BILL ANALYSIS Ó
SB 122
Page 1
SENATE THIRD READING
SB
122 (Jackson and Hill)
As Amended August 15, 2016
Majority vote
SENATE VOTE: 24-15
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Natural |7-1 |Williams, Cristina |Harper |
|Resources | |Garcia, Hadley, | |
| | |McCarty, Rendon, Mark | |
| | |Stone, Wood | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |11-3 |Gonzalez, Bloom, |Bigelow, Chang, |
| | |Bonilla, Bonta, |Obernolte |
| | |Eggman, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood, McCarty | |
| | | | |
| | | | |
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SB 122
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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. Specifically, 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.
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.
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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, 2017, and a
status report by July 1, 2019.
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.
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
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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.
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.
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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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)One-time General Fund (GF) costs of $200,000 to establish the
database, including necessary training.
2)Ongoing GF costs of $54,000 to host and update the database.
These costs may be offset by savings to GF and various special
funds for reduced administrative costs to state lead agencies.
3)One-time GF costs of $20,000 for OPR to provide training for
lead agencies on the new database.
4)Unknown costs to state agencies, to the extent they are lead
agency under CEQA, to concurrently prepare the record of
proceedings (GF and various special funds). These costs
should be fully reimbursed by project applicants who request
the record of proceedings to be prepared concurrently with the
administrative process.
COMMENTS: 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
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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 (Buchanan), Chapter 354, and SB 292 (Padilla),
Chapter 353, 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.
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.
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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.
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.
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."
Analysis Prepared by:
Lawrence Lingbloom / NAT. RES. / (916) 319-2092
FN:
0004381
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