The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report 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.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report 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.

CEQA requires a lead agency to prepare an environmental impact report when designating a housing sustainability district to identify and mitigate, to the extent feasible, environmental impacts resulting from the designation.

CEQA exempts from its requirements a housing project undertaken in a housing sustainability district designated by a local government if specified requirements are met, including that the lead agency has certified an environmental impact report for the district, and the Department of Housing and Community Development has approved the district, within 10 years of the lead agencys review of the housing project.

This bill would instead allow the exemption to apply if the lead agency has certified an environmental impact report for the district, and the Department of Housing and Community Development has approved the district, within 12 years of the lead agencys review of the housing project.

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 270 (Wiener) - California Environmental Quality Act: university housing development projects: exemption

Bill Summary:

This bill would replace the requirement that, for a higher education institution to utilize a particular CEQA exemption, a building be certified as Leadership in Energy and Environmental Design (LEED) Platinum with a requirement that it achieve a LEED Gold score of 79 or better.

Fiscal Impact:

• To the extent that this bill results in additional spending on faculty, staff, and student housing projects from what otherwise would occur, unknown, potentially significant costs (General Fund) to public postsecondary institutions.
• Unknown costs, likely in the low hundreds of thousands of dollars per project, for public postsecondary institutions to meet the specified requirements for projects under this bill. These costs would be offset by savings due to being exempt from other environmental reporting requirements under CEQA.

Background:

Overview of CEQA 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 ND. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR.

Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project.

What is analyzed in an environmental review? An environmental review analyzes the significant direct and indirect environmental impacts of a proposed project and may include 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, and cultural resources. The analysis must also evaluate the cumulative impacts of any past, present, and reasonably foreseeable projects/activities within study areas that are applicable to the resources being evaluated.

CEQA provides hub for multi-disciplinary regulatory process. An environmental review provides a forum for all the described issue areas to be considered together rather than siloed from one another. It provides a comprehensive review of the project, considering all applicable environmental laws and how those laws interact with one another. For example, it would be prudent for a lead agency to know that a proposal to mitigate a significant impact (i.e. alleviate temporary traffic congestion, due to construction of a development project, by detouring traffic to an alternative route) may trigger a new significant impact (i.e. the detour may redirect the impact onto a sensitive resource, such as a habitat of an endangered species or near a hospital). CEQA provides the opportunity to analyze a broad spectrum of a project’s potential environmental impacts and how each impact may intertwine with one another.

CEQA streamlining provisions. CEQA has been amended over the years to provide several tools to expedite the review of, or altogether exempt from CEQA, various types of projects.

Projects Eligible for Exemptions

Numerous types of projects may be eligible for an exemption from CEQA review pursuant to either a statutory exemption or a “categorical” exemption in the CEQA Guidelines. Categorical exemptions are projects determined by the Secretary of the Natural Resources Agency to not have a significant effect on the environment. In general, if a project meets certain specified criteria, it is not subject to CEQA. See Comment 4 of this analysis for an overview of existing exemptions for which a university housing development project may already be eligible.

Streamlined Administrative Review

CEQA provides for streamlined processes for preparing EIRs and other CEQA documents that enable public agencies to use various special types of EIR’s to simplify preparation and avoid duplication. These various documents include “program” EIRs for a series of related actions that can be collectively characterized as a single project, “staged” EIRs for sequential projects, and “master” EIRs for community-level projects. This streamlines the review of such projects and reduces the need to prepare repetitive studies.

CEQA also provides for “tiering”—the process of analyzing general projects in a broad EIR, followed by focused review of subsequent environmental projects that are narrower in scope, thereby allowing an agency to defer analysis of certain details of later phases of long-term linked or complex projects until those phases are up for approval.

Planning for long-term development by institutions of higher education. In California, public universities prepare planning documents that help guide the university in its physical development as well as the growth of student enrollment.

University of California (UC). Each campus and medical center of the UC periodically develops an LRDP that guides its physical development – based on academic goals and projected student enrollment levels – for an established time horizon. Each plan identifies how a campus will accommodate the anticipated enrollment along with the faculty and staff needed to support that enrollment. Thus, an LRDP outlines a campus’s priorities and guides future development. CEQA requires an EIR be prepared for the LRDP and requires the UC Board of Regents, as the lead agency, to certify the EIR before approving the LRDP. Since the LRDP includes multiple projects, the accompanying EIR is typically referred to as the “master” EIR or a “program-level” EIR. As each project covered by the LRDP is implemented, a project-level EIR is prepared. However, given the certification of a program-level EIR on the LRDP, these project-level EIRs are not required to be as detailed.

UC is constitutionally exempt from local land use control. In other words, the local government’s planning commission does not have the jurisdiction to deny or oppose an LRDP or a specific project within the LRDP.

California State University (CSU). The CSU is the largest university system in the United States. Governed by the Board of Trustees, CSU's 23 campuses across the state collectively enroll 405,000 students and employ 44,000 faculty and staff. Each of the 23 CSU campuses develop a master plan that guides the future development of campus facilities based on its academic priorities and student enrollment projections. The physical plan is not subject to local land use regulations and usually covers a period of 10 years. As with UC, CEQA requires CSU campuses to complete an EIR for each master plan. The CSU Board of Trustees serves as the lead agency in the EIR process and has the responsibility of approving both the master plan and the EIR.

California Community College. Each community college district maintains a district-wide master plan, as well as a separate master plan for each college located in the district. The master plan serves as a comprehensive planning document encompassing all functions of the college or district for a period of 10 years. The master plan also includes a facilities component that evaluates existing land, infrastructure, and facility needs, and specifies the projects necessary to meet those needs. The various districts are exempt from local land use regulations. The district prepares an EIR that is subsequently reviewed and approved with the master plan by the district’s board of trustees.

Legislative Analyst Report finds LRDPs lack accountability, standardization, and clarity. In 2007, the Legislative Analyst’s Office (LAO) published the report, A Review of UC’s Long Range Development Planning Process. That report reviewed the process used by UC to prepare LRDPs and analyzed whether the process adequately addressed impacts that campus growth has on surrounding communities. In general, the report found a lack of accountability, standardization, and clarity in the current process, and noted that this creates tension between the university and local communities regarding campus growth and the mitigation of the environmental impacts related to the growth. The LAO findings can be summarized as:

• Lack of state accountability and oversight. Generally, the state neither approves the LRDP nor the implementation of the mitigation measures identified in the EIR.
• Lack of standardization in public participation leading to varying degrees of local community involvement.
• Minimal systemwide coordination in projecting enrollment for recent LRDPs.
• Campuses want to primarily expand graduate enrollment due to expected decline in number of California public high school graduates.
• Lack of clarity in CEQA requirements making its application uncertain and inconsistent.
• No campus has reached a “fair share” agreement with neighboring jurisdictions to contribute towards mitigating off-campus impacts.
  

While it is unclear if any systemwide changes have been made to LRDPs to address these concerns since the report was published, it does appear that some LRDPs have incorporated community advisory boards.

California State Government & LEED. As noted above, EO B-18-12 issued by former Governor Jerry Brown in April 2012 included a requirement that all new or major renovated state buildings and build-to-suit leases larger than 10,000 square feet obtain LEED Silver certification or higher. This formalized a policy that the Department of General Services states on its website has been in place since 2004.

According to documents on the UC Office of the President’s website, as of January 6, 2023, of 408 UC-related projects built since 2005, 18 are LEED Certified, 83 are LEED Silver, 224 are LEED Gold, and 90 achieved LEED Platinum status.

Proposed Law:

This bill would replace the requirement that a housing development project be certified as LEED Platinum in order to utilize the SB 886 CEQA exemption with a requirement that the project be certified as LEED Gold with a score of 79 before a certificate of occupancy can be issued.

Related Legislation:

SB 886 (Wiener, Chapter 663, Statutes of 2022) was designed to encourage more faculty, staff, and student housing to be built on UC, CSU, and CCC campuses.

The bill exempted these projects from CEQA as long as they met a number of alternative standards and benchmarks, including:

• The project is consistent with the school’s most recent long-range development plan (LRDP) EIR or master plan EIR and any applicable tiered environmental analysis.
• Each building of the project is certified as LEED Platinum or better before the certificate of occupancy is issued.
• The project is either within one-half mile of a major transit stop, one-half mile of the campus boundary, or has 15% lower per capita vehicle miles traveled (VMT).
• The project does not result in any net additional greenhouse gas (GHG) emissions.

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SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

Bill No: SB 270

SUBJECT: California Environmental Quality Act (CEQA): University housing development projects: exemption.

DIGEST: This bill replaces the requirement that, for a higher education institution to utilize a particular CEQA exemption, a building be certified as Leadership in Energy and Environmental Design (LEED) Platinum with a requirement that it achieve a LEED Gold score of 79 or better.

ANALYSIS:

Existing law:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a project to prepare a negative declaration (ND), mitigated negative declaration (MND), or environmental impact report (EIR) for the project, unless the project is exempt from CEQA. (Public Resources Code (PRC) §21000 et seq.). If 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))
2. Provides a university housing development project with an exemption from CEQA if it meets certain requirements, one of which is that the housing development project be certified as LEED Platinum before a certificate of occupancy is issued for the project. (PRC §21080.58)
3. Defines “public higher education” as (1) the California Community Colleges (CCC), (2) the California State University (CSU), and each campus, branch, and function thereof, and (3) each campus, branch, and function of the University of California (UC). (Education Code §66010)
4. Executive Order (EO) B-18-12, issued in April 2012, includes many green building related requirements, including one that all new or major renovated state buildings and build-to-suit leases larger than 10,000 square feet obtain LEED Silver certification or higher.

This bill:

1. Replaces the requirement that a housing development project be certified as LEED Platinum in order to utilize the SB 886 CEQA exemption with a requirement that the project be certified as LEED Gold with a score of 79 before a certificate of occupancy can be issued.

Background

1. The A, B, C’s of CEQA. CEQA was enacted by the Legislature and signed into law by Governor Ronald Reagan in 1970. While it has evolved into a very complex Act over the past 53 years, at its core the basic principles of CEQA are relatively simple.

It is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment.

CEQA is self-executing statute that is enforced by civil lawsuits that can challenge any project’s environmental review. Public agencies, as well as private individuals and organizations, can file lawsuits under CEQA.

1. Follow The LEEDer. Leadership in Energy and Environmental Design, better known as LEED, is a voluntary green building standard established by the U.S. Green Building Council (USGBC) and it is the most widely used green building rating system in the world.

The LEED system is designed to encourage green and sustainable building practices. Loosely speaking, the LEED system awards points to a building based on dozens of different factors such as the type of building materials used, whether the building is located near public transportation, the type of indoor lighting provided, and much more. Buildings can be LEED Certified (40-49 points), LEED Silver (50-59 points), LEED Gold (60-79 points) or LEED Platinum (80+ points).

1. California State Government & LEED. As noted above, EO B-18-12 issued by former Governor Jerry Brown in April 2012 included a requirement that all new or major renovated state buildings and build-to-suit leases larger than 10,000 square feet obtain LEED Silver certification or higher. This formalized a policy that the Department of General Services states on its website has been in place since 2004.

According to documents on the UC Office of the President’s website, as of January 6, 2023, of 408 UC-related projects built since 2005, 18 are LEED Certified, 83 are LEED Silver, 224 are LEED Gold, and 90 achieved LEED Platinum status.

1. SB 886 – A Brief History. SB 886 (Wiener, Chapter 663, Statutes of 2022) was designed to encourage more faculty, staff, and student housing to be built on UC, CSU, and CCC campuses.

The bill exempted these projects from CEQA as long as they met a number of alternative standards and benchmarks, including:

• The project is consistent with the school’s most recent long-range development plan (LRDP) EIR or master plan EIR and any applicable tiered environmental analysis.
• Each building of the project is certified as LEED Platinum or better before the certificate of occupancy is issued.
• The project is either within one-half mile of a major transit stop, one-half mile of the campus boundary, or has 15% lower per capita vehicle miles traveled (VMT).
• The project does not result in any net additional greenhouse gas (GHG) emissions.

Comments

1. Purpose of Bill. According to the author, “Currently, California is in the depths of a housing crisis. The impacts of this go beyond typical residential developments and into other areas such as student housing. As of 2019, 5% of UC, 10% of CSU, and 19% of CCC students are homeless. In an attempt to address the growing student housing crisis, the Legislature passed SB 886 (Wiener) in 2022, which provided a streamlined path for student and faculty housing in specified circumstances. However, some of the requirements for projects to utilize the law simply do not work: SB 886 requires projects to accomplish LEED Platinum certification prior to a CEQA exemption being granted or the certificate of occupancy being issued, however LEED Platinum cannot be certified until a building is occupied. SB 270 addresses this timing issue, reducing the requirement of these buildings from LEED Platinum to LEED Gold, which can be achieved prior to occupancy. To assure these projects are still held to a high standard, SB 270 requires the LEED Gold certification to include the highest type of LEED Gold – achieving 79 or more points as determined by LEED.”
   
2. Chicken v. Egg: Film At 11:00. This bill focuses on SB 886’s requirement for a building to be certified as LEED Platinum before the certificate of occupancy can be issued.

The challenge with this provision of the law is, according to the USGBC, a building generally cannot achieve LEED Platinum status until after it is occupied. That’s because in most cases, a study has to be commissioned to look at whether the building is performing as it was designed to perform. For example, are the forecasted energy savings being realized? Are the GHG emissions as low as anticipated when the building was designed? Once a study looking at those and many other factors is completed, additional LEED points can be awarded and a building may move from LEED Gold to LEED Platinum status.

1. Why Just Go For The Gold When You Can Go For The Platinum? This bill replaces the LEED Platinum requirement with one that – to be able to use SB 886’s CEQA exemption – requires a building to achieve the highest LEED Gold score possible (79) before getting a certificate of occupancy.

It’s important to note that LEED certification is a “point in time” assessment of how “green” a building is based on the score it receives from the USGBC. There is nothing inherent in the LEED scoring system that precludes a LEED Silver building from eventually becoming LEED Gold certified or a LEED Gold building from becoming LEED Platinum.

As noted in the “Background” section, UC has already developed nearly 100 buildings – including a number of housing facilities – that have met the LEED Platinum standard.

Given that, combined with the reality that achieving LEED Platinum status prior to receiving a certificate of occupancy is often difficult to accomplish, it is the committee staff’s understanding that should this bill make its way to the Assembly, the author has committed to amend the bill to:

• 1. Require any entity that complies with this bill’s new LEED Gold (with a score of 79) standard to achieve LEED Platinum status within 12 months.
  2. Preclude the higher education system that utilized the SB 886 CEQA exemption from using it again until such time the building does become LEED Platinum certified.
     

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 Housing Committee.

Related/Prior Legislation

SB 886 (Wiener, Chapter 663, Statutes of 2022) provided a CEQA exemption until January 1, 2030, for certain UC, CSU, and CCC faculty, staff, and student housing projects if they meet certain environmental standards.

SOURCE:

Author

SUPPORT:

YIMBY Action

OPPOSITION:

None received

ARGUMENTS IN SUPPORT:

YIMBY writes in support:

“To address the growing student housing crisis, SB 886 provided a statutory exemption from the California Environmental Quality Act (CEQA) for UCs, CSUs and CCCs student and faculty housing projects under specified circumstances. However, one of the qualifications for these projects to utilize SB 886 is a requirement for all buildings to meet Leadership in Energy and Environmental Design (LEED) Platinum certification. Platinum is the highest level of LEED certification, and as such includes numerous metrics of the buildings to determine if it meets the requisites for certification. Some of these determinations cannot be accomplished until the building is occupied. Given this, SB 886’s requirement to certify LEED Platinum prior to being granted the CEQA exemption and the certificate of occupancy simply isn’t possible.

“SB 270 addresses this timing issue, reducing the requirement of these buildings from LEED Platinum to LEED Gold, which can be achieved prior to occupancy. To assure these projects are still held to a high standard, SB 270 requires the LEED Gold certification to include the highest type of LEED Gold – achieving 79 or more points as determined by LEED.”

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