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