BILL ANALYSIS
SB 1456
Page 1
Date of Hearing: June 28, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 1456 (Simitian) - As Amended: June 10, 2010
SENATE VOTE : 35-0
SUBJECT : Environmental quality: cumulative effects and
mediation
SUMMARY : Clarifies the circumstances under which cumulative
effects are not required to be examined under the California
Environmental Quality Act (CEQA) and makes several revisions to
mediation and judicial review procedures.
EXISTING LAW :
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report (EIR) for this action, unless the
project is exempt from CEQA.
2)Authorizes a lead agency to use a tiered EIR (based on a prior
EIR) for a project when the prior EIR has been prepared for a
program, plan, policy or ordinance and the project is
consistent. Provides that the tiered EIR is not required to
examine effects that were examined at a sufficient level of
detail in the prior EIR.
3)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project, subject to statutes of limitations
ranging from 30 to 180 days:
a) Challenges alleging improper determination that a
project may have a significant effect on the environment,
or alleging an EIR doesn't comply with CEQA, must be filed
within 30 days of filing of the notice of approval.
b) Challenges alleging improper determination that a
project is exempt from CEQA must be filed within 35 days of
filing of the notice of exemption, or 180 days if no notice
has been filed.
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c) Challenges alleging an agency has failed to determine
whether a project has a significant effect on the
environment must be filed within 180 days.
THIS BILL :
1)Amends CEQA as follows until January 1, 2015:
a) Provides that a cumulative effect is not required to be
examined in an EIR or other CEQA document if a lead agency
finds that it has been adequately addressed in a prior
document, unless the lead agency finds that the incremental
effects of the project are cumulatively considerable
according to specified criteria (this incorporates existing
provisions of the CEQA Guidelines into the statute).
(Section 3)
b) Authorizes the Attorney General to request an expedited
schedule for resolution of any CEQA lawsuit. (Section 5)
c) Provides that a mediation proceeding conducted pursuant
to the law governing mediation and resolution of land use
disputes (Government Code Section 66030, et seq.) is
intended to be conducted concurrently with any judicial
proceeding (consistent with a settlement meeting conducted
pursuant to CEQA). (Sections 1 and 7)
d) Requires any person wishing to file a CEQA lawsuit to
first request, within five business days, mediation with
the lead agency and the real party in interest. Provides
that the request is deemed denied if the lead agency does
not respond within three business days. If mediation is
conducted, provides that CEQA's statute of limitations
shall be tolled until the mediation is completed. (Section
9)
e) Authorizes a party to a CEQA lawsuit to request the
court impose a penalty on any party making a "frivolous"
claim, and authorizes the court to impose a penalty up to
$10,000. Defines frivolous as "totally and completely
without merit." (Section 10)
f) For an organization formed after the approval of a
project to have standing to file a CEQA lawsuit, requires
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the organization to have had a member present the alleged
grounds for noncompliance to the lead agency during the
public comment period or public hearing on the project (in
addition to the requirement in current law that a member of
the organization simply has objected to the project).
(Section 11)
2)Sunsets the above changes and reenacts existing law effective
January 1, 2015. (Sections 2, 4, 6, 8, 10 and 12)
3)Contains an urgency clause. (Section 13)
FISCAL EFFECT : Unknown
COMMENTS :
1)Background. CEQA provides a process for evaluating the
environmental effects of applicable projects undertaken or
approved by public agencies. If a project is not exempt from
CEQA, an initial study is prepared to determine whether the
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. 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.
Generally, CEQA actions taken by local public agencies can be
challenged in Superior Court once the agency approves or
determines to carry out the project. CEQA appeals are subject
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.
In addition, CEQA requires the courts to give CEQA cases
preference over all other civil actions, so that the cases are
quickly heard and determined.
According to the author, this bill responds to the need for
mediation to resolve CEQA disputes to avoid litigation while
ensuring that mediation after an action is filed does not
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affect the timing of any judicial proceeding; establishing a
process for an expedited schedule to resolve cases while
allowing any party to request imposition of a penalty for
frivolous litigation; ensuring more accountability for an
organization challenging a project that is formed after
project approval; and establishing procedures for tiering
environmental documents.
2)Should mediation be mandatory for one side and optional for
the other? Pre-litigation mediation sometimes works to settle
disputes and avoid costly and time-consuming litigation, but
it's not appropriate for every case and it only works when
both sides want to do it. This bill (Section 9) requires all
potential petitioners to submit a request for mediation within
five days of the filing of a notice of determination on the
project by the lead agency, but permits lead agencies to
reject the request by not responding within three days. This
seems unfair and a potential burden for petitioners in cases
where mediation isn't appropriate. The author and the
committee may wish to consider whether the request for
mediation should be optional for petitioners (by replacing
"shall" with "may" on page 11, line 30). In addition, the
author and the committee may wish to consider whether the very
short deadlines in the bill are reasonable (five days for the
petitioner to request and three days for the lead agency to
respond).
3)When should ad hoc organizations have standing? Ad hoc
organizations often form to participate in the review of
proposed projects and sometimes to challenge projects after
they are approved. Currently, CEQA provides that an
organization formed after the approval of a project may sue as
long as one of its members objected to the project during the
public comment period or at the public hearing on the project
before it was approved. This bill would further require that
a member of such an organization also present the alleged
grounds for noncompliance, while current law provides that any
person may do so (no affiliation with the organization is
required). Parties participating in project review commonly
divide up tasks - one person or group commenting on air
quality, another commenting on traffic, etc. This provision
of the bill may lead to every party repeating objections made
by other parties to avoid losing standing to sue. The author
and the committee may wish to consider amending the bill to
alleviate this potential problem by providing that "the
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grounds for non-compliance may be presented directly by the
person or by that person agreeing with or supporting the
comments of another person" (on page 13, line 10).
4)Leaving so soon? This bill sunsets each of its several
amended and added sections in 2015, then restores current law.
For many of the bill's sections, such as incorporating
tiering conditions from the CEQA Guidelines, authorizing the
AG to request an expedited schedule, and coordinating CEQA and
land use disputes mediation schedules, it's not clear why a
sunset is appropriate.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
[Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092