BILL ANALYSIS Ó
SB 122
Page 1
Date of Hearing: June 29, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
SB
122 (Jackson) - As Amended June 1, 2015
SENATE VOTE: 24-15
SUBJECT: California Environmental Quality Act: record of
proceedings.
SUMMARY: Authorizes a lead agency, upon a project applicant's
request, to prepare the record of proceedings that would be used
in a judicial challenge to the agency's action or decision under
the California Environmental Quality Act (CEQA) concurrently
with the administrative process. Requires CEQA documents for
projects reviewed by state agencies to be submitted to the
Office of Planning and Research (OPR), requires OPR to maintain
a database of these documents, and requires the database to be
available online to the public.
EXISTING LAW:
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.
SB 122
Page 2
2)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.
3)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
4)Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings. Specifically:
a) Requires a plaintiff or petitioner to file a request
that the respondent public agency prepare the record of
proceedings, and serve this request, together with the
complaint or petition, personally upon the public agency
within 10 days of the date the action or proceeding was
filed.
b) Requires the respondent public agency to prepare and
certify the record of proceedings not later than 60 days
from the date that plaintiff or petitioner served the
request; lodge a copy of the certified record with the
court; and serve on the parties a notice that the record of
proceedings has been certified and lodged with the court.
c) Authorizes the plaintiff or petitioner to prepare the
record subject to certification by the respondent public
agency, or the parties to agree to an alternative method of
preparing the record of proceedings, within the time limits
specified in the law.
d) Requires the parties to pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.
SB 122
Page 3
e) Authorizes the plaintiff or petitioner to move the court
for sanctions, and the court to grant the plaintiff or
petitioner's motion for sanctions, if the public agency
fails to prepare and certify the record within the time
limits specified in the law.
5)Requires the lead agency to submit to the State Clearinghouse
a sufficient number of copies of specified environmental
review documents and a copy in an electronic form under
specified circumstances.
6)Requires OPR to establish and maintain a database to assist in
the preparation of environmental documents.
7)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.
THIS BILL:
1)Requires the lead agency, upon written request by a project
applicant and with consent of the lead agency, to concurrently
prepare the record of proceedings with the administrative
process.
2)Requires all documents and other materials placed in the
record of proceedings to be posted on a Web site maintained by
the lead agency.
3)Requires the lead agency to make publicly available, in
electronic format, the draft environmental document, and
associated documents, for the project.
SB 122
Page 4
4)Requires the lead agency to make any comment publicly
available electronically within five days of its receipt.
5)Requires the lead agency to certify the record of proceedings
within 30 days after filing notice of determination or
approval.
6)Requires certain environmental review documents to include a
notice, as specified, stating that the document is subject to
this section.
7)Requires the applicant to pay for the lead agency's cost of
concurrently preparing and certifying the record of
proceedings.
8)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.
9)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 1, 2018.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)One-time costs of $200,000 from the General Fund to establish
the database at the Office of Technology, including necessary
training.
SB 122
Page 5
2)Ongoing costs of $45,000 from the General Fund to the Office
of Technology to host and update the database. These costs
may be offset by savings to various special funds and the
General Fund for reduced administrative costs to state lead
agencies.
3)One-time costs of $20,000 from the General Fund to OPR to
provide training for lead agencies on the new database.
4)Unknown costs to state agencies, to the extent they are the
lead agency under CEQA, to concurrently prepare the record of
proceeding (various special funds and General Fund). These
costs should be fully reimbursed by project applicants who
request the record of proceedings to be prepared concurrently
with the administrative process.
COMMENTS:
1)Background. CEQA provides a process for evaluating the
environmental effects of applicable projects undertaken or
approved by public agencies. If a project is not exempt from
CEQA, an initial study is prepared to determine whether the
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, the
lead agency must prepare an EIR.
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
SB 122
Page 6
to reduce those impacts to the extent feasible, and evaluate a
range of reasonable alternatives to the proposed project. 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.
Generally, CEQA actions taken by public agencies can be
challenged in Superior Court once the agency approves or
determines to carry out the project. CEQA appeals are subject
to unusually short statutes of limitations. Under current
law, court challenges of CEQA decisions generally must be
filed within 30-35 days, depending on the type of decision.
The courts are required to give CEQA actions preference over
all other civil actions. However, the schedules for briefing,
hearing, and decision are less definite. The petitioner must
request a hearing within 90 days of filing the petition and,
generally, briefing must be completed within 90 days of the
request for hearing. There is no deadline specified for the
court to render a decision.
In 2011, AB 900 and SB 292 established expedited judicial
review procedures for a limited number of projects. For AB
900, it was large-scale projects meeting extraordinary
environmental standards and providing significant jobs and
investment. For SB 292, it was a proposed downtown Los
Angeles football stadium and convention center project
achieving specified traffic and air quality mitigations. As
part of their expedited judicial review procedures, these
bills required the lead agency to prepare and certify the
record of proceedings concurrently with the administrative
process and required the applicant to pay for it. It was
commonly agreed that this would expedite preparation of the
record for trial.
2)Author's statement:
CEQA ensures that state and local agencies make informed
SB 122
Page 7
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
two 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.
3)Concurrent preparation. This bill 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 of the record 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.
Concurrent preparation is not specifically prohibited under
existing law, but it has only been expressly authorized for
certain projects. 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.
SB 122
Page 8
This bill'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 may choose not to utilize this option.
4)Expanding electronic access to CEQA documents. According to
the author, "OPR operates a limited online CEQA repository
(called "CEQAnet") as part of the State Clearinghouse used for
state-level review of environmental documents?this 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."
Currently, OPR 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 for
projects reviewed by state agencies in a single, electronic
database system, which would be available via the Internet and
to the public.
REGISTERED SUPPORT / OPPOSITION:
Support
American Planning Association, California Chapter
Association of Environmental Professionals
California Labor Federation
City of Camarillo
SB 122
Page 9
County of Santa Barbara
Planning and Conservation League
State Building and Construction Trades Council
Opposition
Associated General Contractors of California
Association of California Cities, Orange County
Bay Area Council
Bay Planning Coalition
California Business Properties Association
California Retailers Association
Central City Association of Los Angeles
Engineering Contractors' Association
SB 122
Page 10
Harbor Association of Industry and 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
SB 122
Page 11
Sonoma County Alliance
Southern California Water Committee
Southwest California Legislative Council
United Ag
Valley Industry & Commerce Association
West Coast Lumber and Building Materials Association
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092