[Approved by Governor September 22, 2016. Filed with Secretary of State September 22, 2016.]
SB 122, 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, 2017, describing the implementation of this requirement and a status report, by July 1, 2019.
The people of the State of California do enact as follows:
Section 21082.1 of the Public Resources Code is amended to read:
(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.
Section 21091 of the Public Resources Code is amended to read:
(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).
Section 21159.9 of the Public Resources Code is amended to read:
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.
(3) (A) Pursuant to Section 9795 of the Government Code, the Office of Planning and Research shall, no later than July 1, 2017, 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, 2019, 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, 2023.
Section 21167.6 of the Public Resources Code is amended to read:
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.
Section 21167.6.2 is added to the Public Resources Code, to read:
(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.
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