Amended in Senate June 1, 2015

Amended in Senate April 20, 2015

Amended in Senate March 26, 2015

Amended in Senate March 12, 2015

Senate Bill No. 122

Introduced by Senators Jackson and Hill

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(Coauthor: Senator Hertzberg)

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January 15, 2015

An act to amend Sections 21082.1, 21091, 21159.9, and 21167.6 of, and to add Section 21167.6.2 to, the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

SB 122, as amended, Jackson. California Environmental Quality Act: record of proceedings.

(1) 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 (EIR) 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 a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agency’s action on the grounds of noncompliance with CEQA.

This bill would require the lead agency, at the request of a project applicant and consent of the lead agency, to prepare a record of proceedings concurrently with the preparation of a negative declaration, mitigated negative declaration, EIR, or other environmental document for projects.

(2) CEQA requires the lead agency to submit to the State Clearinghouse a sufficient number of copies of specified environmental documents prepared pursuant to CEQA for review and comment by state agencies in certain circumstances and a copy of those documents in electronic form, as prescribed. CEQA requires the Office of Planning and Research to implement, utilizing existing resources, a public assistance program to, among other things, establish and maintain a database to assist in the preparation of environmental documents, establish and maintain a central repository for the collection, storage, retrieval, and dissemination of certain notices provided to the office, and provide to the California State Library copies of documents submitted in electronic format to the office pursuant to CEQA.

This bill would require a lead agency to submit to the State Clearinghouse those environmental documents in either a hard-copy or electronic form as prescribed by the office. The bill would instead require the office to establish and maintain a database for the collection, storage, retrieval, and dissemination of environmental documents and notices prepared pursuant to CEQA and to make the database available online to the public. The bill would eliminate the requirement to provide copies of documents to the California State Library. The bill would require the office to submit to the Legislature a report, by July 1, 2016, describing the implementation of this requirement and a status report, by July 1, 2018.

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

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

SECTION 1.  

Section 21082.1 of the Public Resources Code
is amended to read:

21082.1.  

(a) A draft environmental impact report,
environmental impact report, negative declaration, or mitigated
negative declaration prepared pursuant to the requirements of this
division shall be prepared directly by, or under contract to, a public
agency.

(b) This section does not prohibit, and shall not be construed as
prohibiting, a person from submitting information or other
comments to the public agency responsible for preparing an
environmental impact report, draft environmental impact report,
negative declaration, or mitigated negative declaration. The
information or other comments may be submitted in any format,
shall be considered by the public agency, and may be included, in
whole or in part, in any report or declaration.

(c) The lead agency shall do all of the following:

(1) Independently review and analyze any report or declaration
required by this division.

(2) Circulate draft documents that reflect its independent
judgment.

(3) As part of the adoption of a negative declaration or a
mitigated negative declaration, or certification of an environmental
impact report, find that the report or declaration reflects the
independent judgment of the lead agency.

(4) Submit a sufficient number of copies, in either a hard-copy
or electronic form as required by the Office of Planning and
Research, of the draft environmental impact report, proposed
negative declaration, or proposed mitigated negative declaration
to the State Clearinghouse for review and comment by state
agencies, if any of the following apply:

(A) A state agency is any of the following:

(i) The lead agency.

(ii) A responsible agency.

(iii) A trustee agency.

(B) A state agency otherwise has jurisdiction by law with respect
to the project.

(C) The proposed project is of sufficient statewide, regional, or
areawide environmental significance as determined pursuant to
the guidelines certified and adopted pursuant to Section 21083.

SEC. 2.  

Section 21091 of the Public Resources Code is
amended to read:

21091.  

(a) The public review period for a draft environmental
impact report shall not be less than 30 days. If the draft
environmental impact report is submitted to the State Clearinghouse
for review, the review period shall be at least 45 days, and the lead
agency shall provide a sufficient number of copies of the document,
in either a hard-copy or electronic form as required by the Office
of Planning and Research, to the State Clearinghouse for review
and comment by state agencies.

(b) The public review period for a proposed negative declaration
or proposed mitigated negative declaration shall not be less than
20 days. If the proposed negative declaration or proposed mitigated
negative declaration is submitted to the State Clearinghouse for
review, the review period shall be at least 30 days, and the lead
agency shall provide a sufficient number of copies of the document,
in either a hard-copy or electronic form as required by the Office
of Planning and Research, to the State Clearinghouse for review
and comment by state agencies.

(c) (1) Notwithstanding subdivisions (a) and (b), if a draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration is submitted to the State
Clearinghouse for review and the period of review by the State
Clearinghouse is longer than the public review period established
pursuant to subdivision (a) or (b), whichever is applicable, the
public review period shall be at least as long as the period of review
and comment by state agencies as established by the State
Clearinghouse.

(2) The public review period and the state agency review period
may, but are not required to, begin and end at the same time. Day
one of the state agency review period shall be the date that the
State Clearinghouse distributes the CEQA document to state
agencies.

(3) If the submittal of a CEQA document is determined by the
State Clearinghouse to be complete, the State Clearinghouse shall
distribute the document within three working days from the date
of receipt. The State Clearinghouse shall specify the information
that will be required in order to determine the completeness of the
submittal of a CEQA document.

(d) (1) The lead agency shall consider comments it receives on
a draft environmental impact report, proposed negative declaration,
or proposed mitigated negative declaration if those comments are
received within the public review period.

(2) (A) With respect to the consideration of comments received
on a draft environmental impact report, the lead agency shall
evaluate comments on environmental issues that are received from
persons who have reviewed the draft and shall prepare a written
response pursuant to subparagraph (B). The lead agency may also
respond to comments that are received after the close of the public
review period.

(B) The written response shall describe the disposition of each
significant environmental issue that is raised by commenters. The
responses shall be prepared consistent with Section 15088 of Title
14 of the California Code of Regulations.

(3) (A) With respect to the consideration of comments received
on a draft environmental impact report, proposed negative
declaration, proposed mitigated negative declaration, or notice
pursuant to Section 21080.4, the lead agency shall accept comments
via electronic mail and shall treat electronic-mail comments as
equivalent to written comments.

(B) Any law or regulation relating to written comments received
on a draft environmental impact report, proposed negative
declaration, proposed mitigated negative declaration, or notice
received pursuant to Section 21080.4 shall also apply to
electronic-mail comments received for those reasons.

(e) (1) Criteria for shorter review periods by the State
Clearinghouse for documents that must be submitted to the State
Clearinghouse shall be set forth in the written guidelines issued
by the Office of Planning and Research and made available to the
public.

(2) Those shortened review periods may not be less than 30
days for a draft environmental impact report and 20 days for a
negative declaration.

(3) A request for a shortened review period shall only be made
in writing by the decisionmaking body of the lead agency to the
Office of Planning and Research. The decisionmaking body may
designate by resolution or ordinance a person authorized to request
a shortened review period. A designated person shall notify the
decisionmaking body of this request.

(4) A request approved by the State Clearinghouse shall be
consistent with the criteria set forth in the written guidelines of
the Office of Planning and Research.

(5) A shortened review period may not be approved by the
Office of Planning and Research for a proposed project of
statewide, regional, or areawide environmental significance as
determined pursuant to Section 21083.

(6) An approval of a shortened review period shall be given
prior to, and reflected in, the public notice required pursuant to
Section 21092.

(f) Prior to carrying out or approving a project for which a
negative declaration has been adopted, the lead agency shall
consider the negative declaration together with comments that
were received and considered pursuant to paragraph (1) of
subdivision (d).

SEC. 3.  

Section 21159.9 of the Public Resources Code is
amended to read:

21159.9.  

The Office of Planning and Research shall implement
a public assistance and information program to ensure efficient
and effective implementation of this division and to do both of the
following:

(a) Establish a public education and training program for
planners, developers, and other interested parties to assist them in
implementing this division.

(b) (1) Establish and maintain a database for the collection,
storage, retrieval, and dissemination of environmental documents,
notices of exemption, notices of preparation, notices of
determination, and notices of completion provided to the Office
of Planning and Research. The database shall be available online
to the public through the Internet. The Office of Planning and
Research may coordinate with another state agency to host and
maintain the online database.

(2) The Office of Planning and Research may phase in the
submission of electronic documents and use of the database by
state and local public agencies.

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(3) The Office of Planning and Research shall develop a budget
for the development, hosting, and maintenance of the database and
shall submit the budget to the Department of Finance for
consideration and approval.

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(4)

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begin insert (3) end insert  (A) Pursuant to Section 9795 of the Government Code, the
Office of Planning and Research shall, no later than July 1, 2016,
submit to the Legislature a report describing how it plans to
implement this subdivision, and shall provide an additional report
to the Legislature no later than July 1, 2018, describing the status
of the implementation of this subdivision.

(B) Pursuant to Section 10231.5 of the Government Code, this
paragraph is inoperative on July 1, 2022.

SEC. 4.  

Section 21167.6 of the Public Resources Code is
amended to read:

21167.6.  

Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except as provided
in Section 21167.6.2 or those involving the Public Utilities
Commission, all of the following shall apply:

(a) At the time that the action or proceeding is filed, the plaintiff
or petitioner shall file a request that the respondent public agency
prepare the record of proceedings relating to the subject of the
action or proceeding. The request, together with the complaint or
petition, shall be served personally upon the public agency not
later than 10 business days from the date that the action or
proceeding was filed.

(b) (1) The public agency shall prepare and certify the record
of proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency.
Upon certification, the public agency shall lodge a copy of the
record of proceedings with the court and shall serve on the parties
notice that the record of proceedings has been certified and lodged
with the court. The parties shall pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.

(2) The plaintiff or petitioner may elect to prepare the record
of proceedings or the parties may agree to an alternative method
of preparation of the record of proceedings, subject to certification
of its accuracy by the public agency, within the time limit specified
in this subdivision.

(c) The time limit established by subdivision (b) may be
extended only upon the stipulation of all parties who have been
properly served in the action or proceeding or upon order of the
court. Extensions shall be liberally granted by the court when the
size of the record of proceedings renders infeasible compliance
with that time limit. There is no limit on the number of extensions
that may be granted by the court, but no single extension shall
exceed 60 days unless the court determines that a longer extension
is in the public interest.

(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or petitioner
may move for sanctions, and the court may, upon that motion,
grant appropriate sanctions.

(e) The record of proceedings shall include, but is not limited
to, all of the following items:

(1) All project application materials.

(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.

(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents
submitted by any person relevant to any findings or statement of
overriding considerations adopted by the respondent agency
pursuant to this division.

(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard
testimony on, or considered any environmental document on, the
project, and any transcript or minutes of proceedings before any
advisory body to the respondent public agency that were presented
to the decisionmaking body prior to action on the environmental
documents or on the project.

(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing
and approval of the project.

(6) All written comments received in response to, or in
connection with, environmental documents prepared for the project,
including responses to the notice of preparation.

(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.

(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff,
or the project proponent, project opponents, or other persons.

(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.

(10) Any other written materials relevant to the respondent
public agency’s compliance with this division or to its decision on
the merits of the project, including the initial study, any drafts of
any environmental document, or portions thereof, that have been
released for public review, and copies of studies or other documents
relied upon in any environmental document prepared for the project
and either made available to the public during the public review
period or included in the respondent public agency’s files on the
project, and all internal agency communications, including staff
notes and memoranda related to the project or to compliance with
this division.

(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.

(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.

(g) The clerk of the superior court shall prepare and certify the
clerk’s transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk’s transcript was filed with the superior court, if the party
or parties pay any costs or fees for the preparation of the clerk’s
transcript imposed in conformance with any law or rules of court.
Nothing in this subdivision precludes an election to proceed by
appendix, as provided in Rule 8.124 of the California Rules of
Court.

(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of
the court for good cause shown. Extensions for the filing of a brief
on appeal shall be limited to one 30-day extension for the
preparation of an opening brief and one 30-day extension for the
preparation of a responding brief, except that the court may grant
a longer extension or additional extensions if it determines that
there is a substantial likelihood of settlement that would avoid the
necessity of completing the appeal.

(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.

SEC. 5.  

Section 21167.6.2 is added to the Public Resources
Code, to read:

21167.6.2.  

(a) (1) Notwithstanding Section 21167.6, upon
the written request of a project applicant received no later than 30
days after the date that the lead agency makes a determination
pursuant to subdivision (a) of Section 21080.1, Section 21094.5,
or Chapter 4.2 (commencing with Section 21155) and with the
consent of the lead agency as provided in subdivision (e), the lead
agency shall prepare and certify the record of proceedings in the
following manner:

(A) The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.

(B) All documents and other materials placed in the record of
proceedings shall be posted on, and be downloadable from, an
Internet Web site maintained by the lead agency commencing with
the date of the release of the draft environmental document for the
project. If the lead agency cannot maintain an Internet Web site
with the information required pursuant to this section, the lead
agency shall provide a link on the agency’s Internet Web site to
that information.

(C) The lead agency shall make available to the public in a
readily accessible electronic format the draft environmental
document for the project, and all other documents submitted to,
cited by, or relied on by the lead agency, in the preparation of the
draft environmental document for the project.

(D) A document prepared by the lead agency or submitted by
the applicant after the date of the release of the draft environmental
document for the project that is a part of the record of the
proceedings shall be made available to the public in a readily
accessible electronic format within 5 business days after the
document is released or received by the lead agency.

(E) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any comment available to the public in a readily
accessible electronic format within 5 business days of its receipt.

(F) Within 7 business days after the receipt of any comment
that is not in an electronic format, the lead agency shall convert
that comment into a readily accessible electronic format and make
it available to the public in that format.

(G) The lead agency shall certify the record of proceedings
within 30 days after the filing of the notice required pursuant to
Section 21108 or 21152.

(2) This subdivision does not require the disclosure or posting
of any trade secret as defined in Section 6254.7 of the Government
Code, information about the location of archaeological sites or
sacred lands, or any other information that is subject to the
disclosure restrictions of Section 6254 of the Government Code.

(b) Any dispute regarding the record of proceedings prepared
pursuant to this section shall be resolved by the court in an action
or proceeding brought pursuant to subdivision (b) or (c) of Section
21167.

(c) The content of the record of proceedings shall be as specified
in subdivision (e) of Section 21167.6.

(d) The negative declaration, mitigated negative declaration,
draft and final environmental impact report, or other environmental
document shall include a notice in no less than 12-point type stating
the following:

“THIS DOCUMENT IS SUBJECT TO SECTION 21167.6.2
OF THE PUBLIC RESOURCES CODE, WHICH REQUIRES
THE RECORD OF PROCEEDINGS FOR THIS PROJECT TO
BE PREPARED CONCURRENTLY WITH THE
ADMINISTRATIVE PROCESS; DOCUMENTS PREPARED
BY, OR SUBMITTED TO, THE LEAD AGENCY TO BE
POSTED ON THE LEAD AGENCY’S INTERNET WEB SITE;
AND THE LEAD AGENCY TO ENCOURAGE WRITTEN
COMMENTS ON THE PROJECT TO BE SUBMITTED TO THE
LEAD AGENCY IN A READILY ACCESSIBLE ELECTRONIC
FORMAT.”

(e) (1) The lead agency shall respond to a request by the project
applicant within 10 business days from the date that the request
pursuant to subdivision (a) is received by the lead agency.

(2) A project applicant and the lead agency may mutually agree,
in writing, to extend the time period for the lead agency to respond
pursuant to paragraph (1), but they shall not extend that period
beyond the commencement of the public review period for the
proposed negative declaration, mitigated negative declaration,
draft environmental impact report, or other environmental
document.

(3) The request to prepare a record of proceedings pursuant to
this section shall be deemed denied if the lead agency fails to
respond within 10 business days of receiving the request or within
the time period agreed upon pursuant to paragraph (2), whichever
ends later.

(f) The written request of the applicant submitted pursuant to
subdivision (a) shall include an agreement to pay all of the lead
agency’s costs of preparing and certifying the record of proceedings
pursuant to this section and complying with the requirements of
this section, in a manner specified by the lead agency.

(g) The costs of preparing the record of proceedings pursuant
to this section and complying with the requirements of this section
are not recoverable costs pursuant to Section 1032 of the Code of
Civil Procedure.

(h) Pursuant to subdivision (f) and Section 21089, the lead
agency may charge and collect a reasonable fee from the person
making the request pursuant to subdivision (a) to recover the costs
incurred by the lead agency in preparing the record of proceedings
pursuant to this section.