CEQA "Modernization"—Urgent End-of-Session Alert

by Manatt, Phelps & Phillips, LLP

We recently reported in our August 20, 2013, newsalert that Senate President Pro Tem Darrell Steinberg’s August 6 amendments to SB 731, The CEQA Modernization Act of 2013, continued to stray further from meaningful CEQA reform. Purportedly in response to criticism from both sides of the CEQA reform debate, SB 731 has since been amended. Unfortunately, as with prior iterations, the latest amendments to SB 731 still fall short, increasing opportunities for unwarranted project delays and frivolous CEQA lawsuits.

As explained more particularly below, key concerns with the latest amendment include the following: (1) SB 731 adds a new impact area for consideration under CEQA, “economic dislocation,” potentially conflicting with existing law prohibiting consideration of purely socioeconomic impacts; (2) SB 731 further increases CEQA review time and notice requirements; and (3) SB 731 requires the lead agency to make publicly available an annual report on a project’s compliance with mitigation measures, upon request.

SB 731 continues to evolve, and we expect additional changes in the next 36 hours. We will continue to keep you informed about this significant legislation.

Explained in more detail, problems with SB 731 include the following:

  • SB 731 adds a new impact area for consideration under CEQA, “economic dislocation,” potentially conflicting with existing law prohibiting consideration of purely socioeconomic impacts. Existing law prohibits consideration of a project’s economic and social impacts, except where they would result in physical changes to the environment. (See CEQA Guidelines Sections 15064(f) and 15131.) As amended, SB 731 would upend that prohibition. It directs the Governor’s Office of Planning and Research (OPR) to formulate recommendations to be incorporated in the CEQA Guidelines on how to evaluate, prevent and mitigate “economic displacement” impacts. SB 731 defines “economic displacement” as “the involuntary departure of residents and businesses from a community due to increased housing and rental costs attributable to specific private or public investments.” This new provision (1) conflicts with existing CEQA law, (2) is internally inconsistent with other provisions in SB 731 that are designed to encourage infill development, (3) will lead to additional regulatory hurdles and mitigation costs for new development designed to redevelop or improve otherwise blighted areas, and (4) creates additional ambiguities in CEQA that will prolong the CEQA process and increase opportunities for litigation.
  • SB 731 increases CEQA review time and notice requirements, providing additional opportunities to delay projects. SB 731 requires the lead agency to make “findings” available to the public at least 10 days prior to their adoption and to provide public notice of the availability of the findings. Further, the 10-day notice period is expressly in addition to the public notice and review period required for negative declarations and EIRs. As we described in our previous newsalert, such additional noticing will result in increased processing costs for lead agencies and project proponents and could result in significant delay if revisions to findings and additional public review are necessary. From a practical standpoint, this also could lead to additional litigation claims against a project. Any public comments on the findings will require responses from the lead agency because such comments are part of the administrative record and may be litigated in court. Furthermore, a project opponent could challenge in court the adequacy of subsequent changes to publicly circulated findings on the basis that they were not re-circulated. While SB 731 as originally drafted expressed an intent to prohibit or restrict so-called “late hits” and “document dumps” (this intent language was eliminated in the August 6 amendments), this provision actually increases the opportunities for such untoward tactics.
  • SB 731 requires the lead agency to prepare and make publicly available online an annual report on a project’s compliance with mitigation measures required in an approved mitigation monitoring and reporting plan (MMRP), if requested by a member of the public. While previous iterations of SB 731 required an annual report to be made available even absent a request by a member of the public, this latest amendment does very little to address the inherent problems associated with this provision. Opponents intent on abusing CEQA’s true aim to protect the environment will most certainly request a report in order to delay development projects already determined to be legally adequate under CEQA. Ultimately, this provision will (1) require heightened agency and public oversight of project implementation and ongoing CEQA compliance, (2) provide additional opportunities for CEQA lawsuits, even where the report arguably identifies discrepancies with implementation of mitigation measures, and (3) impose additional annual costs to project proponents and the lead agency until all MMRP conditions are satisfied (some of which are ongoing operational conditions that technically are never “completed”).

In addition to the issues described above, the current amended SB 731 continues to include provisions that simply do not reform CEQA; instead, they merely reflect existing law and/or are otherwise substantially immaterial changes (e.g., providing for tolling agreements, adding clarifying language to existing CEQA exemption for residential development projects consistent with a specific plan for which an EIR was previously certified, providing that applicants for renewable energy projects may tout the environmental benefits of the projects during the CEQA process, etc.).

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.