BILL ANALYSIS �
SB 1380
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 1380
AUTHOR: Rubio
AMENDED: April 10, 2012
FISCAL: No HEARING DATE: April 30, 2012
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law :
1)Under the California Environmental Quality Act (CEQA):
a) 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.). If there is
substantial evidence, in light of the whole record before
a lead agency, that a project may have a significant
effect on the environment, the lead agency must prepare a
draft EIR. (CEQA Guidelines �15064(a)(1), (f)(1)).
b) Contains categorical exemptions relating to bicycle
facilities that include, for example:
i) Minor public or private alterations to land,
water, or vegetation, including, but not limited to:
"creation of bicycle lanes on existing rights-of-way."
(CEQA Guidelines �15304(h)).
ii) Restriping of streets or highways to relieve
traffic congestion. (Public Resources Code �21080.19).
c) Requires thresholds of significance adopted as part of
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a lead agency's environmental review process to be
developed through a public review process. A threshold
of significance is "an identifiable quantifiable,
qualitative or performance level of a particular
environmental effect, non-compliance with which means the
effect will normally be determined to be significant by
the agency and compliance with which means the effect
normally will be determined to be less than significant."
When adopting thresholds of significance, a lead agency
may consider thresholds of significance previously
adopted or recommended by other public agencies or
recommended by experts. (CEQA Guidelines �15064.7).
2)Under the California Bicycle Transportation Act, authorizes
a city or county to prepare a bicycle transportation plan,
which must include certain elements (e.g., proposed land use
and settlement patterns, existing proposed bikeways and
bicycle facilities, bicycle safety and education facilities,
project priorities for implementation, past expenditures and
future financial needs). (Streets and Highways Code
�891.2).
This bill enacts the California Public Health and
Environmental Standards Act (CPHESA) that:
1) Provides legislative intent that:
a) CEQA was enacted in 1970 to maintain a quality
environment, and that in the 40 years following
enactment "Congress and the Legislature have each
adopted dozens of laws to protect environmental quality
in 14 of the 17 topical areas required to be
independently evaluated under CEQA."
b) Reference various environmental laws, "all enacted
after 1970 . . ." while asserting that "Environmental
laws and regulations identify compliance obligations of
general applicability and thereby provide greater
clarity than the project-by-project ad hoc review
process that was created by CEQA in 1970" and in
enacting CPHESA "avoiding the sometimes conflicting and
often duplicative ad hoc environmental review and
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mitigation requirements under CEQA regarding the
development and adoption of a bicycle transportation
plan."
2) Requires an environmental document prepared under CEQA for
a bicycle transportation plan to disclose all applicable
environmental laws, and defines "applicable environmental
laws" to be those referenced in CPHESAs legislative intent
relevant to a bicycle transportation plan that does any of
the following:
a) Includes a policy determination, or directs or
authorizes an appropriate standard for analysis and
mitigation under CEQA, and compliance with the standard
must be "the exclusive means of evaluating and
mitigating environmental impacts under �CEQA] regarding
the subject of the law, notwithstanding any other
provision of law."
b) Identifies analytical methods or approaches, or
directs or authorizes procedures and practices that
include those approaches, regarding a standard.
Disclosure of those analytical methods "must be the
exclusive means of evaluating potential project impacts
under �CEQA] regarding the relevant law, notwithstanding
any other provision of law."
c) Identifies permissible practices for mitigating or
minimizing adverse impacts, or directs or authorizes
procedures and practices for mitigation, and compliance
with these practices must be the "exclusive means of
mitigating environmental impacts under �CEQA] regarding
the subject of the relevant law, notwithstanding any
other provision of law."
3) Specifies that the above "disclosure obligations" are
intended to foster environmental and public participation
in the public review process required under CEQA or other
applicable laws, including the Ralph M. Brown Act.
4) Limits environmental review under CPHESA to those topical
areas listed in the legislative intent.
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5) Prohibits a cause of action under CEQA based on an
environmental topical area listed in the legislative intent
if the environmental document "requires compliance with an
applicable law," and provides that this does not prohibit a
cause of action to enforce compliance with other existing
local, state, and federal law.
6) Provides that CPHESA does not preclude an agency from
requiring information or analysis of the bicycle
transportation plan, or imposing conditions of approval for
that plan, under laws other than CPHESA or CEQA.
COMMENTS :
1) Purpose of Bill . According to the Silicon Valley
Leadership Group, sponsor of SB 1380, "litigation under
CEQA challenging bicycle transportation plans can be
expensive and delay or prevent adoption of such plans. In
San Francisco, for example, San Francisco's MTA proposed a
bicycle transportation plan that would add 34 miles of new
bikes lanes, nearly doubling the current number, to enable
key public safety improvements for bicyclists and
pedestrians in San Francisco. After MTA approved the plan,
an opponent filed a CEQA lawsuit and in 2006 a trial court
issued an injunction preventing implementation of the plan.
In 2006, a San Francisco Examiner article estimated that
in the 2006 planning year alone the injunction would result
in MTA losing $1.1 million in grants to implement the plan.
Litigation proceeded slowly, and the trial court did not
fully lift the injunction until 2010 thereby allowing MTA
to complete implementation of the bike plan. After nearly
four years of delay due to the CEQA litigation, the trial
court ruled that 'the City did not abuse its discretion in
certifying the EIR as in compliance with CEQA, nor did the
City abuse its discretion by the process of approving the
EIR.' This bill would reduce the potential for litigation
delays such as those experienced by San Francisco's MTA.
As a result, it would help to prevent the loss of grant
money that may otherwise be available to achieve health and
safety benefits associated with improving a region's
bicycle transportation network."
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� NOTE : See Comment #3 for more background on the case,
including the provision of an environmental document for
the project November 26, 2008.]
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.
3) Background on San Francisco bicycle plan litigation . The
San Francisco Board of Supervisors adopted the 2005 Bicycle
Plan June 7, 2005, and determined that the plan was exempt
from CEQA because there was no possibility that it would
have significant impacts on the environment. The San
Francisco County Transportation Authority Commission
(composed exclusively of members of the board of
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supervisors) adopted the bicycle plan's "Network
Improvement Document," a five-year plan for funding and
implementing the Bicycle Plan June 21, 2005.
Petitioners challenged adoption of the 2005 Bicycle Plan and
Network Improvement Document under CEQA, and the Court
granted the Petitioner's Petition, finding that the Plan
and Document should have been reviewed under CEQA together
as one project - and that considered as a whole could have
a significant impact on the environment. The Court issued
a Preemptory Writ of Mandate June 18, 2007, requiring San
Francisco to conduct adequate environmental review of the
Plan and Document, and enjoined the city from implementing
any individual improvement projects until the review was
completed.
San Francisco planning department published a draft EIR
November 26, 2008. According to the Court, "The bulk of
the Draft EIR's analysis concerned impacts on
transportation, particularly impacts from the 60 near-term
improvements on 63 different intersections located
throughout San Francisco, as well as impacts on 12 'transit
corridors,' 10 transit 'spot studies,' and 13 parking and
loading corridors." The Court also noted that the EIR
identified mitigation measures to minimize or eliminate
many of the significant environmental impacts identified in
the EIR, including measures such as adding or modifying
traffic signals at intersections (lengthening green light
time or adding a green arrow), or modifying roadway
striping (changing shared lanes to exclusive turn lanes,
narrowing travel lanes, or eliminating or restricting
on-street parking).
The Planning Commission certified the EIR June 25, 2009; the
MTA board of directors adopted the 2009 Bicycle Plan and
approved the traffic changes necessary to implement 45 of
the 60 improvements, and made the required CEQA findings.
The Petitioners appealed the Planning Commissioner's
certification of the EIR to the Board of Supervisors July
15, 2009; and the Board of Supervisors heard the appeals
August 4, 2009, and denied the appeals. The city filed a
Notice of Determination August 14, 2009, and filed a Return
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to the Writ of Mandate September 18, 2009, to which the
Petitioners objected. The Court found that the city
complied with CEQA and the Court's orders to conduct
environmental review of the Bicycle Plan, including its
policies and goals and individual improvement projects
August 6, 2010.
4) Thresholds of significance and regulatory standards . As
noted above, under current law, a threshold of significance
is "an identifiable quantifiable, qualitative or
performance level of a particular environmental effect,
non-compliance with which means the effect will normally be
determined to be significant by the agency and compliance
with which means the effect normally will be determined to
be less than significant."
Under SB 1380, for a bicycle transportation plan, "compliance
with the applicable standards for impacts that occur or
might occur as a result of approval of the project shall be
the exclusive means of evaluating and mitigating
environmental impacts under �CEQA] regarding the subject of
that law, notwithstanding any other provision of law."
Such reliance on a regulatory standard, as required under SB
1380, is inconsistent with current law. For example, in
Kings County Farm Bureau v. City of Hanford, 221 Cal. App.
3d 692, 270 Cal. Rptr. 650 (1990), the court found that a
lead agency incorrectly determined that air quality impacts
would be less than significant when the smokestack
emissions for a proposed cogeneration plant would comply
with applicable air quality regulations and standards,
because the agency failed to consider "on-site"
(smokestack) and "secondary" (train and truck traffic to
deliver coal, the proposed fuel) emissions together in
assessing the significance of the overall project's
impacts.
The court came to a similar conclusion in Riverwatch v. San
Diego County (Palomar Aggregates), 76 Cal. App. 4th 1428,
91 Cal. Rptr. 2d 322 (1999), where the court held that an
EIR for a proposed rock quarry failed to evaluate all air
quality impacts resulting from the quarry operation. The
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county believed emission levels would meet San Diego Air
Pollution Control District (APCD) standards, and the court
found that the EIR considered only the quarry process
emissions and not particulate emissions caused by drilling,
handling, storage, and transport of the rock and sand.
While the APCD standards were for the stationary source
(quarry), CEQA requires the EIR to evaluate significance of
all project-related pollution emissions.
5) Project impact "topic areas" .
SB 1380 specifies that the CEQA Guidelines currently provide
that project impacts be evaluated based on 17 topics - a
provision of this bill that is not limited to bicycle plans
and could therefore apply to other projects. Nothing in
current law limits CEQA to 17 topic areas. Apparently the
author is referencing Appendix G of the CEQA Guidelines,
the "environmental checklist form."
It is noteworthy, however, that Appendix G is prefaced by the
following:
NOTE: The following is a sample form and may be tailored to
satisfy individual agencies' needs and project
circumstances. It may be used to meet the requirements for
an initial study when the criteria set forth in CEQA
Guidelines have been met. Substantial evidence of potential
impacts that are not listed on this form must also be
considered. The sample questions in this form are intended
to encourage thoughtful assessment of impacts, and do not
necessarily represent thresholds of significance.
Not only does SB 1380 freeze these 17 topics in statute,
rather than allowing analysis of any other potential
significant impacts, this bill also precludes CEQA from
filling in the gaps in existing laws. CEQA also addresses
other matters, such as cumulative impacts, direct and
indirect impacts, and mandatory findings of significance.
Emerging issues addressed under CEQA may also precede a
particular state or federal law. For example, the analysis
of greenhouse gas (GHG) impacts under laws like CEQA, and
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its federal counterpart National Environmental Policy Act
(NEPA), did not commence with the passage of the California
Global Warming Solutions Act of 2006.
Guidance for addressing GHG issues under the NEPA for federal
environmental documents was provided October 8, 1997.
According to the Chairman of the Council on Environmental
Quality in 1997, "Because of the potentially substantial
health and environmental impacts associated with climate
change, the Council on Environmental Quality is issuing
this guidance today calling on federal agencies to
consider, in the context of the NEPA process, both how
major federal actions could influence the emissions and
sinks of greenhouse gases and how climate change could
potentially influence such actions."
In 2003, in Border Power Plant Working Group v. U.S.
Department of Energy (S.D. Cal 2003) 20 F.Supp2d 997,
1028-1029, a federal district court found that NEPA
requires consideration of potential environmental impacts
from a proposed natural gas turbine's generation of carbon
dioxide, a greenhouse gas, and rejected the argument that
consideration of this impact is not required.
Former Attorney General Bill Lockyer also commented on the
lack of analysis of GHG issues in environmental documents
prior to enactment of the CGWSA (note, for example, the
March 30, 2006, letter regarding the Orange County
Transportation Authority 2006 Long-Range Transportation
Plan Draft EIR).
SB 97 (Dutton) Chapter 185, Statutes of 2007, subsequently
required OPR, on or before July 1, 2009, to prepare,
develop, and transmit to the Resources Agency amendments to
the CEQA guidelines to assist public agencies in the
mitigation of GHG's or the effects of GHG's as required
under CEQA, including the effects associated with
transportation and energy consumption, and required the
Resources Agency to certify and adopt those guidelines by
January 1, 2010.
6) Setting standard in SB 1380 overrides fair argument
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standard . If there is substantial evidence, in light of
the whole record before a lead agency, that a project may
have a significant effect on the environment, the lead
agency must prepare a draft EIR.
SB 1380 overrides the fair argument standard for a bicycle
transportation plan because under this bill "compliance
with the applicable standards for impacts that occur or
might occur as a result of approval of the project shall be
the exclusive means of evaluating and mitigating
environmental impacts under �CEQA] regarding the subject of
that law, notwithstanding any other provision of law."
Also, under SB 1380, "A cause of action shall not be
commenced . . . for noncompliance with �CEQA] based on an
environmental topical area �listed in SB 1380] for which
the environmental document prepared for purposes of
�CPHESA] discloses a requirement of compliance with an
applicable environmental law . . ." (another provision that
is not limited to bicycle plans).
This issue was addressed when Communities for A Better
Environment, Environmental Protection Information Center,
and Desert Citizens Against Pollution challenged several
1998 revisions to the CEQA Guidelines. The California
Building Industry Association was allowed to intervene in
the action. Communities for a Better Environment v.
California Resources Agency, 103 Cal. App. 4th 98, 126 Cal.
Rptr. 441 2d (2002).
The trial court invalidated several Guidelines sections,
including a provision where a lead agency is directed to
determine that an effect is not significant, regardless of
whether other substantial evidence would support a fair
argument that the effect may be environmentally
significant, if a proposed project has an environmental
effect that complies with a regulatory standard as defined
under the Guidelines provision.
On appeal, the Court of Appeal agreed with the trial court on
this matter: "The direction �of this Guidelines change]
relieves the agency of a duty it would have under the fair
argument approach to look at evidence beyond the regulatory
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standard, or in contravention of the standard, in deciding
whether an EIR must be prepared. Under the fair argument
standard, any substantial evidence supporting a fair
argument that a project may have a significant effect would
trigger the preparation of an EIR. A well-known CEQA
treatise recognized this dilemma as well, stating:
'�S]ubdivision (h) . . . appears to dispense with the
traditional 'fair argument' standard otherwise applicable
to the decision whether to prepare a�n] . . . EIR . . .
Notably, where existing regulatory standards, as defined,
address a particular category of impact, the lead agency
need not treat the impact as potentially significant
whenever any substantial evidence in the record supports a
conclusion.'"
7) Support and opposition concerns . According to the
California Retailers Association in supporting SB 1380, "As
an employer we seek to encourage our employees to find and
utilize alternative means of transportation to and from
work. Bicycles are one of the most affordable and we
believe, environmentally benign. Thoughtful bicycle
transportation plans by communities like San Francisco
shouldn't be allowed to be tied up in CEQA lawsuits for
years on end where they can demonstrate having met
applicable environmental laws." According to the Silicon
Valley Bicycle Coalition, "This bill would help communities
achieve the benefits of local bicycle plans by reducing
costs and delays associated with �CEQA] litigation."
According to opponents, while supporting "more walkable and
bikable communities, it is vital to maintain the public's
right to make a fair argument under CEQA that a project
contains significant environmental impacts, even if another
environmental law has also set standards for the impact in
question. Environmental laws are frequently subject to
business and industry capture. Standards set by a federal
or state environmental law may have a one-size-fits-all
policy, or may be promulgated by the business or industry
itself. For example, the EPA is counter-intuitively
prohibited from regulating fracking (hydraulic fracturing)
by the Safe Drinking Water Act. Thus, the standards in an
environmental law may not be enough to ensure that an
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individual project does not have adverse environmental
impacts - especially for those with the most devastating
environmental effects. Passing a bill of this nature would
create a slippery slope for further legislation to come and
open up the flood gates to similar requests for such more
leniency in this department - something that would
completely undermine one of the major reason CEQA was put
in place: to allow the opportunity for public review."
8) Alternative way to address bikeway environmental issues
with bikeway plans in certain locations ? If the committee
believes that bicycle plans should not be subject to
environmental review under certain conditions, then rather
than overriding the fair argument standard, procedures
relating to thresholds of significance and other CEQA
provisions, as provided under SB 1380, it may be
appropriate to instead: a) replace provisions in this bill
with a statutory exemption for a bikeway plan for an
urbanized area consisting of restriping existing streets
and highways, signal timing to improve intersection
operations, signage, and bicycle storage, if certain
requirements are met (e.g., measures to address bike and
pedestrian safety, noticed public hearings); b) sunset the
exemption within a certain period (e.g., five years) so
that the exemption can be evaluated and any unanticipated
consequences considered; and c) require a notice of
exemption for a plan to be filed with the Office of
Planning and Research to assist in this evaluation.
SOURCE : Silicon Valley Leadership Group
SUPPORT : California Bicycle Coalition, California
Council for Environmental and Economic Balance,
California Retailers Association, Silicon
Valley Bicycle Coalition
OPPOSITION : California Coastal Protection Network,
California Native Plant Society, Defenders of
Wildlife, Planning and Conservation League,
Sierra Club California
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