BILL NUMBER: AB 2163 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Knight
FEBRUARY 23, 2012
An act to amend Sections 21180, 21183, 21185, and 21186 of, and to
repeal Sections 21182, 21184, 21189.1, and 21189.3 of, the Public
Resources Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 2163, as introduced, Knight. Environmental quality: California
Environmental Quality Act: judicial review.
(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.
The Jobs and Economic Improvement Through Environmental Leadership
Act of 2011 establishes, until January 1, 2015, an alternative
method for the preparation of the record of proceedings and
alternative judicial review procedures for an action challenging the
certification of an EIR for a project meeting specified requirements,
including the requirement that the project will result in a minimum
investment of $100,000,000, the project is located at an infill site,
and the project has been certified by the Governor as an
environmental leadership development project. The act also requires a
residential, retail, commercial, sports, cultural, entertainment, or
recreation use project that qualifies for certification to be
certified as LEED silver or better by the United States Green
Building Council.
This bill would extend indefinitely the use of the alternative
method for the preparation of the record of proceedings and the
alternative judicial review procedures. The bill would expand
projects that would be eligible for those alternative processes to
include, among others, commercial development projects exceeding
125,000 square feet, residential development projects exceeding 50
units, and projects with over 20 acres of cultivated development. The
bill would repeal the requirements that the project will result in a
minimum investment of $100,000,000, be located in an infill site,
and be certified by the Governor. The bill would instead require a
residential, retail, commercial, sports, cultural, entertainment, or
recreation use project that qualifies for these alternative processes
to be designed to meet or exceed the standards for the CalGreen Tier
1 building as provided in the California Green Building Standard.
Because this bill would expand the use of the alternative method for
preparing the record of proceedings, this bill would impose a
state-mandated local program.
(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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21180 of the Public Resources Code is amended
to read:
21180. For the purposes of this chapter, the following terms
shall have the following meanings:
(a) "Applicant" means a public or private entity or its
affiliates, or a person or entity that undertakes a public works
project, that proposes a project and its successors, heirs, and
assignees.
(b) "Commercial use project" means a project for industrial,
office, or retail use that exceeds 125,000 square feet of space.
(b) "Environmental leadership development project," "leadership
project," or "project"
(c) "Project" means a project as
described in Section 21065 and that is one the following:
(1) A residential, retail, commercial, sports, cultural,
entertainment, or recreational use project that is certified
as LEED silver or better by the United States Green Building Council
and, where applicable, that achieves satisfies all of
the following:
(A) The project is designed to meet or exceed the standards of the
CalGreen Tier 1 building as set forth in the California Green
Building Standards (Part 11 of Title 24 of the California Code of
Regulations).
(B) The project will achieve a
10-percent greater standard for transportation efficiency than for
comparable projects. These projects must be located on an
infill site. For
(C) For a project that is within
a metropolitan planning organization for which a sustainable
communities strategy or alternative planning strategy is in effect,
the infill project shall be consistent with the general use
designation, density, building intensity, and applicable policies
specified for the project area in either a sustainable communities
strategy or an alternative planning strategy, for which the State Air
Resources Board, pursuant to subparagraph (H) of paragraph (2) of
subdivision (b) of Section 65080 of the Government Code, has accepted
a metropolitan planning organization's determination that the
sustainable communities strategy or the alternative planning strategy
would, if implemented, achieve the greenhouse gas emission reduction
targets.
(2) A clean renewable energy project that generates electricity
exclusively through wind or solar, but not including waste
incineration or conversion.
(3) A clean energy manufacturing project that manufactures
products, equipment, or components used for renewable energy
generation, energy efficiency, or for the production of clean
alternative fuel vehicles.
(d) "Recreational use project" means a project with over 20 acres
of cultivated development.
(e) "Residential use project" means a project for residential use
that is greater than 50 units.
(c)
(f) "Transportation efficiency" means the
number of vehicle trips by employees, visitors, or customers of the
residential, retail, commercial, sports, cultural, entertainment, or
recreational use project divided by the total number of employees,
visitors, and customers.
SEC. 2. Section 21182 of the Public Resources Code is repealed.
21182. A person proposing to construct a leadership project may
apply to the Governor for certification that the leadership project
is eligible for streamlining provided by this chapter. The person
shall supply evidence and materials that the Governor deems necessary
to make a decision on the application. Any evidence or materials
shall be made available to the public at least 15 days before the
Governor certifies a project pursuant to this chapter.
SEC. 3. Section 21183 of the Public Resources Code is amended to
read:
21183. The Governor may certify a leadership project for
streamlining pursuant to this chapter if all the following conditions
are met:
(a) The project will result in a minimum investment of one hundred
million dollars ($100,000,000) in California upon completion of
construction.
(b) The project creates high-wage, highly skilled jobs that pay
prevailing wages and living wages and provide construction jobs and
permanent jobs for Californians, and helps reduce unemployment.
(c) The
21183. (a) The
project does shall not result in any
net additional emission of greenhouse gases, including greenhouse gas
emissions from employee transportation, as determined by the State
Air Resources Board pursuant to Division 25.5 (commencing with
Section 38500) of the Health and Safety Code.
(d)
(b) The project applicant has entered
shall enter into a binding and enforceable
agreement that all mitigation measures required pursuant to this
division to certify the project under this chapter shall be
conditions of approval of the project, and those conditions will be
fully enforceable by the lead agency or another agency designated by
the lead agency. In the case of environmental mitigation measures,
the applicant agrees, as an ongoing obligation, that those measures
will be monitored and enforced by the lead agency for the life of the
obligation.
(e)
(c) The project applicant agrees to
shall pay the costs of the Court of Appeal in hearing and
deciding any case, including payment of the costs for the appointment
of a special master if deemed appropriate by the court, in a form
and manner specified by the Judicial Council, as provided in the
Rules of Court adopted by the Judicial Council pursuant to
subdivision (f) of Section 21185.
(f)
(d) The project applicant agrees to
shall pay the costs of preparing the administrative record
for the project concurrent with review and consideration of the
project pursuant to this division, in a form and manner specified by
the lead agency for the project.
SEC. 4. Section 21184 of the Public Resources Code is repealed.
21184. (a) The Governor may certify a project for streamlining
pursuant to this chapter if it complies with the conditions specified
in Section 21183.
(b) (1) Prior to certifying a project, the Governor shall make a
determination that each of the conditions specified in Section 21183
has been met. These findings are not subject to judicial review.
(2) (A) If the Governor determines that a leadership project is
eligible for streamlining pursuant to this chapter, he or she shall
submit that determination, and any supporting information, to the
Joint Legislative Budget Committee for review and concurrence or
nonconcurrence.
(B) Within 30 days of receiving the determination, the Joint
Legislative Budget Committee shall concur or nonconcur in writing on
the determination.
(C) If the Joint Legislative Budget Committee fails to concur or
nonconcur on a determination by the Governor within 30 days of the
submittal, the leadership project is deemed to be certified.
(c) The Governor may issue guidelines regarding application and
certification of projects pursuant to this chapter. Any guidelines
issued pursuant to this subdivision are not subject to the rulemaking
provisions of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code).
SEC. 5. Section 21185 of the Public Resources Code is amended to
read:
21185. (a) Notwithstanding any other law, any action or
proceeding alleging that a public agency or has
approved or is undertaking a leadership project
certified by the Governor that meets the
requirements of Section 21183 in violation of this division
shall be conducted in accordance with the following streamlining
benefits:
(1) The action or proceeding shall be filed in the Court of Appeal
with geographic jurisdiction over the project.
(2) Any A party bringing
such a claim shall also file concurrently any other claims
alleging that a public agency has granted land use approvals for the
leadership project in violation of the law. The
Court of Appeal shall have original jurisdiction over all those
claims.
(3) The Court of Appeal shall issue its decision in the case
within 175 days of the filing of the petition.
(4) The court may appoint a master to assist the court in managing
and processing the case.
(5) The court may grant extensions of time only for good cause
shown and in order to promote the interests of justice.
(b) On or before July 1, 2012, the Judicial Council shall adopt
Rules of Court to implement this chapter.
SEC. 6. Section 21186 of the Public Resources Code is amended to
read:
21186. Notwithstanding any other law, the preparation and
certification of the administrative record of
proceedings for a leadership project
certified by the Governor shall be performed in
the following manner:
(a) The lead agency for the project shall prepare the
administrative record pursuant to this division concurrently with the
administrative process.
(b) All documents and other materials placed in the administrative
record 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 impact report.
(c) The lead agency shall make available to the public in a
readily accessible electronic format the draft environmental impact
report and all other documents submitted to, or relied on by, the
lead agency in the preparation of the draft environmental impact
report.
(d) A document prepared by the lead agency or submitted by the
applicant after the date of the release of the draft environmental
impact report 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.
(e) 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.
(f) 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.
(g) The lead agency shall certify the final administrative record
within five days of its approval of the project.
(h) Any dispute arising from the administrative record shall be
resolved by the Court of Appeal pursuant to Section 21185.
SEC. 7. Section 21189.1 of the Public Resources Code is repealed.
21189.1. (a) If a lead agency fails to certify an environmental
impact report for a leadership project subject to this chapter on or
before June 1, 2014, this chapter shall not apply to that project.
The lead agency shall notify the Secretary of the Natural Resources
Agency by July 1, 2014, if an environmental impact report subject to
this chapter has not been certified by that date.
(b) If, prior to June 1, 2014, a certification issued pursuant to
this chapter has not been used or the time period during which an
action or proceeding, for purposes of Section 21185, may be filed
under this chapter has not elapsed, the certification expires and is
no longer valid.
SEC. 8. Section 21189.3 of the Public Resources Code is repealed.
21189.3. This chapter shall remain in effect until January 1,
2015, and as of that date is repealed unless a later enacted statute
extends or repeals that date.
SEC. 9. 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.