those topical areas are relevant to
the project.
COMMENTS :
1) Purpose of Bill . The author states, "When enacting CEQA and
subsequent amendments, the Legislature declared its intent to
ensure that all public agencies provide substantial
consideration to preventing environmental damage while
allowing for a satisfying and livable place for every
Californian. This bill seeks to further the purposes of CEQA
by better integrating applicable planning laws and
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regulations that did not exist when CEQA was first passed,
while avoiding conflicting and duplicative ad hoc
environmental review that is often required by CEQA. This
bill appeals to local control and broader environmental law
(which is already over complex as it is, see legislative
intent language to get a small taste). It also provides for
an environmental document in an electronic format, fostering
the public's accessibility to full review of the project's
impacts."
2) Thresholds of significance and regulatory standards . Under
current law, a threshold of significance is "an identifiable
quantifiable, qualitative or performance level of a
particular environmental effect, non-compliance with which
means the effect will normally be determined to be
significant by the agency and compliance with which means the
effect normally will be determined to be less than
significant."
Under SB 787, Section 21202(a)(1) provides that "compliance with
the applicable standards for impacts that occur or might
occur as a result of approval of the project shall be the
exclusive means of evaluating and mitigating environmental
impacts under CEQA regarding the subject of that law,
notwithstanding any other provision of law."
Such reliance on a regulatory standard, as required under this
measure, is inconsistent with current law. For example, in
Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d
692, 270 Cal. Rptr. 650 (1990), the court found that a lead
agency incorrectly determined that air quality impacts would
be less than significant when the smokestack emissions for a
proposed cogeneration plant would comply with applicable air
quality regulations and standards, because the agency failed
to consider "on-site" (smokestack) and "secondary" (train and
truck traffic to deliver coal, the proposed fuel) emissions
together in assessing the significance of the overall
project's impacts.
The court came to a similar conclusion in Riverwatch v. San
Diego County (Palomar Aggregates), 76 Cal. App. 4th 1428, 91
Cal. Rptr. 2d 322 (1999), where the court held that an EIR
for a proposed rock quarry failed to evaluate all air quality
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impacts resulting from the quarry operation. The county
believed emission levels would meet San Diego Air Pollution
Control District (APCD) standards, and the court found that
the EIR considered only the quarry process emissions and not
particulate emissions caused by drilling, handling, storage,
and transport of the rock and sand. While the APCD standards
were for the stationary source (quarry), CEQA requires the
EIR to evaluate significance of all project-related pollution
emissions.
3) Project impact "topic areas" .
SB 787 specifies that the CEQA Guidelines currently provide that
project impacts be evaluated based on 17 topics. Nothing in
current law limits CEQA to 17 topic areas. It seems that the
author is referencing Appendix G of the CEQA Guidelines, the
"environmental checklist form."
It is noteworthy, however, that Appendix G is prefaced by the
following:
NOTE: The following is a sample form and may be tailored to
satisfy individual agencies' needs and project
circumstances. It may be used to meet the requirements for
an initial study when the criteria set forth in CEQA
Guidelines have been met. Substantial evidence of potential
impacts that are not listed on this form must also be
considered. The sample questions in this form are intended
to encourage thoughtful assessment of impacts, and do not
necessarily represent thresholds of significance.
Not only does SB 787 freeze these 17 topics in statute,
rather than allowing analysis of any other potential
significant impacts, this measure also precludes CEQA from
filling in the gaps in existing laws. CEQA also addresses
other matters, such as cumulative impacts, direct and
indirect impacts, and mandatory findings of significance.
Emerging issues addressed under CEQA may also precede a
particular state or federal law. For example, the analysis
of greenhouse gas (GHG) impacts under laws like CEQA, and its
federal counterpart National Environmental Policy Act (NEPA),
did not commence with the passage of the California Global
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Warming Solutions Act of 2006.
Guidance for addressing GHG issues under NEPA for federal
environmental documents was provided October 8, 1997.
According to the Chairman of the Council on Environmental
Quality in 1997, "Because of the potentially substantial
health and environmental impacts associated with climate
change, the Council on Environmental Quality is issuing this
guidance today calling on federal agencies to consider, in
the context of the NEPA process, both how major federal
actions could influence the emissions and sinks of greenhouse
gases and how climate change could potentially influence such
actions."
In 2003, in Border Power Plant Working Group v. U.S.
Department of Energy (S.D. Cal 2003) 20 F.Supp2d 997,
1028-1029, a federal district court found that NEPA requires
consideration of potential environmental impacts from a
proposed natural gas turbine's generation of carbon dioxide,
a greenhouse gas, and rejected the argument that
consideration of this impact is not required.
Former Attorney General Bill Lockyer also commented on the
lack of analysis of GHG issues in environmental documents
prior to enactment of the CGWSA. For example, in a letter
dated March 30, 2006, regarding the Orange County
Transportation Authority 2006 Long-Range Transportation Plan
Draft EIR, the Attorney General stated, "Despite the Plan's
heavy reliance on vehicular travel and improvements to
freeways, roads and streets, and the acknowledged increase in
vehicle travel that the Plan will encourage, the DPEIR never
analyzes one of the most important environmental impacts of
vehicular emissions - greenhouse gases and resulting climate
change."
SB 97 (Dutton) Chapter 185, Statutes of 2007, subsequently
required OPR, on or before July 1, 2009, to prepare, develop,
and transmit to the Resources Agency amendments to the CEQA
guidelines to assist public agencies in the mitigation of
GHG's or the effects of GHG's as required under CEQA,
including the effects associated with transportation and
energy consumption, and required the Resources Agency to
certify and adopt those guidelines by January 1, 2010.
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4) Overriding fair argument standard . A discretionary project,
which is not exempt from CEQA, requires a Lead Agency to
prepare an initial study to determine whether the project may
have a significant adverse effect on the environment. 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. If not, then a negative declaration or mitigated
negative declaration is appropriate. This is known as the
fair argument standard. In other words, a negative
declaration is inappropriate if it can be "fairly argued"
that the project may cause significant environmental impacts
and therefore an EIR is appropriate.
SB 787 overrides the fair argument standard because under this
measure "compliance with the applicable standards for impacts
that occur or might occur as a result of approval of the
project shall be the exclusive means of evaluating and
mitigating environmental impacts under [CEQA] regarding the
subject of that law, notwithstanding any other provision of
law." Also, under SB 787, "A cause of action shall not be
commenced . . . for noncompliance with [CEQA] based on an
environmental topical area [listed in these measures] for
which the environmental document prepared for purposes of
[these measures] discloses a requirement of compliance with
an applicable environmental law . . .".
This issue was addressed when Communities for A Better
Environment, Environmental Protection Information Center, and
Desert Citizens Against Pollution challenged several 1998
revisions to the CEQA Guidelines. The California Building
Industry Association was allowed to intervene in the action.
Communities for a Better Environment v. California Resources
Agency, 103 Cal. App. 4th 98, 126 Cal. Rptr. 441 2d (2002).
The trial court invalidated several Guidelines sections,
including a provision where a lead agency is directed to
determine that an effect is not significant, regardless of
whether other substantial evidence would support a fair
argument that the effect may be environmentally significant,
if a proposed project has an environmental effect that
complies with a regulatory standard as defined under the
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Guidelines provision.
On appeal, the Court of Appeal agreed with the trial court on
this matter: "The direction [of this Guidelines change]
relieves the agency of a duty it would have under the fair
argument approach to look at evidence beyond the regulatory
standard, or in contravention of the standard, in deciding
whether an EIR must be prepared. Under the fair argument
standard, any substantial evidence supporting a fair argument
that a project may have a significant effect would trigger
the preparation of an EIR. A well-known CEQA treatise
recognized this dilemma as well, stating: '[S]ubdivision (h)
. . . appears to dispense with the traditional 'fair
argument' standard otherwise applicable to the decision
whether to prepare a[n] . . . EIR . . . Notably, where
existing regulatory standards, as defined, address a
particular category of impact, the lead agency need not treat
the impact as potentially significant whenever any
substantial evidence in the record supports a conclusion.'"
5) Prohibiting CEQA cause of action for conformance with certain
planning matters . SB 787 also prohibits a cause of action
under CEQA if the project "conforms to the use designation,
density, or building intensity in a land use plan or was
included in another applicable plan [as identified under the
measure] and the lead agency conditions project approval on
compliance with applicable mitigation measures contained in
the [environmental document] for the applicable plan."
Under SB 787, an "applicable plan" is either: a) a land use
plan, such as a general plan, specific plan, or sustainable
communities strategy that establishes use designations,
densities, and building intensities"; or b) a plan to improve
or maintain public facilities or infrastructure to be funded
in whole or in part by public funds and is adopted by a
local, regional, or state agency.
A general plan, however, addresses far more issues than simply
the "use designation, density, or building intensity." A
general plan must include seven mandated elements, including
land use, circulation, housing, conservation, open space,
noise, and safety elements. (Government Code §65302). Yet,
SB 787 prohibits a cause of action under CEQA if a project
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merely conforms to the use designation, density, or building
intensity in the plan and complies with "applicable
mitigation measures" in the environmental document for that
plan.
An "applicable plan" under SB 787 could also include a capital
facilities plan. Environmental impacts addressed under CEQA
for such a plan may be quite limited, and thereby restrict
environmental analysis of subsequent projects conforming to
that plan and any mitigation measures needed for subsequent
projects.
This provision could apply to an outdated plan with inadequate
CEQA analysis and ineffective mitigation measures, which also
fails to consider changed conditions and more recent
circumstances such as hazardous wastes and climate change.
This provision would also enable use of outdated plans that
are inconsistent with a recent general plan or sustainable
communities plan under SB 375, for example, or a plan with a
certified environmental document that was challenged and
found to be inadequate.
SOURCE : Author
SUPPORT : California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Retailers Association
Silicon Valley Leadership Group
OPPOSITION : Planning and Conservation League
Sierra Club California