Bill Text: CA AB1183 | 2011-2012 | Regular Session | Amended
Bill Title: Environment: CEQA: environmental impact report: right of
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2012-02-01 - Died pursuant to Art. IV, Sec. 10(c) of the Constitution. From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1183 Detail]
Download: California-2011-AB1183-Amended.html
BILL NUMBER: AB 1183 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Bill Berryhill
FEBRUARY 18, 2011
An act to amend Section 25531 of, and to amend the
heading of Article 2 (commencing with Section 25531) of Chapter 6.95
of Division 20 of, the Health and Safety Code, relating to hazardous
substances. An act to add Section 21167.05 to the
Public Resources Code, relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1183, as amended, Bill Berryhill. Hazardous
substances: accidental release prevention.
Environment: CEQA: environmental impact report: right of action.
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 (EIR) 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 confers standing on a person satisfying specified
requirements to file and maintain an action or proceeding alleging
that an EIR was not prepared and certified in compliance with CEQA.
This bill would enact the Jobs and Housing Act of 2011 and would
limit the standing to file and maintain the above action or
proceeding to the Attorney General. The bill would apply this
limitation to those actions or proceedings that are pending as of
January 1, 2012, and for which a final nonappealable judgment has not
been entered before that date.
Existing law provides that the program for the prevention of
accidental releases of regulated substances adopted by the
Environmental Protection Agency pursuant to the federal Clean Air Act
is the accidental release prevention program for the state.
This bill would provide that the provisions establishing the
program are to be known as the "California Accidental Release
Prevention Program" or "CalARP."
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be
cited as the Jobs and Housing Act of 2011.
SEC. 2. (a) The Legislature finds and declares all
of the following:
(1) The purposes of the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) is to provide information to policymakers on the impact of
their decisions on the environment so they can minimize or mitigate
that impact. The underlying objective of the act is to inform
governmental decisions of the impact on the environment, identify
ways that the environmental damage can be avoided or reduced, prevent
avoidable damage in the design of the project, and ensure that
governmental agencies disclose information to the public.
(2) Under the act, there is a lengthy environmental review
process, with many opportunities for anyone to raise concerns about a
particular project. The entire process of drafting and obtaining
certification for an environmental impact report (EIR) can take years
and cost thousands to several million dollars.
(3) The act of the certifying body with respect to a project is
discretionary and its decision reflects a policy choice informed by
environmental and other analyses.
(4) California has lost hundreds of thousands of jobs in
construction, finance, real estate, and industries related to
construction since 2008. According to the Legislative Analyst's
Office, in construction alone, California has lost over 300,000 jobs
since 2007 (see
http://lao.ca.gov/reports/2011/calfacts/calfacts_010511.pdf).
(5) As the real estate market begins to rebound from the depths of
the recession, major projects are being stalled and job creation is
being stifled by nonenvironmental abuses of the act, which allows any
person to challenge the certification of an EIR by a local
government simply by asserting the analysis is inadequate to meet the
requirements of the act, resulting in a proliferation of frivolous
claims and significant abuses for purposes unrelated to the
environmental intent of the act.
(6) Courts have typically stayed a project once an action is filed
challenging the certification of an EIR and it can take more than
five years and cost millions of additional dollars to fight the
action. During this time, projects are suspended and jobs are lost.
(7) It is therefore in California's interest to restructure the
act to mitigate its abuse for nonenvironmental purposes to better
position California to spur economic recovery, create more jobs,
especially in the state's decimated construction industry, and get
critical projects online faster to allow the state to better compete
in the global economy.
(b) In enacting this act, it is the intent of the Legislature to
do the following:
(1) Mitigate the potential for retaliatory lawsuits by competitors
or litigants seeking to gain an unfair advantage in unrelated
disputes.
(2) Mitigate the potential for "shakedown" lawsuits by individuals
seeking "go away" money, whereby the mere threat of litigation is
also used to leverage concessions that may be totally unrelated to
benefits to the environment.
(3) Mitigate the potential for abuse by providing that only the
Attorney General will have standing to challenge the certification of
an EIR.
(c) In enacting this act, it is not the intent of the Legislature
to do the following:
(1) Change the environmental review process.
(2) Limit the power of local government to approve or reject an
EIR.
(3) Prevent the public from challenging an EIR through the
publicly elected Attorney General.
SEC. 3. Section 21167.05 is added to the
Public Resources Code , to read:
21167.05. (a) Notwithstanding any other law, a person, other than
the Attorney General, shall not commence or maintain an action or
proceeding alleging that an environmental impact report does not
comply with this division.
(b) This section shall apply to an action, proceeding, cause of
action, or claim that is pending as of January 1, 2012, and for which
a final nonappealable judgment has not been entered prior to January
1, 2012.
SECTION 1. The heading of Article 2 (commencing
with Section 25531) of Chapter 6.95 of Division 20 of the Health and
Safety Code is amended to read:
Article 2. California Accidental Release Prevention Program
SEC. 2. Section 25531 of the Health and Safety
Code is amended to read:
25531. (a) The Legislature finds and declares that a significant
number of chemical manufacturing and processing facilities generate,
store, treat, handle, refine, process, and transport hazardous
materials. The Legislature further finds and declares that, because
of the nature and volume of chemicals handled at these facilities,
some of those operations may represent a threat to public health and
safety if chemicals are accidentally released.
(b) The Legislature recognizes that the potential for explosions,
fires, or releases of toxic chemicals into the environment exists.
The protection of the public from uncontrolled releases or explosions
of hazardous materials is of statewide concern.
(c) There is an increasing capacity to both minimize and respond
to releases of toxic air contaminants and hazardous materials once
they occur, and to formulate efficient plans to evacuate citizens if
these discharges or releases cannot be contained. However, programs
designed to prevent these accidents are the most effective way to
protect the community health and safety and the environment. These
programs should anticipate the circumstances that could result in
their occurrence and require the taking of necessary precautionary
and preemptive actions, consistent with the nature of the hazardous
materials handled by the facility and the surrounding environment.
(d) As required by Clean Air Act amendments enacted in 1990
(Public Law 101-549), the Environmental Protection Agency has
developed a program for the prevention of accidental releases of
regulated substances. In developing the program, the Environmental
Protection Agency thoroughly reviewed a wide variety of chemical and
hazardous substances to identify substances that might pose a risk to
public health or safety or to the environment in the event of an
accidental release. The Environmental Protection Agency developed a
program to prevent accidental releases of those substances determined
to potentially pose the greatest risk of immediate harm to the
public and the environment. The federal program provides no options
for implementing agencies to diminish the requirements or
applicability of the federal program.
(e) In light of this new federal program, the Legislature finds
and declares that the goals of reducing regulated substances accident
risks and eliminating duplication of regulatory programs can best be
accomplished by implementing the federal risk management program in
the state, with certain amendments that are specific to the state.
Therefore, it is the intent of the Legislature that the state seek
and receive delegation of the federal program for prevention of
accidental releases of regulated substances established pursuant to
Section 112(r) of the federal Clean Air Act (42 U.S.C. Sec. 7412(r)),
by implementing the federal program as promulgated by the
Environmental Protection Agency, with certain amendments that are
specific to the state.
(f) This article, and the program for the prevention of accidental
releases for the state, as specified in Section 25533, shall be
known, and may be cited as the "California Accidental Release
Prevention Program" or "CalARP."
