There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think Jerry Brown probably had it right when he predicted last month that CEQA reform would not be accomplished in 2013. While the debate has been vigorous, the political stars are simply not aligned to do what needs to be done to modernize and streamline the venerable 43-year old law.
Why do I say this? The proof is in the text of SB 731 (Steinberg, Hill), as last amended on May 7, 2013. While it did not start out as comprehensive CEQA reform by any means, the bill currently falls short even of fully accomplishing its rather modest expressly-stated reform objectives. Further, it now includes problematic provisions that could add even more red tape, uncertainty and redundancy to the law – the opposite of “reform.” A few examples follow:
SB 731 Fails To Address “Late Hits” And “Document Dumps.”
It has long been a cause of delay and aggravation in lead agency administrative proceedings on a proposed project that CEQA allows a project opponent to preserve issues for litigation and to obtain standing to sue in court through the last-minute raising of issues and evidence at any time “prior to the close of the public hearing on the project[.]” (Pub. Resources Code, § 21177(a),(b); see Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1120-1121 [recognizing “that the practice of allowing objectors to withhold objections, which could have been raised earlier in the environmental review process, until the last possible moment must be strongly disapproved[,]” but then holding that CEQA as written allows precisely this practice].) As any experienced CEQA attorney can attest, the pre-litigation tactic of project opponents in delivering “late hits” and voluminous “document dumps” at the final public hearing on the project is a commonplace one, and is often effective in either forcing a delay in the administrative proceedings while the new documents and issues are reviewed, or forcing the lead agency to vote on project approval without thoroughly reviewing all the evidence in the record. While SB 731 stated its intent to achieve modest reform in this area by “amending Section 21091 of the Public Resources Code and related provisions of law to establish clear statutory rules under which “late hits” and “document dumps” are prohibited or restricted prior to certification of an EIR, if a project proponent or lead agency has not substantively changed the draft EIR or substantively modified the project[,]” the current version of the bill contain no such amendments.
SB 731’s Other Significant Omissions.
Nor does SB 731 currently address standards of review for categorical exemptions, reform of standing rules, codification of the “CEQA-in-reverse” case law, eliminating repetitive CEQA review of impacts covered and mitigated by other environmental laws, eliminating or streamlining GHG analysis, or clarifying “baseline” rules to name some areas of CEQA in need of reform.
SB 731 Proposes A Dilatory And Unnecessary Public Review Period for Draft Proposed CEQA Findings.
Compounding its failure to address the problem of late hits and document dumps among many other areas of needed CEQA reform, SB 731 works in the opposite direction of such reform by proposing a new mandate (in proposed amended Pub. Resources Code § 21081.5) that an agency’s required CEQA findings under section 21081 “be made available in draft form for review by the members of the public for at least 15 days prior to approval of the proposed project.” This provision would ostensibly preclude an agency from approving a project at its final hearing on that project unless it had made the CEQA findings necessary for project approval publicly available in draft form 15 days before the hearing. Yet, especially given project opponents’ extant ability under Public Resources Code § 21177 to raise issues and submit evidence to the agency at the last minute, i.e., up to the very close of the final public hearing, it is difficult enough as it stands for the agency to promptly adopt legally adequate findings without imposing an additional procedural hurdle that it produce publicly-available draft findings 15 days in advance. It is unclear what consequences violation of the proposed law would have, although project opponents would probably argue that a violation would invalidate project approval.
SB 731 Proposes Record Preparation Provisions of Questionable Utility.
SB 731 proposes the addition of Public Resource Code § 21167.6.2, which would allow a project applicant to request, within 30 days of the lead agency’s determination of which CEQA document (e.g., EIR, ND, MND) it will prepare, that the agency prepare the administrative record for certain types of projects concurrently with the administrative process. The process would involve prompt electronic posting of CEQA documents and comments, as specified, and certification of the record within 30 rather than 60 days after the filing of the NOD. However, the proposed statute contains no clarification of record content, would not apply to state lead agencies unless they consent, and would render the costs of expedited record preparation nonrecoverable by the prevailing party in a CEQA action. One must ask whether potentially saving 30 days in record preparation time is worth the increased costs to local agencies and project proponents of compliance with this provision.
SB 731 Proposes a New Annual Mitigation Reporting Mandate.
Proposed amended Public Resources Code § 21081.6(d) would require a lead agency, as part of any mitigation monitoring plan, to “prepare or cause to be prepared an annual report on project compliance with mitigation measures required pursuant to this division” and would require such report “be made publicly available online to enhance public disclosure and accountability.” Not only is the need for this “reform” and its attendant expense unclear, but it is unclear whether the required report would trigger new limitations periods for new CEQA lawsuits on an annual basis. The proposed provision certainly does not provide that nothing in it will furnish the basis for a new cause of action or extend any statute of limitations for enforcement of existing mitigation measures.
SB 731 Proposes Confusing and Unnecessary Revisions To CEQA’s Remedies Provision, Public Resources Code § 21168.9.
In addition to slightly reorganizing the first two subdivisions of Public Resources Code § 21168.9, without apparent substantive change, the bill proposes to add language providing that: (1) “[a] writ shall include a time by which the agency shall make an initial return of the writ”; (2) the initial return “shall describe” (a) the actions the agency will take to comply with the writ and CEQA, (b) a schedule for these actions, and (c) the public comment period for the CEQA document to be revised, if applicable; and (3) “This section does not affect the authority of a court to allow those determinations, findings, or decisions of a public agency that are not found to be in violation of this division to proceed, if allowing the public agency to proceed does not, in any manner, prejudice complete and full compliance with this division.” The first substantive change is unnecessary since it is common practice for the prevailing plaintiff to draft the writ and provide a time for the return. The second change appears designed to restrict or constrain a local agency’s options or discretion in complying with the writ by requiring it to quickly commit to specific corrective actions prior to its time to appeal, which appears to conflict (at least in spirit) with established law and other provisions of the same statute providing “[t]his section does not authorize a court to direct a public agency to exercise its discretion in any particular way.” Finally, the last proposed change is just plain confusing and unhelpful. While SB 731 stated its intent to “establish clearer procedures” for remedying partial CEQA violations and exploring options for allowing “project approvals to remain in pace, and for projects to proceed[,]” the actually proposed language doesn’t do that, but would allow (subject to the earlier severability limits) “determinations, findings, or decisions … to proceed[.]” What does that mean? Project activities may “proceed” or not, but it seems to me that findings, determinations, and decisions are simply made (or not made) and are either valid (or not valid). The circumstances under which project activities may “proceed” or not pending achievement of CEQA compliance are not clarified at all under the current version of SB 731 – another clear failure to achieve one of its expressly-stated goals.
SB 731 Proposes Numerous “Window Dressing” Measures That Don’t Constitute True Reform.
In addition to these problematic omissions and provisions of SB 731, the proposed law contains several “window dressing” provisions that, while not affirmatively harmful, also don’t amount to meaningful CEQA reform. What SB 731 characterizes as an “authorization” of tolling agreements not to exceed 4 years, unless extended as specified, is essentially a slightly refined codification of a recent judicial decision – Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195 – approving the use of such tolling agreements in CEQA cases. Its proposed amendment of Government Code § 65457 – a CEQA exemption for residential projects consistent with a specific plan for which an EIR has been certified – merely restates existing law as to what constitutes “substantial evidence” in this context without making any substantive change. And its proposed “authorization” for renewable energy project proponents to present their project’s benefits, orally or in writing, to the public agency also doesn’t make any change in what is already permitted under existing law. While these provisions may be in the nature of “chicken soup,” they hardly constitute a cure for what ails CEQA, and are not meaningful substantive CEQA reform.
While SB 731 does contain some potentially helpful new provisions that would direct OPR to develop regulations establishing standardized thresholds of significance for noise, transportation and parking impacts for certain projects in transit priority areas, and which would statutorily eliminate the need to analyze aesthetic impacts of such projects, these minimal benefits appear to be far outweighed by bill’s many negative aspects and glaring omissions. Perhaps Governor Brown is right: from the looks of SB 731 so far, 2013 simply isn’t CEQA reform’s year.