BILL ANALYSIS �
SB 52
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Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON JOBS, ECONOMIC DEVELOPMENT AND THE ECONOMY
V. Manuel P�rez, Chair
SB 52 (Steinberg) - As Amended: June 26, 2012
SENATE VOTE : 32-4
SUBJECT : Environmental quality: jobs and economic improvement
SUMMARY : Modifies the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 (Act), which creates an
expedited judicial review procedure under the California
Environmental Quality Act (CEQA) for various types of LEED
Silver certified infill site projects, clean renewable energy
projects, and clean energy manufacturing projects. Specifically,
this bill :
1)Modifies the legislative findings to specify that the eligible
"projects" may include both public and privately sponsored and
financed projects. �Public Resources Code (PRC) 21178]
2)Provides a technical clarification to the definition of
"applicant" pursuant to the environmental leadership
development project (ELD project). (PRC Section 21180)
3)Modifies the requirement that certain ELD projects be
certified as LEED Silver or better, to requiring that the ELD
project be designed to be certified as LEED Silver or better
by the U.S. Green Building Council. These provisions apply to
residential, retail, commercial, sports, entertainment or
recreational ELD projects. In a related issue, the bill
states that ELD project requirements do not affect any
compliance requirements under the California Green Building
Standards Code. (PRC Section 21180)
4)Refines the definition of "transportation efficiency" to only
apply to the number of private automobile trips and not all
vehicle trips. The bill also makes all ELD projects
demonstrate that they can maintain a 10% greater standard for
transportation efficiency than for other comparable projects.
Existing law applied the transportation efficiency standard to
only applicable project and did not require the efficiencies
to be maintained. (PRC Section 21180)
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5)Revises the lead agency notice requirement to the Secretary of
Natural Resources from providing notice if an applicant fails
to provide notice to the lead agency, to notifying the
Secretary when an applicant notifies the lead agency of their
intention to move forward on an ELD project. The bill also
corrects a cross reference. (PRC Section 21181)
6)Prohibits the Governor from certifying a project for
streamlining if specified conditions are not met, rather than
authorizing the Governor to certify an ELD project if the
specified conditions are met. (PRC Section 21183)
7)Clarifies that the minimum project investment of $100 million
may be spent on planning, design, and project construction.
(PRC Section 21183)
8)Adds specificity to the requirement that ELD projects do not
result in additional greenhouse gas emissions by stating that
emission reductions and offsets should be obtained as close to
the project site as possible and that reductions are a higher
priority than offsets. (PRC Section 21183)
9)Clarifies the full range of Court of Appeals costs that an ELD
project applicant agrees to pay as a condition of ELD project
certification. (PRC Section 21183)
10)Clarifies that procedures relating to an action or proceeding
alleging a violation of the Act apply to the lead agency,
rather than any 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.
(PRC Section 21185)
11)Clarifies cross-references in the specified notice which is
required to be included in the environmental impact report
(EIR). (PRC Section 21187)
12)Revises the Judicial Council reporting requirement to only
include justice administration issues rather than issues
arising from ELD project certification. (PRC Section 21189.2)
13)Makes other technical and conforming changes.
EXISTING LAW :
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1)Establishes the Act, which creates expedited judicial review
procedures under the California Environmental Quality Act
(CEQA) for various types of LEED Silver certified infill site
projects, clean renewable energy projects, and clean energy
manufacturing projects.
2)Requires, pursuant to CEQA, a lead agency with the principal
responsibility of 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 EIR. If an initial study shows that
the project may have a significant effect on the environment,
the lead agency must prepare an EIR.
3)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Legal challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR does not comply with CEQA,
must be filed in the Superior Court within 30 days of filing
of the notice of approval.
FISCAL EFFECT : The measure was referred from the Senate
Appropriations Committee to the Senate Floor pursuant to 28.8.
COMMENTS :
1)Purpose of the Bill : According to the author, "SB 52 is a
cleanup bill to AB 900 of last year which created significant
new CEQA streamlining for environmental leadership projects.
The members will recall that the bill was heard in the closing
days of the legislative session last August. At that time,
the author of this measure committed to working over the fall
with a member working group on cleanup amendments to the bill.
He also committed to putting a preprint bill in to signal
what those changes would be (which became SB 2 Preprint).
Both of these actions were taken.
SB 52 is the technical cleanup bill that incorporates those
changes needed to fix clear problems or mistakes in the prior
legislation.
There are parties who also wish to discuss expanding the
current law to other projects (eg. Transit projects, county
public works projects etc). other parties wish to weaken the
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standards in current law with respect to LEED versus
CAL-GREEN. Those changes have been reviewed and set aside
since they are not technical cleanup and would engender new
opposition to the bill. In addition, at least some of the
changes are being proposed as part of other authors measures.
The author wishes to limit this bill solely to the technical
cleanup amendments committed to and agreed upon. "
2)Role of CEQA in the Development Process : The California
Environmental Quality Act was established in 1970 for the
purpose of providing a better framework and process to inform
decision makers and the public about the potential
environmental impacts of proposed projects.
Most proposals for physical development in California are
subject to the provisions of CEQA, which requires at least
some level of prescribed environmental review. If a project
will not cause any adverse environmental impacts, a public
agency may adopt a brief document known as a Negative
Declaration. If the project may cause adverse environmental
impacts, the public agency must prepare a more detailed study
called an EIR. An EIR contains in-depth studies of potential
impacts, measures to reduce or avoid those impacts and an
analysis of alternatives to the project. If mitigation
measures are required or incorporated into a project, the
agency must also adopt a reporting or monitoring program to
ensure compliance with those measures.
In addition to its mission to inform, CEQA also provides a
mechanism for stakeholder groups and other government entities
to meaningfully engage in the development approval process.
Consultation with the public and other stakeholders is
required and the lead public agency is encouraged to consult
early in the review process.
During its over 40-year history, CEQA has become one of the
state's most controversial laws. Considered by some as the
epitome of good government and environmental protection, CEQA
is viewed by others as impeding the state's economy and used
by groups to keep out good community development projects.
Some of the most common complaints about CEQA are related to
its cost to developers for legal conflicts and delays and
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costs caused by uncertain and inconsistent requirements,
according to the Public Policy Institute of California.
As a self-enforcing statute, CEQA enforcement is carried out
through the courts, rather than an executive branch government
office. While studies indicate that the threat of litigation
is a serious consideration for developers, research shows that
the actual number of lawsuits is low-perhaps about one lawsuit
for every 350 project reviews (Binger and McBride, 1991;
Landis et al., 1995). Developers contend, however, that the
threat of lawsuits forces them to spend millions of dollars to
try to "bulletproof" their environmental documents. In
oversight hearings on the state's economic competitiveness by
the Assembly Committee on Jobs, Economic Development, and the
Economy, CEQA reform and regulatory streamlining have
consistently been identified as a significant concern for the
private sector and a key contributing factor to California
being perceived as being a difficult place to do business.
SB 52 addresses these concerns by refining the provisions of
the Act to provide an expedited and streamlined judicial
review process for ELD projects that are approved by the lead
agency and subsequently challenged in court.
3)Moving Forward on Streamlining CEQA : In 2011, two measures
were introduced proposing expedited judicial review for
significant development projects. AB 900 (Buchanan and
Gordon) addressed large-scale projects that could meet
extraordinary environmental standards, create a significant
number of new jobs and require substantial capital investment
for the development. SB 292 (Padilla) was a more narrowly
targeted bill, which called for streamlining the environmental
review of a proposed downtown Los Angeles football stadium and
convention center project.
In the final two days of the 2011 session, a compromise
proposal was brought forward with the help of Senate and
Assembly leadership and amended into AB 900. Among other
requirements, eligible projects were required to have a
minimum of $100 million in construction costs; create
high-wage and highly skilled jobs; and fully mitigate
greenhouse gas emission. Given the short timeline before the
close of session, there was no time to make technical
corrections or fully discuss possible alternative policy
approaches. The authors submitted a letter to the Assembly
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Journal (9/9/2011) outlining three areas for clarification and
possible further legislative action: LEED Silver
certification of ELD projects, definition of applicant, and
the conditions by which courts would extend timelines.
There are currently three potential development projects which
could utilize the expedited judicial review provisions, if
they are challenged: the Los Angeles arena, the McCoy solar
energy project in Riverside County (application pending), and
Apple Campus 2 in Cupertino (application pending).
SB 52 is intended to serve as the clean-up vehicle for AB 900
and, according the Senate Environmental Quality Committee
analysis, includes changes proposed by Senator Steinberg,
Assemblymembers Buchanan and Gordon, and other stakeholders.
4)LEED Certification : Leadership in Energy and Environmental
Design, more commonly known as LEED, is a third party
certification program sponsored by the U.S. Green Building
Council (USGBC), a 501(c) 3, located in Washington D.C. The
USGBC's mission is to support a market-based transformation of
building and community design, and it is internationally
recognized as a leader in green and sustainable design.
The LEED 2009 rating system was designed for new commercial
office buildings, but according to the LEED manual, it has
been applied to a range of building types including hotels and
institutional buildings such as libraries, museums, and
churches. According to the LEED website, there are more than
4.5 billion square feet of construction space involved in the
LEED system.
LEED certification is awarded based on an application
submitted to the USGBC after the project has been completed.
Project applications are evaluated on such things as site
planning, energy and water efficiency, and interior and
external materials. Projects must meet minimum program
requirements, called prerequisites, and score points for
demonstrating a higher performance quality. As an example, if
project construction included an erosion and sedimentation
control plan, the project met the required prerequisite.
Projects that meet prerequisites and are also constructed on a
previously developed site within a high density community earn
5 points. If the same building is developed on a previous
brownfield site, the project earns 1 point. Below is a chart
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of the major categories and points.
---------------------------------------------------------------
| LEED Rating System for New Construction |
---------------------------------------------------------------
|-----------------------------------------+---------------------|
|Category |Maximum Score for |
| |Category |
|-----------------------------------------+---------------------|
|Sustainable Sites | 26 |
|-----------------------------------------+---------------------|
|Water Efficiency | 10 |
|-----------------------------------------+---------------------|
|Energy and Atmosphere | 35 |
|-----------------------------------------+---------------------|
|Materials and Resources | 14 |
|-----------------------------------------+---------------------|
|Indoor Environmental Quality | 15 |
|-----------------------------------------+---------------------|
|Innovation in Design | 6 |
|-----------------------------------------+---------------------|
|Regional Priority | 4 |
---------------------------------------------------------------
---------------------------------------------------------------
|Source: LEED 2009 New Construction and Major |
|Renovations |
---------------------------------------------------------------
Projects earning 40-49 points receive LEED certification;
50-59 points receive Silver certification and scoring 60-79
points earns the project Gold certification. Periodically the
USGBC updates its certification criteria under a process that
includes a vote by the membership of the USGBC. The 2009
rating system is currently being updated. Final approval was
expected in 2012, but is now being postponed to June 2013 in
"response to concerns raised by members, core LEED users and
stakeholders, and in an effort to provide the marketplace a
view of the full LEED program experience prior to ballot."
5)Concerns with LEED Certification : A coalition of business and
development organizations are concerned with the requirement
that ELD projects must meet or exceed LEED Silver
certification. Among other issues, the coalition questions
the public policy of mandating California projects meet a
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proprietary, nongovernmental standard that can change without
notice or control of the state. In support of this position,
the coalition cites areas of the LEED rating system that would
be more relevant to projects in other parts of the U.S. and
other areas of the rating system that earn points toward
certification for environmental standards that are lower than
the California Green Building Code - including standards for
water efficiency, fireplaces and thermal insulation.
Further, the LEED certification rating system does not
recognize progressive and sustainable practices in California
including renewable wood products and water conservation
efforts of California's landscape industry. ELD project
status should be used to encourage in-state environmental
leadership, coalition members say, but in order to do that,
these practices would need to be measured.
6)Related Legislation : Below is a list of related legislation
from current and prior sessions.
AB 900 (Buchanan and Gordon) Environmental Leadership Act :
Establishes the Jobs and Economic Improvement through
Environmental Leadership Act of 2011, which creates an
expedited judicial review procedure under CEQA for various
types of LEED silver certified infill site projects, clean
renewable energy project, and clean energy manufacturing
project. Status: The bill was signed by the Governor,
Chapter 354, Statutes of 2011.
a) AB 292 (Padilla) Los Angeles Football Stadium : This
bill establishes expedited judicial review procedures and
requires implementation of specified traffic and air
quality mitigation measures under CEQA for the proposed
downtown Los Angeles football stadium and convention center
project. Status: The bill was signed by the Governor,
Chapter 353, Statutes of 2011.
7)Double Referral : This bill was double referred from the
Assembly Rules Committee to the Assembly Committee on Natural
Resources (NR) and the Assembly Committee on Jobs, Economic
Development, and the Economy. The measure passed NR on a 6-3
vote on June 18, 2012.
REGISTERED SUPPORT / OPPOSITION :
SB 52
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NOTE: The Committee only posts the names of entities that have
submitted letters expressing support or opposition positions.
Letters that indicate "support if amended" or "oppose unless
amended" are not reflected on the analysis. These letters are
held on file and are available for public inspection.
Support
County of Los Angeles
Opposition
None received
Analysis Prepared by : Toni Symonds / J., E.D. & E. / (916)
319-2090