BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Bob Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 389 Hearing Date: April 29,
2015
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|Author: |Berryhill |
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|Version: |4/6/2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Joanne Roy |
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Subject: Environmental quality: the Sustainable Environmental
Protection Act
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 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 §21000 et seq.). If
there is substantial evidence, in light of the whole record
before a lead agency, that a project may have a significant
effect on the environment, the lead agency must prepare a
draft EIR. (CEQA Guidelines §15064(a)(1), (f)(1)).
2. Requires thresholds of significance adopted as part of a lead
agency's environmental review process to be developed through
a public review process. A threshold of significance is "an
identifiable quantifiable, qualitative or performance level
of a particular environmental effect, non-compliance with
which means the effect will normally be determined to be
significant by the agency and compliance with which means the
effect normally will be determined to be less than
significant." When adopting thresholds of significance, a
lead agency may consider thresholds of significance
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previously adopted or recommended by other public agencies or
recommended by experts. (CEQA Guidelines §15064.7).
This bill creates the Sustainable Environmental Protection Act
(SEPA), which does the following:
1. Provides legislative intent that:
A. States CEQA was enacted in 1970 to maintain a quality
environment, and that in the 45 years following enactment
"Congress and the Legislature have each adopted more than
100 laws to protect environmental quality" in 17
environmental topical areas.
B. References various environmental laws, "all enacted
after 1970 . . ." while asserting that environmental laws
and regulations identify compliance obligations of general
applicability and provide greater clarity or are beyond
the ad hoc review process created by CEQA, and in enacting
these measures avoids "the sometimes conflicting and often
duplicative ad hoc environmental review and mitigation
requirements."
2. Requires an environmental document prepared under CEQA to
disclose all applicable environmental laws, and defines
"applicable environmental laws" to be those referenced in the
measures legislative intent and meets certain requirements.
3. Specifies that the above "disclosure obligations" are
intended to foster environmental and public participation in
the public review process required under CEQA or other
applicable laws, including the Ralph M. Brown Act.
4. Limits environmental review under those topical areas listed
in the legislative intent.
5. Prohibits a cause of action for noncompliance with CEQA
either:
A. Relates to any topical area or criteria for which
compliance obligations are identified;
B. Challenges the environmental document if:
(1) The environmental document discloses compliance
SB 389 (Berryhill) Page 3
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with applicable environmental law;
(2) The project conforms with the use designation,
density, or building intensity in an "applicable
plan," as defined; and,
(3) The project approval incorporates applicable
mitigation requirements into the environmental
document.
6. Provides that the above prohibition of causes of action does
not prohibit a cause of action to enforce compliance with
other existing local, state, and federal law.
7. Provides that a lead agency is not required to evaluate
aesthetics under CEQA and that the lead agency is not
required to make findings on or relating to aesthetics unless
a project has potentially significant aesthetic impacts on an
official state scenic highway.
8. Provides that SEPA does not change a lead agency's duty to
evaluate effects on Native American resources.
9. Provides that SEPA applies only to projects for which the
lead agency or applicant has agreed to provide an annual
mitigation compliance report in electronic format.
10.Provides that the above provisions do not preclude an agency
from requiring information or analysis, or imposing
conditions of approval under laws other than SEPA or CEQA.
11.Requires that an environmental review document prepared
pursuant to CEQA is limited to considering only the
environmental topical areas listed in the legislative intent
and only to the extent those topical areas are relevant to
the project.
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.
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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, but is not limited to, water
quality, surface and 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.
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The author states, "For over 40 years CEQA has protected our
environment, spurred informed planning, and assured public
input and involvement in community growth decisions. These
aspects of CEQA - the ones that have helped preserve
California's natural resources and make it a better,
healthier place to raise our families - must be preserved.
"California's environment is also protected by over 120 federal
and state laws - all passed since CEQA became law - and this
is where it gets ugly. Crafty folks with motives other than
protecting the environment have figured out how to use CEQA
to stall projects, increase expenses for a competitor, or
negotiate better labor contracts. This abuse has done little
to improve the environment but has done much to hinder
economic growth, waste money - lots of it - and delay or
outright kill necessary projects such as housing for seniors
and elementary school renovations. Any honest reform of CEQA
absolutely must address these abuses.
"SB 389 would integrate those laws with California's CEQA review
process. This would eliminate the ability to challenge
already adopted environmental standards or endlessly
re-challenging approved plans through frivolous lawsuits."
2. Thresholds of Significance and Regulatory Standards.
Under current law, a threshold of significance is "an
identifiable quantifiable, qualitative or performance level
of a particular environmental effect, non-compliance with
which means the effect will normally be determined to be
significant by the agency and compliance with which means the
effect normally will be determined to be less than
significant."
Under SB 389, Section 21202(a)(1) provides that "compliance with
the applicable standards for impacts that occur or might
occur as a result of approval of the project shall be the
exclusive means of evaluating and mitigating environmental
impacts under CEQA regarding the subject of that law,
notwithstanding any other provision of law."
Simply relying on a regulatory standard undercuts the value and
benefits of analyzing the multiple layers and potential
complexities of a project in a comprehensive manner as
provided and intended by the CEQA environmental review
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process. For example, in Kings County Farm Bureau v. City of
Hanford, 221 Cal. App. 3d 692, 270 Cal. Rptr. 650 (1990), the
court found that a lead agency incorrectly determined that
air quality impacts would be less than significant when the
smokestack emissions for a proposed cogeneration plant would
comply with applicable air quality regulations and standards,
because the agency failed to consider "on-site" (smokestack)
and "secondary" (train and truck traffic to deliver coal, the
proposed fuel) emissions together in assessing the
significance of the overall project's impacts.
The court came to a similar conclusion in Riverwatch v. San
Diego County (Palomar Aggregates), 76 Cal. App. 4th 1428, 91
Cal. Rptr. 2d 322 (1999), where the court held that an EIR
for a proposed rock quarry failed to evaluate all air quality
impacts resulting from the quarry operation. The county
believed emission levels would meet San Diego Air Pollution
Control District (APCD) standards, and the court found that
the EIR considered only the quarry process emissions and not
particulate emissions caused by drilling, handling, storage,
and transport of the rock and sand. While the APCD standards
were for the stationary source (quarry), CEQA requires the
EIR to evaluate significance of all project-related pollution
emissions.
3. Project Impact "Environmental Topical Areas".
SB 389 specifies that the CEQA Guidelines currently provide that
project impacts be evaluated based on 18 topics. Nothing in
current law limits CEQA to 18 topic areas. It seems that the
author is referencing Appendix G of the CEQA Guidelines, the
"environmental checklist form."
It is noteworthy, however, that Appendix G is prefaced by the
following:
NOTE: The following is a sample form and may be tailored to
satisfy individual agencies' needs and project
circumstances. It may be used to meet the requirements for
an initial study when the criteria set forth in CEQA
Guidelines have been met. Substantial evidence of potential
impacts that are not listed on this form must also be
considered. The sample questions in this form are intended
to encourage thoughtful assessment of impacts, and do not
necessarily represent thresholds of significance.
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Not only does SB 389 freeze these 178 topics in statute,
rather than allowing analysis of any other potential
significant impacts, this measure also precludes CEQA from
filling in the gaps in existing laws. CEQA also addresses
other matters, such as cumulative impacts, direct and
indirect impacts, and mandatory findings of significance.
Emerging issues addressed under CEQA may also precede a
particular state or federal law. For example, the analysis
of greenhouse gas (GHG) impacts under laws like CEQA, and its
federal counterpart National Environmental Policy Act (NEPA),
did not commence with the passage of the California Global
Warming Solutions Act of 2006 (CGWSA).
Guidance for addressing GHG issues under NEPA for federal
environmental documents was provided October 8, 1997.
According to the Chairman of the Council on Environmental
Quality in 1997, "Because of the potentially substantial
health and environmental impacts associated with climate
change, the Council on Environmental Quality is issuing this
guidance today calling on federal agencies to consider, in
the context of the NEPA process, both how major federal
actions could influence the emissions and sinks of greenhouse
gases and how climate change could potentially influence such
actions."
In 2003, in Border Power Plant Working Group v. U.S.
Department of Energy (S.D. Cal 2003) 20 F.Supp2d 997,
1028-1029, a federal district court found that NEPA requires
consideration of potential environmental impacts from a
proposed natural gas turbine's generation of carbon dioxide,
a GHG, and rejected the argument that consideration of this
impact is not required.
Former Attorney General Bill Lockyer also commented on the
lack of analysis of GHG issues in environmental documents
prior to enactment of the CGWSA. For example, in a letter
dated March 30, 2006, regarding the Orange County
Transportation Authority 2006 Long-Range Transportation Plan
Draft EIR, the Attorney General stated, "Despite the Plan's
heavy reliance on vehicular travel and improvements to
freeways, roads and streets, and the acknowledged increase in
vehicle travel that the Plan will encourage, the DEIR never
analyzes one of the most important environmental impacts of
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vehicular emissions - greenhouse gases and resulting climate
change."
SB 97 (Dutton), Chapter 185, Statutes of 2007, subsequently
required the Office of Planning and Research, on or before
July 1, 2009, to prepare, develop, and transmit to the
Resources Agency amendments to the CEQA Guidelines to assist
public agencies in the mitigation of GHG's or the effects of
GHG's as required under CEQA, including the effects
associated with transportation and energy consumption, and
required the Resources Agency to certify and adopt those
guidelines by January 1, 2010.
4. "Environmental Topical Areas": One of These Things is Not
Like the Others.
17 of the "environmental topical areas" in the bill include a
variety of environmental factors such as water quality, air
quality, geology, or transportation. An environmental review
analyzes whether a project will have a significant impact on
that issue area, like a construction project may have a
significant impact on traffic.
SB 389 adds an 18th environmental topical area - "[m]andatory
findings of significance". This is an action taken by a lead
agency; it is not a subject or issue area to be analyzed.
The action is to require a lead agency to find that a project
may have a significant effect on the environment thereby
requiring an EIR to be prepared for a project.
How is "mandatory findings of significance" a substantive issue
area like the others listed in the bill?
5. "Environmental Topical Areas": Tribal Cultural Resources is
Missing.
SB 389 specifies "environmental topical areas" in an
environmental review that are subject to the provisions of
this bill. However, this bill does not include the latest
environmental topical area added to the CEQA statute last
year by AB 52 (Gatto), Chapter 532, Statutes of 2014, which
relates to tribal cultural resources.
Tribal cultural resources may include sites, features, places,
cultural landscapes, sacred places, and objects with cultural
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value to a California Native American tribe or a resource
determined by the lead agency, in its discretion and
supported by substantial evidence, to be significant, as
specified.
Is it an oversight or the intent of the author to not include
tribal cultural resources in the provisions of this bill?
6. Overriding Fair Argument Standard.
A discretionary project, which is not exempt from CEQA, requires
a Lead Agency to prepare an initial study to determine
whether the project may have a significant adverse effect on
the environment. If there is substantial evidence, in light
of the whole record before a lead agency, that a project may
have a significant effect on the environment, the lead agency
must prepare a draft EIR. If not, then a negative
declaration or mitigated negative declaration is appropriate.
This is known as the fair argument standard. In other
words, a negative declaration is inappropriate if it can be
"fairly argued" that the project may cause significant
environmental impacts and therefore an EIR is appropriate.
SB 389 overrides the fair argument standard because under this
measure "compliance with the applicable standards for impacts
that occur or might occur as a result of approval of the
project shall be the exclusive means of evaluating and
mitigating environmental impacts under CEQA regarding the
subject of that law, notwithstanding any other provision of
law." Also, SB 389 prohibits a cause of action for
noncompliance with CEQA if the environmental document
discloses compliance with an applicable environmental law
pertaining to a topical area; the project conforms with the
use designation, density, or building intensity in an
applicable plan; and, the project approval incorporates
applicable mitigation requirements into the document.
This issue was addressed when Communities for A Better
Environment, Environmental Protection Information Center, and
Desert Citizens Against Pollution challenged several 1998
revisions to the CEQA Guidelines. The California Building
Industry Association was allowed to intervene in the action.
Communities for a Better Environment v. California Resources
Agency, 103 Cal. App. 4th 98, 126 Cal. Rptr. 441 2d (2002).
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The trial court invalidated several Guidelines sections,
including a provision where a lead agency is directed to
determine that an effect is not significant, regardless of
whether other substantial evidence would support a fair
argument that the effect may be environmentally significant,
if a proposed project has an environmental effect that
complies with a regulatory standard as defined under the
Guidelines provision.
On appeal, the Court of Appeal agreed with the trial court on
this matter: "The direction [of this Guidelines change]
relieves the agency of a duty it would have under the fair
argument approach to look at evidence beyond the regulatory
standard, or in contravention of the standard, in deciding
whether an EIR must be prepared. Under the fair argument
standard, any substantial evidence supporting a fair argument
that a project may have a significant effect would trigger
the preparation of an EIR. A well-known CEQA treatise
recognized this dilemma as well, stating: '[S]ubdivision (h)
. . . appears to dispense with the traditional 'fair
argument' standard otherwise applicable to the decision
whether to prepare a[n] . . . EIR . . . Notably, where
existing regulatory standards, as defined, address a
particular category of impact, the lead agency need not treat
the impact as potentially significant whenever any
substantial evidence in the record supports a conclusion.'"
7. Prohibiting CEQA Cause of Action for Conformance with Certain
Planning Matters.
SB 389 also prohibits a cause of action under CEQA if the
project conforms to the use designation, density, or building
intensity in a land use plan or was included in another
applicable plan [as identified under the measure] and the
lead agency incorporates applicable mitigation requirements
into the environmental document.
Under SB 389, an "applicable plan" is either: a) a land use
plan, such as a general plan, specific plan, or sustainable
communities strategy that establishes use designations,
densities, and building intensities; or b) a plan to improve
or maintain public facilities or infrastructure to be funded
in whole or in part by public funds and is adopted by a
local, regional, or state agency.
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A general plan, however, addresses far more issues than simply
the "use designation, density, or building intensity." A
general plan must include seven mandated elements, including
land use, circulation, housing, conservation, open space,
noise, and safety elements. (Government Code §65302). Yet,
SB 389 prohibits a cause of action under CEQA if a project
merely conforms to the use designation, density, or building
intensity in the plan and complies with "applicable
mitigation measures" in the environmental document for that
plan.
An "applicable plan" under SB 389 could also include a capital
facilities plan. Environmental impacts addressed under CEQA
for such a plan may be quite limited, and thereby restrict
environmental analysis of subsequent projects conforming to
that plan and any mitigation measures needed for subsequent
projects.
This provision could apply to an outdated plan with inadequate
CEQA analysis and ineffective mitigation measures, which also
fails to consider changed conditions and more recent
circumstances such as hazardous wastes and climate change.
This provision would also enable use of outdated plans that
are inconsistent with a recent general plan or sustainable
communities plan under SB 375, for example, or a plan with a
certified environmental document that was challenged and
found to be inadequate.
Related/Prior Legislation
SB 834 (Huff, 2014), which created the Sustainable Environmental
Protection Act, and made several substantial changes to CEQA.
SB 834 died in the Senate Committee on Environmental Quality.
SB 787 (Berryhill, 2013), which created the Sustainable
Environmental Protection Act, and made several substantial
changes to CEQA. SB 787 failed in the Senate Committee on
Environmental Quality (2-7).
SB 1380 (Rubio, as amended March 29, 2012 and April 10, 2012),
would have enacted the California Public Health and
Environmental Standards Act, which is substantially similar to
SEPA as proposed in SB 389. SB 1380 died on the Assembly Floor.
SOURCE: Author
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SUPPORT:
None on file
OPPOSITION:
None on file
DOUBLE REFERRAL:
If this measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
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