BILL ANALYSIS
SB 1010
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: SB 1010
AUTHOR: Correa
AMENDED: As Introduced
FISCAL: Yes HEARING DATE: April 5, 2010
URGENCY: Yes CONSULTANT: Randy Pestor
SUBJECT : COURT REVIEW PROHIBITION FOR 125 PROJECTS
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA), 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).
This bill :
1) Under CEQA, enacts the CEQA Litigation Protection Pilot
Program of 2010 that:
a) Prohibits court review of a lead agency's
certification of an EIR or adoption of a mitigated
negative declaration, as well as a lead or responsible
agency's project approval, for 125 projects that are
selected by the Business, Transportation and Housing
Agency (BT&H) over a five-year period. For a project to
qualify for the exemption, the lead agency must certify
to BT&H that there is an expectation that an EIR will be
certified for the project within 12 months. BT&H's
selection of projects is also exempt from judicial
review.
b) Provides that the 25 projects selected each year from
2010 to 2014 must be located in the following areas: 1)
10 projects in Imperial, Los Angeles, Orange, Riverside,
San Bernardino, and San Diego counties; 2) 5 projects in
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Alameda, Contra Costa, Marin, Napa, San Francisco, Santa
Clara, Solano, and Sonoma counties; 3) 5 projects in
Fresno, Kern, Kings, Madera, Merced, Sacramento, San
Joaquin, Stanislaus, and Tulare counties; 4) 5 projects
located in remaining state areas. Procedures are set
for selecting projects if a lead agency does not certify
an EIR within 12 months.
c) Requires BT&H to hold at least one public hearing in
each region to consider public comments on the selected
projects in each region. The Legislature may provide
"formal comments" to BT&H through legislative committees
designated by the Senate Rules Committee and the
Assembly Speaker for the respective houses.
d) Requires BT&H to consider the following when
selecting a project: 1) number and quality of jobs to
be created by the project, 2) amount of capital
investment made by the project, and 3) a balance between
projects sponsored by public and private entities.
e) Requires BT&H to submit an annual report on the pilot
program to the Governor and Legislature by December 31
summarizing the designation of projects, job creation,
and investment attributable to the designated projects.
Additional information regarding implementation of the
projects may be provided.
2) Sunsets the above provisions January 1, 2016.
3) Contains an urgency clause.
COMMENTS :
1) Purpose of Bill . SB 1010 is part of Governor
Schwarzenegger's proposals to "foster a more
business-friendly economy and create new jobs." According
to the Governor's office, "The Governor's proposal would
grant the Business, Housing and Transportation Agency the
right to select a specified number of projects that have
completed [EIRs] and deem those projects as approved and
not subject to legal challenge - expediting the ground
breaking of these projects and creating jobs . . . The new
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NFL stadium in Los Angeles County is an example of such a
project."
According to the author, "The purpose of this bill is to
establish a pilot program whereby a small number of
projects may be protected from CEQA litigation in an effort
to bring those projects to build faster, creating jobs for
California."
As noted above, SB 1010 prohibits court review of a lead
agency's certification of an EIR or adoption of a mitigated
negative declaration, as well as a lead or responsible
agency's project approval, for 125 projects that are
selected by BT&H over a five-year period. For a project to
qualify for the exemption, the lead agency must certify to
BT&H that there is an expectation that an EIR will be
certified for the project within 12 months.
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
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
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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) Overriding CEQA and project approval process . SB 1010
prohibits court review of various CEQA and project approval
actions for 125 projects selected by BT&H.
Such immunity may provide a disincentive for lead agencies to
prepare and certify EIRs in compliance with current law.
4) Blaming CEQA . It is not unusual for certain interests to
assert that a particular exemption, or immunity from court
review in the case of SB 1010, will expedite construction
of a particular type of project and reduce costs. This,
however, frequently overlooks the benefits of adequate
environmental review where lead and responsible agencies
are legally accountable for their actions: to inform
decisionmakers and the public about project impacts,
identify ways to avoid or significantly reduce
environmental damage, prevent environmental damage by
requiring feasible alternatives or mitigation measures,
disclose to the public reasons why an agency approved a
project if significant environmental effects are involved,
involve public agencies in the process, and increase public
participation in the environmental review and the planning
processes.
If a project is exempt from CEQA, or court review is
prohibited, certain issues should be addressed. For
example:
How can decisionmakers and the public be aware of
impacts, mitigation measures, and alternatives of a
project where inadequate EIRs may be prepared because
court review is prohibited?
Is it appropriate for the public to live with the
consequences when court review is prohibited and impacts
may not be mitigated and alternatives may not be
considered regarding certain matters, such as air
quality, water quality, and noise impacts?
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Because adverse project impacts do not disappear when
they are not identified and mitigated, does a prohibition
on court review result in a direct transfer of
responsibility for mitigating impacts from the applicant
to the public ( i.e. , taxpayers) if impacts are ultimately
addressed after completion of the project?
If taxpayers, rather than the project applicant, are
ultimately responsible for mitigating certain impacts of
such a project after project completion, what assessments
or taxes will be increased to fund mitigation or pay for
alternatives at a later date?
It is also not unusual for certain interests to blame CEQA
lawsuits. However, according to a study on the issue,
"Despite criticisms that CEQA often results in litigation,
CEQA-related litigation is relatively rare." The study
noted that the number of lawsuits to the number of CEQA
reviews "yields an estimate of one lawsuit per 354 CEQA
reviews."
Those citing CEQA and CEQA litigation as a problem do not
indicate the result of that litigation. Were significant
impacts that were not evaluated in the initial document
ultimately addressed? What would have been the result if
those impacts had not been mitigated ( e.g. , flooding,
exposure of people to hazards, inadequate public services,
congestion)?
When some suggest that CEQA "reforms" may be needed, others
note various provisions of CEQA that already provide
streamlined approaches, including master and focused EIRs,
transit priority and residential project streamlining
(enacted by SB 375 (Steinberg, Ducheny) Chapter 728,
Statutes of 2008), expedited review for environmental
mandated projects, special procedures for various types of
housing projects (enacted by SB 1925 (Sher, Polanco)
Chapter 1039, Statutes of 2002), and several categorical
exemptions contained in the CEQA Guidelines. Challenges to
CEQA determinations must be commenced within an unusually
short 30 days of an agency's filing of a notice of
determination. Also, no later than 20 days from the date
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of service upon a public agency, the public agency must
file a notice with the court setting a time and place for
all parties to meet and attempt to settle the litigation.
1) Placing Legislature and a state agency in decision-making
role . SB 1010 applies to several projects, and places the
Legislature and BT&H in positions of a "shadow court" and
"shadow public agency" where parties will be able to go
when they want immunity from other local and state agency
actions on their projects.
Public agencies will be free to ignore CEQA public notice,
public comment, agency response, and findings requirements
- as well as the need to prepare an adequate EIR that
provides the public with needed information - when the
public has no recourse because SB 1010 provides immunity
from court review over the agency's decision to certify the
EIR and approve a project. This immunity also applies to
other responsible agency actions.
Does the committee believe that environmental and development
issues should be addressed in this fashion?
2) Support and opposition concerns . According to some
supporters of SB 1010, "While many California families
struggle to make ends meet, state government is facing
increasingly difficult financial decisions in order to
balance its budget. California's budget problems are a
symptom of the faltering economy. Creating jobs and
restoring commerce are the keys to curing California's
economic and financial woes." Supporters assert that this
bill "would expedite a limited number of environmentally
sound projects to help ensure a strong economic base as
California enjoys the economic recovery. California will
either lead or lag in the recovery; measures to advance
worthy projects that are appropriately vetted for
environmental impacts can help move us toward the leading
edge of recovery, and ensure we emerge stronger."
According to several opponents of SB 1010, "Eliminating the
ability to enforce California's premier public health and
environmental law could lead to the siting of new polluting
power plants and waste facilities located next to schools
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and neighborhoods and much more. Other controversial
projects such as the peripheral canal; the siting of new
energy facilities in spectacular and sensitive areas of the
state; new onshore oil facilities and pipelines to support
offshore oil development promoted by the Administration;
roads through state parks; new residential subdivisions on
contaminated soil; and the siting and construction of
nuclear power plants, new dams for water storage, new
prisons in cities and counties could all get a pass from
the necessary scrutiny that ensures the right projects are
built in the right location."
3) Related legislation . SB 1010 mirrors SBX8 42 (Correa)
(which was held in the Senate Environmental Quality
Committee at the author's request after a February 24, 2010
hearing), as well as AB 1805 (Calderon) (which was to be
heard by the Assembly Natural Resources Committee March 22,
2010, but not taken up by the author) and ABX8 37
(Calderon) (which died at the Assembly Desk).
SBX8 56 (Hollingsworth), (which was held in the Senate
Environmental Quality Committee at the author's request
prior to a February 24, 2010 hearing) exempts from CEQA
projects funded in whole or in part under the Highway
Safety, Traffic Reduction, Air Quality, and Port Security
Bond Act of 2006; projects funded under the Disaster
Preparedness and Flood Prevention Bond Act of 2006; and
three specified projects. This bill also establishes a new
permitting process for these projects.
4) Double Referral to Judiciary Committee . If this measure is
approved by this committee, the do pass motion must include
the action to re-refer the bill to the Senate Judiciary
Committee.
SOURCE : Governor Schwarzenegger
SUPPORT : American Council of Engineering Companies of
California, Associated Builders and Contractors
of California, Associated General Contractors,
California Apartment Association, California
Building Industry Association, California
Business Properties Association, California
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Chamber of Commerce, California Manufacturers &
Technology Association, Civil Justice
Association of California, Los Angeles Area
Chamber of Commerce, Orange County Board of
Supervisors, Western Electrical Contractors
Association
OPPOSITION : American Planning Association (CA Chapter),
Born Free USA, Breathe California, California
Audubon Society, Cal Coast, California Coastal
Coalition, California Coastal Protection
Network, California Coastkeeper Alliance,
California Council of Land Trusts, California
League of Conservation Voters, California
Native Plant Society, California Native Plant
Society (Sacramento Valley Chapter & San Diego
Chapter), California State Parks Foundation,
Center for Biological Diversity, Center on
Race, Law and Poverty, Clean Water Action,
Coalition for Clean Air, Communities for Clean
Ports, Community Coalition on High Speed Rail,
Consumer Attorneys of California, Defenders of
Wildlife, Endangered Habitats League,
EndOil/Communities for Clean Ports, Environment
California, Environmental Defense Fund, Friends
of the Earth, Friends of the Los Angeles River,
Friends of the River, Friends of Rose Creek,
Food & Water Watch, Forest Forever, Heal the
Bay, Health Officers Association of California,
City of La Canada Flintridge, League of Women
Voters of California, Monterey Coastkeeper,
National Parks Conservation Association,
Natural Resources Defense Council, Nichols
Berman Environmental Planning, Pacific Forest
Trust, Planning and Conservation League,
Russian Riverkeeper, Sacramento Audubon
Society, San Diego Audubon Society, Save the
Bay, Sierra Club California, Surfrider
Foundation, The Otter Project, Union of
Concerned Scientists