By Katherine J. Hart
Senate Bill No. 731, Introduced by Senator Darrell Steinberg in February 22, 2013, as amended on April 23, 2013.
I’m the first person to doubt all the chatter about significant CEQA reform. In fact, for reasons I’ll spare you, I’m a complete pessimist when it comes right down to it. But in reviewing Darrell Steinberg’s amended bill, and despite our Governor’s comments in China on the subject last week, I saw a glimmer of hope for some reform.
Yesterday, the first amendments to Senator Steinberg’s CEQA bill – Senate Bill No. 731 – went to print. Named the “CEQA Modernization Act of 2013,” the bill mainly addresses impacts in urban areas - specifically transit priority areas. Of course, conversely, the bill does little to address CEQA reform for projects processed in rural areas. However, there are proposed amendments to the general provisions of CEQA as well – in particular the litigation provisions. If adopted, the bill would address a few of the many CEQA concerns as follows:
- First, the bill would create a new post in the Governor’s Office entitled, “Advisor on Renewable Energy Facilities.” The initial position term would be until January 1, 2017 unless extended by a later enacted statute. This purpose of this amendment is to cut red tape on large renewable energy projects and establish a position in the Office of the Governor to champion renewable energy projects within the State Government.
- Second, the bill would clarify the definition of “new information” as provided in Public Resources Code section 21166 to better effectuate the CEQA exemption contained in Government Code section 65456 for specific plans adopted after a certain time period. The purpose of this amendment appears to be to limit scope of CEQA litigation on projects that have already been reviewed and approved pursuant to CEQA.
- Third, SB 731, as amended, would authorize the Legislature to appropriate $30,000,000 annually to the Strategic Growth Council from the Alternative and Renewable Fuel and Vehicle Technology Fund administered by the State Energy Resources Conservation and Development Commission for the purposes of providing competitive grants to local agencies to implement their sustainable communities strategies.
- Fourth, SB 731 would amend Public Resources Code section 21081.5 to mandate lead agencies to make CEQA findings available to the public at least 15 days before a proposed project is approved and to provide notice of the availability of those findings for public review in various specified ways. This provision would also arguably reduce litigation on issues pertaining to findings unless those issues were raised during the administrative process.
- Fifth, SB 731 would amend Public Resources Code section 21081.6 to require lead agencies that have adopted a mitigation and monitoring reporting plan (MMRP) to prepare an annual report on compliance with the measures in the MMRP. There isn’t a lot of teeth to this provision, but highlights the issue of what happens after the CEQA document is certified.
- Sixth, SB 731 would add an entirely new chapter to Division 13 of the Public Resources Code entitled, “Chapter 2.7. Standardized Thresholds of Significance for Environmentally Beneficial Projects.” This new chapter would require OPR to prepare and propose (on or before July 1, 2014) revisions to the CEQA Guidelines for the Secretary of the Natural Resources Agency to certify and adopt, which would establish thresholds of significance for noise, transportation and parking impacts of residential, mixed-use residential, or employment center projects within transit priority areas. (A new set of defined terms is also proposed as part of this new chapter.)
- Seventh, as part of the newly proposed Chapter 2.7, SB 731 would eliminate a lead agency’s ability to define aesthetic impacts of residential, mixed-use residential or employment center projects within a transit priority area as significant impacts, without removing that agency’s ability to consider aesthetic impacts pursuant to its local design review ordinance.
- Eighth, the bill would also amend Section 21167 of the Public Resources Code to add and cap a tolling of the time period in which a person is required to bring a challenge to an agency’s CEQA action to four years, although, extensions to any tolling agreement would also be authorized. (This provision simply codifies the appellate court’s holding in the recent Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195 case.)
- Ninth, SB 713 would add two new sections - 21167.6.2 and 21167.6.3 – to the Public Resources Code relating to CEQA litigation to require lead agencies to prepare a record of proceedings or administrative record concurrently with the agency’s preparation of a negative declaration, mitigated negative declaration, or EIR, if a project applicant so requests one in writing within 30 days of the agency’s determination to prepare the environmental document. These new provisions would also require that a lead agency make certain documents available on line and in within certain time frames, as well as limit cost recovery for expedited record preparation and certification. These amendments are a mixed bag. On the one hand, allowing an applicant to request that a record of proceeding be compiled concurrently with the processing of a project might well reduce record production times at the tail end, the idea that cost recovery on the expedited record would be limited seems misplaced.
- Finally, SB 713 attempts to clarify the remedies provision in CEQA – Section 21168.9 by more specifically stating that a court is not required to order project approvals be rescinded solely because the environmental document may be flawed in one or more aspects. The proposed amendments also require that a court specify the actions must take to comply, a schedule for those actions, and public comment periods for any revised environmental documentation prepared by a lead agency.
For the most part, the amendments to SB 731 proposed by Senator Steinberg appear practical, fair, and comport with common sense. While they do not rise to the level of “significant” CEQA reform – at least with respect to the topical areas of CEQA, and to the fair argument standard - the proposed amendments are meaningful. If these amendments are all we get out of the Legislature this year, I’ll be pleasantly surprised.
Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.