Bill Text: CA AB1068 | 2015-2016 | Regular Session | Introduced
Bill Title: California Environmental Quality Act: priority projects.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1068 Detail]
Download: California-2015-AB1068-Introduced.html
BILL NUMBER: AB 1068 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Travis Allen
FEBRUARY 26, 2015
An act to add Section 21168.10 to the Public Resources Code,
relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1068, as introduced, Travis Allen. California Environmental
Quality Act: priority projects.
The California Environmental Quality Act (CEQA) requires a lead
agency, as defined, to prepare, or cause to be prepared, and certify
the completion of, an environmental impact report on a project that
it proposes to carry out or approve that may have a significant
effect on the environment or to adopt a negative declaration if it
finds that the project will not have that effect. CEQA also requires
a lead agency to prepare a mitigated negative declaration for a
project that may have a significant effect on the environment if
revisions in the project would avoid or mitigate that effect and
there is no substantial evidence that the project, as revised, would
have a significant effect on the environment.
CEQA establishes procedures by which a person may seek judicial
review of the decision of the lead agency made pursuant to CEQA and
the judicial remedies available.
This bill would authorize each Member of the Legislature to
nominate one project within his or her respective district each year,
and the Governor to designate those projects as priority projects if
the projects meet specified requirements. The bill would require the
Governor to provide a notice of the designation to the appropriate
lead agency and to the Office of Planning and Research. The bill
would require the lead agency to notify the public and interested
stakeholders of the designation, as specified, thereby imposing a
state-mandated local program. The bill would require that an
environmental impact report be prepared for each priority project,
but would authorize tiering from previously prepared reports, as
specified. The bill would prohibit the court from staying or
enjoining the implementation of a priority project unless the court
makes specified findings and would limit any stay or injunction, as
provided.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Priority Project Parity Act of 2015.
SEC. 2. The Legislature finds and declares all of the following:
(a) The California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code),
commonly known as CEQA, was enacted with a near unanimous bipartisan
vote of the Legislature in 1970 and signed into law by Governor
Reagan.
(b) The purpose of CEQA is to enhance public disclosure of the
environmental impacts of a project and to require feasible mitigation
measures or alternative project configurations that reduce
significant adverse impacts to the physical environment.
(c) Feasible mitigation measures and alternatives are limited to
those that allow the project to achieve its objectives, fall within
the jurisdiction of the lead agency, and can be readily implemented
from a legal, technical, and economic perspective.
(d) If, notwithstanding the feasible mitigation measures or
alternative configuration, a project would have a significant
unavoidable adverse impact on the physical environment or
substantially contribute to an unavoidable significant adverse
cumulative impact on the physical environment, an agency may
nevertheless approve the project by adopting a statement explaining
the overriding employment, environmental, social, economic, or other
benefits that have informed the agency's decision to approve the
project.
(e) In a notable contrast to the federal court interpretation of
the federal National Environmental Policy Act of 1969 (42 U.S.C.
Secs. 4321 et seq.), which served as a model for CEQA, California
courts have decided that lawsuits challenging the adequacy of an
agency's compliance with CEQA may be brought by any party for any
reason, including, but not limited to, parties seeking competitive
advantage, seeking wage or other employment terms and conditions,
seeking to protect private property economic values, and seeking to
preclude neighborhood-scale projects that are or may increase the
quality of life for lower income and racially diverse population
groups, by increasing youth utilization of urban parks or by
developing transit systems in urbanized areas, without regard to the
environmental or other merits of the project.
(f) In advising the state, regional, and local agency on the
compliance requirements of CEQA, the Governor's Office of Planning
and Research has identified more than 100 potential environmental
impact topics that must be evaluated for each project, has routinely
adopted guidance that increases the cost and complexity of the
analysis required, and continues to propose requirements that
increase uncertainty and complexity, including, but not limited to,
advocating for regulatory reversals of appellate court statutory
interpretations, such as the "business as usual" approach to
evaluating the significance of greenhouse gas emissions and the
judicial classification of parking as an environmental impact based
on air quality and other factors. Collectively, such ambiguous and
contradictory advice has continued to increase the cost and
litigation uncertainty of compliance obligations under CEQA.
(g) Three private sector law firms, each representing a diverse
range of parties affected by CEQA including public agencies, project
applicants, and other stakeholders, have completed studies on
reported appellate court decisions interpreting CEQA and those
studies demonstrate that the courts have determined that the lead
agencies failed to comply with some aspect of CEQA in nearly half of
all cases, and that even the most elaborate environmental studies,
the environmental impact reports, that are entitled to the highest
level of judicial deference, failed to pass judicial muster in nearly
half of all reported appellate cases over a 15-year period. Projects
approved under a less costly and less time-consuming negative
declaration process fail to pass judicial muster in far more than
half of the cases challenging those approvals.
(h) The overwhelming majority of the adverse court decisions
required that project approval be vacated pending completion of
further environmental studies under CEQA.
(i) Notwithstanding such conclusive evidence of widespread
confusion regarding the compliance requirements of CEQA, along with
litigation abuse to promote nonenvironmental interests and abusive
litigation tactics, such as "document dumping," to delay agency
decisions for weeks and sometimes months after the close of the
comment periods prescribed by CEQA, the Legislature has declined to
enact any systematic reforms that address how this 1970-era law is to
be interpreted in conjunction with the hundreds of environmental and
planning mandates that have subsequently been enacted as coequal
legal mandates in California's stringent and complex suite of
statutes designed to protect and enhance environmental quality,
including, but not limited to, statutes requiring integration of
environmental protection standards in land use plans and policies.
(j) The existence of an outstanding lawsuit challenging compliance
with CEQA, in tandem with the high level of adverse judicial
outcomes, creates significant unresolved project contingencies that
generally preclude timely receipt of federal and state grant funding
as well as other forms of public and private sector financing.
(k) Legislative leadership has routinely sponsored last minute
legislation for politically favored projects, including, but not
limited to, major league sports facilities and prisons, to either
exempt them from CEQA or limit the judicial remedies that are
available when an adverse judicial determination has been made. These
favored leadership projects have achieved this sheltered status
without regard to whether the projects are consistent with an adopted
sustainable communities strategy required pursuant to Section 65080
of the Government Code. This highly politicized leadership exemption
process has been referred to as the "transactional" model for
implementing CEQA.
(l) This transactional model for implementing CEQA is an effective
method of avoiding delays in financing and implementation of
priority projects. There is an ample body of otherwise applicable
California environmental protection and land use law in place to
avoid and minimize potentially significant adverse environmental
impacts to the physical environment without regard to the
applicability of CEQA. No existing law creates a presumed different
suite of legal compliance obligations reserved to legislative leaders
and the legislative districts they represent. Legislative leadership
positions do not confer upon individuals serving in those positions
a monopoly on the use of the transactional model for implementing
CEQA. The transactional model of legislative exemptions has a history
of extending nearly to the 1970 enactment date of CEQA.
(m) It is now appropriate to enact a new compliance pathway for a
project identified as a priority by each Member of the Senate and
Assembly.
SEC. 3. Section 21168.10 is added to the Public Resources Code, to
read:
21168.10. (a) (1) On or before November 15 of each year, each
Member of the Legislature may annually nominate one project within
his or her respective district as a priority project.
(2) A member of the Legislature who chooses to nominate a project
shall submit to the Governor the name of the project and sufficient
information to demonstrate that the project will meet the
requirements specified in paragraph (3).
(3) The Governor shall designate a project as a priority project
if the project meets all of the following:
(A) The project will result in at least 100 new or retained full
time jobs.
(B) The project is consistent with the adopted sustainable
communities strategy for the region in which the project is located.
(C) The project applicant certifies its intent to remain in the
location of the project for a minimum of five years.
(b) Subject to subdivision (a), a project may be designated as a
priority project pursuant to subdivision (a) at any time following
the submittal of the project proposal or application to the lead
agency for the commencement of environmental review pursuant to this
division but not later than 30 days following the approval of the
project by the lead agency.
(c) Withing 10 days after the designation of a project pursuant to
paragraph (3) of subdivision (a), the Governor shall provide a
notice of designation to the lead agency for the designated project
and to the Office of Planning and Research. The lead agency shall
inform members of the public and other interested stakeholders that a
project has been designated as a priority project pursuant to
paragraph (3) of subdivision (a) in the lead agency's next otherwise
applicable and required public document or notice regarding the
project and in all subsequent otherwise applicable and required
public documents or notices regarding the project, up to and
including applicable and required notice and documentation for
project approval. If there is no applicable and required public
document or notice, the lead agency shall provide a notice of
designation to the public and interested stakeholders.
(d) (1) The lead agency for a priority project shall complete all
notices required by this division and, except as provided in
paragraph (3), an environmental impact report shall be completed for
each priority project.
(2) The environmental impact report for a priority project may
tier from an earlier environmental impact report completed for the
existing or earlier version of the project and the tiered
environmental impact report shall be limited to the consideration of
significant adverse impacts resulting from the project that were not
previously identified in the earlier environmental impact report, or,
if the adverse impacts had been identified in the earlier
environmental impact report, the impacts are more severe than
previously identified.
(3) A new environmental impact report is not required for a
priority project that has been already included in an environmental
impact report prepared and certified under this division but the lead
agency shall prepare an addendum to the prior environmental impact
report to explain to the public and other interested stakeholders the
manner in which the project had been addressed in the prior
environmental impact report.
(e) (1) In granting relief in an action or proceeding brought
pursuant to this division, the court shall not stay or enjoin a
priority project designated pursuant to subdivision (a) unless the
court finds either of the following:
(A) The continued implementation of the priority project presents
an imminent threat to the public health and safety.
(B) The priority project site contains unforeseen important Native
American artifacts or unforeseen important historical,
archaeological, or ecological values that would be materially,
permanently, and adversely affected by the continued implementation
of the priority project.
(2) If the court finds that subparagraph (A) or (B) is satisfied,
the court shall only enjoin those specific activities associated with
the priority project that present an imminent threat to public
health and safety or that materially, permanently, and adversely
affect unforeseen important Native American artifacts or unforeseen
important historical, archaeological, or ecological values.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
