BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 122
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|Author: |Jackson and Hill |
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|Version: |3/26/2015 |Hearing |4/15/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Joanne Roy |
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Subject: California Environmental Quality Act: record of
proceedings
ANALYSIS:
Existing law, under the California Environmental Quality Act
(CEQA):
1. Requires lead agencies with the principal responsibility for
carrying out or approving a proposed discretionary project to
prepare a negative declaration, mitigated negative
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA includes
various statutory exemptions, as well as categorical
exemptions in the CEQA guidelines). (Public Resources Code
(PRC) §21000 et seq.).
2. Establishes a procedure for preparing and certifying the
record of proceedings for an action against a public agency on
the grounds of noncompliance with CEQA. (PRC §21167).
3.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). (PRC §21177).
4.Requires the lead agency to submit to the State Clearinghouse a
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sufficient number of copies of specified environmental review
documents and a copy in an electronic form under specified
circumstances. (PRC §21082.1).
5. Requires the Governor's Office of Planning and Research (OPR)
to establish and maintain a database to assist in the
preparation of environmental documents. (PRC §21159.9(b)).
6. Requires OPR to establish and maintain a central repository
for the collection, storage, retrieval, and dissemination of
specified notices and make those notices available through the
internet. (PRC §21159.9(c)).
This bill:
1. Regarding concurrent preparation of the record of proceeding:
A. Upon written request by a project applicant and with
consent of the lead agency, requires the lead agency to
concurrently prepare the record of proceedings with the
administrative process.
B. Requires all documents and other materials placed in the
record of proceedings to be posted on a website maintained
by the lead agency.
C. Requires the lead agency to make publicly available, in
electronic format, the draft environmental document, and
associated documents, for the project.
D. Requires the lead agency to make any comment publicly
available electronically within five days of its receipt.
E. Requires the lead agency to certify the record of
proceedings within 30 days after filing notice of
determination or approval.
F. Requires certain environmental review documents to
include a notice, as specified, stating that the document
is subject to this section.
G. Requires the applicant to pay for the lead agency's cost
of concurrently preparing and certifying the record of
proceedings.
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2. Regarding the State Clearinghouse database system for CEQA
documents:
A. Requires OPR 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.
B. Requires OPR to submit a report describing the
implementation of the database to the Legislature by July
1, 2016 and a status report by July 2018.
3. States the intent of the Legislature to enact legislation
establishing a public review period for a final environmental
impact report.
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Background
1.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.
2.What Is Analyzed In an Environmental Review?
Pursuant to CEQA, an environmental review analyzing the
significant direct and indirect environmental impacts of a
proposed project, may include water quality, surface and
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subsurface hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse gas
emissions, terrestrial and aquatic biological resources,
aesthetics, geology and soils, recreation, public services and
utilities such as water supply and wastewater disposal,
cultural resources such as historical and archaeological
resources, and tribal cultural resources.
Comments
1. Purpose of Bill.
According to the authors:
[CEQA] ensures that state and local agencies make informed
decisions when undertaking projects that may impact the
environment. Stakeholders have voiced concern that the
current CEQA process can be cumbersome and inefficient. In
May 2014, the Senate Judiciary and Environmental Quality
Committees sent a joint letter to a broad range of CEQA
stakeholders - developers, business, environmental, and
labor groups, planners, local governments, and academics -
asking for community input on how to improve the process
without undercutting the statute's goal of fostering
informed environmental decisionmaking. Drawing upon
stakeholder responses to that letter, this bill will enact
three substantive changes to CEQA that will help expedite
the process while protecting the integrity of the act.
First, it will authorize lead agencies to concurrently
prepare their administrative records while going through the
CEQA process, rather than after the process has concluded.
Second, it will improve the accessibility of CEQA related
documents by expanding the use of California's online CEQA
State Clearinghouse. Third, it will improve the
predictability and efficiency of the public comment process
by modifying the criteria for submitting late comments.
During the Senate Judiciary Committee hearing last year on SB
1451 (Hill and Roth) regarding CEQA "document dumping,"
Senator Jackson and Senator Hill agreed to explore ways to
improve the CEQA process in conjunction with the broader CEQA
community. As part of that effort, they sent a joint letter
to CEQA stakeholders asking for community input on how to
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improve the process without undercutting the statute's goal of
fostering informed environmental decisionmaking. The Senate
Environmental Quality and Judiciary Committees received 13
responses from stakeholders who collectively represent a
cross-section of the CEQA community. Two broad consensus
recommendations emerged from these 13 responses, and many
community members indicated that these two recommended changes
would greatly improve the CEQA process: concurrent
preparation of the record of proceedings and a centralized
database for CEQA documents.
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2. Concurrent Preparation of the Record of Proceedings.
A. Potential Time-Saver for Post-Decision CEQA
Challenge.
SB 122 provides the option of preparing the record of
proceedings during the CEQA environmental review process
in order to save time and effort in the event of a
post-decision CEQA challenge. Depending on factors such
as the complexity and length of the environmental review,
preparation can take multiple months. However, in
situations where an agency believes a project is likely
to be challenged, it is probably more efficient and
expeditious if the record is prepared concurrently with
the preparation of other project-specific environmental
documents. Additionally, concurrently prepared records
may be more defensible in court, given that they are not
post-hoc recreations assembled some time (potentially
several months) after the relevant CEQA decision is made.
Concurrent preparation is not specifically prohibited under
existing law, but it has only been expressly authorized
for certain projects (e.g. AB 900 (Buchanan and Gordon),
Chapter 354, Statutes of 2011, environmental leadership
development projects (ELDPs)). Providing public agencies
a general authorization to engage in concurrent
preparation may take away any uncertainty on the matter
and make a public agency more likely to adopt the
practice for appropriate projects.
B. Time is Money
In general, preparation of the record of proceedings begins
after a lawsuit is filed and the petitioner pays. This
can result in a substantial amount of time to go by
before there is any resolution.
One issue that some CEQA stakeholders contend is that CEQA
litigation delays projects. As noted above, the
concurrent preparation of the record of proceedings can
save the project applicant several months of delay. It
seems logical and reasonable that the beneficiary of an
action should pay for that action to occur.
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If a project applicant believes that litigation is
inevitable, it may behoove that entity to ask the lead
agency to prepare the administrative record in
conjunction with the environmental review process - the
efficiency of simultaneous preparation can possibly save
months of time preparing for litigation, such as tracking
down and collecting documents to add to the
administrative record.
For example, under AB 900, five project applicants have/are
utilizing concurrent preparation process as an ELDP.
Those projects had to meet stringent standards in order
to be an ELDP and benefit from AB 900's provisions,
including concurrent preparation of the administrative
record for which the project applicant pays.
SB 122's concurrent preparation provision is discretionary
and not mandatory. If an applicant has no reason to
believe that its project will be subject to litigation,
then the applicant does not have to utilize this option.
C. No Opposition on Previous Concurrent Preparation
Bills, So Why Now?
In the past four years, there have been multiple bills
proposing concurrent preparation of the record of
proceedings that are either the same proposal in SB 122
or slightly varied -
§ SB 731 (Steinberg and Hill) (2013)
§ AB 37 (Perea) (2013)
§ SB 984 (Simitian, Steinberg, and
Strickland)/AB 1570 (Perea) (2012)
§ AB 900 (Buchanan and Gordon) (2011), which
was specific only to environmental leadership
development projects (ELDPs).
No opposition or concern was raised on any of the bills
mentioned above regarding concurrent preparation of the
record of proceedings. However, many entities oppose SB
122, stating, "SB 122's concurrent preparation of the
administrative record process will rarely - if ever - be
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utilized because it would impose new, unrecoverable costs
on the project applicant and expose applicants to new
delays and litigation."
Opposition has had multiple opportunities on several
bills over the past few years to raise concern about this
issue and chose not to. A question arises - Why not then
and why now?
3. Increased Use of Internet Resources - The State Clearinghouse.
The authors state, "[OPR] operates a limited online CEQA
repository (called "CEQAnet") as part of the State
Clearinghouse used for state-level review of environmental
documents. This second component of the bill will direct OPR
to expand its online CEQA repository to include copies of all
CEQA documents in a single repository, forming a true
statewide CEQA clearinghouse."
Many CEQA stakeholders have noted that the CEQA process makes
poor use of internet resources for distributing information,
providing notice to affected parties, and facilitating the
submission of comments. The current CEQA process is still
largely paper-based, and information that is posted online is
often buried deep within agency or project proponent websites.
Currently, OPR has operates a limited online CEQA repository
as part of the State Clearinghouse used for state-level review
of environmental documents. This bill proposes to expand
OPR's clearinghouse to include copies of all CEQA documents in
a single, electronic database system, which would be available
via the Internet and to the public. Stakeholders believe such
a resource would greatly expedite the CEQA process by
eliminating transmission times for relevant documents. In
addition, universal accessibility of such a resource would
make it much harder to justify last minute "document dumps."
A fully functioning clearinghouse would provide California
residents with an easy to use, universal point of entry into
the CEQA process, furthering the policy of transparency and
public participation in the environmental review process.
4. Proposed Central Database: Potential Cost Savings.
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Expanding OPR's CEQA database would likely require some type of
financial commitment by the state, but it is possible that any
new costs could be offset by reductions in agency staff time
and resources used to distribute paper-based materials. Last
year, the California Research Bureau (CRB) researched
CEQA-related document handling costs for selected state
agencies and looked into issues such as clerical document
management and preparation and delivery costs. According to
CRB:
We estimate that the cumulative annual cost to State
entities in staff time commitments for clerical processing
and handling of CEQA-related documents exceeds $250,000 and
may easily be in excess of $500,000, with additional
expenditures for materials, supplies, and delivery services.
Not all of these staff expenditures are truly avoidable
costs, as few State entities delegate any clerical staff
full-time to CEQA-related document handling functions. But
it appears plausible that an effective, electronic document
management system and web-based application for CEQA-related
document submission and retrieval by Lead Agencies and
Reviewing Agencies could generate cost savings across the
state.
Under CEQA, the Legislature declares the policy of the state
shall be that "All persons and public agencies involved in the
environmental review process be responsible for carrying out
the process in the most efficient, expeditious manner in order
to conserve the available financial, governmental, physical,
and social resources with the objective that those resources
may be better applied toward the mitigation of actual
significant effects on the environment." (PRC §21003(f)). SB
122 proposes to help move CEQA forward by utilizing technology
that was not present when CEQA was originally established.
5. Late Comments and Document Dumping.
A. Late Comments: Sometimes Strategic Gamesmanship;
Sometimes Legitimately Late.
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
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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
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.
The crux of the late comments issue is trying to address the
tactic of document dumping without unduly punishing genuine
comments that may be late for a legitimate reason.
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B. 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.
C. SB 122: Work in Progress.
Discussions with stakeholders indicate that the last minute
submission of written comments is a problem in at least
some CEQA processes. Documents and information presented
to an agency late in the process or during a final hearing
do not allow sufficient time for review, analysis, and
incorporation into the decisionmaking process. The authors
of this bill are committed to addressing the problem posed
by written comments submitted late in the CEQA process, but
they are also committed to preserving the public's ability
to fully participate in the process. The third component
of this bill is intended to establish new procedural
requirements in order to better accommodate late written
comments into the CEQA workflow and the authors are working
with stakeholders to find a solution. Should this bill be
voted out of committee and substantially amended, the
Senate Environmental Quality Committee may wish to hear
this bill again.
6. Technical and Clarifying Amendments Needed.
A. On page 7, line 17, this bill refers to "July 2018" as
the deadline for providing a report to the Legislature
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describing the status of expanding the OPR's database. An
amendment is needed to specify a day in July to the
deadline, "July 1, 2018."
B. This bill requires a lead agency to submit to the State
Clearinghouse environmental documents "in the form
required" by OPR. The word, "form", can be broadly
interpreted and possibly misinterpreted to mean the
substantive form of a document, e.g. requiring only an
executive summary be submitted, as opposed to the medium in
which the information is supposed to be submitted, e.g.
hardcopy or electronic format. An amendment is needed to
clarify that form is in reference to the medium required by
OPR, by specifying "hardcopy or electronic form".
C. On page 12, line 35, there is a drafting error
referencing Code of Civil Procedure §1033. An amendment is
needed to change §1033 to §1032.
Related/Prior Legislation
SB 127 (Vidak, Fuller, and Nielsen) establishes CEQA
administrative and judicial review procedures for a project
funded by the Water Quality, Supply, and Infrastructure
Improvement Act of 2014 (Proposition 1 water bond), including
concurrent preparation of the record of proceedings. SB 127 is a
2-year bill and is currently in the Senate Environmental Quality
Committee.
SB 1451 (Hill and Roth) (2014) would have expanded CEQA's
exhaustion requirements by precluding an individual from
challenging a public agency's compliance with the act if the
alleged grounds of noncompliance were known or could have been
known with the exercise of reasonable diligence during the public
comment period, but the alleged grounds of noncompliance were
presented to the public agency at a time other than during the
public comment period. This bill also would have expanded CEQA's
exhaustion requirements by precluding a person from challenging a
public agency's compliance if the person objected to the approval
of the project at a time other than during the public comment
period when a public comment period was provided. SB 1451 died
in Senate Judiciary Committee.
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SB 731 (Steinberg and Hill) (2013) would have enacted the "CEQA
Modernization Act of 2013," making various clarifications and
revisions to CEQA, including requiring 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. SB 731
died in Assembly Local Government Committee.
AB 37 (Perea) (2013) would have required the lead agency, upon
request of a project applicant, to prepare and certify the record
of proceedings concurrently with the administrative process for
projects subject to CEQA review. AB 37 was subsequently amended
to address integrated regional water management plans and was
eventually placed on the Senate Inactive file.
SB 984 (Simitian) (2012) would have required a lead agency to
prepare and certify the record of proceedings concurrent with the
administrative process for certain environmental documents under
certain conditions, and would have sunsetted January 1, 2016
(contingent enactment with AB 1570 (Perea)). SB 984 died on the
Senate Floor.
AB 1570 (Perea) (2012) contained provisions relating to
certification of the record of proceedings concurrent with the
administrative process for certain environmental documents under
certain conditions, and would have sunsetted on January 1, 2016
(contingent enactment with SB 984 (Simitian)). AB 1570 died in
Senate Committee on Rules.
AB 900 (Buchanan and Gordon), Chapter 354, Statutes of 2011,
established CEQA administrative and judicial review procedures
for an environmental leadership development project, including a
requirement for concurrent preparation of the administrative
record.
SOURCE: Author
SUPPORT:
Association of Environmental Professionals
Brandt-Hawley Law Group
California Labor Federation
California League of Conservation Voters
Center for Biological Diversity
Chatten-Brown & Carstens
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Natural Resources Defense Council
Shute, Mihaly & Weinberger LLP
State Building and Construction Trades Council
OPPOSITION:
Associated General Contractors of California
Association of California Cities, Orange County
Association of California Water Agencies (ACWA)
Bay Area Council
Bay Planning Coalition
California Association of REALTORS
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Construction and Industrial Materials Association
California Realtors Association
Central City Association of Los Angeles
Engineering Contractors' Association
Harbor Association of Industry & Commerce
Humboldt Association of REALTORS
Los Angeles Area Chamber of Commerce
Los Angeles County Economic Development Corporation
National Federation of Independent Business
Orange County Business Council
Pleasanton Chamber of Commerce
San Diego Regional Chamber of Commerce
San Francisco Chamber of Commerce
San Gabriel Valley Economic Partnership
San Mateo County Association of REALTORS
Santa Clara Chamber of Commerce
Santa Clarita Valley Economic Development Corporation
Sonoma County Alliance
Southern California Water Committee
Southwest California Legislative Council
UnitedAg
Valley Industry & Commerce Association (VICA)
West Coast Lumber and Building Materials Association
ARGUMENTS IN SUPPORT:
A coalition of support states, "One concern raised with respect
to CEQA is the delay associated with litigation. In our
experience preparation of the administrative record is usually
the most time consuming part of CEQA litigation in the trial
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court. Section 1 of the bill would allow project applicants to
request preparation of the record concurrent with the
administrative review process. Because most environmental
documents are already available in an electronic format, this
option could be easily implemented and would reduce the time
needed to prepare the record if litigation is filed. Although we
support the concept of concurrent preparation, because this is an
option available at the project applicant's discretion, the bill
should ensure that the cost of such preparation is borne by the
project applicant?Section 2 would require electronic posting of
notices and environmental documents. This amendment is a
critical reform that will modernize CEQA and make the
environmental review process more transparent."
ARGUMENTS IN OPPOSITION: A coalition of opposition states,
"Under existing law, it is well-settled that the petitioner must
pay the costs of preparing the administrative record during CEQA
litigation or claims. SB 122 allows project applicants to
request concurrent preparation of the record, but if such request
is made, the cost of preparing the administrative record - which
could range in the hundreds of thousands - would shift entirely
to project applicants as unrecoverable costs. Equally concerning
is the provision that would require real-time electronic posting
of the contents of the administrative record as they are
compiled. The administrative record contains incomplete
documents that inevitably morph into much improved final
documents as a result of the iterative process that CEQA
requires. This provision would hinder forward progress of the
administrative process by allowing the public to submit premature
and unnecessary comments and objections to draft documents that
have not yet even been corrected, improved, and finalized through
the lead agency's internal review process. For these reasons, it
is highly unlikely that project proponents or lead agencies would
utilize this proposed provision."
-- END --
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