CEQA Reform: The Cure May Be Worse Than the Disease 04.29.02013
According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the bill would actually impose a new set of burdensome procedural requirements on CEQA lead agencies and project applicants.
The initial version of the bill was merely a placeholder that outlined broad topics, with few details. In filling in the blanks, some of the new amendments seem to reflect a dramatic turn away from the bill’s original aim: making the CEQA process simpler, clearer and more predictable. Instead, SB 731 in its current form could very well increase the costs, delays and uncertainties associated with CEQA review and litigation.
The key provisions of the new amendments to SB 731 are as follows:
- Public review of draft CEQA findings: The law currently does not require agencies to provide public notice for CEQA findings. But SB 731 would require that public agencies provide 15 days for public review and comment on draft CEQA findings before the project is approved. The bill requires multiple forms of public notice for the draft findings, including electronic posting, newspaper publication, and individual notice by both email and regular mail to all parties that submitted comments on the Draft EIR, as well as to any other parties that requested notice in writing. This new procedural hurdle likely would delay project approvals and could create new avenues for CEQA challenges.
- Annual mitigation reporting: The bill would impose a new requirement that lead agencies prepare, and publish online, an annual report for each project they approve detailing ongoing compliance with CEQA mitigation measures. It is not clear whether this new reporting obligation would open up yearly opportunities for CEQA lawsuits.
- Record preparation as the project is processed: The bill would allow applicants to request that the agency start preparing its “record of proceedings” at the outset of the CEQA process; for certain types of projects, the agency would have to comply with that request. While this provision appears to be aimed at reducing the cost and time of preparing the record in CEQA litigation, it could have the opposite effect. The agency would be required to start posting documents online within only a few days of when they become available—but it’s unclear whether agencies will be able to meet this tight time frame, especially for complicated projects involving a large and constantly changing universe of documents. It’s also unclear whether an agency’s inability to comply will create new avenues for CEQA challenges.
- Costs of record preparation: Under current law, the costs of preparing the record can be recovered from project opponents who lose a CEQA lawsuit. But if the agency prepares the record using the expedited system offered by SB 731, the applicant would bear these costs regardless of the lawsuit’s outcome.
- New restrictions on courts’ remedial discretion: The bill would add two new requirements: First, a court that finds only part of a CEQA document invalid would be required to enter a blanket order invalidating the entire document, unless it makes specific findings that the invalid portion is severable. Second, after a writ of mandate is issued, the respondent agency must file a report with the court outlining a schedule of specific remedial actions it will take.
- Direction to develop standardized significance thresholds for projects near transit: The bill calls for the Office of Planning and Research to revise the CEQA Guidelines by adding significance thresholds for noise, transportation and parking impacts for certain types of projects within “transit priority areas,” which are areas within one-half mile of a major transit stop. The bill also establishes that the aesthetics of these projects are not significant environmental impacts. However, agencies would be allowed to adopt more stringent significance thresholds. In addition, the bill would reintroduce “parking” as a CEQA impact, at least in transit priority areas, years after the CEQA Guidelines were amended to eliminate reference to parking as a CEQA issue following a court ruling that lack of parking is not an environmental impact.
- Information that is not substantial evidence is not “new information:” Under Government Code section 65457, a residential project that is consistent with a specific plan may rely on the EIR for the specific plan and is exempt from further CEQA review, unless a supplemental EIR is triggered under Public Resources Code section 21166. The bill would amend section 65457 to make clear that information that already would not qualify as substantial evidence under CEQA’s existing definition of that term may be disregarded in determining whether supplemental review is required.
- Authorization for tolling agreements: Parties frequently enter into agreements to extend the statute of limitations for filing a lawsuit while they engage in settlement negotiations. The bill codifies the holding of Salmon Protection and Watershed Networks v. County of Marin, 205 Cal. App. 4th 195 (2012), which upheld the use of this long-standing practice in CEQA cases.
- Renewable energy project applicants may cite the benefits of their projects: The bill authorizes an applicant for a renewal energy project to present comments explaining the project’s environmental benefits to the agency considering the application. However, this practice already is permitted under current law.
Unfortunately, SB 731 does little to advance the important goal of modernizing CEQA and simplifying its many procedural requirements. Rather, it seems that many provisions in SB 731 are headed, at least for now, in the opposite direction. For public agencies, project applicants and CEQA practitioners, future developments on this bill merit close attention.
Read about this and other legal developments in Perkins Coie’s California Land Use & Development Law Report.
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