Governor Schwarzenegger Signs Two Bills Providing Moderate CEQA Improvements

Senate Bill ("SB") 1456, authored by Senator Joe Simitian (D-Palo Alto), and Assembly Bill ("AB") 231, authored by Assembly Member Alyson Huber (D-El Dorado Hills), were signed by Governor Arnold Schwarzenegger on September 29, 2010. As urgency statutes, both bills became effective immediately, and both will sunset as of January 1, 2016.

As set forth below, SB 1456, the broader of the two bills, includes several amendments to the California Environmental Quality Act ("CEQA") intended to discourage frivolous lawsuits and encourage mediation as a method of settling CEQA disputes prior to the filing of a lawsuit. Furthermore, both bills ease the requirements governing cumulative impacts' analyses in certain subsequent environmental impact reports ("EIR"), mitigated negative declarations, and negative declarations.

Tiering and Cumulative Impact Analysis

Both SB 1456 and AB 231 amend the process by which an agency may tier environmental review for a later project from an EIR prepared and certified for an earlier program, plan, policy or ordinance. CEQA currently allows a lead agency to use a tiered EIR when a prior EIR has been prepared and certified for a program, plan, policy, or ordinance and a later project meets certain requirements. (Public Res. Code ยง 21094.) The tiering procedure allows agencies to reserve detailed evaluation of environmental impacts that are difficult to assess early on to a later environmental review when their severity and the likelihood of occurrence will be more specifically known. (See In re Bay-Delta Programmatic Envt'l Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1169.)

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