California Legislature—2015–16 Regular Session

Assembly Bill No. 1068

Introduced by Assembly Member Travis Allen

February 26, 2015

An act to add Section 21168.10 to the Public Resources Code, relating to the environment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1068, as introduced, Travis Allen. California Environmental Quality Act: priority projects.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

CEQA establishes procedures by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA and the judicial remedies available.

This bill would authorize each Member of the Legislature to nominate one project within his or her respective district each year, and the Governor to designate those projects as priority projects if the projects meet specified requirements. The bill would require the Governor to provide a notice of the designation to the appropriate lead agency and to the Office of Planning and Research. The bill would require the lead agency to notify the public and interested stakeholders of the designation, as specified, thereby imposing a state-mandated local program. The bill would require that an environmental impact report be prepared for each priority project, but would authorize tiering from previously prepared reports, as specified. The bill would prohibit the court from staying or enjoining the implementation of a priority project unless the court makes specified findings and would limit any stay or injunction, as provided.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

This act shall be known, and may be cited, as the
Priority Project Parity Act of 2015.

SEC. 2.  

The Legislature finds and declares all of the following:

(a) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code),
commonly known as CEQA, was enacted with a near unanimous
bipartisan vote of the Legislature in 1970 and signed into law by
Governor Reagan.

(b) The purpose of CEQA is to enhance public disclosure of the
environmental impacts of a project and to require feasible
mitigation measures or alternative project configurations that
reduce significant adverse impacts to the physical environment.

(c) Feasible mitigation measures and alternatives are limited to
those that allow the project to achieve its objectives, fall within
the jurisdiction of the lead agency, and can be readily implemented
from a legal, technical, and economic perspective.

(d) If, notwithstanding the feasible mitigation measures or
alternative configuration, a project would have a significant
unavoidable adverse impact on the physical environment or
substantially contribute to an unavoidable significant adverse
cumulative impact on the physical environment, an agency may
nevertheless approve the project by adopting a statement explaining
the overriding employment, environmental, social, economic, or
other benefits that have informed the agency’s decision to approve
the project.

(e) In a notable contrast to the federal court interpretation of the
federal National Environmental Policy Act of 1969 (42 U.S.C.
Secs. 4321 et seq.), which served as a model for CEQA, California
courts have decided that lawsuits challenging the adequacy of an
agency’s compliance with CEQA may be brought by any party
for any reason, including, but not limited to, parties seeking
competitive advantage, seeking wage or other employment terms
and conditions, seeking to protect private property economic
values, and seeking to preclude neighborhood-scale projects that
are or may increase the quality of life for lower income and racially
diverse population groups, by increasing youth utilization of urban
parks or by developing transit systems in urbanized areas, without
regard to the environmental or other merits of the project.

(f) In advising the state, regional, and local agency on the
compliance requirements of CEQA, the Governor’s Office of
Planning and Research has identified more than 100 potential
environmental impact topics that must be evaluated for each
project, has routinely adopted guidance that increases the cost and
complexity of the analysis required, and continues to propose
requirements that increase uncertainty and complexity, including,
but not limited to, advocating for regulatory reversals of appellate
court statutory interpretations, such as the “business as usual”
approach to evaluating the significance of greenhouse gas
emissions and the judicial classification of parking as an
environmental impact based on air quality and other factors.
Collectively, such ambiguous and contradictory advice has
continued to increase the cost and litigation uncertainty of
compliance obligations under CEQA.

(g) Three private sector law firms, each representing a diverse
range of parties affected by CEQA including public agencies,
project applicants, and other stakeholders, have completed studies
on reported appellate court decisions interpreting CEQA and those
studies demonstrate that the courts have determined that the lead
agencies failed to comply with some aspect of CEQA in nearly
half of all cases, and that even the most elaborate environmental
studies, the environmental impact reports, that are entitled to the
highest level of judicial deference, failed to pass judicial muster
in nearly half of all reported appellate cases over a 15-year period.
Projects approved under a less costly and less time-consuming
negative declaration process fail to pass judicial muster in far more
than half of the cases challenging those approvals.

(h) The overwhelming majority of the adverse court decisions
required that project approval be vacated pending completion of
further environmental studies under CEQA.

(i) Notwithstanding such conclusive evidence of widespread
confusion regarding the compliance requirements of CEQA, along
with litigation abuse to promote nonenvironmental interests and
abusive litigation tactics, such as “document dumping,” to delay
agency decisions for weeks and sometimes months after the close
of the comment periods prescribed by CEQA, the Legislature has
declined to enact any systematic reforms that address how this
1970-era law is to be interpreted in conjunction with the hundreds
of environmental and planning mandates that have subsequently
been enacted as coequal legal mandates in California’s stringent
and complex suite of statutes designed to protect and enhance
environmental quality, including, but not limited to, statutes
requiring integration of environmental protection standards in land
use plans and policies.

(j) The existence of an outstanding lawsuit challenging
compliance with CEQA, in tandem with the high level of adverse
judicial outcomes, creates significant unresolved project
contingencies that generally preclude timely receipt of federal and
state grant funding as well as other forms of public and private
sector financing.

(k) Legislative leadership has routinely sponsored last minute
legislation for politically favored projects, including, but not limited
to, major league sports facilities and prisons, to either exempt them
from CEQA or limit the judicial remedies that are available when
an adverse judicial determination has been made. These favored
leadership projects have achieved this sheltered status without
regard to whether the projects are consistent with an adopted
sustainable communities strategy required pursuant to Section
65080 of the Government Code. This highly politicized leadership
exemption process has been referred to as the “transactional” model
for implementing CEQA.

(l) This transactional model for implementing CEQA is an
effective method of avoiding delays in financing and
implementation of priority projects. There is an ample body of
otherwise applicable California environmental protection and land
use law in place to avoid and minimize potentially significant
adverse environmental impacts to the physical environment without
regard to the applicability of CEQA. No existing law creates a
presumed different suite of legal compliance obligations reserved
to legislative leaders and the legislative districts they represent.
Legislative leadership positions do not confer upon individuals
serving in those positions a monopoly on the use of the
transactional model for implementing CEQA. The transactional
model of legislative exemptions has a history of extending nearly
to the 1970 enactment date of CEQA.

(m) It is now appropriate to enact a new compliance pathway
for a project identified as a priority by each Member of the Senate
and Assembly.

SEC. 3.  

Section 21168.10 is added to the Public Resources
Code, to read:

21168.10.  

(a) (1) On or before November 15 of each year,
each Member of the Legislature may annually nominate one project
within his or her respective district as a priority project.

(2) A member of the Legislature who chooses to nominate a
project shall submit to the Governor the name of the project and
sufficient information to demonstrate that the project will meet
the requirements specified in paragraph (3).

(3) The Governor shall designate a project as a priority project
if the project meets all of the following:

(A) The project will result in at least 100 new or retained full
time jobs.

(B) The project is consistent with the adopted sustainable
communities strategy for the region in which the project is located.

(C) The project applicant certifies its intent to remain in the
location of the project for a minimum of five years.

(b) Subject to subdivision (a), a project may be designated as a
priority project pursuant to subdivision (a) at any time following
the submittal of the project proposal or application to the lead
agency for the commencement of environmental review pursuant
to this division but not later than 30 days following the approval
of the project by the lead agency.

(c) Withing 10 days after the designation of a project pursuant
to paragraph (3) of subdivision (a), the Governor shall provide a
notice of designation to the lead agency for the designated project
and to the Office of Planning and Research. The lead agency shall
inform members of the public and other interested stakeholders
that a project has been designated as a priority project pursuant to
paragraph (3) of subdivision (a) in the lead agency’s next otherwise
applicable and required public document or notice regarding the
project and in all subsequent otherwise applicable and required
public documents or notices regarding the project, up to and
including applicable and required notice and documentation for
project approval. If there is no applicable and required public
document or notice, the lead agency shall provide a notice of
designation to the public and interested stakeholders.

(d) (1) The lead agency for a priority project shall complete all
notices required by this division and, except as provided in
paragraph (3), an environmental impact report shall be completed
for each priority project.

(2) The environmental impact report for a priority project may
tier from an earlier environmental impact report completed for the
existing or earlier version of the project and the tiered
environmental impact report shall be limited to the consideration
of significant adverse impacts resulting from the project that were
not previously identified in the earlier environmental impact report,
or, if the adverse impacts had been identified in the earlier
environmental impact report, the impacts are more severe than
previously identified.

(3) A new environmental impact report is not required for a
priority project that has been already included in an environmental
impact report prepared and certified under this division but the
lead agency shall prepare an addendum to the prior environmental
impact report to explain to the public and other interested
stakeholders the manner in which the project had been addressed
in the prior environmental impact report.

(e) (1) In granting relief in an action or proceeding brought
pursuant to this division, the court shall not stay or enjoin a priority
project designated pursuant to subdivision (a) unless the court
finds either of the following:

(A) The continued implementation of the priority project
presents an imminent threat to the public health and safety.

(B) The priority project site contains unforeseen important
Native American artifacts or unforeseen important historical,
archaeological, or ecological values that would be materially,
permanently, and adversely affected by the continued
implementation of the priority project.

(2) If the court finds that subparagraph (A) or (B) is satisfied,
the court shall only enjoin those specific activities associated with
the priority project that present an imminent threat to public health
and safety or that materially, permanently, and adversely affect
unforeseen important Native American artifacts or unforeseen
important historical, archaeological, or ecological values.

SEC. 4.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.