BILL ANALYSIS �
SB 1214
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 1214
AUTHOR: Cannella
AMENDED: As Introduced
FISCAL: No HEARING DATE: April 16,
2012
URGENCY: No 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."
(Public Resources Code �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
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effect, is consistent with certain requirements
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.
1) 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).
2) 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
gases, as determined by the State Air Resources Board;
project applicant has entered into a binding and
enforceable agreement that all mitigation measures will
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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)).
3) 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 the Court to issue its decision in the case
within 175 days of the filing of the petition.
c) Authorize the Court to appoint a master to assist the
Court in managing and processing the case.
d) Authorize the Court to grant extensions of time only
for good cause shown and in order to promote the
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interests of justice.
4) Set requirements for preparation and certification of the
administrative record concurrently with the administrative
process for an ELDP certified by the governor. (�21186).
5) 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).
6) 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).
7) Provide that nothing in the Act affects the duty of any
party to comply with CEQA, except as otherwise provided in
the Act. (�21189).
8) 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)).
9) 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)).
10)Require the Judicial Council to report to the Legislature
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).
11)Contain related legislative intent. (�21178).
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12)Sunset January 1, 2015. (�21189.3).
This bill , under CEQA:
1) Requires an action or proceeding brought pursuant to CEQA
challenging a project located in a distressed county to be
filed with the Court of Appeal with geographic jurisdiction
over the project.
2) Defines "distressed county" to be a county meeting two of
the following criteria: a) an unemployment rate higher
than statewide average for three consecutive months during
the pendency of the administrative proceeding, b) a poverty
level higher than the statewide average during the pendency
of the administrative proceeding, and c) a foreclosure rate
higher than the statewide average during the pendency of
the administrative proceeding.
3) Provides that this requirement does not apply to high speed
rail related projects.
COMMENTS :
1) Purpose of Bill . According to the author, "SB 1214
streamlines the CEQA litigation process for distressed
communities. Especially in counties with unemployment
rates, foreclosure rates and poverty levels higher than the
statewide average, there is a pressing need to get
Californians back to work. By sending any CEQA challenges
that qualify under this bill directly to the Court of
Appeal, SB 1214 fast-tracks the litigation process while
remaining environmentally responsible."
The author asserts that "SB 1214 is a jobs measure designed to
help California's economy recover. With specifically
defined criteria, only the most economically distressed
communities will be eligible under SB 1214. This bill is
aimed at helping the most economically disadvantaged
communities."
2) Brief background on CEQA . CEQA provides a process for
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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.
3) Clarifying the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 . 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
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vehicle trips attributed to the project."
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 (Steinberg) clarifies various provisions of the Act 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 and requiring the Court of Appeal decision in the
case to apply to all petitions for writ of mandate filed
under the Act. SB 52 was approved by the Senate
Environmental Quality Committee January 11, 2012 (6-0) and
the Senate January 31, 2012 (32-4).
4) SB 1214 inconsistent with AB 900 requirements . As noted
above, AB 900 enacts the Jobs and Economic Improvement
Through Environmental Leadership Act of 2011 as part of
CEQA, where a project that is subject to the Court of
Appeal provisions of the Act must meet various
requirements.
SB 1214, on the other hand, requires an action or proceeding
under CEQA challenging any project in a "distressed county"
to be filed with the Court of Appeal - other than a
high-speed rail related project.
5) Support positions . The Civil Justice Association of
California "supports SB 1214 (Cannella), a bill that will
help reduce the costly litigation over projects in
distressed counties that have already completed the �CEQA]
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process" and "supports the streamlining procedures
contained in SB 1214, which would help reduce costly and
burdensome litigation."
6) Judicial Council of California concerns . The Judicial
Council of California opposes SB 1214 based on the
following:
a) "First, the appellate courts are not well-suited for
this process. The Court of Appeal is not designed to be
the court of first resort; it has been structured for
the general purpose of developing the law through review
of trial court decisions."
b) "Second, proceeding directly in the Court of Appeal
is a very inefficient method of handling these complex
CEQA cases" and "While the Court of Appeal has
historically reviewed those superior court CEQA
decisions that are appealed, only a fraction of superior
court decisions are appealed and the issues on appeal
are typically much narrower than those raised in the
trial court, lessening the resources that need to be
devoted to these cases."
c) "Third, this expedited judicial review scheme will
likely have an adverse impact on other cases. CEQA
cases are already entitled to strict calendar
preferences at both the trial and appellate levels.
Allowing these cases to skip the trial court step
altogether and proceed directly in the Court of Appeal
will have the practical effect of pushing other cases on
the court's docket to the back of the line."
d) "Fourth, providing expedited judicial review directly
in the Court of Appeal for some cases while other cases
are subject to original jurisdiction in the superior
court, in our view, undermines equal access to justice."
e) "Finally, notwithstanding the significant concerns
noted above, the Judicial Council believes it is
premature for the Legislature to expand AB 900 to a
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broader category of cases before the impacts of this
unprecedented expedited judicial scheme on the courts
and the administration of justice have been assessed
through the statutorily mandated study."
7) Related legislation . AB 2163 (Knight) revises the Jobs and
Economic Improvement Through Environmental Leadership Act
of 2011 by expanding the types of eligible projects,
repealing the governor's project certification procedures,
repealing requirements setting a $100 million minimum
investment level and requiring prevailing and living wages,
and striking the sunset. The Judicial Council of
California also opposes AB 2163, which will be heard by the
Assembly Natural Resources Committee April 16, 2012.
8) 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 -
California, Civil Justice Association of
California
OPPOSITION : Consumer Attorneys of California, Judicial
Counsel of California, Planning and
Conservation League, Sierra Club California