BILL ANALYSIS �
AB 515
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Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 515 (Dickinson) - As Amended: January 6, 2014
SUBJECT : CEQA: Writ of Mandate
KEY ISSUE : Should a writ of mandate that is issued pursuant to
the California Environmental Quality Act (CEQA) provide greater
specificIty as to what a public agency must do in order to
comply with CEQA, and should the agency's response to the writ
likewise be more specific?
SYNOPSIS
Under the California Environmental Quality Act (CEQA), if a
court finds that a public agency has violated CEQA requirements,
then the court must issue a writ of mandate ordering the agency
to comply. This non-controversial bill would clarify that the
writ must identify the precise nature of the non-compliance and
specify what action the agency must take in order to comply.
The writ would also need to specify the time by which the public
agency must make an initial return of the writ. In addition,
the bill requires the public agency, when it returns the writ,
to specify what actions it will take to come into compliance and
to provide a schedule for those actions. That a writ of mandate
should contain sufficient specificity to provide the public
agency with adequate guidance about what it must do is arguably
already implicit in existing law. According to the author,
however, land-use practitioners have encountered court orders in
which it is unclear which specific parts of an agency's CEQA
documents or actions are non-compliant; the intent of these
modest clarifying amendments is to provide clearer direction and
communication between courts and public agencies and thereby
bring more certainty and efficiency to CEQA litigation. There
is no known opposition to the bill as most recently amended.
SUMMARY : Requires a writ of mandate issued pursuant to CEQA to
state what specific actions a public agency must take in order
to comply with CEQA and requires the public agency's return of
the writ to include specified information. Specifically, this
bill :
1)Provides that when a court finds that an action of a public
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agency is not in compliance with CEQA, the court, in issuing
its writ of mandate, shall specify what action is necessary to
bring the public agency into compliance.
2)Requires the writ to include the time by which the public
agency shall make an initial return of a writ.
3)Requires the agency's initial return of the writ to describe
all of the following:
a) The actions the public agency will take to comply.
b) A schedule for the actions that the agency will take.
c) The public comment period applicable to the agency's
revision of a noncompliant document, if the noncompliance
found by the court involves a document (i.e. the negative
declaration, mitigated negative declaration, or
environmental impact report.)
4)Specifies that nothing in this bill affects the authority of a
court to allow a public agency to proceed with those aspects
of the project that do not violate CEQA, so long as allowing
the public agency to proceed does not, in any manner,
prejudice complete and full compliance with CEQA.
EXISTING LAW :
1)Establishes, under the California Environmental Quality Act
(CEQA), a process by which a public agency responsible for
implementing a project, as defined, shall assess the project's
environmental impact. If an initial study reveals that the
project will have a significant environmental effect, then the
agency must prepare an environmental impact report that
conforms to CEQA. If an initial study reveals that the
project will not have a significant effect, then the agency
must complete a negative declaration describing reasons
supporting that determination. If the initial study reveals
that any potential adverse effect can be reduced to a level of
insignificance through project revisions, a mitigated negative
declaration may be adopted. (Public Resources Code Section
21000 et seq.)
2)Provides a procedure by which a party may bring a timely
action or proceeding to attack, review, set aside, void, or
annul a determination, finding, or decision made by a public
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agency pursuant to CEQA. Gives such actions or proceedings
priority over other civil actions, as specified. (Public
Resources Code Section 21167 et seq.)
3)Provides that if a court finds, as a result of a trial,
hearing, or remand from the appellate court, that any
determination, finding, or decision of a public agency does
not comply with CEQA, then the court shall enter an order that
includes one or more of the following:
a) A mandate that the determination, finding, or decision
be voided by the public agency, in whole or in part.
b) Under specified conditions, a mandate that the public
agency and any real parties in interest suspend any or all
specific project activities that could result in adverse
change or alteration to the physical environment, until the
public agency has taken any actions that may be necessary
to bring a determination, finding, or decision into
compliance.
c) A mandate that the public agency take specific action as
may be necessary to bring the determination, finding, or
decision into compliance. (Public Resources Code Section
21168.9(a).)
4)Provides that any writ issued pursuant to the above provisions
shall include only mandates which are necessary to achieve
compliance and shall only address those specific project
activities not in compliance. Requires that the writ be
limited to that portion of a determination, finding, or
decision or the specific activity found to be in noncompliance
only if a court finds that (a) the portion or specific project
activity or activities are severable, (2) severance will not
prejudice complete and full compliance with CEQA, and (3) the
court has not found the remainder of the project to be in
noncompliance. Specifies that the trial court shall retain
jurisdiction over the agency's proceedings by way of a return
to the writ until the court has determined that the public
agency has complied. (Public Resources Code Section
21168(b).)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
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COMMENTS : The California Environmental Quality Act (CEQA),
enacted in 1970, requires state and local public agencies within
California to undertake a prescribed procedure for evaluating
the environmental impact of development projects, to disclose
its findings to the public, and to provide opportunities for
public comment. Under CEQA, a "lead agency" - the public agency
responsible for a development project - must first conduct an
initial study to determine whether the project will have a
"significant" effect on the environment. If an initial study
determines that the project will have a significant effect, then
the agency must prepare and certify an environmental impact
report (EIR). Among other things, the EIR must include an
analysis of the potential environmental effects of the project,
whether the effect will be irreversible, how any adverse effect
might be minimized, and a consideration of more
environmentally-friendly alternatives to the proposed project.
If an initial study reveals that the project will not have a
significant effect, the agency is not required to complete an
EIR, but instead must prepare a "negative declaration"
describing the reasons supporting that determination. If the
initial study reveals that any potential adverse effect can be
reduced to a level of insignificance by making certain revisions
to the project plan, then the agency may adopt and submit a
"mitigated negative declaration." As a general rule, state
agencies submit the relevant document to the Office of Planning
and Research; local agencies file it with the county clerk.
The purpose of the EIR (and CEQA more generally) is to inform
both the public and responsible officials about the
environmental consequences of development decisions before they
are made. CEQA is not a regulatory statute per se; that is, it
does not prescribe standards of environmentally acceptable or
unacceptable development. Instead, CEQA requires public
agencies to study the potential environmental effect of
development projects, justify any potentially adverse effects,
and to make their findings and determinations public. It is
then up to private citizens or environmental groups - or the
California Attorney General - to enforce CEQA requirements
through litigation or threats thereof. However, with the
exception of actions brought by the Attorney General, civil
actions alleging noncompliance may generally only be brought by
a person who raised the issue during the public comment period.
(Public Resources Code Sections 21177.)
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In recent years, there have been allegations that the CEQA
process is inefficient and that litigation unduly slows down
development projects. The extent to which this is true, not
surprisingly, is a matter of some dispute. It should be
remembered, however, that slowing down the process is inherent
in the overall intent and design of CEQA. As at least one court
has noted, CEQA is designed to require local agencies to pause
long enough to consider environmental impacts - and to make
their findings public and subject to challenge - before the
project is undertaken. (Western Placer Citizens for
Agricultural and Rural Environment v. County of Placer (2006)
144 Cal. App. 4th 890.) Recognizing the potential for this
process to slow down development projects - even those that
might not have any adverse environmental effect - the
Legislature has proposed, and sometimes passed, CEQA amendments
designed to "streamline" the CEQA process, including, for
example, providing unusually short statutes of limitation and
giving CEQA actions scheduling priority over other civil
actions. Consistent with previous measures, and without
undermining the substantive protections of the law, this bill
seeks to expressly require greater specificity in both in the
court's writ and the agency's response to the writ. This seems
eminently reasonable, if not already implicit in existing law.
ARGUMENTS IN SUPPORT : According to the author, this bill's
"modest changes provide greater certainty and will promote
more efficient resolution of CEQA litigation." The author
contends that one of the reasons that CEQA disputes can take
two or more years to resolve is, at least in part, because
court orders "pertaining to non-compliant CEQA documents are
unclear as to the specific components of the document that
fail to meet the requirements of the law." When this occurs,
the author contends, public agencies "may be left with
insufficient guidance to determine the specific issues that
need to be remedied." If this is so, the author continues,
"revisions may be done on parts of the document that don't
need to be revised, which takes extra time and money, or the
public agency has to go back to the court to ask for
clarification, which can cause further delays." The author
believes that these delays will be mitigated by requiring
both the courts orders, and the agencies response, to be more
specific and to set out clear timeframes and schedules of
action.
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Related Recent Legislation : SB 731 (Steinberg, 2013) would have
enacted the "CEQA Modernization Act of 2013," making various
clarifications and revisions to CEQA, including updating the
standard for analyzing transportation impacts of projects near
existing or planned transit stops. The bill was withdrawn from
Assembly Local Government Committee at author's request in
September, 2013, but some provisions were included in SB 743
(below).
SB 743 (Steinberg, 2013) established special administrative and
judicial review procedures for the City of Sacramento's proposed
entertainment and sports complex and revised parts of a
previously-enacted CEQA streamlining bill (AB 900) and extended
its operation. (Chapter 346, Statutes of 2013.)
AB 1444 (Feuer, 2012) would have expedited CEQA challenges by
requiring that preparation of a CEQA record of proceeding be
done concurrent with the administrative process. It also would
have required the court to schedule a hearing within 30 days of
a respondent filing the statement of issues, as specified. This
bill died in the Assembly Appropriations Committee.
AB 900 (Buchanan, 2011) enacted the "Jobs and Economic
Improvement through Environmental Leadership Act of 2011," which
established streamlined CEQA judicial review procedures for
certain projects that included the development of a residential,
retail, commercial, sports, cultural, entertainment, or
recreational use project, or clean renewable energy or clean
energy manufacturing project. (Chapter 354, Statutes of 2011.)
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
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