BILL ANALYSIS �
AB 1570
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1570
AUTHOR: Perea
AMENDED: April 10, 2012
FISCAL: Yes HEARING DATE: July 2,
2012
URGENCY: No CONSULTANT: Randy
Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act:
1) 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). (Public
Resources Code �21000 et seq.).
2) Sets 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. At the time an action or proceeding is filed, 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. (�21167.6(a)). The public agency must prepare and
certify the record no later than 60 days from the date the
request was made by the plaintiff, and upon certification
the public agency must lodge a copy of the record with the
court. (�21167.6(b)). The plaintiff may elect to prepare
the record of proceedings or the parties may agree to an
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alternative method of preparation of the record.
(�21167.6(b)).
3) Sets procedures relating to an "environmental leadership
development project" (ELDP) under the Jobs and Economic
Improvement Through Environmental Leadership Act of 2011
(part of CEQA)) (�21178 et seq.), which also includes
requirements for preparation and certification of the
administrative record concurrently with the administrative
process and certain related requirements for an ELDP
certified by the governor. (�21186). These ELDP
procedures sunset January 1, 2015.
This bill :
1) Requires the lead agency for a project to prepare and
certify the record of proceedings concurrently with the
administrative process for certain environmental documents
under specified circumstances, and includes certain related
requirements.
2) Makes corresponding technical and clarifying amendments.
3) Sunsets January 1, 2016.
COMMENTS :
1) Purpose of Bill . AB 900 (Buchanan and Gordon) Chapter 354,
Statutes of 2011 enacted The Jobs and Economic Improvement
Through Environmental Leadership Act of 2011, to set
procedures relating to an "environmental leadership
development project" (ELDP) selected by the governor. An
ELDP must meet certain requirements, the record of
proceedings must be prepared concurrently with the
administrative process, and any action alleging that the
lead agency has approved a project in violation of CEQA
must meet certain requirements (e.g., filing the action in
the Court of Appeal with geographic jurisdiction over the
project, the Court of Appeal must issue a decision in 175
days). SB 292 (Padilla) Chapter 353, Statutes of 2011,
which revised certain CEQA procedures for a proposed Los
Angeles convention center modernization and Farmers Field
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sports stadium project, also contained procedures for
preparation and certification of the record of proceedings
by the lead agency.
According to the author, "During the legislative deliberations
on these bills, all stakeholders agreed that the
opportunity to have the administrative record prepared
earlier than current law required would expedite the
judicial review process. In fact, some parties believe
that preparation of the record delays judicial review more
than any other factor."
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
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.
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3) Related legislation . SB 984 (Simitian and Strickland) is
similar to AB 1570. SB 984 was introduced January 30,
2012, and AB 1570 was introduced February 1, 2012. Senator
Simitian convened a group to address certain CEQA issues
during 2011 and 2012, which reviewed SB 984 at 3 meetings
during February and March 2012. Amendments to address
concerns by the group were incorporated into the March 12,
2012, version of SB 984 along with April 9, 2012, technical
amendments. Amendments that are similar to these SB 984
amendments were amended into AB 1570 April 10, 2012.
AB 1444 (Feuer) contained provisions relating to preparation
of the record at the request of the applicant, along with
procedures for addressing objections to the record of
proceedings, and was held on the Assembly Appropriations
Committee suspense file.
4) Differences in bills . The SB 984 and AB 1570 record of
proceedings procedures differ from the AB 900 procedures in
certain matters. For example:
a) AB 900 applies to an ELDP project (which requires an
EIR), while SB 984 and AB 1570 apply to EIRs, negative
declarations, mitigated negative declarations, and other
environmental projects for a broader range of projects
(i.e., projects of statewide, regional, or areawide
significance; environmental documents prepared under SB
375 (Steinberg) Chapter 728, Statutes of 2008, and
infill projects under SB 226 (Simitian) Chapter 469,
Statutes of 2011; any other project with the consent of
the lead agency).
b) AB 900 procedures are triggered by application to the
governor for approval of an ELDP project, while SB 984
and AB 1570 are triggered at the request of an applicant
to the lead agency no later than 30 days after the date
the lead agency determines that a particular type of
environmental document is required for the project.
c) AB 900, SB 984, and AB 1570 require documents placed
in the record of proceedings to be posted on the lead
agency's Internet website, while SB 984 and AB 1570 also
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allow the lead agency to provide a link on the agency's
Internet website to the information if the lead agency
cannot maintain an Internet website with the
information.
d) AB 900 and AB 1570 require the lead agency to make
any comment available to the public in a readily
accessible electronic format within 5 days of its
receipt, while SB 984 requires comments to be available
in this format within 5 business days of its receipt.
e) AB 900 requires the lead agency to certify the record
of proceedings within 5 days of its approval of the
project, while SB 984 and AB 1570 require certification
within 30 days after filing the notice of determination
for the project.
f) AB 900 requires a notice in the draft and final EIR
that the project is subject to the AB 900 requirements,
including Court of Appeal filing requirements, while the
SB 984 and AB 1570 notice requirements apply to the
broader range of environmental documents and focus on
record of proceedings matters (since SB 984 and AB 1570
do not contain Court of Appeal and other AB 900
requirements).
g) AB 900, SB 984, and AB 1570 require the project
applicant to reimburse the lead agency for costs
incurred to comply with requirements of the bills, while
SB 984 and AB 1570 clarify that a plaintiff or
petitioner, if any, is not required to pay these costs
(because the record of proceedings is being prepared
during the administrative process at the request of the
applicant).
h) AB 900 sunsets January 1, 2015, and SB 984 and AB
1570 sunset January 1, 2016.
5) Amendments needed . To avoid two bills addressing the same
section and issue, amendments could replace provisions of
this bill with a provision that is similar to a provision
in AB 1444 (Feuer) (�21167.6.3), relating to the parties
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meeting to identify objections to the record of proceedings
and agreeing on those portions of the record that the
parties intend to refer to in their briefs - while not
precluding a party from referring to other provisions of
the record of proceedings if an appendix is prepared.
If the author does not proceed with the above amendment, and
the Committee believes this bill is necessary, then
amendments are needed in AB 1570 to: a) refer to "draft"
environmental document (page 8, line 37; page 9, line 6;
and page 9, line 10; and page 9, line 13); and b) specify
that costs of preparing the record pursuant to this bill
are not recoverable costs pursuant to Code of Civil
Procedure �1033 (since the applicant does not have the
opportunity to prepare the record as provided under current
law, and under this bill the applicant must specifically
request the lead agency to prepare and certify the record).
SOURCE : Assemblymember Perea
SUPPORT : California Manufacturers & Technology
Association, Firebaugh, Fowler, Fresno Council
of Governments, Greater Fresno Area Chamber of
Commerce, Mendota, Orange Cove, Parlier, Selma
OPPOSITION : None on file