BILL ANALYSIS �
SB 52
Page 1
Date of Hearing: June 18, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 52 (Steinberg) - As Amended: January 31, 2012
SENATE VOTE : 32-4
SUBJECT : Environmental quality: jobs and economic improvement
SUMMARY : Makes various technical and clarifying amendments to
the Jobs and Economic Improvement Through Environmental
Leadership Act (AB 900, Chapter 354, Statutes of 2011).
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, 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
certified as LEED silver or better by the United States
SB 52
Page 2
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.
SB 52
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.
SB 52
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
release of the draft EIR for public comment.
SB 52
Page 5
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) Provides a technical clarification to the definition of
"applicant," clarifies that an eligible residential,
retail, commercial, sports, cultural, entertainment, or
recreational use project must be designed to be certified
as LEED silver or better, and provides that the definition
of "transportation efficiency" refers to private automobile
SB 52
Page 6
trips rather than vehicle trips.
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.
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.
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 only
for good cause.
5) Revises the Judicial Council reporting requirement to
address administration of justice rather than project
certification issues; and revises legislative intent to,
among other things, include public as well as private
projects.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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.
SB 52
Page 7
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.
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 three proposed
projects that could be eligible for these judicial review
provisions, if the projects are approved and subsequently
challenged - the Los Angeles stadium project specified in SB
292 and two projects which have applied for certification by
the Governor under AB 900 -
the McCoy solar energy project in Riverside County and Apple
Campus 2 in Cupertino.
SB 52
Page 8
1)A lot of haste, a little waste. AB 900 was conceived and
passed in the space of a few days. All actions on the bill
occurred on the final day of the 2011 session. At the time of
its passage, it was recognized that drafting corrections and
clarifications would need to be made in a subsequent clean-up
bill. SB 52 is the clean-up bill.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
American Chemistry Council
American Council of Engineering Companies
American Wood Council
Associated Builders and Contractors of California
California Association of Realtors
California Business Properties
California Chamber of Commerce
California Manufacturers & Technology Association
California Retailers Association
Cal SMACNA
Lumber Association of California & Nevada
Roof Coatings Manufacturers Association
Western Wood Preservers Institute
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092