BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 734
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|Author: |Galgiani |
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|Version: |6/21/2016 |Hearing |8/10/2016 |
| | |Date: | |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Joanne Roy |
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SUBJECT: Environmental quality: Jobs and Economic Improvement
Through Environmental Leadership Act of 2011.
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 (PRC) §21000 et seq.).
2) Sets requirements relating to preparation, review, comment,
approval and certification of environmental documents, as
well as procedures relating to an action or proceeding to
attack, review, set aside, void, or annul various actions of
a public agency on the grounds of noncompliance with CEQA.
3) Requires courts to give CEQA-related actions or proceedings
preference over all other civil actions so that the action or
proceeding is quickly heard and determined. (PRC §21167.1).
4) Under the Jobs and Economic Improvement Through Environmental
Leadership Act of 2011 (AB 900, Buchanan, Gordon, Chapter
354, Statutes of 2011), which is part of CEQA, establishes
CEQA administrative and judicial review procedures for an
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"environmental leadership development project." Among the
provisions of AB 900 (PRC §21178 et seq.):
a) Establishes procedures for expedited judicial review
(i.e., requiring the courts to resolve lawsuits within 270
days) for "environmental leadership" projects certified by
the Governor and meeting specified conditions, including
LEED silver-certified infill site projects, clean
renewable energy projects, and clean energy manufacturing
projects.
b) Defines "environmental leadership" project as a CEQA
project that is one of the following:
i) A residential, retail, commercial, sports, cultural,
entertainment, or recreational use project that is
certified as LEED silver or better by the United States
Green Building Council and, where applicable, that
achieves a 10% greater standard for transportation
efficiency than for comparable projects.
(1) Requires that these projects be located on an
infill site.
(2) Requires a project that is within a
metropolitan planning organization for which a
sustainable communities strategy (SCS) or alternative
planning strategy (APS) is in effect, to be consistent
with specified policies in either the SCS or APS,
which, if implemented, would achieve greenhouse gas
emission (GHG) reduction targets.
ii) A clean renewable energy project that generates
electricity exclusively through wind or solar, but not
including waste incineration or conversion.
iii) A clean energy manufacturing project that
manufactures products, equipment, or components used for
renewable energy generation, energy efficiency, or for
the production of clean alternative fuel vehicles.
c) Allows a person proposing to construct a leadership
project to apply to the Governor for certification that the
leadership project is eligible for streamlining. Requires
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the person to supply evidence and materials that the
Governor deems necessary to make a decision on the
application. Requires any evidence or materials be made
available to the public at least 15 days before the
Governor certifies a project pursuant to AB 900.
d) Authorizes the Governor to certify a leadership project
if the Governor finds the project meets all of the
following conditions:
i) The project will result in a minimum investment of
$100 million in California upon completion of
construction.
ii) The project creates high-wage, highly skilled jobs
that pay prevailing wages and living wages, provides
construction jobs and permanent jobs for Californians,
and helps reduce unemployment.
iii) The project does not result in any net additional
GHG emissions, including emissions from employee
transportation, as determined by the Air Resources Board
pursuant to the California Global Warming Solutions Act
of 2006.
iv) The project applicant has entered into a binding and
enforceable agreement that all mitigation measures
required under CEQA shall be conditions of approval of
the project, and those conditions will be fully
enforceable by the lead agency or another agency
designated by the lead agency. In the case of
environmental mitigation measures, the applicant agrees,
as an ongoing obligation, that those measures will be
monitored and enforced by the lead agency for the life of
the obligation.
v) The project applicant agrees to pay the costs of the
Court of Appeal in hearing and deciding any case,
including payment of the costs for the appointment of a
special master if deemed appropriate by the court, in a
form and manner specified by the Judicial Council.
vi) The project applicant agrees to pay the costs of
preparing the administrative record for the project
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concurrent with review and consideration of the project
pursuant to CEQA, in a form and manner specified by the
lead agency for the project.
e) Requires the Governor, prior to certifying a project, to
make a determination that each of the conditions specified
above has been met. These findings are not subject to
judicial review.
f) If the Governor determines that a leadership project is
eligible for streamlining, requires the Governor to submit
that determination, and any supporting information, to the
Joint Legislative Budget Committee (JLBC) for review and
concurrence or non-concurrence.
g) Requires the JLBC to concur or non-concur in writing
within 30 days of receiving the Governor's determination.
h) Deems the leadership project certified if the JLBC fails
to concur or non-concur on a determination by the Governor
within 30 days of the submittal.
i) Authorizes the Governor to issue guidelines regarding
application and certification of projects pursuant to AB
900. These guidelines are not subject to the rulemaking
provisions of the Administrative Procedure Act.
j) Requires the Judicial Council to adopt a rule of court
to establish procedures that require resolution within 270
days, including any appeals, of a lawsuit challenging the
certification of the EIR or any project approvals for a
certified environmental leadership project.
aa) Prohibits AB 900 from applying to a leadership project
if the applicant fails to notify a lead agency prior to the
release of the draft EIR for public comment.
bb) Sets requirements for preparation and certification of
the administrative record for a leadership project
certified by the Governor.
cc) Requires the draft and final EIR to include a specified
notice in no less than 12-point type regarding the draft
and final EIR being subject to AB 900.
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dd) Provides that provisions of AB 900 are severable.
ee) Provides that nothing in AB 900 affects the duty of any
party to comply with CEQA, except as otherwise provided in
AB 900.
ff) Prohibits AB 900 from applying to a leadership project
if the Governor does not certify the project prior to
January 1, 2016.
gg) Provides that certification of the leadership project
expires and is no longer valid if the lead agency fails to
approve the project prior to January 1, 2017.
hh) Requires the Judicial Council to report to the
Legislature on or before January 1, 2017, on the effects of
AB 900 on the administration of justice.
ii) Sunsets January 1, 2017.
This bill, as approved by the Senate, required the Natural
Resources Agency to allow at least 30 days for public comment
regarding proposed state land acquisitions, including easements.
Assembly amendments (May 19, 2016 version of the bill) and the
basis for referral back to the Committee on Environmental
Quality pursuant to Senate Rule 29.10, delete the provisions
related to state land acquisitions, and instead do the
following:
1)Extends the operation of AB 900 by two years, so that the
Governor must certify a project prior to January 1, 2018, the
project must be approved prior to January 1, 2019, and AB 900
sunsets January 1, 2019.
2)Adds the following prevailing wage conditions and enforcement
provisions:
a) Requires contractors and subcontractors to pay to
all construction workers employed in the execution of the
project at least the general prevailing rate of per diem
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wages.
b) Provides that this obligation may be enforced by the
Labor Commissioner through the issuance of a civil wage
and penalty assessment pursuant to relevant provisions of
the Labor Code, unless all contractors and subcontractors
performing work on the project are subject to a project
labor agreement that requires the payment of prevailing
wages and provides for enforcement through an arbitration
procedure.
3)Requires a multifamily residential project certified under AB
900 to provide unbundled parking, such that private vehicle
parking spaces are priced and rented or purchased separately
from dwelling units, except for units subject to affordability
restrictions in law that prescribe rent or sale prices, where
the cost of parking spaces cannot be unbundled from the cost
of dwelling units.
Background
1) Overview of CEQA process. 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, 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 environmental review, an agency must make
certain findings. If mitigation measures are required or
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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 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,
and cultural resources. The analysis must also evaluate the
cumulative impacts of any past, present, and reasonably
foreseeable projects/activities within study areas that are
applicable to the resources being evaluated. A study area
for a proposed project must not be limited to the footprint
of the project because many environmental impacts of a
development extend beyond the identified project boundary.
Also, CEQA stipulates that the environmental impacts must be
measured against existing physical conditions within the
project area, not future, allowable conditions.
3) CEQA provides hub for multi-disciplinary regulatory process.
CEQA assists in moving a project through the
multi-disciplinary, regulatory process because responsible
agencies may rely on the lead agency's environmental
documentation in acting on the aspect of the project that
requires its approval and must prepare its own findings
regarding the project. A variety of issues, many of which
involve permitting and/or regulatory program requirements,
should be coordinated and analyzed together as a whole. CEQA
provides a comprehensive analysis of a project's impacts in
those subject areas.
4) Previous, related bills.
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a) AB 900 and SB 292. AB 900 (Buchanan, Gordon) and SB
292 (Padilla, Chapter 353, Statutes of 2011) established
expedited CEQA 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. The stadium project subject to
SB 292 has not proceeded.
For these eligible projects, the bills provided for original
jurisdiction by the Court of Appeal and a compressed
schedule requiring the court to render a decision on any
lawsuit within 175 days. This promised to reduce the
existing judicial review timeline by 100 days or more,
while creating new burdens for the courts and litigants to
meet the shortened schedule.
AB 900's provision granting original jurisdiction to the
Court of Appeal was invalidated in 2013 by a decision in
Alameda Superior Court in Planning and Conservation League
v. State of California.
b) SB 743 (Steinberg, Chapter 386, Statutes of 2013).
Subsequent to the Alameda Superior Court holding mentioned
above, SB 743 repealed the provision that gave original
jurisdiction to the Court of Appeal and required Judicial
Council to adopt a rule of court mandating lawsuits and
any appeals to be resolved within 270 days.
Also, SB 743 (Steinberg) established special CEQA procedures
modeled on SB 292 for the Sacramento Kings arena project.
Like SB 292, SB 743 applied to a single project and
included specified traffic and air quality mitigations.
CEQA lawsuits were filed against the Kings arena, and the
lawsuits, including appeals, were resolved 267 days after
certification of the record.
5) AB 900 projects to date. Six projects have been certified
under AB 900. The deadline for AB 900 certification under
current law has passed (which was January 1, 2016).
According to the Office of Planning and Research, the
following projects have had AB 900 applications submitted:
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McCoy Solar Energy Project (January 12, 2012)
Apple Campus 2 (April 19, 2012)
Soitec Solar Energy Project (January 7, 2013)
8150 Sunset Boulevard (January 31, 2014)
Event Center and Mixed-Use Development at
Mission Bay Blocks (The Golden State Warriors Arena)
(February 17, 2014)
Qualcomm Stadium Reconstruction Project (August
25, 2015).
1) Unbundled parking. Unbundled parking is the practice of
selling or leasing parking spaces separate from the purchase
or lease of a commercial or residential use. According to
the University of California Transportation Center policy
brief, The Price of Unwanted Parking (2010), "When a city
requires on-site parking for all new housing, housing costs
rise while the price of driving falls. This results in less
housing and more driving. Minimum parking requirements are
particularly troublesome for old, dense inner city
neighborhoods - where land is expensive, and lot sizes are
small and irregular - parking can be extraordinarily
expensive, if not impossible to provide on-site."
Transportation and affordable housing advocates tend to favor
unbundling parking from housing in order to provide a
disincentive to owning more vehicles while potentially
reducing housing costs and increasing supply.
Comments
1)Purpose of bill. According to the author, "California is
continually recovering from and preparing for future economic
devastation. SB 734 will help large job producing green
projects avoid delay and keep Californians working by
extending the Governor's authority to certify a project to
January 1, 2018."
2)Golden State Warriors Arena and two lawsuits. The proposed
Golden State Warriors Arena and related development at Mission
Bay in San Francisco, which has received AB 900 certification,
has been challenged under CEQA. The case, Mission Bay
Alliance et al. v Office of Community Investment and
Infrastructure, was filed March 11, 2016. One of the
plaintiffs, Mission Bay Alliance, which is a coalition of UCSF
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stakeholders, donors, faculty, and physicians, argues that the
18,500-seat arena would congest area streets with traffic,
slowing down access to the UCSF Medical Center at Mission Bay,
which is located across the street from the proposed arena.
In addition, the plaintiff contends that the basketball arena
in Mission Bay is at odds with the cluster of life science
research and health care facilities that have been built in
the neighborhood. On July 18, 2016, a trial court ruled in
favor of the project sponsor, the Warriors; the decision has
been appealed.
The above lawsuit is one of two legal challenges filed by the
Mission Bay Alliance in regards to the Warriors arena; the
second of which is not CEQA-related. In the other lawsuit,
filed in Alameda County, the plaintiffs seek to invalidate an
agreement between UCSF and the Warriors, which included a $10
million Mission Bay Transportation Improvement Fund for
controlling traffic flow in the area. The plaintiffs contend
that the UCSF chancellor went beyond his authority in reaching
this agreement without UC Regents approval. This second
lawsuit has yet to be decided.
The Warriors team has stated that the lawsuits have delayed the
opening of the arena by a year, to 2019. One lawsuit has
special, fast-tracking CEQA-related litigation privileges and
the other does not. Although AB 900 may speed up the
litigation process for the CEQA case, the second lawsuit
demonstrates that CEQA is not the only body of law for which
there is to sue; rather, there is a cavalry of
non-CEQA-related causes of action from which a plaintiff may
choose and that are subject to standard civil procedure rules.
AB 900 cannot expedite or insulate a project from
non-CEQA-related litigation and does not guarantee that a
project will be completed faster.
3)Should we expect more from AB 900 projects? SB 743
(Steinberg) required the Kings arena to be certified
Leadership in Energy and Environmental Design (LEED) Gold, as
well as minimize traffic and air quality impacts through
project design or mitigation measures, including reducing to
at least zero the net GHG emissions from private automobile
trips to the arena, achieve reductions in GHG emissions from
automobiles and light trucks that will exceed the GHG emission
reduction targets for 2020 and 2035 adopted for the Sacramento
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region pursuant to SB 375 (Steinberg, Chapter 728, Statutes of
2008), and achieve a 15% reduction in vehicle-miles traveled
(VMT) per attendee.
In contrast to SB 743, AB 900 requires lower LEED Silver
certification, a 10% improvement in transportation efficiency
over comparable projects, and zero net GHG emissions, with no
requirement that the GHG emission reductions be from local
sources.
In comparing the requirements of SB 743 and AB 900, a question
arises as to whether it would be more environmentally
beneficial to the state to require AB 900 projects to meet
similar standards as required in SB 743.
4)Equal justice for all? Court calendar preference and
guaranteed time frames. Current law requires the courts to
give CEQA-related cases preference over "all other civil
actions? so that the action or proceeding shall be quickly
heard and determined." (PRC §21167.1). In addition to this
existing mandate, SB 734 provides that the courts must
complete the judicial review process in a given time frame for
certain CEQA-related actions or proceedings when specified
criteria are met.
As a consequence, such mandates on a court delay access for
other cases as well as potentially exacerbating a court's
backlog on civil documents such as filing a new civil
complaint, processing answers and cross complaints, or
processing a demurrer or summary judgment. As Judicial
Council notes, "[S]etting an extremely tight timeline for
deciding these cases has the practical effect of pushing other
cases on the courts' dockets to the back of the line. This
means that other cases, including cases that have statutorily
mandated calendar preferences, such as juvenile cases,
criminal cases, and civil cases in which a party is at risk of
dying, will take longer to decide."
This bill requires a court to make room on its calendar,
potentially pushing other cases aside, to ensure that
specified time frames are met on certain CEQA cases. Calendar
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preferences and guaranteed time frames create additional
demands and burden on our courts that have very limited
resources and a never-ending supply of cases to hear.
5)Projects queuing up. Although this bill is not specific to
any particular projects, proponents of SB 734 have identified
four projects that may apply for AB 900 certification if this
bill is enacted:
a) 6701 Sunset/Crossroads in Hollywood - Nine new mixed-use
buildings, including residential, hotel, commercial office,
retail, and restaurant uses, including up to 308 hotel
rooms and 950 residential units, 84 of which will be
affordable to low-income households (to replace 84
rent-controlled units the project will demolish).
b) Yucca-Argyle Project in Hollywood - Mixed-use project
with hotel, residential, and commercial uses, including 260
hotel rooms and 191 residential units, 39 of which will be
affordable to low-income households.
c) Barlow Hospital Project in Echo Park - Hospital
replacement and residential development on a 25-acre site
near Dodgers Stadium, including 400 new single-family
homes, with no commitments to affordable housing to date.
d) Hollywood Central Park - A 38-acre regional street level
park created by capping US 101 between Hollywood and Santa
Monica Boulevards.
SOURCE: State Building and Construction Trades
Council
SUPPORT:
California Chamber of Commerce
OPPOSITION:
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Air Conditioning Trade Association
American Fire Sprinkler Association
Associated Builders and Contractors - San Diego Chapter
California League of Conservation Voters
Judicial Council of California
Plumbing-Heating-Cooling Contractors Association of California
Sierra Club California
Western Electrical Contractors Association
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