BILL ANALYSIS Ó
SB 1451
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 1451
AUTHOR: Hill and Roth
AMENDED: April 21, 2014
FISCAL: No HEARING DATE: April 30, 2014
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1)Prohibits an action from being brought on alleged grounds of
noncompliance with CEQA unless the alleged grounds for
noncompliance were presented to the public agency orally or
in writing by any person during the public comment period or
prior to the close of the public hearing on the project
before issuance of the notice of determination (NOD).
(Public Resources Code (PRC) §21177).
2)Until January 1, 2016, precludes an organization formed
after the approval of a project from maintaining an action
unless a member of the organization has objected to the
approval of the project orally or in writing and presented
the grounds of noncompliance to the public agency. (PRC
§21177).
3)On and after January 1, 2016, precludes an organization
formed after the approval of a project from maintaining an
action unless a member of the organization has objected to
the approval of the project orally or in writing. (PRC
§21177).
4)Provides requirements and procedures for an action against a
public agency on the grounds of noncompliance with CEQA.
(PRC §21167).
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This bill :
1) Provides that an action or proceeding may not be brought on
alleged grounds of noncompliance with CEQA unless:
a) The alleged grounds for noncompliance were presented
to the public agency orally or in writing by any person
during the public comment period provided by CEQA;
(current law)
b) The alleged grounds for noncompliance were not known
and could not have been known with the exercise of
reasonable diligence during the public comment period;
or,
c) If no public comment period was provided by CEQA (for
example, a CEQA-exempted project), the alleged grounds
for noncompliance were presented to the public agency
orally or in writing by any person prior to the close of
the public hearing on the project before the filing of
the notice of determination.
2) Extends the preclusion listed above in existing law #2
indefinitely and deletes the preclusion in #3.
COMMENTS :
1) Purpose of Bill . According to the author, "SB 1451 would
reduce the use of the document dumping tactic.
Specifically, the proposal would require comments to be
presented during the public comment period on the draft
environmental document, unless the comments could not have
been presented during the public comment period.
Importantly, under the proposal, any comments that could
not have been presented during the public comment period
may be presented after the public comment period and prior
to the close of the public hearing on the project. This
will prevent commenters from raising issues on the day of
the hearing that could have been brought earlier in the
process, such as those related to the initially circulated
draft environmental document, and then suing on those
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issues in court. This change encourages early public
engagement and informed decision making and thus preserves
the overall function and purpose of CEQA."
2) Background: CEQA: The Environmental Review Process . A
CEQA environmental review document is a public document.
It provides for transparency as well as an opportunity for
citizens to comment on the document and participate in the
environmental review process.
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 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.
3) Exhaustion of Administrative Remedies . Exhaustion of
administrative remedies is a jurisdictional prerequisite to
challenging any project approval under CEQA. (Santa
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Clarita Organization for Planning the Environment v. City
of Santa Clarita (2011), 197 Cal.App.4th 1042.) The basic
premise of the legal doctrine is that a person or
organization may not bring a legal challenge on an agency's
decision unless that person or organization has
participated during the agency's administrative review
process (PRC §21177). A plaintiff must "exhaust" his or
her administrative remedies by first raising arguments to
the agency during its consideration of the project. By
doing so, the agency has the opportunity to correct the
issue before there is a need to seek review by a court of
law.
Exhaustion of administrative remedies requires that a person
preparing written or oral comments on an environmental
document must allege specific violations of CEQA procedures
or substantive findings. General objections to the project
are not sufficient to alert an agency to an objection based
on CEQA - The essence of the exhaustion doctrine under CEQA
is the public agency's opportunity to receive and respond
to articulated factual issues and legal theories before its
actions are subjected to judicial review. (North Coast
Rivers Alliance v. Marin Municipal Water District Board of
Directors (2013) 216 Cal.App.4th 614).
4) Late Comments and Document Dumping . When a person or
organization fails to comment within the lead agency time
limits provided for an environmental review, the lead
agency may assume that the person or agency has no comment
(Guidelines §15207). However, this does not mean that the
lead agency should ignore late comments. Although the CEQA
Guidelines and judicial precedent indicate that a lead
agency does not need to respond to a late comment in
writing, the lead agency does need to exercise discretion
because all comments - including late ones - become part of
the project's administrative record. (Galante Vineyards v.
Monterey Peninsula Water Management District (1997) 60
Cal.App. 4th 1109).
Sometimes interested parties to a project may submit comments
late in the review process and perhaps voluminous amounts
of content in their comment as a tactic to delay a project
- this is referred to as "document dumping". As mentioned
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earlier, the comment becomes a part of the administrative
record to which future litigants can refer. The California
Supreme Court has stated, "We cannot, of course,
overemphasize our disapproval of the tactic of withholding
objections?solely for the purpose of obstruction and
delay," and stressed that strategically delaying commenting
on a project is not a "game to be played by persons who?are
chiefly interested in scuttling a particular project."
(Citizens of Goleta Valley v. Board of Supervisors of Santa
Barbara County (1990) 52 Cal. 3rd 553, 368).
However, this may not always be the case - interested parties,
who submit late comments, may raise genuine, significant
issues that were not adequately addressed in the
environmental review or provide important information that
was not available earlier in the process.
SB 1451 does not entirely preclude late comments. Rather,
this bill adds a condition, for purposes of bringing an
action or proceeding, that the new information provided in
a late comment was not known and could not have been known
with the exercise of reasonable diligence during the public
comment period.
5) Recent Legislative History on Late Comments/Document
Dumping . In 2011-12, Senator Simitian convened a CEQA
stakeholder group. Among the topics of discussion was late
comments (sometimes referred to as "document dumping").
Some stakeholders wanted to limit opportunity for late
comments. Others, who were concerned about placing too
strict of limits on public participation at the end of the
environmental review process, wanted more opportunities to
participate earlier in the process. After much discussion
and debate, the Senate Environmental Quality Committee
consultant developed a compromise to address these
concerns, but that language ultimately did not come to
fruition - the final consensus of the stakeholder group
members was that they all preferred the exhaustion of
administrative remedies statute in its current form over
the compromise.
To address the broader issue of minimizing delay of a project,
an alternative option to late comment/document dumping that
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has been discussed (and which was more preferable to the
stakeholders than the compromise above) is via preparation
of the administrative record. In 2012, SB 984
(Simitian)/AB 1570 (Perea) would have required the lead
agency, at the request of a project applicant, to prepare
and certify the record of proceedings concurrent with the
administrative process for certain environmental documents
under certain conditions. Similar language was introduced
in SB 731 (Steinberg and Hill) and AB 37 (Perea) in 2013.
For various reasons, other than the substance of this
proposal, these bills were either held in committee,
amended to address another issue, or not taken up.
6) Support . According to support, "Over the past decade,
project opponents - including individual businesses,
unions, environmental groups and others - have sought to
intentionally delay project approvals by submitting
lengthy, detailed comment letters and extensive
documentation on the day the project is scheduled to be
approved. These comment letters and documentation often
contain entirely new claims and allegations that had not -
but indeed could have - been presented during the
designated public comment period provided under CEQA."
Support further states, "Document dumping presents two
distinct problems: (1) it is nearly impossible to address
late comments during the hearing, which typically must be
delayed weeks or months after the late comments are
received; and (2) late comments may typically be used as a
basis for a subsequent legal challenge on the project, even
though the comments are presented for the first time on the
day of the hearing and could have otherwise been presented
earlier in the environmental review process."
7) Opposition . According to opposition, "Unfortunately, this
bill likely will have unintended consequences. Those
consequences will fall most heavily not on
organizations?which have the resources to participate fully
throughout the CEQA process, but instead on community
members throughout the state, who often do not have the
funds to retain legal counsel and expert assistance until
late in the CEQA process?As drafted, SB 1451 could preclude
those community members from raising those issues in
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comments prior to project approval, essentially giving
agencies a 'free pass' on potentially serious CEQA
violations that could result in tangible harm to human
health, safety, and the environment." Opposition further
states, "[C]urrent law and court practice indicate that
this sort of late submittal is neither common nor tolerated
by the courts, and so additional law on the subject is not
needed."
Center for Biological Diversity notes that the bill in its
current form has a serious technical problem:
"Proposed Public Resources Code section 21177(a)(1)(B),
which allows petitioners to file later comments on issues
that were not known and could not have been known with
the exercise of reasonable diligence during the official
comment period, is inconsistent with proposed subdivision
(b)(2), which would require parties to object during the
official comment period unless no notice of the project
was provided. This inconsistency could have the effect
of foreclosing comment by individuals who did not know
and could not have known that there was any reason to
object during the public comment period, because they
could not have known the grounds for objection. If this
unintentional error is not corrected, the bill could even
more dramatically curtail public participation in the
CEQA process. We therefore strongly recommend amending
proposed subdivision (b)(2) as follows to ensure
consistency with subdivision (a)(1)(B) (page 3, lines
24-28; additions in double underline):
(b)(2) if the grounds for objection were not known
and could not have been known with the exercise of
reasonable diligence during the public comment
period or if no public comment period was provided
by this division, that person object to the approval
of the project orally or in writing prior to the
close of the public hearing on the project before
the filing of the notice of determination."
8) Previous Legislation Amending PRC §21177 . SB 683 (Correa)
(2011) would have clarified that an action or proceeding
under CEQA cannot be brought unless the person has raised
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the grounds for noncompliance before the filing, rather
than the issuance, of the notice of determination. SB 683
was subsequently amended to address the California Early
Intervention Services Act.
SB 1456 (Simitian), Chapter 496, Statutes of 2010, authorized
mediation to resolve CEQA disputes to avoid litigation
while ensuring that mediation after an action is filed does
not affect the timing of any judicial proceeding;
established a process for an expedited schedule to resolve
cases while allowing any party to request imposition of a
penalty for frivolous litigation; ensured more
accountability for an organization challenging a project
that is formed after project approval, and set procedures
for tiering environmental documents.
SB 476 (Correa) (2009) would have prohibited a person from
maintaining an action or proceeding unless that person
objected to the approval of the project orally or in
writing during the public comment period or prior to the
close of the public hearing on the project before the
filing of the notice of determination, rather than before
issuance of the notice of determination. SB 476 died in
Assembly Natural Resources Committee.
9) Double Referral to Senate Judiciary Committee . If this
measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
SOURCE : Author
SUPPORT : American Institute of Architects
American Council of Engineering Companies
The Associated General Contractors of America
Bay Area Council
California Apartment Association
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Hospital Association
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California League of Food Processors
California Manufacturers and Technology
Association
California Restaurant Association
California Retailers Association
California Transit Association
Civil Justice Association of California
Chambers of Commerce Alliance of Ventura
and Santa Barbara Counties
Chamber of Santa Barbara Region
Construction Employers' Association
Fullerton Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Huntington Beach Chamber of Commerce
Greater Riverside Chambers of Commerce
Independent Energy Producers
Irvine Chamber of Commerce
Lake Elsinore Valley Chamber of Commerce
League of California Cities
Monterey Peninsula Chamber of Commerce
Murrieta Chamber of Commerce
National Federation of Independent Business
Oxnard Chamber of Commerce
Palm Desert Chamber of Commerce
Rural County Representatives of California
San Francisco Chamber of Commerce
San Gabriel Valley Legislative Coalition of
Chambers
San Jose Silicon Valley Chamber of Commerce
Santa Clara Silicon Valley Central Chamber of
Commerce
Simi Valley Chamber of Commerce
South Shore Lake Tahoe Chamber of Commerce
Southwest California Legislative Council
Temecula Valley Chamber of Commerce
Turlock Chamber of Commerce
Visalia Chamber of Commerce
Ventura County Chamber of Commerce
West Coast Lumber and Building Material
Association
OPPOSITION : California Labor Federation
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California League of Conservation Voters
California State Association of Electrical
Workers
California State Pipe Trades Council
Center for Biological Diversity
Nature Resources Defense Council
Planning and Conservation League
Sierra Club California
State Association of Electrical Workers
State Building and Construction Trades Council,
AFL-CIO
Unified Food and Commercial Workers, Western
States
Council
Western States Council of Sheet Metal
Workers