BILL ANALYSIS �
SB 52
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 52
AUTHOR: Steinberg
AMENDED: January 4, 2012
FISCAL: Yes HEARING DATE: January
11, 2012
URGENCY: Yes CONSULTANT: Randy
Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 (part of the California
Environmental Quality Act (CEQA)), sets procedures relating to
an "environmental leadership development project" (ELDP)
which:
1) Provide definitions that:
a) Define an "applicant" to be 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."
(�21180(a)).
b) Define an ELDP to be one of the following
(�21180(b)):
i) A residential, retail, commercial,
sports, cultural, entertainment, or recreational
use project that is LEED certified (silver or
better); achieves a 10% greater standard for
transportation efficiency (as defined) than for
comparable projects; located on an infill site;
and, if within a metropolitan planning
organization where a sustainable communities
strategy or alternative planning strategy is in
effect, is consistent with certain requirements
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specified for that project in the strategy while
meeting certain related requirements.
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 production of clean
alternative fuel vehicles.
c) Define "transportation efficiency" to be the number
of vehicle trips by employees, visitors, or customers of
certain types of land uses divided by the total number
of employees, visitors, and customers.
2) Prohibit the Act from applying to a project if the
applicant fails to notify a lead agency prior to release of
the draft EIR for public comment that the applicant is
electing to proceed pursuant to the Act. The lead agency
must notify the Secretary of the Natural Resources Agency
if the applicant fails to provide this notice. (�21181).
3) Set procedures relating to the governor for an ELDP which:
a) Authorize a person proposing to construct an ELDP to
apply to the governor for certification that the ELDP is
eligible for streamlining under the Act. The person
must supply evidence and materials that the governor
deems necessary to make a decision on the application,
which must be made available to the public at least 15
days before the governor certifies a project. (�21182).
b) Authorize the governor to certify an ELDP for
streamlining if certain conditions are met (e.g.,
project will result in a minimum investment of $100
million; project creates high wage, highly skilled jobs
that pay prevailing wages and living wages; project does
not result in any net additional emission of greenhouse
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gases, as determined by the State Air Resources Board;
project applicant has entered into a binding and
enforceable agreement that all mitigation measures will
be conditions of project approval; project applicant
pays Court of Appeal costs in hearing and deciding any
case, including costs for appointment of a special
master, and costs of preparing the administrative
record). (�21183).
c) Require the governor to make a determination that
each of the above conditions (3 b) has been met prior to
certifying a project, and these findings are not subject
to judicial review. If the governor determines that an
ELDP is eligible for streamlining pursuant to the Act,
that determination and any supporting information must
be submitted to the Joint Legislative Budget Committee
for review and concurrence or nonconcurrence. The
Committee must concur or nonconcur within 30 days of
receiving the determination, and failure to concur or
nonconcur on this determination within that period is
deemed ELDP certified. (�21184(a), (b)).
d) Authorize the governor to issue guidelines regarding
application and certification of ELDPs under the Act,
which are not subject to the Administrative Procedure
Act. (�21184(c)).
4) Set procedures that apply to any action or proceeding
alleging that a public agency has approved or is
undertaking an ELDP certified by the governor in violation
of CEQA (�21185) which:
a) Require the action or proceeding to be filed in the
Court of Appeal with geographic jurisdiction over the
project.
b) Require any party bringing a claim to file
concurrently any other claims alleging that a public
agency has granted land use approvals for the ELDP in
violation of the law. The Court of Appeal must have
original jurisdiction over these claims.
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c) Require the Court to issue its decision in the case
within 175 days of the filing of the petition.
d) Authorize the Court to appoint a master to assist the
Court in managing and processing the case.
e) Authorize the Court to grant extensions of time only
for good cause shown and in order to promote the
interests of justice.
5) Set requirements for preparation and certification of the
administrative record for an ELDP certified by the
governor. (�21186).
6) Require 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. (�21187).
7) Provide that provisions of the Act are severable, and if
any provision or its application is held to be invalid,
that invalidity cannot affect any other provision or
application that can be given effect without the invalid
provision or application. (�21188).
8) Provide that nothing in the Act affects the duty of any
party to comply with CEQA, except as otherwise provided in
the Act. (�21189).
9) Prohibit the Act from applying to an ELDP if a lead agency
does not certify an EIR for an ELDP 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 Act has not been certified by that date.
(�21189.1(a)).
10)Provide that certification of the ELDP expires and is no
longer valid if, prior to June 1, 2014, a certification
issued pursuant to the Act has not been used or the time
period during which an action or proceeding filed under the
Act has not elapsed. (�21189.1(b)).
11)Require the Judicial Council to report to the Legislature
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on or before January 1, 2015, on the effects of the Act,
which must include, but not be limited to, a description of
the benefits, costs, and detriments of the certification of
ELDPs pursuant to the Act. (�21189.2).
12)Provide that the Act becomes operative only if SB 292
(Padilla) is enacted and takes effect on or before January
1, 2012.
13)Contain related legislative intent. (�21178).
14)Sunset January 1, 2015. (�21189.3).
This bill :
1) Provides a technical clarification to the definition
of "applicant," clarifies that the use must be designed
to be LEED silver or better, and provides that the
definition of "transportation efficiency" refers to
private automobile trips rather than vehicle trips.
(�21180).
2) Requires the lead agency to notify the Secretary of
the Natural Resources Agency if the applicant provides
notification, rather than fails to provide notification,
and corrects a cross reference. (�21181).
3) Clarifies that the $100 million minimum project
investment is spent on planning, design, and project
construction; provides that priority for greenhouse gas
emission reductions occur on the project site and in
neighboring communities, and provides offset credit
procedures for these reductions; clarifies that special
master costs are not limited to appointment of the
special master; and makes other clarifying amendments.
(�21183).
4) Clarifies that procedures relating to an action or
proceeding alleging a violation of CEQA apply to the lead
agency, rather than a public agency, and strikes a
requirement to file concurrent claims; and authorizes the
court to order, rather than grant, extensions of time
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only for good cause. (�21185).
5) Clarifies cross references in the specified notice
(�21187); revises the Judicial Council reporting
requirement to reference justice administration issues
rather than project certification issues (�21189.2); and
clarifies legislative intent to, among other things,
reference public projects (�21178).
COMMENTS :
1) Purpose of Bill . According to the intent of the Jobs and
Economic Improvement Through Environmental Leadership Act
of 2011, enacted by AB 900 (Buchanan and Gordon) Chapter
354, Statutes of 2011, the Act "provides streamlining
benefits under CEQA for a limited period of time to put
people to work as soon as possible" and these projects
"present an unprecedented opportunity to implement
nation-leading innovative measures that will significantly
reduce traffic, air quality, and other significant
environmental impacts, and fully mitigate the greenhouse
gas emissions resulting from passenger vehicle trips
attributed to the project."
The purpose of SB 52 is to clarify certain provisions of AB
900.
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
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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.
3) Clarifying the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 . When AB 900 was
heard and approved by the Senate Environmental Quality
Committee September 9, 2011 (5-1), authors of the bill
wanted to address certain issues in 2012 that were raised
regarding the bill. For example, Assemblymembers Buchanan
and Gordon submitted a letter to the Journal September 9,
2011, regarding LEED certification, legislative intent
relating to public and private projects, and court orders
for extension of time. SB 52 amendments clarify these
issues.
SB 52 also responds to issues raised by others by, for
example, correcting cross references; clarifying
definitions; specifying priorities for greenhouse gas
emission reductions and providing for offset credits;
clarifying special master costs to be paid by the
applicant; and clarifying that the Act applies to an action
or proceeding alleging a violation of CEQA by the lead
agency.
SOURCE : Senator Steinberg and Assemblymembers Buchanan
and Gordon
SUPPORT : None on file.
OPPOSITION : None on file.
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