BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 122


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          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.








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          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.








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             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.









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          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.











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          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  








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            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  








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               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.  









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            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








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          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









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          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









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          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