CEQA Reform: In Like a Lion, Out Like a Lamb


The past legislative session held the prospect for significant reform of the California Environmental Quality Act (CEQA).  After the dust settled though, the only proposal able to survive the legislative gauntlet was one proposing relatively modest reforms to CEQA.  The new law eases CEQA requirements for projects in dense urban areas and expedites CEQA review for certain large development projects, including a new basketball arena for the Sacramento Kings.


CEQA, signed into law in 1970 by then-Gov. Ronald Reagan, requires public agencies to analyze and mitigate the significant environmental impacts of projects that they propose to carry out or approve.  While CEQA has largely achieved its goal of ensuring informed environmental decision-making, the law has also been abused by project opponents seeking to delay or kill development deals.  In response to these documented cases of abuse, the Legislature introduced bills that would have required CEQA documents to rely on existing environmental laws when evaluating and mitigating environmental impacts, limited the submission of late comment letters by project opponents, streamlined the process for preparing the administrative record in CEQA cases and established specialized courts to adjudicate CEQA disputes.  Instead of these more far-reaching measures, only modest changes to CEQA were ultimately passed into law.


The primary CEQA “reform” bill enacted last year was Senate Bill (SB) 743.  While the measure streamlines CEQA review for a new basketball arena for the Sacramento Kings, it also contains measures that apply statewide.  For instance, SB 743 removes the consideration of aesthetics and parking impacts for residential, commercial or mixed-use projects on infill sites within a transit priority area.  An infill site is defined as a lot located within an urban area that has been previously developed or is substantially surrounded by development.  A transit priority area means an area within one-half mile of a major transit stop.


SB 743 also requires the State Office of Planning & Research to establish criteria for determining the traffic impacts of projects within transit priority areas.  The criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.”  Pub. Res. Code § 21099(b)(1).  In developing the criteria, the office is to “recommend potential metrics to measure transportation impacts that may include, but are not limited to, vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated.”  Id.  The draft criteria are to be published by July 1, 2014.  Once enacted, automobile delay, as measured by level or service or a similar metric, is generally not to be considered a significant impact on the environment.


SB 743 also expands an existing exemption for certain residential projects in transit priority areas to include commercial and mixed-use development projects.  SB 743 further requires that challenges to certain large-scale, energy-efficient projects certified by the governor as “environmental leadership development projects” be resolved within 270 days of the certification of the record of proceedings.  Currently, only three projects have been certified as environmental leadership development projects: Apple’s proposed new headquarters building in Cupertino and two solar energy projects in Southern California.


While a comprehensive overhaul of CEQA eluded the Legislature this past year, lawmakers and the regulated community appear well positioned to continue to advance the reform agenda.  Portions of SB 743 were helpful in terms of streamlining the review of certain infill development projects.  Subsequent measures could build on this progress and grant broader, less qualified exemptions for infill development, especially those involving the reuse or redevelopment of formerly developed sites. 


Looking beyond infill-related reforms, CEQA should be updated in a meaningful way to recognize the plethora of environmental laws adopted since its enactment. An example of such a reform measure is the standards-based approach mentioned earlier and reflected in two bills introduced last year: SB 787 and Assembly Bill 1302.  The CEQA litigation reform provisions (e.g., restrictions on late comment letters, preparation of the record concurrent with the administrative proceedings and timely resolution of CEQA suits) should be extended to all projects and not just a chosen few.


While the reform effort posted only modest gains last year, the regulated community appears organized and motivated to keep pushing the reform ball forward.  Interested parties thus are advised to keep abreast of the CEQA reform effort as it continues to evolve and unfold.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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