BILL ANALYSIS �
SB 292
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 292
AUTHOR: Padilla
AMENDED: September 7, 2011
FISCAL: Yes HEARING DATE: September
8, 2011
URGENCY: No CONSULTANT: Randy
Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act:
1) 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.).
2) Sets requirements relating to preparation, review, comment,
approval and certification of environmental documents, as
well as procedures relating to an action or proceeding to
attack, review, set aside, void, or annul various actions
of a public agency on the grounds of noncompliance with
CEQA.
This bill sets procedures relating to the Convention Center
Modernization and Farmers Field Project which:
1) Provide definitions, including that the project
substantially conforms to the project description as set
forth in the notice of preparation released by Los Angeles
March 17, 2011, for the project.
2) Require the lead agency (Los Angeles) to notify the
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Secretary of State if the applicant fails to notify the
lead agency of its election to proceed in accordance with
this bill's procedures.
3) Set procedures that must apply to an action or proceeding
to attack, review, set aside, void, or annul the
certification of the EIR for the project or the granting of
any "initial project approvals" (�21168.6.5(d)) which:
a) Require the action to be commenced by filing a
petition for writ of mandate with the Second District
Court of Appeal, which must be served on the respondent
and real party in interest within 30 days of the lead
agency's filing of a notice of determination.
b) Require the petitioner to file and serve the opening
brief in support of the petition for a writ of mandate
within 40 days of filing the petition.
c) Require the respondent and real party in interest to
file and serve any brief in opposition to the petition
within 25 days of filing the opening brief.
d) Require the petitioner to file and serve the reply
brief within 20 days of the filing of last opposition
brief to the petitioner's opening brief.
e) Require the Court of Appeal to dismiss the petition
if a petitioner fails to file the opening brief in
accordance with this bill (b above).
f) Require the Court of Appeal to decide the petition
based on the record, opening brief, and any petitioner
oral argument if respondents and real party in interest
fail to file a brief in opposition in accordance with
this bill (c above).
g) Prohibit the Court of Appeal from granting any time
extensions to the above deadlines except upon a showing
of extraordinary good cause.
h) Authorize the Court of Appeal to appoint a special
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master to assist the Court of Appeal in conducting the
expedited judicial review, and sets procedures for the
applicant to pay special master costs.
i) Require the Court of Appeal to hold a hearing and
issue a decision on all petitions for writ of mandate
filed pursuant to the above procedures within 60 days of
the filing of the last timely reply brief.
j) Set procedures for review of the Court of Appeal
decision by the Supreme Court.
4) Set procedures that must apply to an action or proceeding
to attack, review, set aside, void, or annul any
"subsequent project approvals" (�21168.6.5(j)) which:
a) Require the action to be subject to current
procedures under CEQA (Chapter 6, commencing with
�21165).
b) Prohibit the court, in granting relief, from staying
or enjoining construction or operation of the project
unless the court finds that either: (i) continued
construction or operation of the project presents an
imminent threat to the public health and safety; or (ii)
the project site contains unforeseen important Native
American artifacts or unforeseen important historical,
archeological, or ecological values that would be
materially, permanently, and adversely affected by
continued construction or operation of the project. If
the court finds that either of these conditions occur,
the court must enjoin those specific project activities
that present an imminent threat to public health or
safety or that materially, permanently, and adversely
affect these conditions.
5) Set procedures that must apply to the certification of the
EIR for the project and to any "initial project approvals"
(�21168.6.5(f)) which:
a) Require the lead agency to conduct an informational
workshop to inform the public of the key analyses and
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conclusions of the report within 10 days of the draft
EIR's release.
b) Require the lead agency to hold a public hearing to
receive testimony on the draft EIR within 10 days before
the close of the public comment period. A transcript of
the hearing must be included as an appendix to the final
EIR.
c) Authorize a draft EIR commenter to submit a written
request to the lead agency for nonbinding mediation.
The lead agency and applicant must participate in
nonbinding mediation with all commenters that requested
mediation, and the mediation must conclude no later than
35 days after the close of the public comment period.
d) Set procedures for the mediation, and require the
lead agency, as a condition of project approval, to
adopt any mitigation measures agreed upon by the lead
agency, the applicant, and any commenter that requested
mediation. A commenter agreeing to a mitigation measure
under these mediation procedures cannot raise the issue
addressed by that measure as a basis for a petition for
writ of mandate challenging the lead agency's decision
to certify the EIR or to grant one or more initial
project approvals.
e) Provide that the lead agency need not consider
written comments submitted after close of the public
comment period under certain circumstances (e.g., new
issues raised in response to comments by the lead
agency, certain new information, changes made to the
project after close of the public comment period).
f) Require the lead agency to file the notice of
determination within five days after the last initial
project approval. If the notice is filed after June 1,
2013, this bill's provisions are inoperative as of June
1, 2013, and repealed January 1, 2014. The lead agency
must notify the Secretary of State in the event these
provisions are repealed in this manner.
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6) Require the draft and final EIR to include a specified
notice in not less than 12 point type regarding the EIR
being subject to the provisions in this bill.
(�21168.6.5(e)).
7) Set requirements relating to the record of proceedings for
the project. (�21168.6.5(g)).
8) Provide legislative intent that the project minimize
traffic congestion and air quality impacts resulting from
private automobile trips to the stadium through CEQA
requirements and do the following: a) achieve and maintain
carbon neutrality by reducing to zero the net emissions of
greenhouse gases from private automobile trips to the
stadium, and b) achieve and maintain a trip ratio that is
no more than 90% of the trip ratio at any other stadium
serving a National Football League team. (�21168.6.5(h)).
9) Set requirements relating to conditions (�21168.6.5) that:
a) Require the lead agency, as a condition of project
approval, to require the applicant to implement measures
that will meet the requirements of CEQA and the traffic
and air quality measures required by this bill (#8
above) by the end of the first season that the National
Football League team has played at the stadium. The
lead agency must place the highest priority on feasible
measures that reduce greenhouse gas emissions on the
stadium site and neighboring communities, and offset
credits must be employed by the applicant only after
feasible local emission reduction measures have been
implemented. The applicant must place the highest
priority on purchase of offset credits that produce
emission reduction with Los Angeles or the South Coast
Air Quality Management District.
b) Set procedures relating to achieving a trip ratio
that is no more than 90% of the trip ratio of any other
stadium serving a National Football League team.
c) Set procedures relating a lead agency's
determination, finding, or decision regarding the above
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additional measures.
d) Provide that the above requirements, as well as the
traffic and air quality measures (#8 above), supplement,
and do not replace, mitigation measures otherwise
required for the project pursuant to CEQA.
10) Contain related legislative intent.
COMMENTS :
1) Purpose of Bill . According to the author, "The building of
a new sports arena and convention center is a game changer
for the City of Los Angeles, the region and the state.
This project will create thousands of construction and
permanent jobs and continue the revitalization of downtown
Los Angeles. Unlike other stadium projects, this one will
be built without taxpayer dollars or any public funds and
be built to unprecedented environmental standards."
The author further notes that SB 292 "will create
ground-breaking environmental protection as well as
expedite and elevate judicial review directly to the Court
of Appeal. In addition, it will fast track job creation in
the community while constructing a carbon-neutral stadium
that will prioritize transit more than any other NFL
stadium."
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
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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.
3) Issues for consideration . Certain provisions of SB 292 are
unclear or raise issues, including, for example: a) the
difference between an "initial project approval" and a
"subsequent project approval" - especially since the
definition of "initial project approval" may be "as
determined by the lead agency"; and b) a potential conflict
between allowing CEQA mitigation measures to be deferred
until the conclusion of the first season of the National
Football League team playing in the stadium (page 11, lines
31 to 36) and a provision providing that the mitigation
measures relating to traffic, air quality, and greenhouse
gas emissions supplement other CEQA mitigation measures
(page 14, lines 25 to 28) ( NOTE : it appears that the
author's intent is for the later provision to apply).
There are also likely to be concerns that court deadlines
are being reduced for a project when court budgets have
been reduced.
SOURCE : Senator Padilla
SUPPORT : None on file
OPPOSITION : American Planning Association (California
Chapter)
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