CEQA Reform: The Third Rail of California Politics - BB&K's Sarah Owsowitz Examines the Challenges of Reforming the California Environmental Quality Act

by Best Best & Krieger LLP
Contact

SEPTEMBER 25, 2013

PublicCEO.com

When I think about the California Environmental Quality Act, I am reminded of a line from the TV show “The West Wing,” in which a character remarked that Social Security was the “third rail” of American politics – never to be touched without electrocution. Here, as the 2013 legislative session has proved once again, CEQA, as it is widely known, is the “third rail” of California politics. All who touch it, from public agencies, to project developers, to environmental groups and labor unions, leave with singed hands and the conviction that they did not get what they wanted and maybe even came off a little worse than when they started.

Led by Sen. Michael Rubio, D-Shafter, 2013 promised to be the year that the Legislature started to make sense of California’s magnificent and troubled environmental statute. Passed in 1970, CEQA requires every city, county and public agency in California to analyze and disclose environmental impacts of proposed projects and adopt feasible measures to mitigate those impacts. But in recent years, advocates for reform have seen the law devolve into an increasingly byzantine set of rules that are regularly invoked for reasons other than environmental concerns by those who see CEQA as a convenient way to hold a project hostage or kill it.

On Feb. 22, the very day that Rubio resigned from the senate (to the dismay of CEQA reformers statewide), Senate President Pro Tem Darryl Steinberg, D-Sacramento, introduced SB 731, a bill containing a list of “intents” reflecting many reforms championed by Rubio, as well as Steinberg’s desires for streamlining approval of infill projects. The “intent” list included long hoped-for reforms such as putting an end to “late hit” document dumps by those opposed to projects merely to tee-up future litigation rather than provide agencies with an opportunity to respond to these last-minute comments. Another “intent” was aimed at providing clearer direction to courts so that entire environmental documents were not invalidated just because the judge found minor errors. But, by Sept. 13, SB 731 was put on the shelf until next year’s legislative session and the bill had been amended to the point where it arguably furthered none of the “intents” (which were all deleted from the bill), leaving advocacy groups on all sides of the CEQA reform debate frustrated and unhappy with the measures that were included.

So What Did Get Passed?

As part of the deal to put off SB 731 until next year, and with the support of Gov. Jerry Brown, Steinberg instead pushed through passage of Senate Bill 743. The governor now has until Oct. 13 to sign it into law, which he is expected to do. SB 743’s main purpose is to streamline environmental review for a proposed arena for the NBA’s Sacramento Kings, but it does include provisions that apply statewide:

  • Requires that challenges to certification of an environmental impact report, or EIR, and approval of an “environmental leadership development project,” including any appeals, be resolved within 270 days of the certification of the record of proceedings.

I bet you are wondering just what is an “environmental leadership development project” and whether you have any in your jurisdiction? These projects are a small class of “green” mega-projects that must invest at least $100 million in California. To use this provision, the governor must certify a project as an “environmental leadership development project” by Jan. 1, 2016.

  • Aesthetic impacts and parking impacts of a residential, mixed-use residential or employment center project on an “infill site” and within a “transit priority area” can no longer be considered significant impacts on the environment.

An “infill site” refers to a lot that is essentially surrounded on three sides by urban uses. A “transit priority area” includes any area within half a mile of an existing or planned major transit stop. While I have never seen a qualifying “transit priority area” project, this provision of SB 743 could, potentially, have broad application.

  • Requires that the state Office of Planning and Research  establish new thresholds of significance for noise and transportation impacts of projects within “transit priority areas.” These new thresholds would specify that automobile delay, as described solely by “level of service” (i.e. the level of traffic delay on a roadway), must no longer be considered a significant impact. The state agency would provide an alternative metric for assessing traffic impacts. 

This was the provision of SB 743 most strongly championed by the governor and Office of Planning and Research, and was likely a condition of the governor’s support. It could change the way public agencies conduct traffic impact analyses in urban areas by focusing on congestion management rather than just maintaining a free flow of traffic. Of course, first you have to have a qualifying project – always the catch.

  • Expands an existing exemption for certain residential “infill projects” in “transit priority areas” that are covered by a specific plan that has already been the subject of environmental review to now also include mixed-use residential/commercial projects. 

Great news, huh? Unfortunately, again, there is a catch. A project will only qualify to use the expanded exemption if it is consistent with an agency’s “sustainable communities strategy” or “alternative planning strategy.” This provision reflects one of Steinberg’s primary missions: To tie CEQA into the requirements of his previous legislative success – the land use/transportation planning legislation known as SB 375.

In addition to SB 743, two other, more minor, CEQA bills have also been sent to the governor:

  • AB 417: Exempts bicycle transportation plans for urbanized areas from CEQA review
  • AB 253:  Exempts from CEQA the conversion of an existing rental floating home marina to a resident-initiated subdivision, cooperative or condominium for floating homes under certain circumstances.

Whew! What about 2014?

SB 731 is now a “two-year bill,” meaning that it can be taken up again by the Legislature in 2014. However, Steinberg’s spokesman, Rhys Williams, recently indicated the senator is unlikely to pursue CEQA reform again next year. Indeed, by all indications, Steinberg was already tired of dealing with CEQA reform, referring to SB 731 as the “How to Make No Friends Act.”

There is another “two-year bill” to watch: AB 52, from Assemblyman Mike Gatto, D-Los Angeles. As currently written, this bill would require public agencies to consult with Native American tribes on any CEQA project requiring an EIR or a negative declaration where a tribe asserts it has an interest in the project area and requests such a consultation.

At the end of the day, it is important to keep perspective and to maintain, sadly, a healthy dose of cynicism when it comes to CEQA reform. In 2013, nearly 30 CEQA reform bills were introduced in what was supposed to be the year of reform. Only one bill of any real significance was passed and, even that bill, SB 743, could hardly be called “reform.” So, best guess, CEQA bills will keep on coming and the CEQA review process will likely keep becoming more, not less, complex.

* This article was originally published in PublicCEO.com on Sept. 24, 2013. Republished here with permission.

Written by:

Best Best & Krieger LLP
Contact
more
less

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.