CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions

by Miller Starr Regalia

In a flurry of eleventh-hour activity following Senate President Pro Tem Darrell Steinberg’s withdrawal of SB 731 from consideration (see 9/13/13 post “Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting with Governor Brown,” by Arthur F. Coon), both houses of the California Legislature passed an amended Senate Bill 743 on September 12, 2013. SB 743 enacts a number of changes to the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000, et seq.) that are designed to “modernize” the statute and streamline some of its procedures for certain projects. Demonstrating that politics is “the art of the possible,” Senator Steinberg was successful, in the waning hours of the legislative session, in importing several generally-applicable CEQA reform provisions from former SB 731 into SB 743, whose primary focus theretofore had been easing the CEQA review path for a new Sacramento Kings arena. After this bit of legislative “sausage making” (which is expected to be followed by Governor Brown’s signature), the revised SB 743 includes the following generally-applicable CEQA provisions:

  • Immunizes projects in urban areas from challenges based on aesthetics and parking impacts. SB 743 adds Chapter 2.7 to the Public Resources Code, entitled “Modernization of Transportation Analysis for Transit-Oriented Infill Projects.” New section 21099 exempts from environmental consideration “aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area.” “Infill site” means a previously-developed urban area lot or a vacant one essentially surrounded on three sides by qualified urban uses. “Transit priority area” is broadly defined by subdivision (a)(7) of the statute to include any area within half a mile of an existing or planned major transit stop. Presumably, the statute’s reach will thus extend to significant portions of urban areas in California, giving this provision some teeth. (Note, however, this exemption does not apply to the exercise of local discretionary authority to consider aesthetic impacts pursuant to local design review laws, or to impacts on cultural or historic resources. Further, it “does not affect the authority of a public agency to establish or adopt thresholds of significance that are more protective of the environment.”)
  • Potentially changes the way traffic impacts are evaluated. Subdivision (b) of section 21099 also calls for the state Office of Planning and Research (OPR) to develop new guidelines “for determining the significance of transportation impacts of projects within transit priority areas.” This has the potential to shift traffic analyses from the current “level of service” approach – which focuses on congestion management – to one with more flexibility and which focuses on promoting infill development, active transportation, and GHG emissions reductions. In the words of Senator Steinberg’s press release, “Currently, a project’s traffic impact can be mitigated by increasing surface parking lots and new vehicle lanes, which increases congestion and pollution. A modernized metric allows traffic impacts to be offset by mass-transit stations, which won’t be subject to CEQA litigation.” But it must be borne in mind that SB 743 merely calls for OPR develop new guidelines – it does not in fact stipulate what those guidelines should include.
  • Expands exemption for urban projects in areas covered by a specific plan that has already been environmentally reviewed. CEQA currently exempts from environmental review certain residential infill projects in transit priority areas where a specific plan is in place that was itself subject to prior CEQA review. SB 743 expands this exemption to include mixed-use residential/commercial projects in new Public Resources Code section 21155.4. However, it also makes clear that a project will only qualify for the exemption if it is consistent with a “sustainable communities strategy” or “alternative planning strategy” that has been verified by CARB to achieve the required GHG emissions reduction targets. This achieves one of Steinberg’s key aims, i.e., to tie CEQA more closely to his landmark SB 375 land use/transportation planning legislation.
  • Expedites judicial review for large-scale “environmental leadership” projects. Last March, Judge Frank Roesch of the Alameda County Superior Court struck down a portion of AB 900, a prior CEQA reform bill, as unconstitutional. (See 4/8/13 post “AB 900 CEQA Reform Law Partially Struck Down,” by Arthur F. Coon.)  That law provided that certain large scale “environmental leadership projects” could be challenged only by direct recourse to California’s District Courts of Appeal. In light of Judge Roesch’s ruling, SB 743 takes a different tack in trying to speed this kind of favored development through environmental review. It includes Public Resources Code section 21185, which requires that the Judicial Council promulgate new Rules of Court to make CEQA challenges to these projects subject to completion within 270 days of certification of the administrative record. Thus, SB 743 does not bypass trial courts entirely, but does aim to create a drastically-accelerated timeframe for CEQA litigation involving this small and select class of “green” mega-projects. It applies to projects for an EIR is certified, and which are certified by the Governor as “environmental leadership development projects,” by January 1, 2016.

While none of these CEQA reforms are earth-shattering, they are nonetheless significant. To be sure major reform issues remain unaddressed, including duplicative CEQA review, “late hit” document dumps, CEQA-in-reverse, and thorny issues of standing. However, SB 743 does move CEQA reform forward incrementally, and avoids “backsliding” by eliminating numerous troublesome provisions of the formerly-proposed SB 731 which would have worked in the opposite direction. While much more remains that could be done, in the current political and regulatory climate, SB 743’s modest steps toward CEQA reform are welcome ones.

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.

© Miller Starr Regalia | Attorney Advertising

Written by:

Miller Starr Regalia

Miller Starr Regalia 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.