BILL ANALYSIS
AB 231
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 231
AUTHOR: Huber
AMENDED: June 23, 2010
FISCAL: Yes HEARING DATE: August 2, 2010
URGENCY: Yes CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed 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).
2) Requires a lead agency to examine significant environmental
effects of a project by using a tiered EIR if a prior EIR
has been prepared and certified for a program, plan,
policy, or ordinance, and the later project meets certain
requirements. The tiered EIR on the later project need not
examine effects that were either mitigated or avoided as a
result of the prior EIR, or examined at a sufficient level
of detail in the prior EIR to enable those effects to be
mitigated or avoided by site specific revisions, imposition
of conditions, or other means in connection with approval
of the later project. (21094).
3) Prohibits a public agency from approving or carrying out a
project for which an EIR has been certified that identifies
one or more significant effects on the environment that
would occur if the project is approved or carried out
unless the public agency makes one or more of the following
findings with respect to each significant effect (21081):
AB 231
Page 2
a) Changes or alterations have been required in, or
incorporated into, the project to mitigate or avoid the
significant environmental effects.
b) Changes or alterations are the responsibility of
another public agency and have been, or can and should
be, adopted by that other agency.
c) Specific economic, legal, social, technological, or
other considerations make infeasible the mitigation
measures or alternatives identified in the EIR. With
respect to this finding, the public agency also finds
that specific overriding economic, legal, social,
technological, or other benefits outweigh the
significant environmental effects.
This bill authorizes a lead agency for a project to rely on a
finding of overriding consideration (#3 c) above) involving a
prior EIR prepared for a prior project if the lead agency
determines that the significant environmental effects for a
later project that uses a tiered EIR (#2 above) are no greater
than those identified in the prior EIR.
COMMENTS :
1) Purpose of Bill . According to the author, "If a lead
agency adopts a statement of overriding consideration for
an environmental impact when it does an EIR on a General
Plan (or other plan, policy or ordinance), that same
finding of overriding consideration may be used for any
specific project that creates the same adverse
environmental impact, provided the impact is not greater or
different at the project level than at the plan level. In
other words, the project may tier off the statement of
overriding consideration at the plan level."
2) Brief background on CEQA . 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
AB 231
Page 3
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 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.
3) Outstanding issues . If a public agency makes a finding of
overriding consideration for a project, that finding is
tailored to the unique circumstances of a project. Relying
on those findings for a later project has several risks.
For example, the prior EIR may have been prepared several
years ago; may not have sufficiently analyzed more
project-specific impacts, such as asbestos or flood risks
in the area of a housing development; and may not have
taken into account more recent information or more feasible
mitigation measures. The circumstances under which the
project is being undertaken may also have changed.
In response to concerns regarding reliance on a prior finding
of overriding consideration after AB 231 was amended June
23, 2010, the author wants the provision added by this bill
to be conditioned on: a) the project's impacts not being
different from those identified in the prior EIR, b)
AB 231
Page 4
requiring the lead agency to incorporate mitigation
measures into the project that were identified in the prior
EIR, and c) requiring the previous finding of overriding
consideration to not be based on a determination that
mitigation measures should be identified in a subsequent
environmental document and adopted at the project level.
To address concerns over reliance on a prior finding of
overriding consideration, and if the committee believes
this bill is necessary, additional amendments are needed
to: a) provide a time limit for the prior EIR and finding
(e.g., 3 years), b) provide that the provisions of 21166
do not apply (e.g., substantial project changes,
substantial changes in project area), and c) add a sunset
date (e.g., January 1, 2016).
SOURCE : Assemblymember Huber
SUPPORT : None on file
OPPOSITION : Planning and Conservation League
Sierra Club California