BILL ANALYSIS �
AB 2163
Page 1
Date of Hearing: April 16, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2163 (Knight) - As Introduced: February 23, 2012
SUBJECT : California Environmental Quality Act: judicial review
SUMMARY : Expands application of expedited judicial review of
CEQA decisions by the Court of Appeal enacted by the Jobs and
Economic Improvement Through Environmental Leadership Act (AB
900) from specified large-scale "environmental leadership"
projects to include a significantly broader range of commercial,
residential and recreational projects.
EXISTING LAW :
1)Pursuant to CEQA, requires a lead agency with the principal
responsibility for carrying out or approving a proposed
discretionary project to evaluate the environmental effects of
its action and prepare a negative declaration, mitigated
negative declaration, or environmental impact report (EIR).
If an initial study shows that the project may have a
significant effect on the environment, the lead agency must
prepare an EIR. CEQA authorizes judicial review of the
agency's decision to carry out or approve the project.
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. The
courts are required to give CEQA actions preference over all
other civil actions.
2)Pursuant to AB 900, Chapter 354, Statutes of 2011, establishes
procedures for expedited judicial review by the Court of
Appeal for "environmental leadership" projects certified by
the Governor and meeting specified conditions, including LEED
silver-certified infill site projects, clean renewable energy
projects, and clean energy manufacturing projects.
a) Defines "environmental leadership" project as a CEQA
project that is one of the following:
i) A residential, retail, commercial, sports, cultural,
entertainment, or recreational use project that is
AB 2163
Page 2
certified as LEED silver or better by the United States
Green Building Council and, where applicable, that
achieves a 10% greater standard for transportation
efficiency than for comparable projects.
(1) Requires that these projects be located on an
infill site.
(2) Requires a project that is within a
metropolitan planning organization for which a
sustainable communities strategy (SCS) or alternative
planning strategy (APS) is in effect, to be consistent
with specified policies in either the SCS or APS,
which, if implemented, would achieve greenhouse gas
emission (GHG) reduction targets.
(3) Defines "transportation efficiency" as the
number of vehicle trips by employees, visitors, or
customers of the project divided by the total number
of employees, visitors, and customers.
ii) A clean renewable energy project that generates
electricity exclusively through wind or solar, but not
including waste incineration or conversion.
iii) 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.
b) Allows a person proposing to construct a leadership
project to apply to the Governor for certification that the
leadership project is eligible for streamlining. Requires
the person to supply evidence and materials that the
Governor deems necessary to make a decision on the
application. Requires any evidence or materials be made
available to the public at least 15 days before the
Governor certifies a project pursuant to this bill.
c) Authorizes the Governor to certify a leadership project
if all of the following conditions are met:
i) The project will result in a minimum investment of
$100 million in California upon completion of
construction.
AB 2163
Page 3
ii) 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.
iii) The project does not result in any net additional
GHG emissions, including emissions from employee
transportation, as determined by the Air Resources Board
pursuant to the California Global Warming Solutions Act
of 2006.
iv) The project applicant has entered into a binding and
enforceable agreement that all mitigation measures
required pursuant to CEQA to certify the project 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.
v) The project applicant agrees to 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.
vi) The project applicant agrees to pay the costs of
preparing the administrative record for the project
concurrent with review and consideration of the project
pursuant to CEQA, in a form and manner specified by the
lead agency for the project.
d) Requires the Governor, prior to certifying a project, to
make a determination that each of the conditions specified
above has been met. These findings are not subject to
judicial review.
e) Requires that if the Governor determines that a
leadership project is eligible for streamlining, he or she
shall submit that determination, and any supporting
information, to the Joint Legislative Budget Committee
(JLBC) for review and concurrence or non-concurrence.
AB 2163
Page 4
f) Requires that within 30 days of receiving the
determination, the JLBC shall concur or non-concur in
writing.
g) Deems the leadership project certified if the JLBC fails
to concur or non-concur on a determination by the Governor
within 30 days of the submittal.
h) Authorizes the Governor to issue guidelines regarding
application and certification of projects pursuant to this
bill. These guidelines are not subject to the rulemaking
provisions of the Administrative Procedure Act.
i) Requires that, notwithstanding any other law, any action
or proceeding alleging that a public agency has approved or
is undertaking a leadership project certified by the
Governor in violation of CEQA shall be conducted in
accordance with the following streamlining benefits:
i) The action or proceeding shall be filed in the Court
of Appeal with geographic jurisdiction over the project.
ii) Any 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.
iii) Requires that the Court of Appeal issue its decision
in the case within 175 days of the filing of the
petition.
iv) Authorizes the court to appoint a special master to
assist the court in managing and processing the case.
v) The court may grant extensions of time only for good
cause shown and in order to promote the interests of
justice.
j) Requires on or before July 1, 2012 that the Judicial
Council adopt Rules of Court to implement this bill.
aa) Prohibits the Act from applying to a leadership project
if the applicant fails to notify a lead agency prior to the
AB 2163
Page 5
release of the draft EIR for public comment.
bb) Sets requirements for preparation and certification of
the administrative record for a leadership project
certified by the Governor.
cc) Requires the draft and final EIR to include a specified
notice in no less than 12-point type regarding the draft
and final EIR being subject to the Act.
dd) Provides that provisions of the bill are severable.
ee) Provides that nothing in this bill affects the duty of
any party to comply with CEQA, except as otherwise provided
in the bill.
ff) Prohibits the bill from applying to a leadership project
if a lead agency does not certify an EIR for a project on
or before June 1, 2014, and the lead agency must notify the
Secretary of the Natural Resources Agency by July 1, 2014,
if an EIR subject to the bill has not been certified by
that date.
gg) Provides that certification of the leadership project
expires and is no longer valid if, prior to June 1, 2014, a
certification issued pursuant to the bill has not been used
or the time period during which an action or proceeding
filed under the bill has not elapsed.
hh) Requires the Judicial Council to report to the
Legislature on or before January 1, 2015, on the effects of
the bill, which must include, but not be limited to, a
description of the benefits, costs, and detriments of the
certification of the leadership project pursuant to the
bill.
ii) Sunsets January 1, 2015.
THIS BILL :
1)Applies the AB 900 judicial review procedures to a broader
range of projects, including:
a) Commercial use projects over 125,000 square feet
AB 2163
Page 6
b) Recreational use projects over 20 acres
c) Residential use projects over 50 units
2)Repeals the requirements that eligible residential, retail,
commercial, sports, cultural, entertainment, or recreational
use projects be certified LEED Silver (instead requiring that
the project be designed to meet CalGreen Tier 1 building
standards) and be located on an infill site.
3)Repeals the requirement that the Governor certify the project
and related procedures.
4)Repeals the requirements that the project results in a minimum
investment of $100 million in California and creates both
construction and permanent jobs that pay prevailing wages and
living wages.
5)Repeals the June 1, 2014 project certification deadline and
the January 1, 2015 sunset.
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.
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. 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.
AB 2163
Page 7
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. This promised to reduce the
existing judicial review timeline by 100 days or more, while
creating new burdens for the courts and litigants to meet the
compressed schedule. Thus far, there are two known projects
that could be eligible for these judicial review provisions,
if approved and subsequently challenged - the Los Angeles
stadium project, which just released its EIR for review, and
the McCoy solar energy project in Riverside County, which is
pending certification by the Governor.
This bill proposes to offer expedited Court of Appeal review
to a much broader range and larger number of CEQA projects.
It would cover many major construction projects, dozens to
hundreds per year, depending on how many are challenged, in
perpetuity.
2)Author's statement :
CEQA lawsuits have been repeatedly and systematically
abused by opponents with ulterior motives. Land developers
AB 2163
Page 8
in the beginning phases of planning new well-deserving,
environmentally conscientious projects must budget a
minimum of two years, following approval by the county
board of supervisors, to mitigate lawsuits under CEQA
violations. Deserving projects that have had sufficient
public review are being held up by lawsuits from
unscrupulous, anti-growth opponents.
This process kills potential jobs and market growth during
one of the worst economic climates in California history.
CEQA states, "Each public agency shall mitigate or avoid
the significant effects on the environment of projects that
it carries out or approves whenever it is feasible to do
so." These projects go through a significant review period
prior to approval by the board of supervisors. Why must the
projects that far exceed CEQA's environmental standards
then be held up in multi-year lawsuits by opponents who
simply oppose development, without regards to the specific
environmental impact of the project?
Last year, AB 900 made significant strides for
well-deserving projects to move quickly through the
historically arduous process of mitigating CEQA lawsuits.
This means more jobs, without sacrificing the integrity of
California's environment. The measure proposed here
expands the scope of the expedited judicial review process
to allow a much larger group of well-deserving projects to
take advantage. Projects that meet identical
qualifications as those laid out in AB 900, with the
exception of being on a smaller scale, are excluded from
the huge incentive that current law provides for
development, and thus job creation.
3)How far can the SB 292/AB 900 model stretch before it breaks?
Opponents argue that appellate courts are currently suffering
from a lack of funding and are unsuited for original
jurisdiction of a large number of CEQA cases. In addition,
they argue this bill would adversely impact equal access to
justice by delaying other important appellate cases and
requiring litigants to travel longer distances to the court.
Overloading the appellate courts with CEQA cases could defeat
the intended "streamlining" effect. According to the Judicial
Council:
Significant problems for the courts and the administration
AB 2163
Page 9
of justice are presented by the expedited judicial review
provisions of (AB 900), which are exacerbated by AB 2163
because it would substantially expand the scope of AB 900
to cover a much broader category of cases.
First, the appellate courts are not well-suited for this
process. If the first level of the court system is skipped
over, the Court of Appeal will quickly be overwhelmed,
especially given the anticipated high volume and complex
nature of the cases that would be eligible under AB 2163
for this expedited treatment.
Second, proceeding directly in the Court of Appeal is a
very inefficient method of handling these complex CEQA
cases. While the Court of Appeal has historically reviewed
those superior court CEQA decisions that are appealed, only
a fraction of superior court decisions are appealed and the
issues on appeal are typically much narrower than those
raised in the trial court, lessening the resources that
need to be devoted to these cases.
Third, 175 days seems to be an unrealistically short
timeframe to decide a large CEQA matter. Even assuming
that no extensions of time are granted for any aspect of
the proceeding, it appears that it will take about 175 days
just to get to oral argument, much less to issue a
decision, in the majority of these cases.
Fourth, this expedited judicial review scheme will likely
have an adverse impact on other cases. The extremely tight
timeline for deciding these cases has the practical effect
of pushing other cases on the court's docket to the back of
the line, especially in light of the dire fiscal straits
being faced by the judicial branch.
Fifth, providing expedited judicial review directly in the
Court of Appeal for some cases while other cases are
subject to original jurisdiction in the superior court, in
our view, undermines equal access to justice. The courts
are charged with dispensing equal access to justice for
each and every case on their dockets, without regard to the
economic position of the parties. Singling out this
special category of cases for such preferential treatment
appears at odds with how our justice system has
historically functioned.
AB 2163
Page 10
Finally, notwithstanding the significant concerns noted
above, the Judicial Council believes it is premature for
the Legislature to expand AB 900 to a broader category of
cases before the impacts of this unprecedented expedited
judicial review scheme on the courts and the administration
of justice have been assessed through the statutorily
mandated study.
4)Double referral . This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Realtors
Opposition
California Coastal Protection Network
California League of Conservation Voters
California Native Plant Society
Consumer Attorneys of California
Judicial Council of California
Planning and Conservation League
Sierra Club California
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092