BILL ANALYSIS �
AB 2577
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Date of Hearing: May 7, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2577 (Galgiani) - As Introduced: February 24, 2012
SUBJECT : Environmental quality: public comments
SUMMARY : For purposes of the California Environmental Quality
Act (CEQA), provides that the lead agency does not have a duty
to consider, evaluate, or respond to comments received after the
close of the required public comment period for a draft
environmental impact report (EIR) or negative declaration.
Prohibits late-filed comments from being part of the
administrative record prepared for purposes of judicial review.
EXISTING LAW :
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or EIR
for this action, unless the project is exempt from CEQA.
2)Requires lead agencies to provide specified notice of proposed
environmental documents, provide an opportunity to comment,
and respond to comments received during the public comment
period, which is generally 30-45 days.
3)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project, subject to statutes of limitations
ranging from 30 to 180 days.
4)Prohibits a person from filing a lawsuit challenging a CEQA
action unless the alleged grounds for noncompliance were
presented to the public agency by any person during the
required public comment period or prior to the close of the
public hearing on the project.
FISCAL EFFECT : Non-fiscal
COMMENTS :
1)Background. CEQA provides a process for evaluating the
environmental effects of applicable projects undertaken or
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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. 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.
As noted above, CEQA includes procedures for public comment
for environmental documents, including draft EIRs and proposed
negative declarations. Lead agencies are required to respond
to comments only if they are submitted during the public
comment period. However, comments may be offered right up
until the last public hearing prior to lead agency decision,
and the issues can then be raised in litigation. Late
comments can be used as a tactic to frustrate lead agency
decision-making and/or create issues for litigation. On the
other hand, there can be legitimate reasons to file comments
after the close of the required comment period, such as when
others' comments or responses to comments reveal new
information, changes to the project, or corrections to the
draft EIR. This bill raises an important question about how
late is too late for public participation in the CEQA process,
but it also begs a question about the point of a public
hearing to certify the EIR if the lead agency can completely
disregard public input provided at the hearing.
2)Need for the bill. According to the author:
In recent years an extra, unintended delay in the (CEQA)
process relative to public comments has developed that is
needlessly discouraging business expansion and job
creation.
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Specifically, this procedural delay is the very late
submission of public comments to lead agencies - typically
after the public comment period was supposedly closed and
right before or even during the final hearing at which the
lead agency is supposed to make a final decision.
These last minute comments put lead agencies in a difficult
position. The lead agency has to make a quick judgment on
whether to make a decision as planned or postpone the whole
procedure and do more analysis. The result is either
continual backlog and delay, or hasty decisions that may be
much more difficult to defend in court.
These are not isolated instances in the CEQA process.
Submitting last minute comments for the purpose of delaying
and stalling procedures has become a deliberate widespread
tactic by project opponents. Although an existing statute
states a specific period for CEQA public comments, the
courts have nevertheless permitted litigants to rely on
late comments.
This problem could simply be resolved with a
straightforward statute stating that a lead agency has no
duty to consider comments received after the existing
public comment period has expired.
3)Proposed solution is one-sided. Project opponents aren't the
only parties who may manipulate information in the CEQA
process to gain advantage. Project proponents, who normally
have a distinct information advantage, can withhold
information to downplay the effects of their projects, as
illustrated by Chevron's proposed Richmond refinery upgrade.
In April 2010, the Court of Appeal upheld the trial court
decision setting aside the EIR for this project in Communities
for a Better Environment v. City of Richmond. The court found
that the EIR's project description was inadequate as a matter
of law because it inconsistently and inaccurately described
the project. The EIR at times stated that the project was
designed to allow more flexibility in processing streams of
crude oil, and at other times stated that the project would
not allow processing of heavier crude oil (which results in
greater emissions of pollutants). The court particularly
noted that Chevron had stated in a filing with Securities and
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Exchange Commission that the purpose of the project was to
allow the processing of heavier crude. By giving such
inconsistent descriptions, the court found the EIR project
description was fundamentally inadequate and misleading.
Because the lead agency was complicit in the applicant's
deception, it took litigation to discover the true nature of
the project and its environmental effects.
4)Previous legislation. When 226 (Simitian) was approved by
this committee on August 22, 2011, the bill included
amendments to address "document dumping." SB 226 provided
that CEQA does not require a public agency to consider written
materials submitted after the close of the public comment
period, with specified exceptions for materials addressing new
information released after the close of the public comment
period, and permitted a lead agency to elect to ignore written
materials submitted after the close of the public comment
period and provided that such material shall not be raised in
judicial review. This provision included a January 1, 2016
sunset. However, the document dumping amendments in SB 226
were removed in the Assembly Appropriations Committee due to
uniform opposition.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association of Engineering Companies
Association of California Water Agencies
California Association of Realtors
California Association of Sanitation Agencies
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California League of Food Processors
California Retailers Association
Commercial Real Estate Development Association
Del Norte County Board of Supervisors
Fullerton Chamber of Commerce
Glenn County Board of Supervisors
International Council of Shopping Centers
Oxnard Chamber of Commerce
Plumas County Board of Supervisors
Regional Council of Rural Counties
Siskiyou County Board of Supervisors
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Southwest California Legislative Council
Tehama County Board of Supervisors
Opposition
Defenders of Wildlife
Pechanga Tribe
Planning and Conservation League
Sierra Club California
Viejas Band of Kumeyaay Indians
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092