BILL NUMBER: AB 1444 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Feuer
JANUARY 4, 2012
An act relating to environmental quality.
An act to amend Section 21167.6 of, and to add Sections 21167.6.2 and
21167.6.3 to, the Public Resources Code, relating to environmental
quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 1444, as amended, Feuer. Environmental quality:
expedited judicial review: public rail transit projects.
record of proceedings.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency, as defined, to prepare, or cause to be prepared, and
certify the completion of, an environmental impact report (EIR) on a
project that it proposes to carry out or approve that may have a
significant effect on the environment or to adopt a negative
declaration if it finds that the project will not have that effect.
CEQA also requires a lead agency to prepare a mitigated negative
declaration for a project that may have a significant effect on the
environment if revisions in the project would avoid or mitigate that
effect and there is no substantial evidence that the project, as
revised, would have a significant effect on the environment. CEQA
establishes a procedure for the preparation and certification of the
record of proceedings upon the filing of an action or proceeding
challenging a lead agency's action on the grounds of noncompliance
with CEQA.
This bill would require the lead agency, at the request of a
project applicant and the agreement of the project applicant to bear
the costs incurred by the lead agency, to, among other things,
prepare a record of proceedings concurrently with the preparation,
and adoption or certification, of an environmental document. Because
the bill would require a lead agency to prepare the record of
proceedings as provided, this bill would impose a state-mandated
local program. In an action or proceeding filed challenging the lead
agency's action pursuant to CEQA, the bill would require the court to
schedule a hearing within 30 days of the filing of the statement of
issues regarding the record of proceedings.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The California Environmental Quality Act (CEQA) requires a lead
agency, as defined, to prepare, or cause to be prepared, and certify
the completion of, an environmental impact report (EIR) on a project
that it proposes to carry out or approve that may have a significant
effect on the environment or to adopt a negative declaration if it
finds that the project will not have that effect. CEQA also requires
a lead agency to prepare a mitigated negative declaration for a
project that may have a significant effect on the environment if
revisions in the project would avoid or mitigate that effect and
there is no substantial evidence that the project, as revised, would
have a significant effect on the environment. The Jobs and Economic
Improvement Through Environmental Leadership Act of 2011 amended CEQA
to establish, until January 1, 2015, an expedited judicial review
process and specifies procedures for the preparation and
certification of the administrative record for an EIR of a project
meeting specified requirements that has been certified by the
Governor as an environmental leadership development project.
This bill would state the intent of the Legislature to enact
legislation to provide the benefits provided by the Jobs and Economic
Improvement Through Environmental Leadership Act of 2011 for new
public rail transit infrastructure projects.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21167.6 of the
Public Resources Code is amended to read:
21167.6. Notwithstanding any other provision of
law, in all actions or proceedings brought pursuant to
Section 21167, except as provided for in Section 21167.6.2 or
those involving the Public Utilities Commission, all of the
following shall apply:
(a) At the time that the action or proceeding is filed, the
plaintiff or petitioner shall file a request that the respondent
public agency prepare the record of proceedings relating to the
subject of the action or proceeding. The request, together with the
complaint or petition, shall be served personally upon the public
agency not later than 10 business days from the date that the action
or proceeding was filed.
(b) (1) The public agency shall prepare and certify the record of
proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency. Upon
certification, the public agency shall lodge a copy of the record of
proceedings with the court and shall serve on the parties notice that
the record of proceedings has been certified and lodged with the
court. The parties shall pay any reasonable costs or fees imposed for
the preparation of the record of proceedings in conformance with any
law or rule of court.
(2) The plaintiff or petitioner may elect to prepare the record of
proceedings or the parties may agree to an alternative method of
preparation of the record of proceedings, subject to certification of
its accuracy by the public agency, within the time limit specified
in this subdivision.
(c) The time limit established by subdivision (b) may be extended
only upon the stipulation of all parties who have been properly
served in the action or proceeding or upon order of the court.
Extensions shall be liberally granted by the court when the size of
the record of proceedings renders infeasible compliance with that
time limit. There is no limit on the number of extensions that may be
granted by the court, but no single extension shall exceed 60 days
unless the court determines that a longer extension is in the public
interest.
(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or
petitioner may move for sanctions, and the court may, upon that
motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited
to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.
(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents submitted
by any person relevant to any findings or statement of overriding
considerations adopted by the respondent agency pursuant to this
division.
(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard testimony
on, or considered any environmental document on, the project, and any
transcript or minutes of proceedings before any advisory body to the
respondent public agency that were presented to the decisionmaking
body prior to action on the environmental documents or on the
project.
(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing and
approval of the project.
(6) All written comments received in response to, or in connection
with, environmental documents prepared for the project, including
responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff, or
the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.
(10) Any other written materials relevant to the respondent public
agency's compliance with this division or to its decision on the
merits of the project, including the initial study, any drafts of any
environmental document, or portions thereof, that have been released
for public review, and copies of studies or other documents relied
upon in any environmental document prepared for the project and
either made available to the public during the public review period
or included in the respondent public agency's files on the project,
and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.
(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.
(g) The clerk of the superior court shall prepare and certify the
clerk's transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk's transcript was filed with the superior court, if the
party or parties pay any costs or fees for the preparation of the
clerk's transcript imposed in conformance with any law or rules of
court. Nothing in this subdivision precludes an election to proceed
by appendix, as provided in Rule 8.124 of the California Rules of
Court.
(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of the
court for good cause shown. Extensions for the filing of a brief on
appeal shall be limited to one 30-day extension for the preparation
of an opening brief, and one 30-day extension for the preparation of
a responding brief, except that the court may grant a longer
extension or additional extensions if it determines that there is a
substantial likelihood of settlement that would avoid the necessity
of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.
SEC. 2. Section 21167.6.2 is added to the
Public Resources Code , to read:
21167.6.2. (a) Notwithstanding Section 21167.6, at the request of
the project applicant and the agreement of the project applicant to
bear the costs incurred pursuant to this section prior to the release
of a draft environmental document, the lead agency shall prepare the
record of proceedings in the following manner:
(1) The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.
(2) All documents and other materials placed in the record of
proceedings shall be posted on, and be downloadable from, an Internet
Web site maintained by the lead agency commencing with the date of
the release of the draft environmental document.
(3) The lead agency shall make available to the public in a
readily accessible electronic format the draft environmental document
and all other documents submitted to, or relied on by, the lead
agency in the preparation of the draft environmental document.
(4) A document prepared by the lead agency or submitted by the
project applicant after the date of the release of the draft
environmental document that is a part of the record of the
proceedings shall be made available to the public in a readily
accessible electronic format within five business days after the
document is released or received by the lead agency.
(5) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any comment available to the public in a readily
accessible electronic format within five days of its receipt.
(6) Within seven business days after the receipt of any comment
that is not in an electronic format, the lead agency shall convert
that comment into a readily accessible electronic format and make it
available to the public in that format.
(7) The lead agency shall maintain the contents of the record of
proceedings in chronological order based on the date received by the
lead agency and shall electronically paginate the record of
proceedings.
(b) The content of the record of proceedings shall be as specified
in subdivision (e) of Section 21167.6.
(c) The costs of preparing the record of proceedings pursuant to
this section are not recoverable costs pursuant to Section 1033 of
the Code of Civil Procedures.
(d) (1) If an action or proceeding is brought pursuant to this
division seeking review of the decision of the lead agency, the lead
agency shall prepare and certify the record of proceedings and lodge
the record of proceedings on a digital video disc or comparable
electronic format with the court not later than five days from the
date that the complaint or petition was served upon the lead agency.
(2) Concurrently with the certification and lodging of the record
of proceedings with a court, the lead agency shall serve on the
parties to the action or proceeding a notice that the record of
proceedings has been certified and lodged with the court.
(3) The record of proceedings shall be in a readily accessible
format.
(4) Upon a showing of good cause, the court may extend the time
for the certification and lodging of the record of proceedings.
(e) Any dispute regarding the record of proceedings shall be
resolved by the court in an action or proceeding brought pursuant to
Section 21167.
SEC. 3. Section 21167.6.3 is added to the
Public Resources Code , to read:
21167.6.3. (a) Within 30 days of the filing of the statement of
issues by the respondents and real party in interest, the court shall
schedule a hearing at which the parties shall do both of the
following:
(1) Identify any objections to the record of proceedings.
(2) Agree upon a physical copy of those portions of the record of
proceedings that the parties intend to refer to in their briefs.
(b) This section does not preclude a party from referring to other
portions of the record of proceedings if an appendix is prepared and
lodged containing copies of all relevant portions of the record.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.
SECTION 1. The Legislature finds and declares
all of the following:
(a) Since 2007, the nation and the state have plunged into a
recession, and thousands of jobs have been lost. The unemployment
rate in California exceeds the national average at 11.8 percent, and
in certain regions of the state the rate exceeds 13 percent. The
construction industry in California has been particularly hard hit.
Some estimates put the percentage of construction workers who are out
of work as high as 40 percent. Still, California's population
continues to grow and is projected to increase by 4.3 million over
the next decade. California needs to create an estimated 1.8 million
jobs to keep up with its population growth.
(b) One of the results of the population growth in California will
be increased traffic congestion on the state's streets and highways
and related adverse economic, environmental, and health impacts.
(c) To address both the need for jobs and the need to efficiently
move people and goods, it is imperative to plan for, and expedite the
construction of, new environmentally sound public rail transit
options as alternatives to private vehicle trips, as well as other
large infrastructure projects.
(d) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
requires that the environmental impacts of development projects be
identified and mitigated.
(e) The act also guarantees the public an opportunity to review
and comment on the environmental impacts of a project and to
participate meaningfully in the development of mitigation measures
for potentially significant environmental impacts.
SEC. 2. It is the intent of the Legislature to
enact legislation to provide the unique and unprecedented
streamlining benefits provided by the Jobs and Economic Improvement
Through Environmental Leadership Act of 2011 (Chapter 6.5 (commencing
with Section 21178) of Division 13 of the Public Resources Code) for
new public rail transit infrastructure projects that provide the
benefits specified in Section 1 of this act to put people to work as
soon as possible.