BILL ANALYSIS �
SB 241
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 241
AUTHOR: Cannella
AMENDED: As introduced
FISCAL: Yes HEARING DATE: April 4, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : COURT REVIEW PROHIBITION FOR 125 PROJECTS
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA), requires lead agencies with the principal
responsibility for carrying out or approving a proposed
discretionary project to prepare a negative declaration,
mitigated declaration, or environmental impact report (EIR)
for this action, unless the project is exempt from CEQA (CEQA
includes various statutory exemptions, as well as categorical
exemptions in the CEQA guidelines). (Public Resources Code
�21000 et seq.).
This bill :
1) Under CEQA, enacts the CEQA Litigation Protection Pilot
Program of 2011 that:
a) Prohibits court review of a lead agency's
certification of an EIR or adoption of a mitigated
negative declaration, as well as a lead or responsible
agency's project approval, for 125 projects that are
selected by the Business, Transportation and Housing
Agency (BT&H) over a five-year period. For a project to
qualify for the exemption, the lead agency must certify
to BT&H that there is an expectation that an EIR will be
certified for the project within 12 months. BT&H's
selection of projects is also exempt from judicial
review.
b) Provides that the 25 projects selected each year from
2012 to 2016 must be located in the following areas: 1)
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10 projects in Imperial, Los Angeles, Orange, Riverside,
San Bernardino, and San Diego counties; 2) 5 projects in
Alameda, Contra Costa, Marin, Napa, San Francisco, Santa
Clara, Solano, and Sonoma counties; 3) 5 projects in
Fresno, Kern, Kings, Madera, Monterey, Merced,
Sacramento, San Benito, San Joaquin, Stanislaus, and
Tulare counties; 4) 5 projects located in remaining
state areas. Procedures are set for selecting projects
if a lead agency does not certify an EIR within 12
months.
c) Requires BT&H to hold at least one public hearing in
each region to consider public comments on the selected
projects in each region. The Legislature may provide
"formal comments" to BT&H through legislative committees
designated by the Senate Rules Committee and the
Assembly Speaker for the respective houses.
d) Requires BT&H to consider the following when
selecting a project: 1) number and quality of jobs to
be created by the project, 2) amount of capital
investment made by the project, and 3) a balance between
projects sponsored by public and private entities.
e) Requires BT&H to submit an annual report on the pilot
program to the Governor and Legislature by December 31
summarizing the designation of projects, job creation,
and investment attributable to the designated projects.
Additional information regarding implementation of the
projects may be provided.
2) Sunsets the above provisions January 1, 2017.
COMMENTS :
1) Purpose of Bill . According to the author, "The CEQA
Litigation Protection Pilot Program of 2011 will simply
protect 25 projects from CEQA litigation every year. While
any candidate project will still be required to complete
the entire CEQA process, the projects chosen by the
Business, Transportation and Housing Agency will be
sheltered from frivolous lawsuits. The projects will be
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chosen through careful consideration by the agency and
include input from the public as well as the State
Legislature."
SB 241 prohibits court review of a lead agency's certification
of an EIR or adoption of a mitigated negative declaration,
as well as a lead or responsible agency's project approval,
for 125 projects that are selected by BT&H over a five-year
period. For a project to qualify for the exemption, the
lead agency must certify to BT&H that there is an
expectation that an EIR will be certified for the project
within 12 months.
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
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.
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3) Overriding CEQA and project approval process . SB 241
prohibits court review of various CEQA and project approval
actions for 125 projects selected by BT&H.
Such immunity may provide a disincentive for lead agencies to
prepare and certify EIRs in compliance with current law.
4) Blaming CEQA . It is not unusual for certain interests to
assert that a particular exemption, or immunity from court
review in the case of SB 241, will expedite construction of
a particular type of project and reduce costs. This,
however, frequently overlooks the benefits of adequate
environmental review where lead and responsible agencies
are legally accountable for their actions: to inform
decisionmakers and the public about project impacts,
identify ways to avoid or significantly reduce
environmental damage, prevent environmental damage by
requiring feasible alternatives or mitigation measures,
disclose to the public reasons why an agency approved a
project if significant environmental effects are involved,
involve public agencies in the process, and increase public
participation in the environmental review and the planning
processes.
If a project is exempt from CEQA, or court review is
prohibited, certain issues should be addressed. For
example:
How can decisionmakers and the public be aware of
impacts, mitigation measures, and alternatives of a
project where inadequate EIRs may be prepared because
court review is prohibited?
Is it appropriate for the public to live with the
consequences when court review is prohibited and impacts
may not be mitigated and alternatives may not be
considered regarding certain matters, such as air
quality, water quality, and noise impacts?
Because adverse project impacts do not disappear when
they are not identified and mitigated, does a prohibition
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on court review result in a direct transfer of
responsibility for mitigating impacts from the applicant
to the public ( i.e. , taxpayers) if impacts are ultimately
addressed after completion of the project?
If taxpayers, rather than the project applicant, are
ultimately responsible for mitigating certain impacts of
such a project after project completion, what assessments
or taxes will be increased to fund mitigation or pay for
alternatives at a later date?
It is also not unusual for certain interests to blame CEQA
lawsuits. However, according to a study on the issue,
"Despite criticisms that CEQA often results in
litigation, CEQA-related litigation is relatively rare."
The study noted that the number of lawsuits to the number
of CEQA reviews "yields an estimate of one lawsuit per
354 CEQA reviews."
Those citing CEQA and CEQA litigation as a problem do not
indicate the result of that litigation. Were significant
impacts that were not evaluated in the initial document
ultimately addressed? What would have been the result if
those impacts had not been mitigated ( e.g. , flooding,
exposure of people to hazards, inadequate public
services, congestion)?
When some suggest that CEQA "reforms" may be needed, others
note various provisions of CEQA that already provide
streamlined approaches, including master and focused
EIRs; transit priority and residential project
streamlining (enacted by SB 375 (Steinberg, Ducheny)
Chapter 728, Statutes of 2008); expedited review for
environmental mandated projects; special procedures for
various types of housing projects (enacted by SB 1925
(Sher, Polanco) Chapter 1039, Statutes of 2002); various
litigation, mediation, tiering, and other revisions (SB
1456 (Simitian) Chapter 496, Statutes of 2010);
amendments to procedures relating to findings of
overriding consideration (AB 231 (Huber) Chapter 432,
Statutes of 2010); and several categorical exemptions
contained in the CEQA Guidelines. Challenges to CEQA
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determinations must be commenced within an unusually
short 30 days of an agency's filing of a notice of
determination. Also, no later than 20 days from the date
of service upon a public agency, the public agency must
file a notice with the court setting a time and place for
all parties to meet and attempt to settle the litigation.
1) Placing Legislature and a state agency in decision-making
role . SB 241 applies to several projects, and places the
Legislature and BT&H in positions of a "shadow court" and
"shadow public agency" where parties will be able to go
when they want immunity from other local and state agency
actions on their projects.
Public agencies will be free to ignore CEQA public notice,
public comment, agency response, and findings requirements
- as well as the need to prepare an adequate EIR that
provides the public with needed information - when the
public has no recourse because SB 241 provides immunity
from court review over the agency's decision to certify the
EIR and approve a project. This immunity also applies to
other responsible agency actions.
Does the committee believe that environmental and development
issues should be addressed in this fashion?
2) Related legislation . SB 241 mirrors SBX8 42 (Correa)
(which was held in the Senate Environmental Quality
Committee at the author's request after a February 24, 2010
hearing), as well as SB 1010 (Correa) (which failed in the
Senate Environmental Quality Committee April 5, 2010 (2-4),
AB 1805 (Calderon) (which was to be heard by the Assembly
Natural Resources Committee March 22, 2010, but not taken
up by the author, and heard April 19, 2010, for testimony
only) and ABX8 37 (Calderon) (which died at the Assembly
Desk).
3) Support and opposition concerns . According to some
supporters of SB 241, "While many California families
struggle to make ends meet, state government is facing
increasingly difficult financial decisions in order to
balance its budget. California's budget problems are a
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symptom of the faltering economy. Creating jobs and
restoring commerce are the keys to curing California's
economic and financial woes." Supporters assert that this
bill "would expedite a limited number of environmentally
sound projects to help ensure a strong economic base as
California enjoys the economic recovery. California will
either lead or lag in the recovery; measures to advance
worthy projects that are appropriately vetted for
environmental impacts can help move us toward the leading
edge of recovery, and ensure we emerge stronger."
According to several opponents of SB 1010, "Eliminating the
ability to enforce CEQA could result in projects being
approved without mitigation measures to protect public
health and the environment. Examples of these projects
include: new polluting power plants and waste facilities
located next to schools and neighborhoods, a new Peripheral
Canal, new power plants in spectacular and sensitive areas
of the state, new oil refineries, new onshore oil
facilities and pipelines to support offshore oil
development, roads through state parks, new residential
subdivisions on contaminated soil, new nuclear power
plants, new dams, new prisons in cities and counties �,
and] clearcutting forests." Opponents believe that "many
of the largest projects with the most significant
environmental impacts will be selected" and this "simply
erodes California's legacy of environmental protection."
4) Double Referral to Judiciary Committee . If this measure is
approved by this committee, the do pass motion must include
the action to re-refer the bill to the Senate Judiciary
Committee.
SOURCE : Senator Cannella
SUPPORT : American Council of Engineering Companies of
California, California Business Properties
Association, California Chamber of Commerce,
The Greater Merced Chamber of Commerce
OPPOSITION : Born Free USA, Breathe California, California
Audubon Society, California Coastal Coalition,
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California Coastal Protection Network,
California Coastkeeper Alliance, California
League of Conservation Voters, California
Native Plant Society, California Native Plant
Society (Sacramento Valley Chapter & San Diego
Chapter), California State Parks Foundation,
Center on Race, Law and Poverty, Clean Water
Action, Coalition for Clean Air, Communities
for Clean Ports, Community Coalition on High
Speed Rail, Defenders of Wildlife, Endangered
Habitats League, EndOil/Communities for Clean
Ports, Environment California, Environmental
Defense Center, Environmental Defense Fund,
Friends of the Earth, Friends of the Los
Angeles River, Friends of Rose Creek, Food &
Water Watch, Forest Forever (Sacramento Valley
Chapter), Heal the Bay, Health Officers
Association of California, City of La Canada
Flintridge, League of Women Voters of
California, Monterey Coastkeeper, National
Parks Conservation Association, Natural
Resources Defense Council, Pacific Forest
Trust, Planning and Conservation League,
Russian Riverkeeper, Sacramento Audubon
Society, San Diego Audubon Society, Save Our
Shores, Save the Bay, Sierra Club California,
Surfrider Foundation, Union of Concerned
Scientists