Tag: Legislation

California Continues its Leadership in the Fight Against Climate Change

Governor Brown recently signed Senate Bill 32 and Assembly Bill 197 continuing California’s leadership on climate change. SB 32 and AB 197 were inextricably linked—each bill requiring the passage of the other.

SB 32 significantly increases the state’s targets for greenhouse gas emissions reductions. It calls for a reduction in greenhouse gas emissions of at least 40 percent below the statewide limit by 2030.

AB 197 requires CARB to prioritize direct emission reductions and consider social costs when adopting regulations to reduce greenhouse gas emissions as a means to protect the state’s “most impacted and disadvantaged communities.” Social costs are defined as “an estimate of the economic damages, including, but not limited to, changes in net agricultural productivity; impacts to public health; climate adaptation impacts, such as property damages from increased flood risk; and changes in energy system costs, per metric ton of greenhouse gas emission per year.” The legislation requires CARB to prioritize those rules and regulations that would result in direct emissions reductions at large stationary and mobile sources. AB 197 also creates oversight of future CARB greenhouse gas emissions reductions strategies by adding two legislators to the state board as ex-officio nonvoting members and creating a joint legislative committee that will make recommendations to the legislature concerning the state’s programs, policies, and investments related to climate change.

 

Governor Brown signs SB 270, the first statewide ban on single-use plastic bags

Governor Jerry Brown brought a small order of consistency to the State when he signed SB 270 (Padilla) on September 30, 2014. The bill prohibits grocery stores and pharmacies from offering customers single-use plastic bags after July 2015. The same ban goes into effect for convenience stores and liquor stores the following year. In a statement on the signing available here, the Governor’s office cited similar bans on single-use plastic bags adopted by ordinance in over 120 local government jurisdictions.

Environmentalists have been especially supportive of the efforts to secure a state-wide ban on single-use plastic bags, with many citing the adverse impact of these bags on ocean life along California’s coast. The bill was also supported by retailers and grocery stores, which cited a need for statewide consistency in place of the current approach of regulation via a multitude of local ordinances. The bill provides a small amount of competitive loan funds, administered through CalRecycle, to businesses transitioning to the manufacture of reusable bags.

It should be no surprise to CEQA practitioners, in light of the multiple published cases resulting from Save the Plastic Bag Coalition’s efforts, that the statewide ban is opposed by plastic bag manufacturers. Plastic bag interests have threatened to initiate the signature gathering process to place a referendum on the bill in the 2016 ballot. But placing a referendum on the 2016 ballot will be no easy task, so it remains to be seen whether these are empty threats from the bill’s opponents.

Governor signs three CEQA bills, vetoes one

Governor Jerry Brown announced this week that he signed the following CEQA-related bills:

AB 52: Assemblymember Mike Gatto (D-Los Angeles)—Native Americans

This bill specifies that a project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment. The bill requires a lead agency to begin consultation with a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project, if requested to do so, prior to determining whether a negative declaration, mitigated negative declaration, or EIR is required for a project.

The bill provides examples of mitigation measures that may be considered to avoid or minimize impacts on tribal cultural resources. These provisions apply to projects that have a notice of preparation or a notice of negative declaration filed or mitigated negative declaration on or after July 1, 2015. The bill requires the Office of Planning and Research to revise on or before July 1, 2016, the guidelines to separate the consideration of tribal cultural resources from that for paleontological resources and add consideration of tribal cultural resources.

This bill also requires the Native American Heritage Commission to provide each California Native American tribe on or before July 1, 2016, with a list of all public agencies that may be a lead agency within the geographic area in which the tribe is traditionally and culturally affiliated, the contact information of those agencies, and information on how the tribe may request those public agencies notify the tribe of projects within the jurisdiction of those public agencies for the purposes of requesting consultation.

AB 1104: Assemblymember Rudy Salas (D-Bakersfield)—Exemption for Biogas Pipeline

CEQA provides exemptions from its requirements for certain projects, including for a project that consists of the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline, if specified conditions are met. (Pub. Resources Code, § 21080.23, subd. (a).)

This bill provides that, for purposes of that exemption, until January 1, 2018, “pipeline” also means a pipeline located in Fresno, Kern, Kings, or Tulare County, that is used to transport biogas, as the bill defines that term, and that meets the existing requirements for the exemption and all local, state, and federal laws. The bill would make legislative findings and declarations as to the necessity of a special statute for the Counties of Fresno, Kern, Kings, and Tulare.

SB 674: Senator Ellen Corbett (D-Hayward)—Exemption for residential infill projects

CEQA exempts from its requirements residential infill projects meeting specified criteria, including, among other things, that a community-level environmental review was adopted or certified within five years of the date that the application for the project is deemed complete and the project promotes higher density infill housing. For the purposes of this exemption, CEQA defines “residential” to include a use consisting of residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 15% of the total floor area of the project.

This bill instead exempts as “residential” a use consisting of residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 25% of the total building square footage of the project.

 

Vetoed—AB 543

Governor Brown also vetoed one CEQA-related bill, AB 543, which would have required the Office of Planning and Research to prepare and develop recommended amendments to the CEQA Guidelines that would establish criteria for a lead agency to assess the need for translating certain notices into non-English languages. The governor stated that existing federal and state laws already provide guidance to lead agencies regarding the circumstances which give rise to the need for translating public documents. “Translating public notices and other important information is often good practice,” Governor Brown noted. “In fact Title VI of the Civil Rights Act of 1964 and Government Code Section 11135 require lead agencies to do just that. The High Speed Rail Project and the Bay Delta Conservation Plan are examples of projects where the lead agency determined that translation of environmental review documents was merited.” The bill was presented by Assemblymember Nora Campos (D-San Jose).

OPR Releases Draft SB 743 CEQA Guidelines for the Evaluation of Transportation Impacts

The Governor’s Office of Planning and Research released a preliminary discussion draft of revisions to the CEQA Guidelines implementing Senate Bill 743 on August 6, 2014. Currently, transportation impacts are typically evaluated based on the delay in traffic flows that vehicles experience at intersections and roadway segments. Delay is measured by the “level of service” or LOS. Mitigation for these impacts often takes the form of traffic improvements focused on increasing roadway capacity such as adding lanes. Recognizing that this practice may actually be counter to public policy by encouraging auto use and emissions, and discouraging alternative forms of transportation, OPR has proposed changes to how transportation impacts are evaluated. Specifically, OPR’s draft revisions to the CEQA Guidelines propose analysis of vehicle miles traveled (VMT), in lieu of LOS, for evaluating transportation impacts.

Most notably, OPR proposes to add Section 15064.3, a new section of the CEQA Guidelines that addresses new methods of measuring transportation impacts. Because Section 15064.3 would be added to Article 5 of the CEQA Guidelines, which relates to the “preliminary review of projects and conduct of initial study,” the new section would apply in the context of negative declarations and EIRs. To conform to the proposed Section 15064.3, OPR has also proposed amendments to the questions in Section XVI, Transportation and Traffic, of Appendix G.

Draft Section 15064.3 includes four subdivisions. Subdivision (a) discusses the purpose of the new section, stating that the primary considerations of a project’s transportation impacts are the amount and distance of vehicle travel associated with a project. Subdivision (a) expressly states that “[a] project’s effect on automobile delay does not constitute a significant environmental impact.” The draft section does not modify CEQA’s general rules regarding the determination of a project’s significant impacts, including the need to consider substantial evidence of a project’s environmental impacts.

Subdivision (b) specifies the criteria for determining the significance of transportation impacts. As stated in subdivision (b), VMT is “generally” the best measurement of transportation impacts, thus allowing agencies room to tailor their analyses to include other measures if appropriate. The draft section describes factors that might indicate whether a project’s VMT is less than significant or not, and gives examples of projects that might have less-than-significant impacts with respect to VMT, such as projects that would result in decreased VMT. Subdivision (b) recognizes that not all transportation projects will induce vehicle travel, such as projects improving transit operations, and thus would not result in a significant transportation impact. In addition to a project’s impact on VMT, “a lead agency may also consider localized effects of project-related transportation on safety.” Finally, subdivision (b) states that a lead agency’s evaluation of a project’s VMT “is subject to a rule of reason,” but also states that “a lead agency generally should not confine its evaluation to its own political boundaries.”

Subdivision (c) refers to proposed amendments in Appendix F, which addresses energy impacts. The proposed amendments to Appendix F acknowledge that VMT may be relevant to the analysis and mitigation of energy impacts. The proposed amendments to Appendix F include examples of mitigation measures and alternatives that may reduce VMT. Examples include improving the jobs/housing balance and improving access to transit. Subdivision (c) clarifies that the proposed revisions in the CEQA Guidelines and Appendix F do not limit an agency’s ability to condition a project pursuant to other laws. For example, agencies may continue to require projects to meet LOS designations set out in applicable general plans or zoning codes. Nor do the proposed revisions prevent an agency from enforcing previously adopted mitigation measures.

Finally, subdivision (d) proposes a phased approach to implementing Section 15064.3. OPR proposes that Section 15064.3 shall apply prospectively to new projects that have not started environmental review. Section 15064.3 shall apply immediately upon the filing of Section 15064.3 with the Secretary of State. After January 1, 2016, Section 15064.3 shall apply statewide.

Under the second part of OPR’s proposed revisions, OPR proposes amendments to Appendix F, which discusses the evaluation of energy impacts under CEQA noted above.

The draft guidelines can be viewed at:

http://opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf

OPR is requesting that comments be submitted by October 10, 2014.

CA Legislature and Governor Brown Enact Extensive Drought Relief Plan

In response to the unprecedented drought the State is facing in 2014, the California Legislature recently enacted emergency drought legislation. The two measures, SB 103 and SB 104, received bipartisan support in both the Senate and Assembly before being signed into law by Governor Jerry Brown on Saturday, March 1, 2014.

The bills allocate substantial funds, approximately $687.4 million, to support drought relief in drought-afflicted communities throughout the State. The dispersion of more than $500 million in existing water bond funding will be expedited for local projects already planned or under way. Examples of these projects include improvement of storm water capture, expanded use of recycled water, enhanced groundwater management and recharge, and expanded water conservation. Other funds, including revenue from the AB 32 cap-and-trade auctions, will also be made available for drought-relief efforts through provisions in SB 103 and SB 104.

The bills include various other provisions beyond simple monetary relief. For example, sanctions have been enhanced for certain conduct, like illegal diversion of water, during drought years. The bills also direct the California Department of Public Health to adopt new groundwater replenishment regulations by July 1, 2014. This leaves only four months for the department to draft and adopt new regulations—a tall order for any agency engaging in rulemaking bound to impact many interests. And in California under current conditions, no topic is likely to be much more controversial than water supply.  After all, in the West, water is what we fight over.

Updated SB 731, CEQA Modernization Act of 2013, released by Steinberg

A revised version of SB 731, the CEQA Modernization Act of 2013, has been released by California pro tem Darrell Steinberg. This bill includes numerous but limited revisions to CEQA, with a focus on streamlining the approval process for what the bill considers to be environmentally beneficial projects. Various revisions address transportation issues and infill development to further facilitate the Sustainable Communities Strategy previously adopted by SB 375. The most substantive revisions to CEQA in SB 731 are described below.

One provision addressed in SB 731 revises Government Code section 65457, which exempts residential development projects from CEQA within specific plan areas for which an EIR has been certified. Under the current law, this exemption cannot be applied if an event specified in CEQA (Pub. Resources Code) section 21166 occurs. The revision states, that for the purposes of Government Code section 65457, an event specified in CEQA section 21166 does not include “any new information consisting solely of argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are caused by, physical impacts on the environment.” This provision could reduce redundancy in EIR preparation by making the use of tiering under these circumstances more defensible.

SB 731 also proposes standardized thresholds of significance for environmentally beneficial projects. This revision directs the Office of Planning and Research to propose revisions to the CEQA Guidelines establishing thresholds of significance for noise and for transportation and parking impacts of qualifying projects within “transit priority areas.” In addition, this revision declares that aesthetic impacts of qualifying projects within transit priority areas shall not be considered significant impacts on the environments. The bill does not prevent local jurisdictions from considering aesthetic impacts pursuant to local ordinances or other discretionary powers.

Another substantive revision addresses preparation of the administrative record in CEQA cases. The bill would add section 21167.6.2 to CEQA, which describes a process by which the administrative record is prepared concurrently with the administrative process, and documents must be made available electronically to the public shortly after receipt by the lead agency. This process will be applied to projects of statewide, regional, or areawide environmental significance, or if requested by the project applicant.

SB 731 would also amend Section 21091 of the Public Resources Code and related provisions of law to establish clear statutory rules under which “late hits” and “document dumps” are prohibited or restricted prior to certification of an EIR, if a project proponent or lead agency has not substantively changed the draft EIR or substantively modified the project.

The bill would also revise CEQA section 21081.5 to require agencies to make findings described in section 21081 available in draft form for public review at least fifteen days prior to approval of the proposed project.

The revised SB 731 also adds a provision to section 44273 of the Health and Safety Code to provide funding of up to $30 million annually to the Strategic Growth Council in order to fund planning activities for transit priority projects by local agencies.

Finally, SB 731 revises CEQA section 21168.9, which describes how courts should proceed when issuing a writ of mandate in a CEQA action. Section 21168.9 already encourages courts to issue detailed writs which are no more broad than necessary to address defects in the CEQA process. The revised section 21168.9 requires even further specificity in a writ of mandate. The bill can be viewed at: http://ct3k1.capitoltrack.com/Bills/13Bills/sen/sb_0701-0750/sb_731_bill_20130423_amended_sen_v98.pdf  [John Wheat]

Judge Rules Portion of AB 900 Unconstitutional

On September 27, 2011, Governor Jerry Brown signed AB 900 into law. AB 900 was designed to expedite environmental review under CEQA of certain “leadership projects.” To qualify under AB 900, projects must exceed $100 million and not result in any net additional greenhouse gas emissions, among other requirements.  One of the primary benefits for leadership projects under AB 900 is that any CEQA challenge will proceed directly to the Court of Appeal, significantly reducing the potential for lengthy litigation. This provision was intended to help get major construction projects off the ground sooner.

The provision of AB 900 allowing CEQA litigation to proceed directly to the appellate courts was challenged by the Planning and Conservation League, which claimed the law improperly removed jurisdiction from trial courts and weakened CEQA. (See Conservation League v. State of California (Alameda Sup. Ct. Case No. RG1262904).)

Judge Frank Roesch of Alameda County Superior Court, ruling from the bench on March 29, 2013, struck down this provision as unconstitutional for being “inconsistent with the constitutional mandates of where writs of mandate can be brought.” Petitioners did not challenge AB 900’s other provisions, including the minimum investment thresholds, job creation requirements, and greenhouse gas emission limit. Judge Roesch’s ruling leaves in place some time limits and other fast-tracking mechanisms available under AB 900. Currently, two solar energy projects and an office and research campus infill project have applied for qualification under AB 900. The State has not yet announced whether it will appeal the lower court’s ruling. [John Wheat]

Senator Jerry Hill Appointed to the Senate Environmental Quality Committee. CEQA Bills of Interest

Senator Jerry Hill was appointed to the Senate Environmental Quality Committee on March 6, 2013, to replace Senator Michael Rubio, who resigned at the end of February.

The committee considers bills on CEQA, water and air pollution, toxic materials and other environmental concerns.

Senator Hill served in the Assembly from 2008-2012 and joined the state Senate last year. He previously served as a member of the San Mateo City Council and San Mateo County Board of Supervisors.

“(Hill) is well-positioned to appreciate the complexities of this challenge, and well-versed in the false dichotomy that pitches business against the environment,” Senate pro Tem Darrell Steinberg said while announcing the appointment. “California has led, and will continue to lead the nation in smart, environmentally sustainable economic growth.”

The Senate Environmental Quality Committee may consider the following CEQA-related bills:

AB 37 (Perea) would require the lead agency, at the project applicant’s request, to prepare a record of proceedings concurrently with the preparation of negative declarations, mitigated negative declarations, EIR’s, and other environmental documents for specified projects. AB 37 would amend Section 21167.6 of the Public Resources Code and repeal Section 21167.6.2.

AB 515 (Dickinson) would establish a CEQA compliance division of the Superior Court in any county in which the Attorney General maintains an office, and would vest the division with original jurisdiction over CEQA actions and joined matters related to land use and other environmental laws. AB 515 would add Section 25536.3 to the Government Code.

AB 823 (Eggman) would instruct lead agencies to require mitigation measures which provide replacement acreage to ensure agricultural production capacity for projects that convert agricultural lands for nonagricultural uses. AB 823 would add Section 21095.5 to the Public Resources Code.

AB 953 (Ammiano) would revise the definitions of “environment” and “significant effect on the environment”, and require lead agencies to include a detailed statement in the EIR of any significant effects that may result from locating a proposed project near, or attracting people to, existing or reasonably foreseeable natural hazards or adverse environmental conditions. AB 953 would amend Sections 21060.5, 21068 and 2110 of the Public Resources Code.

AB 1323 (Mitchell) would state the intent of the Legislature to enact legislation that would reduce the time and expense associated with the environmental review of qualifying wind energy projects without affecting the required environmental studies and required mitigation of those studies.

SB 436 (Jackson) would require a lead agency to conduct at least one public scoping meeting for specified projects and to provide notice to specified entities of at least one public scoping meeting. This bill would also require the notices to be posted on the Office of Planning and Research website and the lead agency’s website, respectively. SB 436 would amend Sections 21083.9, 21092, 21108, and 21152 of the Public Resources Code.

SB 525 (Galgiani) would provide that a project by the San Joaquin Regional Rail Commission and the California High-Speed Rail Authority to improve the existing track and structures on the railroad right-of-way used by the Altamont Commuter Express service qualifies for an exemption from CEQA. SB 525 would amend Section 21080 of the Public Resources Code.

SB 617 (Evans) would affect the timing and posting of CEQA related notices through the State Clearinghouse, alter certain CEQA exemptions, alter the definition of Climate Readiness, and affect Tribal Notification. SB 617 would, among other changes, amend Sections 21060.5, 21068, 21080.5, 21083.9, 21092, 21092.2, 21092.3, 21100, 21108, 21152, and 21161; and repeal Sections 21080.01, 21080.02, 21080.03, and 21080.04 of the Public Resources Code.

SB 731 (Steinberg) would state the intent of the Legislature to enact legislation revising CEQA to, among other things, provide greater certainty for smart infill development, streamline the law for specified projects, and establish a threshold of significance for specified impacts. This bill is currently in outline form and is expected to be significantly amended this year or next year.

SB 787 (Berryhill) is a reintroduction of last year’s proposals by Senator Rubio. SB 787 adds Division 13.6 (commencing with Section 21200) to the Public Resources Code.