BILL ANALYSIS �
AB 1444
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Date of Hearing: April 23, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1444 (Feuer) - As Amended: March 29, 2012
SUBJECT : Environmental quality: record of proceedings
SUMMARY : Requires the lead agency for a project reviewed under
CEQA to prepare and certify the record of proceedings
concurrently with the administrative process for certain
environmental documents. For CEQA actions challenged in court,
requires the court to schedule a hearing regarding the record of
proceedings within 30 days of respondent's filing of the
statement of issues.
EXISTING LAW :
1) Requires lead agencies with the principal responsibility for
carrying out or approving a proposed discretionary project to
prepare a negative declaration, mitigated negative
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).
2) Establishes 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. 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 in the Superior Court within 30 days of filing
of the notice of approval. At the time an action or
proceeding is filed in court, the plaintiff must file a
request that the respondent public agency prepare the record
of proceedings, which must be served personally upon the
public agency no later than 10 business days from the date
the action or proceeding was filed. The public agency must
prepare and certify the record no later than 60 days from the
date the request was made by the plaintiff. Upon
certification the public agency must lodge a copy of the
record with the court. The plaintiff may elect to prepare
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the record of proceedings or the parties may agree to an
alternative method of preparation of the record. The courts
are required to give CEQA actions preference over all other
civil actions.
3) Establishes special procedures relating to an "environmental
leadership" project under the Jobs and Economic Improvement
Through Environmental Leadership Act (AB 900), which includes
requirements for preparation and certification of the
administrative record concurrently with the administrative
process and certain related requirements.
THIS BILL :
1) Provides procedures for a lead agency to prepare and certify
the record of proceedings concurrently with the
administrative process for environmental documents, and to
promptly post all documents on the Internet.
2) Requires these procedures for any project upon the request of
the project applicant and agreement of the project applicant
to pay the lead agency's costs of preparation.
3) For CEQA actions challenged in court, requires the court to
schedule a hearing within 30 days of respondent's filing of
the statement of issues at which the parties shall:
a) Identify any objections to the record of proceedings.
b) Agree upon a physical copy of those portions of the
record that the parties intend to refer to in their
briefs.
c) Provides that parties may refer to other portions of
the record if an appendix containing relevant portions of
the record is prepared and lodged.
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
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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. 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.
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.
The courts are required to give CEQA actions preference over
all other civil actions. However, the schedules for briefing,
hearing, and decision are less definite. The petitioner must
request a hearing within 90 days of filing the petition and,
generally, briefing must be completed within 90 days of the
request for hearing. There is no deadline specified for the
court to render a decision.
In 2011, AB 900 and its companion measure, SB 292, established
expedited 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. 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. As part of their expedited
judicial review procedures, these bills required the lead to
prepare and certify the record of proceedings concurrently
with the administrative process and required the applicant to
pay for it. It was commonly agreed that this would expedite
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preparation of the record for trial. This bill applies that
concurrent record preparation process broadly to any project
under CEQA where the applicant agrees to pay the lead agency's
costs. The bill further imposes a requirement on the courts
to hold a hearing regarding the record with a specified
deadline.
2)Author's statement :
One of the issues posed in CEQA litigation is the
difficulty of coordinating and preparing the administrative
record in the context of the administrative process. From
the lead agency and applicant's point of view, the process
of preparing the record once a CEQA challenge has been
filed is a costly, time-consuming process that necessarily
delays project implementation. From the point of view of a
challenger of the environmental review process and/or
decision by the lead agency regarding certification of the
environmental documents, wading through the record provided
by the lead agency can also be costly and time-consuming.
For all parties to a CEQA lawsuit, the process of narrowing
the issues in dispute may be complicated by the size and
organization of the record, but also by the length of time
it takes to reach agreement on issues in dispute. This
bill is intended to bring the parties together with
judicial oversight at an earlier stage of the litigation
process so that each side has more certainty about the
record of proceedings, and the litigation timeline is
reduced.
CEQA currently 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 a lead agency to prepare a record
of proceedings concurrently with the administrative
process, streamlining the existing process for challenging
CEQA environmental documents for a project. A challenger
may request preparation of the administrative record, which
shortens the time frame for resolving objections to the
record of proceedings. The result will be a more efficient
CEQA review process for litigants and the public.
3)Related legislation. SB 984 (Simitian), which is pending in
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the Senate Appropriations Committee, and AB 1570 (Perea),
which passed this committee April 16 and is pending in the
Assembly Appropriations Committee, also establish procedures
for the preparation and certification of the record of
proceedings concurrently with the administrative process. The
three bills all propose to add the same section (Public
Resources Code 21167.6.2), are duplicative, and contain minor
policy conflicts. SB 984 and AB 1570 are essentially
identical and include some provisions that this bill lacks.
For example, SB 984 and AB 1570 include an exception from the
publication requirement for trade secret information, include
more detail regarding lead agency reimbursement, and mandate
the record preparation procedures for specified projects,
whereas this bill makes it the applicant's option for all
projects. Finally SB 984 and AB 1570 sunset January 1, 2016.
4)Hearing requirement may be impractical as proposed. Judicial
Council has expressed concerns (not a formal position)
regarding this bill's hearing requirement (Section 3).
According to Judicial Council:
CEQA cases already have calendar preference under existing
statute. Adding new hearing requirements, combined with a
tight 30-day timeline, are unworkable and unrealistic for
the courts, especially in light of the devastating funding
cuts which courts have experienced (not enough judges,
staff layoffs and high vacancy rates, reduced clerk hours,
etc.). The 30-day deadline for the hearing runs from the
filing of the statement of issues by the respondents and
real party in interest. However, if the parties stipulate
to forgo filing the statement of issues, which is sometimes
the case, it would be unclear when the clock starts
ticking.
These concerns may be remedied by making the hearing
requirement contingent upon request of a party and letting the
court determine the date of the hearing.
REGISTERED SUPPORT / OPPOSITION :
Support
California Manufacturers & Technology Association
Opposition
AB 1444
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None on file
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092