Bills

SB 389: Environmental quality: the Sustainable Environmental Protection Act.

Session Year: 2015-2016
House: Senate
Latest Version Date: 2015-04-06

Version:

The California Environmental Quality Act, or CEQA, requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report, or EIR, on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

Existing law establishes regulations related to numerous environmental issues.

This bill would enact the Sustainable Environmental Protection Act and would specify the environmental review required pursuant to CEQA for projects related to specified environmental topical areas. For a judicial action or proceeding filed challenging an action taken by a lead agency on the ground of noncompliance with CEQA, the bill would prohibit a cause of action that (1) relates any topical area or criteria for which compliance obligations are identified or (2) challenges the environmental document if: (A) the environmental document discloses compliance with applicable environmental law, (B) the project conforms with the use designation, density, or building intensity in an applicable plan, as defined, and (C) the project approval incorporates applicable mitigation requirements into the environmental document. The bill would provide that the Sustainable Environmental Protection Act only applies if the lead agency or project applicant has agreed to provide to the public in a readily accessible electronic format an annual compliance report prepared pursuant to the mitigation monitoring and reporting program.

Because this bill would impose additional duties on local agencies, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes the California Environmental Protection Program which provides funding, from fees and other moneys in the California Environmental License Plate Fund, upon appropriation, for various environmental protection purposes including, among other things, projects and programs related to pollution control, land acquisitions for natural areas and ecological reserves, environmental education, the protection of wildlife and habitat, and climate change research.

This bill would make nonsubstantive changes to those provisions.

Version:

The people of the State of California do enact as follows:SECTION 1.Division 13.6 (commencing with Section 21200) is added to the Public Resources Code, to read:13.6.SUSTAINABLE ENVIRONMENTAL PROTECTION ACT21200.

This division shall be known and may be cited as the Sustainable Environmental Protection Act.

21200.5.

The Legislature finds and declares all of the following:

(a)The Legislature adopted the California Environmental Quality Act (Division 13 (commencing with Section 21000)) (CEQA) in 1970 in recognition that the maintenance of a quality environment for the people of this state is a matter of statewide concern.

(b)Guidelines implementing CEQA have evolved and expanded, and currently provide that project impacts be evaluated based on 87 criteria covering the following 18 environmental topical areas:

(1)Air quality.

(2)Biological resources, including protected species and habitat types.

(3)Cultural resources, including archaeological resources.

(4)Geology and soils, including seismic and landslide risk.

(5)Greenhouse gas emissions.

(6)Hazards and hazardous materials, including toxic chemical exposures, brownfields or contaminated site issues, and accident risks.

(7)Hydrology and water quality, including flooding and sea level rise.

(8)Land use planning, including consistency with land use plans.

(9)Public services, including fire and police protection, schools, parks, and other public facilities.

(10)Traffic and transportation, including transit, vehicular, bicycle, and pedestrian transportation, emergency access, and roadway safety.

(11)Utilities and service systems, including wastewater, water supply, stormwater, landfill, and waste management systems.

(12)Aesthetics.

(13)Agriculture and forestry resources.

(14)Mineral resource availability.

(15)Noise.

(16)Population and housing growth.

(17)Recreational resources.

(18)Mandatory findings of significance.

(c)In the years before and the 45 years following the enactment of CEQA, Congress and the Legislature have each adopted more than 100 laws to protect environmental quality in those environmental topical areas required to be independently mitigated under CEQA described in subdivision (b). The Legislature has enacted environmental protection laws that are as or more stringent than federal law, and California environmental laws are often at the cutting edge of environmental protection nationally and even globally. These environmental protection laws, all enacted after 1970, include, but are not limited to, the following:

(1)Air quality, including air pollution and toxic air contaminants: the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) and the federal Acid Precipitation Act of 1980 (42 U.S.C. Sec. 8901 et seq.), and California air quality laws, including Division 26 (commencing with Section 39000) of the Health and Safety Code, the Protect California Air Act of 2003 (Chapter 4.5 (commencing with Section 42500) of Part 4 of Division 26 of the Health and Safety Code), the Carl Moyer Memorial Air Quality Standards Attainment Program (Chapter 9 (commencing with Section 44275) of Part 5 of Division 26 of the Health and Safety Code), the California Port Community Air Quality Program (Chapter 9.8 (commencing with Section 44299.80) of Part 5 of Division 26 of the Health and Safety Code), the California Clean Schoolbus Program (Chapter 10 (commencing with Section 44299.90) of Part 5 of Division 26 of the Health and Safety Code), the Air Pollution Permit Streamlining Act of 1992 (Article 1.3 (commencing with Section 42320) of Chapter 4 of Part 4 of Division 26 of the Health and Safety Code), and the California air pollution control laws, including the Air Toxics Hot Spots Information and Assessment Act of 1987 (Part 6 (commencing with Section 44300) of Division 26 of the Health and Safety Code), the Connelly-Areias-Chandler Rice Straw Burning Reduction Act of 1991 (Section 41865 of the Health and Safety Code), and the Lewis-Presley Air Quality Management Act (Chapter 5.5 (commencing with Section 40400) of Part 3 of Division 26 of the Health and Safety Code).

(2)Biological resources, including protected species and habitat types: the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.), the federal Bald and Golden Eagle Protection Act (16 U.S.C. Sec. 668), Section 404(b) of the federal Clean Water Act (33 U.S.C. Sec. 1344(b)), the federal Marine Mammal Protection Act of 1972 (16 U.S.C. Sec. 1361 et seq.), the federal Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. Sec. 4701 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), Sections 1602, 3503.5, 3511, 3513, and 4700 of the Fish and Game Code, the Oak Woodlands Conservation Act (Article 3.5 (commencing with Section 1360) of Chapter 3 of Division 2 of the Fish and Game Code), Article 3 (commencing with Section 355) of Chapter 3 of Division 1 of the Fish and Game Code, Division 5 (commencing with Section 5000) of the Fish and Game Code, Division 6 (commencing with Section 5500) of the Fish and Game Code, and subdivision (e) of Section 65302 of the Government Code.

(3)Cultural resources, including archaeological resources: Section 106 of the federal National Historic Preservation Act (16 U.S.C. Sec. 470(f)), the federal American Indian Religious Freedom Act (42 U.S.C. Sec. 1996), Section 7050.5 of the Health and Safety Code, and Section 5097.9.

(4)Climate change and greenhouse gas emissions: the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the federal Energy Independence and Security Act of 2007 (42 U.S.C. Sec. 17001 et seq.), the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code), Division 26 (commencing with Section 39000) of the Health and Safety Code, the California Alternative and Renewable Fuel, Vehicle Technology, Clean Air, and Carbon Reduction Act of 2007 (Chapter 8.9 (commencing with Section 44270) of Part 5 of Division 26 of the Health and Safety Code), the California Energy-Efficient Vehicle Group Purchase Program (Article 1.5 (commencing with Section 43810) of Chapter 4 of Part 5 of Division 26 of the Health and Safety Code), Section 43018.5 of the Health and Safety Code, and Chapter 728 of the Statutes of 2008.

(5)Hazards and hazardous materials, including toxic chemical exposures, brownfields or contaminated site issues, and chemical accident risks: the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.), the federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901 et seq.), the federal Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. Sec. 11001 et seq.), the federal Pollution Prevention Act of 1990 (42 U.S.C. Sec. 13101 et seq.), the federal Oil Pollution Act of 1990 (33 U.S.C. Sec. 2701 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), the federal Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.), the federal Asbestos Hazard Emergency Response Act of 1986 (15 U.S.C. Sec. 2641 et seq.), the federal Lead-Based Paint Exposure Reduction Act (15 U.S.C. Sec. 2681 et seq.), the federal Low-Level Radioactive Waste Policy Act (42 U.S.C. Sec. 2021b et seq.), the federal Lead Contamination Control Act of 1988 (42 U.S.C. Sec. 300j-21 et seq.), the Hazardous Waste Control Law (Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code), Chapter 6.7 (commencing with Section 25280) of Division 20 of the Health and Safety Code, Sections 25356.1.5 and 25395.94 of the Health and Safety Code, Chapter 6.95 (commencing with Section 25500) of Division 20 of the Health and Safety Code, the Elder California Pipeline Safety Act of 1981 (Chapter 5.5 (commencing with Section 51010) of Part 1 of Division 1 of Title 5 of the Government Code), and the Natural Gas Pipeline Safety Act of 2011 (Article 2 (commencing with Section 955) of Chapter 4.5 of Part 1 of Division 1 of the Public Utilities Code).

(6)Hydrology and water quality, including flooding and sea level rise: the federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the National Contaminated Sediment Assessment and Management Act (33 U.S.C. Sec. 1271 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), Section 1602 of the Fish and Game Code, the Integrated Regional Water Management Planning Act (Part 2.2 (commencing with Section 10530) of Division 6 of the Water Code), the Stormwater Resource Planning Act (Part 2.3 (commencing with Section 10560) of Division 6 of the Water Code), the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of Division 20 of the Health and Safety Code), the Urban Water Management Planning Act (Part 2.6 (commencing with Section 10610) of Division 6 of the Water Code), Part 2.10 (commencing with Section 10910) of Division 6 of the Water Code, the Water Conservation in Landscaping Act (Article 10.8 (commencing with Section 65591) of Chapter 3 of Division 1 of Title 7 of the Government Code), the Storm Water Enforcement Act of 1998 (Chapter 5.9 (commencing with Section 13399.25) of Division 7 of the Water Code), the Water Recycling Law (Chapter 7 (commencing with Section 13500) of Division 7 of the Water Code), Chapter 7.3 (commencing with Section 13560) of Division 7 of the Water Code, and Part 2.75 (commencing with Section 10750) of Division 6 of the Water Code.

(7)Land use planning including consistency with land use plans: the federal Coastal Zone Management Act of 1972 (16 U.S.C. Sec. 1451 et seq.), the Federal Land Policy and Management Act of 1976 (43 U.S.C. Sec. 1701 et seq.), the federal Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. Secs. 1600 to 1614, incl., and 1641 to 1649, incl.), the National Forest Management Act of 1976 (16 U.S.C. Secs. 1600 and 1611 to 1614, incl.), the Planning and Zoning Law (Title 7 (commencing with Section 65000) of the Government Code), the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the Government Code), the California Coastal Act of 1976 (Division 20 (commencing with Section 30000)), the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Division 3 (commencing with Section 56000) of Title 5 of the Government Code), the California Green Building Standards Code (Part 11 of Title 24 of the California Code of Regulations), and the California Building Code (Part 2 of Title 24 of the California Code of Regulations).

(8)Public services, including fire and police protection, schools, parks, solid waste, recycling, and other public facilities: Chapter 2 (commencing with Section 17920) of Part 1.5 of Division 13 of the Health and Safety Code, Sections 65996, 65997, and 66477 of the Government Code, Title 7.3 (commencing with Section 66799) of the Government Code, the Used Oil Recycling Act (Article 9 (commencing with Section 3460) of Chapter 1 of Division 3), the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500), Division 12.3 (commencing with Section 16000), Division 12.4 (commencing with Section 16050), and Division 12.7 (commencing with Section 18000)), the Fiberglass Recycled Content Act of 1991 (Division 12.9 (commencing with Section 19500)), the California Integrated Waste Management Act of 1989 (Division 30 (commencing with Section 40000)), the California Fire Code (Part 9 of Title 24 of the California Code of Regulations), and Sections 1270 and 6773 of Title 8 of the California Code of Regulations.

(9)Traffic and transportation, including transit, vehicular, bicycle, and pedestrian transportation, emergency access, and roadway safety: the federal Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (23 U.S.C. Sec. 101 et seq.), Titles 23 and 49 of the United States Code, and Chapter 2.3 (commencing with Section 65070), Chapter 2.5 (commencing with Section 65080), and Chapter 2.8 (commencing with Section 65088) of Division 1 of Title 7 of the Government Code.

(10)Utilities and service systems, including wastewater, water supply, stormwater, landfill and waste management systems: Part 2.10 (commencing with Section 10910) of Division 6 of the Water Code, Part 2.55 (commencing with Section 10608) of Division 6 of the Water Code, the Urban Water Management Planning Act (Part 2.6 (commencing with Section 10610) of Division 6 of the Water Code), and the Water Conservation in Landscaping Act (Article 10.8 (commencing with Section 65591) of Chapter 3 of Division 1 of Title 7 of the Government Code).

(11)Aesthetics: the federal Highway Beautification Act of 1965 (23 U.S.C. Sec. 131), Article 2.5 (commencing with Section 260) of Chapter 1 of Division 1 of the Streets and Highways Code, the Outdoor Advertising Act (Chapter 2 (commencing with Section 5200) of Division 3 of the Business and Professions Code), and subdivision (e) of Section 65302 of the Government Code.

(12)Agriculture: the federal Soil and Water Conservation Act of 1977 (16 U.S.C. Sec. 2001 et seq.) and the Williamson Act (Chapter 7 (commencing with Section 51200) of Part 1 of Division 1 of Title 5 of the Government Code); and forestry resources: the ZBerg-Nejedly Forest Practice Act of 1973 (Chapter 8 (commencing with Section 4511) of Part 2 of Division 4) and corresponding regulations (Chapter 4 (commencing with Section 895), Chapter 4.5 (commencing with Section 1115), and Chapter 10 (commencing with Section 1600) of Division 1.5 of Title 14 of the California Code of Regulations), Protection of Forest, Range and Forage Lands (Part 2 (commencing with Section 4101) of Division 4), and the Wild and Scenic Rivers Act (Chapter 1.4 (commencing with Section 5093.50) of Division 5).

(13)Mineral resources: the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. Sec. 1201 et seq.) and the Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with Section 2710) of Division 2).

(14)Noise: the federal Noise Control Act of 1972 (42 U.S.C. Sec. 4901 et seq.), the federal Aviation Safety and Noise Abatement Act of 1979 (49 U.S.C. Sec. 47501 et seq.), Article 5 (commencing with Section 65300) of Chapter 3 of Division 1 of Title 7 of the Government Code, the California Noise Insulation Standards (Part 2 of Title 24 of the California Code of Regulations), the California Employee Noise Exposure Limits (Article 105 (commencing with Section 5095) of Group 15 of Subchapter 7 of Chapter 4 of Division 1 of Title 8 of the California Code of Regulations).

(d)Over the same 45-year period since the enactment of CEQA, the Legislature has also adopted environmental protection laws affecting three topical areas for which the United States Congress has not taken any action to adopt federal environmental law of general application in California, as follows:

(1)Geology and soils, including seismic and landslide risk: the Alquist-Priolo Earthquake Fault Zoning Act (Chapter 7.5 (commencing with Section 2621) of Division 2), the Seismic Hazards Mapping Act (Chapter 7.8 (commencing with Section 2690) of Division 2), the California Building Code (Title 24 of the California Code of Regulations), Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2 of the Government Code, subdivision (g) of Section 65302 of the Government Code, and the Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with Section 2710) of Division 2).

(2)Population and housing growth: Article 10.6 (commencing with Section 65580) of Chapter 3 of Division 1 of Title 7 of the Government Code and Chapter 13 (commencing with Section 75120) of Division 43.

(3)Recreational resources: Section 66477 of the Government Code and the Public Park Preservation Act of 1971 (Chapter 2.5 (commencing with Section 5400) of Division 5).

(e)When enacting CEQA and subsequent amendments, the Legislature declared its intent to ensure that all public agencies give major consideration to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian and to create and maintain conditions under which humankind and nature can exist in productive harmony to fulfill the social and economic requirements of present and future generations.

(f)Environmental laws, including implementing plans, programs, regulations, and permit requirements that have been adopted since the 1970 enactment of CEQA, are designed to ensure California continues as a national and international leader in protecting the environment, health, safety, and welfare of California and those within its borders.

(1)At the local level, the California Constitution and California law require cities, counties, and cities and counties to adopt land use plans in order to develop and implement an orderly planning process for protecting and enhancing the quality of the community and the environment while providing for jobs, revenues, recreational and other services, housing, and other community needs.

(2)Pursuant to Section 65080 of the Government Code, metropolitan planning organizations (MPOs) are directed to prepare sustainable communities strategies (SCSs) to reduce regional greenhouse gas emissions from the land use and transportation sector. Additionally, many cities and counties have adopted, or are in the process of adopting, land use plans such as general plan updates, zoning code revisions, specific plans, community plans, and area plans to encourage both renewable energy production and higher density, transit-oriented development patterns.

(3)In response to the challenges of climate change and in furtherance of energy independence and security, the Legislature has established significant new mandates for the development and use of renewable energy and higher density development patterns that promote transit utilization and conserve water and energy resources.

(4)With recent mandates and policies encouraging denser development patterns to promote transit, energy, and water efficiency, job and housing growth is prioritized in areas that are already well populated and include urbanized conditions such as regional freeway congestion and local roadway congestion, and neighborhood-scale challenges such as parking and evolving aesthetic values. By directing growth into higher density, transit-oriented development patterns, SCS and local land use plan and zoning code adoption and implementation generally cause significant unavoidable density-related adverse environmental impacts under CEQA, such as traffic and parking and related air quality emissions. Additionally, infrastructure and services in many urbanized areas are challenged and require upgrades that are beyond the fiscal ability or jurisdictional authority, or both, of a city or county, resulting in findings of additional significant unavoidable impacts for CEQA purposes. Impacts from higher density development land use plans and zoning code revisions (urbanization impacts) are evaluated and in many instances approved by decisionmakers as an appropriate policy decision based on climate, energy security, agricultural or open-space preservation, or other inherent policy choices that are informed by the EIRs environmental analysis and public disclosure process.

(g)Environmental laws and regulations identify compliance obligations that apply uniformly to similarly situated projects and activities, and provide critical environmental protections that go well beyond the ad hoc review process created by CEQA. 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 for CEQA in 1970.

(h)CEQA requires a public and environmental review process for the review and adoption of land use plans and zoning code revisions, including requirements to avoid or minimize the significant environmental impacts of land use plan and zoning code implementation. For plan or zoning code changes for which an environmental impact report (EIR) was prepared and certified, CEQA mandates inclusion of mitigation measures and alternatives to avoid or minimize significant unavoidable impacts.

(i)Despite these stringent environmental laws and local planning requirements, public and private projects throughout the state are commonly challenged under CEQA even when a project meets all other environmental standards of existing laws.

(j)The court, in Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259, determined that the CEQA process is required even for projects that complied with the density, use type, and intensity restrictions in applicable land use plans and the zoning code.

(k)Applying CEQAs existing requirements at a project-specific level can often undermine the policy goals and objectives of applicable land use plans. A project that brings higher density to an area, with corresponding jobs, revenues, or housing, also brings traffic and parking demands, with associated air quality and other impacts, as well as a host of other urbanized effects as disclosed in the land use plan EIR. Where urbanized effects have been mitigated on the plan level to the extent feasible, the reanalysis of these impacts at the project level can be problematic.

(l)Duplicative CEQA review of projects that comply with the density, use type, and intensity requirements of land use plans that have already undergone an EIR process was not intended by the Legislature and creates unacceptable delays and uncertainties in the plan implementation process. Avoidance of duplicative review will reduce litigation and the considerable political uncertainty that has resulted for communities and project proponents who attempt to implement land use plans, notwithstanding previously disclosed significant unavoidable urbanized impacts.

(m)Development of projects consistent with the density, use type, and intensity requirements of land use plans should be encouraged by avoiding duplicative environmental review of those projects if project approval is conditioned on implementing applicable mitigation measures included in the EIR prepared for the applicable land use plans.

(n)Public agencies are subject to public notice and disclosure requirements when approving projects, including the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) and the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code), and are also authorized to require comprehensive project applications and to condition project approvals under their police powers and other laws, not including CEQA.

(o)Public agencies are encouraged to create and maintain electronic records where feasible to reduce paperwork and increase efficiency. The prompt commencement and resolution of litigation filed under this division and CEQA is dependent upon the prompt availability of the respondent public agencys record of proceedings for the challenged agency action. There are no practical means by which records of proceedings that are predominantly maintained in electronic format can be readily accessed, organized, and produced by any party other than the respondent public agency. Where all or most of the respondent agencys record of proceeding is maintained by the respondent agency or its designee in an electronic format, timely production of the record of proceedings requires that the record be prepared by the respondent agency.

(p)In enacting this division, it is the intent of the Legislature to further the purposes of CEQA by integrating environmental and planning laws and regulations adopted over the last 45 years, while avoiding the sometimes conflicting and often duplicative ad hoc environmental review and mitigation requirements under CEQA.

(q)In enacting this division, it is also the intent of the Legislature to continue to foster public disclosure and informed public participation of the environmental consequences of projects.

(r)In enacting this division, it is the intent of the Legislature to preserve the authority of a lead agency, consistent with the jurisdiction and authority of that agency, to disapprove projects or to condition approvals of projects on terms that may require more stringent environmental protections or project approval conditions than those required by applicable environmental or planning laws.

(s)In enacting this division, it is the intent of the Legislature to modernize CEQA to conform to Californias comprehensive environmental laws and regulations to produce thoughtful CEQA reforms that can preserve the laws original intent of environmental protection while eliminating duplicative environmental analysis and providing a higher level of certainty for project proponents.

21201.

For the purposes of this division, the following definitions shall apply:

(a)Applicable environmental law is a law related to an environmental topical area listed in subdivision (b) of Section 21200.5 that is relevant to a project and that does any of the following:

(1)Includes a policy determination, or directs or authorizes the adoption by an implementing agency of regulations or plans, or directs or authorizes an implementing agency to review and approve permits, licenses, or authorization applications and approval processing procedures and practices to implement that policy determination, regarding a standard applicable to a topical area requiring analysis and mitigation under CEQA.

(2)Identifies quantitative and qualitative analytical methods or approaches, or directs or authorizes the adoption by an implementing agency of regulations or plans, or directs or authorizes an implementing agency to review and approve permits, licenses, or authorization applications and approval processing procedures and practices that include those analytical methods or approaches, regarding a standard.

(3)Identifies required or permissible practices for mitigating or minimizing adverse impacts to a topical area requiring analysis and mitigation under CEQA, or directs or authorizes the adoption by an implementing agency of regulations or plans, or directs or authorizes an implementing agency to review and approve permits, licenses, or authorization applications that include avoidance, minimization, mitigation, conditions or other requirements to achieve a standard applicable to a topical area requiring analysis and mitigation under CEQA.

(b)Applicable plan means a planning document for which an environmental impact report, supplemental environmental impact report, or environmental impact report addendum was certified, including either of the following:

(1)A land use plan, such as a general plan, specific plan, or a sustainable communities strategy adopted by a city, county, city and county, metropolitan planning organization, or other local, regional, or state agency that establishes use designations, densities, and building intensities.

(2)A plan to improve or maintain public facilities or infrastructure to be funded in whole or in part by public funds and that has been adopted by a local, regional, or state agency.

(c)Applicable mitigation requirements means all mitigation measures included in an applicable plan with the exception of mitigation measures that the lead agency determines, based on substantial evidence, are not required to mitigate a potentially significant impact of a proposed project.

(d)CEQA means the California Environmental Quality Act (Division 13 (commencing with Section 21000)).

(e)Implementing agency means a state or federal agency, board, or commission, a city, county, city and county, regional agency, public district, or other political subdivision.

(f)Standard means a quantitative or qualitative level of protection, preservation, enhancement, pollution, reduction, avoidance, or other measure for a topical area requiring analysis and mitigation under CEQA.

21202.

(a)An environmental document prepared pursuant to CEQA shall disclose all applicable environmental laws.

(1)An environmental document prepared under CEQA and that discloses an applicable environmental law described in paragraph (1) of subdivision (a) of Section 21201 shall disclose the applicable compliance requirements of that law, and 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.

(2)An environmental document prepared under CEQA and that discloses an applicable environmental law described in paragraph (2) of subdivision (a) of Section 21201 shall disclose the applicable analytical methods or approaches, and the disclosure of those analytical methods or approaches shall be the exclusive means of evaluating potential project impacts under CEQA regarding the relevant law, notwithstanding any other provision of law.

(3)An environmental document prepared under CEQA and that discloses an applicable environmental law described in paragraph (3) of subdivision (a) of Section 21201 shall disclose the applicable mitigation and minimization methods or approaches typically used by implementing agencies as part of their review and approval of permits, licenses, or authorization applications, and compliance with mitigation and minimization practices shall be the exclusive means of mitigating environmental impacts under CEQA regarding the subject of the relevant law, notwithstanding any other provision of law.

(b)The disclosure obligations set forth in this section are intended to foster informed environmental review and public participation in the environmental and public review process required by CEQA or other applicable laws and regulations, such as the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) and the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).

21203.

(a)A cause of action shall not be commenced under Section 21167 for noncompliance with CEQA under either of the following circumstances:

(1)If the cause of action relates to an environmental topical area listed in subdivision (b) of Section 21200.5 and the environmental document discloses compliance with an applicable environmental law pertaining to a topical area or a regulation, plan, permit, license, or authorization application and approval processing procedures adopted by an implementing agency as directed or authorized by that applicable environmental law.

(2)If the environmental document for the project discloses compliance with an applicable environmental law pertaining to a topical area or a regulation, plan, permit, license, or authorization application and approval processing procedures adopted by an implementing agency as directed or authorized by that applicable environmental law; the project conforms to the use designation, density, or building intensity in a land use plan or was included in any other applicable plan identified in subdivision (b) of Section 21201; and the lead agency incorporates applicable mitigation requirements included in the certified environmental impact report, supplemental environmental impact report, or environmental impact report addendum prepared for the applicable plan into the environmental document prepared for the project.

(b)This section does not prohibit a cause of action otherwise authorized by law to enforce compliance with any other existing local, state, or federal law, regulation, or applicable plan.

21204.

(a)Except for projects with potentially significant aesthetic impacts on an official state scenic highway established pursuant to section 262 of the Streets and Highways Code, a lead agency shall not be required to evaluate aesthetics pursuant to CEQA or this division, and the lead agency shall not be required to make findings pursuant to subdivision (a) of Section 21081 on or relating to aesthetic impacts.

(b)This section does not change the authority of a lead agency to consider aesthetic issues and to require mitigation or avoidance of adverse aesthetic impacts pursuant to discretionary powers provided by laws other than CEQA or this division.

21204.5.

This division does not modify the obligation of a lead agency to evaluate the potential for a project to effect Native American resources and to comply with Section 5097.98, including the obligation to discuss and confer with the appropriate Native Americans, as identified by the Native American Heritage Commission and the obligation to avoid, mitigate, and minimize adverse impacts to significant Native American resources.

21205.

This division applies only to projects for which the lead agency or applicant has agreed to provide to the public in a readily accessible electronic format an annual compliance report prepared pursuant to the mitigation monitoring and reporting program required by paragraph (1) of subdivision (a) of Section 21081.6.

21206.

This division does not preclude a state agency, board, or commission, or a city, county, city and county, regional agency, public district, redevelopment agency, or other political subdivision from requiring information or analysis of the project under consideration, or imposing conditions of approval for that project, under laws and regulations other than this division and CEQA.

21207.

(a)An environmental document, prepared pursuant to CEQA, shall be required to consider only those environmental topical areas listed in subdivision (b) of Section 21200.5 and only to the extent that those environmental topical areas are relevant to the project.

(b)Subdivision (b) of Section 21200.5 is not intended to affirm, reject, or otherwise affect court decisions concerning the consistency of the guidelines provisions within the provisions of CEQA.

(c)This section does not preclude a lead agency from modifying or updating its analytical methodologies for those topical areas.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

SECTION 1.Section 21190 of the Public Resources Code is amended to read:21190.

There is in this state the California Environmental Protection Program, which shall be concerned with the preservation and protection of Californias environment. In this regard, the Legislature hereby finds and declares that, since the inception of the program pursuant to the Marks-Badham Environmental Protection and Research Act, the Department of Motor Vehicles has, in the course of issuing environmental license plates, consistently informed potential purchasers of those plates, by means of a detailed brochure, of the manner in which the program functions, the particular purposes for which revenues from the issuance of those plates can lawfully be expended, and examples of particular projects and programs that have been financed by those revenues. Therefore, because of this representation by the Department of Motor Vehicles, purchasers come to expect and rely that the moneys paid by them will be expended only for those specific purposes, which results in an obligation on the part of the state to expend the revenues only for those specific purposes.

Accordingly, all funds expended pursuant to this division shall be used only to support identifiable projects and programs of state agencies, cities, cities and counties, counties, districts, the University of California, private nonprofit environmental and land acquisition organizations, and private research organizations that have a clearly defined benefit to the people of the State of California and that have one or more of the following purposes:

(a)The control and abatement of air pollution, including all phases of research into the sources, dynamics, and effects of environmental pollutants.

(b)The acquisition, preservation, restoration, or any combination thereof, of natural areas or ecological reserves.

(c)Environmental education, including formal school programs and informal public education programs. The State Department of Education may administer moneys appropriated for these programs, but shall distribute not less than 90 percent of moneys appropriated for the purposes of this subdivision to fund environmental education programs of school districts, other local schools, state agencies other than the State Department of Education, and community organizations. Not more than 10 percent of the moneys appropriated for environmental education may be used for State Department of Education programs or defraying administrative costs.

(d)Protection of nongame species and threatened and endangered plants and animals.

(e)Protection, enhancement, and restoration of fish and wildlife habitat and related water quality, including review of the potential impact of development activities and land use changes on that habitat.

(f)The purchase, on an opportunity basis, of real property consisting of sensitive natural areas for the state park system and for local and regional parks.

(g)Reduction or minimization of the effects of soil erosion and the discharge of sediment into the waters of the Lake Tahoe region, including the restoration of disturbed wetlands and stream environment zones, through projects by the California Tahoe Conservancy and grants to local public agencies, state agencies, federal agencies, and nonprofit organizations.

(h)Scientific research on the risks to Californias natural resources and communities caused by the impacts of climate change.

The people of the State of California do enact as follows:SECTION 1.Section 21190 of the Public Resources Code is amended to read:21190.

There is in this state the California Environmental Protection Program, which shall be concerned with the preservation and protection of Californias environment. In this connection regard, the Legislature hereby finds and declares that, since the inception of the program pursuant to the Marks-Badham Environmental Protection and Research Act, the Department of Motor Vehicles has, in the course of issuing environmental license plates, consistently informed potential purchasers of those plates, by means of a detailed brochure, of the manner in which the program functions, the particular purposes for which revenues from the issuance of those plates can lawfully be expended, and examples of particular projects and programs that have been financed by those revenues. Therefore, because of this representation by the Department of Motor Vehicles, purchasers come to expect and rely that the moneys paid by them will be expended only for those particular specific purposes, which results in an obligation on the part of the state to expend the revenues only for those particular specific purposes.

(a)The control and abatement of air pollution, including all phases of research into the sources, dynamics, and effects of environmental pollutants.

(b)The acquisition, preservation, restoration, or any combination thereof, of natural areas or ecological reserves.

(d)Protection of nongame species and threatened and endangered plants and animals.

(f)The purchase, on an opportunity basis, of real property consisting of sensitive natural areas for the state park system and for local and regional parks.

(h)Scientific research on the risks to Californias natural resources and communities caused by the impacts of climate change.

Date	Status
Feb 25, 2015	Introduced. Read first time. To Com. on RLS. for assignment. To print.
Feb 26, 2015	From printer. May be acted upon on or after March 28.
Mar 5, 2015	Referred to Com. on RLS.
Apr 6, 2015	From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS.
Apr 16, 2015	Re-referred to Coms. on E.Q. and JUD.
Apr 17, 2015	Set for hearing April 29.
Apr 30, 2015	April 29 set for first hearing. Failed passage in committee. Reconsideration granted.
Apr 30, 2015	April 29 set for first hearing. Failed passage in committee. (Ayes 2. Noes 5. Page 858.) Reconsideration granted.
Feb 1, 2016	Returned to Secretary of Senate pursuant to Joint Rule 56.

Date	Description	Location	Votes
Apr 29, 2015	[First] hearing set for [04-29-2015]: Failed passage in Committee. Reconsideration granted	Senate Standing Committee on Environmental Quality	7 0 0 Passed
Apr 29, 2015	Do pass, but first be re-referred to the Committee on [Judiciary]	Senate Standing Committee on Environmental Quality	2 5 0 Failed

Key

Pro

Against

Did Not Vote

This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.

Positions by individuals are not included.

* Testimony in a hearing

** Position recorded in bill analysis

*** Position recorded in written testimony

Organization	Position	Date
California Chamber Of Commerce	* Indeterminate	Apr 29, 2015
Sierra Club	* Indeterminate	Apr 29, 2015

* Testimony in a hearing

** Position recorded in bill analysis

*** Position recorded in written testimony

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SB 389 (Berryhill) Page 10 of 10

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Bob Wieckowski, Chair

2015 - 2016 Regular

Bill No: SB 389 Hearing Date: April 29, 2015

Author:	Berryhill
Version:	4/6/2015
Urgency:	No	Fiscal:	Yes
Consultant:	Joanne Roy

Subject: Environmental quality: the Sustainable Environmental Protection Act

ANALYSIS:

Existing law: Under the California Environmental Quality Act (CEQA),

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)).
Requires thresholds of significance adopted as part of 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).

This bill creates the Sustainable Environmental Protection Act (SEPA), which does the following:

Provides legislative intent that:
1. States CEQA was enacted in 1970 to maintain a quality environment, and that in the 45 years following enactment “Congress and the Legislature have each adopted more than 100 laws to protect environmental quality” in 17 environmental topical areas.
2. References various environmental laws, “all enacted after 1970 . . .” while asserting that environmental laws and regulations identify compliance obligations of general applicability and provide greater clarity or are beyond the ad hoc review process created by CEQA, and in enacting these measures avoids “the sometimes conflicting and often duplicative ad hoc environmental review and mitigation requirements.”
Requires an environmental document prepared under CEQA to disclose all applicable environmental laws, and defines “applicable environmental laws” to be those referenced in the measures legislative intent and meets certain requirements.
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.
Limits environmental review under those topical areas listed in the legislative intent.
Prohibits a cause of action for noncompliance with CEQA either:
1. Relates to any topical area or criteria for which compliance obligations are identified;
2. Challenges the environmental document if:
  1. The environmental document discloses compliance with applicable environmental law;
  2. The project conforms with the use designation, density, or building intensity in an “applicable plan,” as defined; and,
  3. The project approval incorporates applicable mitigation requirements into the environmental document.

Provides that the above prohibition of causes of action does not prohibit a cause of action to enforce compliance with other existing local, state, and federal law.

Provides that a lead agency is not required to evaluate aesthetics under CEQA and that the lead agency is not required to make findings on or relating to aesthetics unless a project has potentially significant aesthetic impacts on an official state scenic highway.

Provides that SEPA does not change a lead agency’s duty to evaluate effects on Native American resources.

Provides that SEPA applies only to projects for which the lead agency or applicant has agreed to provide an annual mitigation compliance report in electronic format.
Provides that the above provisions do not preclude an agency from requiring information or analysis, or imposing conditions of approval under laws other than SEPA or CEQA.
Requires that an environmental review document prepared pursuant to CEQA is limited to considering only the environmental topical areas listed in the legislative intent and only to the extent those topical areas are relevant to the project.

Background

CEQA: The Environmental Review Process.

A CEQA environmental review document is a public document. It provides for transparency as well as an opportunity for citizens to comment on the document and participate in the environmental review process.

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, then 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 an 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.
What Is Analyzed In an Environmental Review?

Pursuant to CEQA, an environmental review analyzing the significant direct and indirect environmental impacts of a proposed project, may include, but is not limited to, water quality, surface and subsurface hydrology, land use and agricultural resources, transportation and circulation, air quality and greenhouse gas emissions, terrestrial and aquatic biological resources, aesthetics, geology and soils, recreation, public services and utilities such as water supply and wastewater disposal, cultural resources such as historical and archaeological resources, and tribal cultural resources.

Comments

Purpose of Bill.

The author states, “For over 40 years CEQA has protected our environment, spurred informed planning, and assured public input and involvement in community growth decisions. These aspects of CEQA – the ones that have helped preserve California’s natural resources and make it a better, healthier place to raise our families – must be preserved.

“California’s environment is also protected by over 120 federal and state laws – all passed since CEQA became law – and this is where it gets ugly. Crafty folks with motives other than protecting the environment have figured out how to use CEQA to stall projects, increase expenses for a competitor, or negotiate better labor contracts. This abuse has done little to improve the environment but has done much to hinder economic growth, waste money – lots of it – and delay or outright kill necessary projects such as housing for seniors and elementary school renovations. Any honest reform of CEQA absolutely must address these abuses.

“SB 389 would integrate those laws with California’s CEQA review process. This would eliminate the ability to challenge already adopted environmental standards or endlessly re-challenging approved plans through frivolous lawsuits.”
Thresholds of Significance and Regulatory Standards.

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 389, Section 21202(a)(1) provides that “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.”

Simply relying on a regulatory standard undercuts the value and benefits of analyzing the multiple layers and potential complexities of a project in a comprehensive manner as provided and intended by the CEQA environmental review process. 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 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.
Project Impact “Environmental Topical Areas”.

SB 389 specifies that the CEQA Guidelines currently provide that project impacts be evaluated based on 18 topics. Nothing in current law limits CEQA to 18 topic areas. It seems that 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 389 freeze these 178 topics in statute, rather than allowing analysis of any other potential significant impacts, this measure 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 its federal counterpart National Environmental Policy Act (NEPA), did not commence with the passage of the California Global Warming Solutions Act of 2006 (CGWSA).

Guidance for addressing GHG issues under 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 GHG, 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. For example, in a letter dated March 30, 2006, regarding the Orange County Transportation Authority 2006 Long-Range Transportation Plan Draft EIR, the Attorney General stated, “Despite the Plan’s heavy reliance on vehicular travel and improvements to freeways, roads and streets, and the acknowledged increase in vehicle travel that the Plan will encourage, the DEIR never analyzes one of the most important environmental impacts of vehicular emissions – greenhouse gases and resulting climate change.”

SB 97 (Dutton), Chapter 185, Statutes of 2007, subsequently required the Office of Planning and Research, 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.

“Environmental Topical Areas”: One of These Things is Not Like the Others.

17 of the “environmental topical areas” in the bill include a variety of environmental factors such as water quality, air quality, geology, or transportation. An environmental review analyzes whether a project will have a significant impact on that issue area, like a construction project may have a significant impact on traffic.

SB 389 adds an 18^th environmental topical area – “[m]andatory findings of significance”. This is an action taken by a lead agency; it is not a subject or issue area to be analyzed. The action is to require a lead agency to find that a project may have a significant effect on the environment thereby requiring an EIR to be prepared for a project.

How is “mandatory findings of significance” a substantive issue area like the others listed in the bill?
“Environmental Topical Areas”: Tribal Cultural Resources is Missing.

SB 389 specifies “environmental topical areas” in an environmental review that are subject to the provisions of this bill. However, this bill does not include the latest environmental topical area added to the CEQA statute last year by AB 52 (Gatto), Chapter 532, Statutes of 2014, which relates to tribal cultural resources.

Tribal cultural resources may include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe or a resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant, as specified.

Is it an oversight or the intent of the author to not include tribal cultural resources in the provisions of this bill?

Overriding Fair Argument Standard.

A discretionary project, which is not exempt from CEQA, requires a Lead Agency to prepare an initial study to determine whether the project may have a significant adverse effect on the environment. 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. If not, then a negative declaration or mitigated negative declaration is appropriate. This is known as the fair argument standard. In other words, a negative declaration is inappropriate if it can be “fairly argued” that the project may cause significant environmental impacts and therefore an EIR is appropriate.

SB 389 overrides the fair argument standard because under this measure “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, SB 389 prohibits a cause of action for noncompliance with CEQA if the environmental document discloses compliance with an applicable environmental law pertaining to a topical area; the project conforms with the use designation, density, or building intensity in an applicable plan; and, the project approval incorporates applicable mitigation requirements into the document.

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 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.’”
Prohibiting CEQA Cause of Action for Conformance with Certain Planning Matters.

SB 389 also prohibits a cause of action under CEQA if the project conforms to the use designation, density, or building intensity in a land use plan or was included in another applicable plan [as identified under the measure] and the lead agency incorporates applicable mitigation requirements into the environmental document.

Under SB 389, an “applicable plan” is either: a) a land use plan, such as a general plan, specific plan, or sustainable communities strategy that establishes use designations, densities, and building intensities; or b) a plan to improve or maintain public facilities or infrastructure to be funded in whole or in part by public funds and is adopted by a local, regional, or state agency.

A general plan, however, addresses far more issues than simply the “use designation, density, or building intensity.” A general plan must include seven mandated elements, including land use, circulation, housing, conservation, open space, noise, and safety elements. (Government Code §65302). Yet, SB 389 prohibits a cause of action under CEQA if a project merely conforms to the use designation, density, or building intensity in the plan and complies with “applicable mitigation measures” in the environmental document for that plan.

An “applicable plan” under SB 389 could also include a capital facilities plan. Environmental impacts addressed under CEQA for such a plan may be quite limited, and thereby restrict environmental analysis of subsequent projects conforming to that plan and any mitigation measures needed for subsequent projects.

This provision could apply to an outdated plan with inadequate CEQA analysis and ineffective mitigation measures, which also fails to consider changed conditions and more recent circumstances such as hazardous wastes and climate change. This provision would also enable use of outdated plans that are inconsistent with a recent general plan or sustainable communities plan under SB 375, for example, or a plan with a certified environmental document that was challenged and found to be inadequate.

Related/Prior Legislation

SB 834 (Huff, 2014), which created the Sustainable Environmental Protection Act, and made several substantial changes to CEQA. SB 834 died in the Senate Committee on Environmental Quality.

SB 787 (Berryhill, 2013), which created the Sustainable Environmental Protection Act, and made several substantial changes to CEQA. SB 787 failed in the Senate Committee on Environmental Quality (2-7).

SB 1380 (Rubio, as amended March 29, 2012 and April 10, 2012), would have enacted the California Public Health and Environmental Standards Act, which is substantially similar to SEPA as proposed in SB 389. SB 1380 died on the Assembly Floor.

SOURCE:

Author

SUPPORT:

None on file

OPPOSITION:

None on file

DOUBLE REFERRAL:

If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee.

-- END --

Discussed in Hearing

15MIN

Senate Standing Committee on Environmental Quality

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Amended Senate (4/6/2015)