BILL ANALYSIS Ó
AB 1398
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Date of Hearing: April 27, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 1398
(Wilk) - As Introduced February 27, 2015
SUBJECT: Environmental quality: the Sustainable Environmental
Protection Act
SUMMARY: Establishes the Sustainable Environmental Protection
Act (SEPA), which would (1) allow an environmental document
prepared under the California Environmental Quality Act (CEQA)
to use standards provided by existing state or federal
environmental protection laws as the exclusive means of
evaluating and mitigating environmental impacts; and (2) limit
the causes of action upon which parties may file suit to enforce
CEQA.
EXISTING LAW establishes CEQA, which:
1)Requires a lead agency to prepare and certify the completion
of an environmental impact report (EIR) for a proposed project
that it finds would have a significant effect on the
environment, or if it finds otherwise, adopt a negative
declaration or mitigated negative declaration.
2)Requires an EIR to identify and analyze:
a) Significant effects on the environment that would occur
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if the project is approved, unless the agency finds that
alternatives to the project or mitigation measures would
address them, or specific overriding economic, legal,
social, technological, or other benefits of the project
outweigh them.
b) Cumulative impacts of a project when, considered in the
context of environmental change occurring over time, its
incremental effect is cumulatively considerable.
3)Requires a lead agency that certifies an EIR for a project
with significant environmental impacts to make a finding that
alternatives to the project or mitigation measures will
address those impacts.
4)Authorizes the California Natural Resources Agency to certify
a regulatory program as a functional equivalent of the CEQA
process provided that, among other things, the administrative
agency's implementing regulations require an applicant to file
a plan or written document that describes the proposed
activity, along with alternatives or mitigation measures that
would minimize the significant environmental effects resulting
from the proposed activity.
5)Authorizes the Office of Planning and Research (OPR) to
promulgate guidelines for the implementation of CEQA, and
requires OPR to review these guidelines every two years.
6)Authorizes a judicial challenge to an agency's act or decision
on the grounds of noncompliance with CEQA, including an
improper determination that a project is not subject to CEQA
or the failure to prepare an EIR for a project that has a
significant effect on the environment.
7)Provides that a record of proceeding includes, but is not
limited to, all application materials, notices, and written
comments prepared by or submitted to the public agency
regarding the proposed project, and establishes a procedure
for the preparation, certification, and lodging of the record
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of proceedings.
THIS BILL adds Division 13.6, the Sustainable Environmental
Protection Act, to the Public Resources Code, which:
1)In legislative findings and declarations:
a) States that the current CEQA guidelines require the
evaluation of projects based on 84 criteria and covering
the following 17 environmental topical areas: air quality;
biological resources; cultural resources; geology and
soils; greenhouse gas emissions; hazards and hazardous
materials; hydrology and water quality; land use planning;
public services; traffic and transportation; utilities and
service systems; aesthetics; agriculture and forestry
resources; mineral resource availability; noise; population
and housing growth; and, recreational resources. Lists
examples of and statutory references to federal and state
environmental laws covering 14 of these topical areas.
b) Enumerates the following developments since CEQA's
enactment in 1970 that ensure California's status as a
national and international leader in the protection of the
environment and the health, safety, and welfare of its
citizens:
i) Constitutional and statutory requirements under
California law for local governments to adopt land use
plans;
ii) Pursuant to SB 375 (Steinberg, 2008), requirements
that metropolitan planning organizations prepare
sustainable communities strategies (SCS) to reduce
greenhouse gas emissions from the land use and
transportation sectors; and,
iii) Legislative mandates for the development and use of
renewable energy and higher density development patterns
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promoting transit utilization and energy and water
resource conservation.
c) States that due in part to the aforementioned recent
developments, CEQA is now problematic in the following
ways:
i) Local land use plans and zoning codes incorporating
transit-oriented, higher-density development "generally
cause significant unavoidable density-related adverse
environmental impacts under CEQA, such as traffic and
parking and related air quality emissions."
ii) Environmental laws and regulations "provide greater
clarity than the project-by-project ad hoc review process
that was created for CEQA in 1970," because the
compliance obligations they establish apply uniformly
across similarly situated projects and mandate
environmental protections beyond CEQA's purview.
iii) CEQA often undermines the policy goals and
objectives of local land use plans because it requires
the reexamination of project-specific environmental
impacts that have already been mitigated on the plan
level. The Legislature also did not intend for this
duplicative review to occur and thus cause "unacceptable
delays and uncertainties in the plan implementation
process."
iv) Regarding the preparation of the record of
proceedings, no alternative to the status quo exists that
would ensure that the record is produced promptly and in
an accessible electronic format. This delays CEQA
litigation, preventing parties from resolving disputes
quickly.
2)Defines the following:
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a) "Standard," to mean a quantitative or qualitative level
of protection, preservation, enhancement, pollution,
reduction, avoidance, or other measure for a topical area
requiring analysis and mitigation under CEQA.
b) "Applicable environmental law," to mean any federal or
state law related to an environmental topical area that is
relevant to the project and does any of the following:
i) Includes a policy determination regarding a
standard, or gives an administrative agency rulemaking
authority to promulgate regulations that would implement
the policy determination;
ii) Identifies quantitative or qualitative analytical
methods regarding a standard, or gives an administrative
agency rulemaking authority to promulgate regulations
that include the analytical methods; or
iii) Identifies required or permissible practices for
mitigating or minimizing adverse impacts to achieve a
standard, or gives an administrative agency rulemaking
authority to promulgate regulations that include those
practices.
c) "Applicable plan," to mean a planning document for which
an EIR was certified (such as a land use plan or SCS), or a
plan to improve or maintain public facilities or
infrastructure to be funded in whole or in part by public
funds and which has been adopted by a local, regional, or
state agency.
3)Regarding the preparation of environmental documents under
CEQA:
a) Requires that the document disclose all applicable
environmental laws and:
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i) If the law includes a policy determination regarding
a standard, establishes that standard as the exclusive
means of evaluating and mitigating environmental impacts
under CEQA;
ii) If the law identifies quantitative or qualitative
analytical methods regarding a standard, establishes the
disclosure of those methods as the exclusive means of
evaluating potential project impacts under CEQA; or,
iii) If the law identifies required or permissible
mitigation practices to achieve a standard, establishes
compliance with those mitigation requirements as the
exclusive means of mitigating environmental impacts under
CEQA.
b) Provides that an environmental document shall consider
only the identified environmental topical areas relevant to
the project.
c) States that a lead agency shall not be required to
evaluate aesthetics under CEQA or SEPA, or establish
findings in an EIR related to aesthetic impacts.
4)Regarding judicial review of agency actions or decisions under
CEQA:
a) Prohibits parties from filing suit when:
i) The cause of action relates to an identified
environmental topical area, and the environmental
document discloses compliance with any applicable
environmental law or regulation related to that topical
area; or,
ii) The environmental document discloses compliance with
the applicable environmental law related to an identified
topical area; the project conforms to, or was included
in, an applicable plan; and the lead agency conditions
project approval on compliance with applicable mitigation
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requirements included in the certified EIR, supplemental
EIR, or EIR addendum prepared for the applicable plan.
b) Does not prohibit a cause of action authorized under
existing local, state, or federal law to enforce compliance
with that law, regulation, or plan.
5)Applies all the above requirements only to projects for which
the lead agency or applicant agrees to provide to the public,
in a readily accessible electronic format, an annual report
detailing compliance with mitigation measures to avoid
significant environmental impacts, and which are required by
the lead agency as a condition of project approval.
FISCAL EFFECT: Unknown
COMMENTS:
1)Background. Since 1970, the same year its federal counterpart
the National Environmental Policy Act (NEPA) was enacted, CEQA
has emerged as the cornerstone of California's environmental
laws. CEQA applies to virtually every state and local agency,
and 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
OPR, promulgates related CEQA Guidelines and updates them
every two years.
The law currently requires a lead agency to spearhead the
following three-step environmental review process: first,
establish that the proposal is a "project" for the purposes of
the law; second, determine whether the proposed project is
exempt from CEQA's requirements; and third, 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.
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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 is enforced through the judicial system. When a lead
agency acts or decides in a manner that violates CEQA, a
private citizen may file suit in Superior Court to compel the
agency to comply with the law and its implementing guidelines.
Current law provides CEQA cases calendar preference in
setting hearings and statutes of limitations as short as 30-35
days. Moreover, Superior Courts sitting in counties with
populations of 200,000 or more are required to designate one
or more judges that would develop expertise in CEQA and
related land-use or environmental laws.
2)A "standards approach" would change CEQA as we know it. One
of CEQA's most salient features is the analysis of a project's
significant environmental impacts before approval. This
ensures that public agencies integrate the environment in
their decision-making. Project-specific review, even after
the enactment of larger and more general plans, forces
policymakers to examine impacts that may not have been
practicable to consider at the macro-level. Moreover,
provisions for public notice and comment give agencies greater
access to relevant information while promoting local
participation in the democratic process.
This bill introduces a dramatically different way of analyzing
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a project's environmental impacts. After identifying an
environmental topical area relevant to the project, this bill
would allow lead agencies to adopt a standards approach-the
use of predetermined targets, levels, limitations, or such
other measures established in either state or federal law-that
would specify what the project's environmental impacts are
going to be. This approach does not explicitly proscribe the
analysis of significant environmental impacts, but it
certainly restricts a lead agency's ability to consider those
beyond the four corners of that environmental law.
According to the bill, a law containing standards may feature
any of the following: (1) a policy determination; (2)
quantitative or qualitative analytical methods; or, (3)
required or permissible mitigation practices. If a law
contains the second component, the bill would designate the
analytical methods described as "the exclusive means of
evaluating potential project impacts under CEQA[.]" If a law
features the third component, only the mitigation measures
described in that law would be available to the lead agencies
and project proponents seeking to alleviate adverse
environmental impacts. But these are not mutually exclusive
categories. In reality, most environmental laws feature all
three.
Consequently, the cumulative effect of the restrictions
imposed by this bill is sweeping. A lead agency will lose a
substantial amount of discretion in preparing the contents of
an EIR and essentially just follow a predetermined roadmap.
This would effectively reduce lead agencies to ministerial
entities deferring to the discretion of other regulatory
agencies that administer the standards. No other
environmental policy statute-whether NEPA or any of its 16
state counterparts-restrains a public agency's ability to
analyze the impacts of a proposed project to the extent that
this bill proposes.
The bill provides a caveat: SEPA would only apply to a project
for which the lead agency or applicant agrees to provide to
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the public a compliance report in a readily accessible
electronic format. But this could be met easily enough, and
the bill does not require either party to provide notice of
the report's availability or make a copy available at a site
location or website. With such a reduced threshold a
substantial number of projects could easily qualify for review
under the standards approach, leaving no incentive for lead
agencies and project applicants to undertake a more rigorous
review of significant environmental impacts.
3)This bill would substantially restrict judicial review under
CEQA. Judicial review is critical to CEQA because it is the
only way of enforcing the law. No public agency in California
possesses a mandate to monitor and enforce compliance with
CEQA. Cognizant of this fact, case law errs on the side of
interpreting the statute to maximize environmental protection.
Judicial standards of review, such as substantial evidence
and prejudicial abuse of discretion, also extend an
appropriate level of deference to administrative agencies for
their experience and expertise on the proposed project.
This bill would drastically limit the public's ability to
enforce CEQA through judicial review. Under this bill, a
plaintiff could not initiate a CEQA lawsuit if the cause of
action related to an environmental topical area and the
environmental document already discloses compliance with any
applicable environmental law (even without verification that
this compliance is sufficient). The bill would also stymie
lawsuits against projects that conform to a land use plan or
other applicable plan; whose environmental documents disclose
compliance with any applicable environmental law; and where
the lead agency conditions approval on the mitigation
requirements listed in a certified EIR, supplemental EIR, or
EIR addendum to a plan. These restrictions render a project
reviewed under a standards approach practically immune to
litigation.
CEQA's strength lies precisely in the additional layer of
accountability it requires of lead agencies and project
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proponents-an accountability that this bill significantly
diminishes. The bill itself does not provide a
check-and-balance mechanism to ensure the quality of
environmental review conducted under a standards approach. It
would instead leave this up to provisions built into the
applicable environmental laws, to the extent that they provide
for judicial review or grant lead agencies the discretion to
consider further impacts. But policy without accountability
is meaningless, and the constituencies that rely on this
policy for their health and welfare will suffer for it.
4)Prior and Related Legislation. This bill is substantially
similar to SB 389 (Berryhill), which is currently pending
before the Senate Environmental Quality Committee, AB 1302
(Hagman, 2013), which failed in this committee, and SB 787
(Berryhill), which failed in the Senate Environmental Quality
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Realtors
Opposition
California League of Conservation Voters
Center for Biological Diversity
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Environmental Action Committee of West Marin
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092