Amended  IN  Assembly  May 19, 2020
Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2991

Introduced by Assembly Members Santiago and Ting
(Coauthor: Assembly Member Mathis)

February 21, 2020

An act to amend Sections 21180, 21181, 21183, 21184, 21189.1, and 21189.3 of, and to add Sections 21184.3 and 21187.5 to, the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 2991, as amended, Santiago. Environmental quality: Jobs and Economic Improvement Through Environmental Leadership Act of 2011. 2011: leadership project certification.
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.
The Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (leadership act) authorizes the Governor, until January 1, 2020, to certify as environmental leadership development projects certain projects that meet specified requirements, making those projects eligible for streamlining benefits provided by that act related to compliance with CEQA and streamlining of judicial review of action taken by a public agency. The leadership act requires the project applicant to agree to pay the costs of the court of appeal in hearing and deciding any case, as specified. The leadership act requires that if the Governor determines a leadership project is eligible for streamlining, the Governor submit the determination and any supporting information to the Joint Legislative Budget Committee for concurrence or nonconcurrence, as prescribed. The leadership act provides that if a lead agency fails to approve a project certified by the Governor before January 1, 2021, the certification expires and is no longer valid. The leadership act requires a lead agency to prepare the record of proceedings for the certified project concurrent with the preparation of the environmental documents. The leadership act is repealed by its own terms on January 1, 2021.
This bill would extend the authority of the Governor to certify certify, under the leadership act, a project as an environmental leadership development project to January 1, 2025. 2023. The bill would provide that the certification expires and is no longer valid if the lead agency fails to approve a certified project before January 1, 2026. 2024. The bill would instead repeal the leadership act on January 1, 2026. 2024. Because the bill would extend the obligation of the lead agency to prepare concurrently the record of proceedings, this bill would impose a state-mandated local program.
The bill would modify, and add to, the specific requirements a project must satisfy to be eligible for streamlining benefits under the leadership act, including that the project does not result in any net additional emissions of greenhouse gases, as prescribed, and achieves a 20% reduction in vehicle miles traveled per capita compared to existing development, calculated as specified. The bill would provide that an environmental leadership development project is subject to the rules and regulations of the leadership act that are in place on the date the Governor certified the project. The bill would require the project applicant to pay the costs of the superior court and the court of appeal in hearing and deciding any case. The bill would also eliminate the authority of the Joint Legislative Budget Committee to concur or nonconcur in the Governor’s streamlining eligibility determinations.
The bill would authorize, before a lead agency’s approval of a project certified by the Governor, the Governor to, upon application of the project applicant, certify a project “Alternative,” as defined, for streamlining benefits provided by the leadership act, if the Alternative complies with certain conditions in the leadership act in place at the time of the Governor’s original certification. The bill would require the project applicant to supply evidence and materials that the Governor deems necessary to make a decision on the project Alternative application, and would require the evidence or materials to be made available by the Governor to the public at least 15 days before the Governor certifies a project Alternative.
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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 21180 of the Public Resources Code is amended to read:

21180.
 For the purposes of this chapter, the following terms shall have the following meanings:
(a) “Applicant” means a public or private entity or its affiliates, or a person or entity that undertakes a public works project, that proposes a project and its successors, heirs, and assignees.
(b) “Environmental leadership development project,” “leadership project,” or “project” means a project as described in Section 21065 that is one the following:
(1) A residential, retail, commercial, sports, cultural, entertainment, or recreational use project that is certified as LEED gold or better by the United States Green Building Council and, where applicable, that achieves a 15-percent greater standard for transportation efficiency than for comparable projects. Council. These projects must be located on an infill site. For a project that is within a metropolitan planning organization for which a sustainable communities strategy or alternative planning strategy is in effect, the infill project shall be consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy, for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets.
(2) A clean renewable energy project that generates electricity exclusively through wind or solar, but not including waste incineration or conversion.
(3) A clean energy manufacturing project that manufactures products, equipment, or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles.
(c) “Transportation efficiency” means the number of vehicle trips by employees, visitors, or customers of the residential, retail, commercial, sports, cultural, entertainment, or recreational use project divided by the total number of employees, visitors, and customers.

SECTION 1.SEC. 2.

 Section 21181 of the Public Resources Code is amended to read:

21181.
 This chapter does not apply to a project if the Governor does not certify the project as an environmental leadership development project eligible for streamlining pursuant to this chapter before January 1, 2025. 2023.

SEC. 3.

 Section 21183 of the Public Resources Code is amended to read:

21183.
 The Governor may certify a leadership project for streamlining pursuant to this chapter if all the following conditions are met:
(a) The project will result in a minimum investment of one hundred million dollars ($100,000,000) in California upon completion of construction.
(b) (1) The project creates high-wage, highly skilled jobs that pay prevailing wages and living wages and provide construction jobs and permanent jobs for Californians, and helps reduce unemployment. For purposes of this subdivision, “jobs that pay prevailing wages” means that all construction workers employed in the execution of the project will receive at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code. If the project is certified for streamlining, the project applicant shall include this requirement in all contracts for the performance of the work.
(2) (A) If the project is certified pursuant to this chapter, contractors and subcontractors shall pay to all construction workers employed in the execution of the project at least the general prevailing rate of per diem wages.
(B) Except as provided in subparagraph (C), the obligation of the contractors and subcontractors to pay prevailing wages pursuant to subparagraph (A) may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within 18 months after the completion of the project, or by an underpaid worker through an administrative complaint or civil action. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.
(C) Subparagraph (B) does not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the project and provides for enforcement of that obligation through an arbitration procedure. For purposes of this subparagraph, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(c) (1) The project does not result in any net additional emission of greenhouse gases, including greenhouse gas emissions from employee transportation, as determined by the State Air Resources Board pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code. The baseline for this determination shall be limited to greenhouse gas emissions occurring on the project site no more than 60 days before the application is submitted.
(2) To maximize public health, environmental, and employment benefits, the applicant shall reduce the emissions of greenhouse gases in the project area and in the neighboring communities of the project. Not less than 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirements of this subdivision, excluding the greenhouse gas emissions from residential uses of the project, shall be from local, direct greenhouse gas emissions reduction measures that give consideration to criteria air pollutant and toxic air contaminant emissions reductions, including, but not limited to, both of the following:
(A) Project design features or onsite reduction measures, or both, including up to 50 percent of emissions reductions attributable to design features necessary to meet the LEED gold certification requirement of the United States Green Building Council.
(B) Offsite reduction measures in the neighboring communities.
(3) The applicant may obtain offset credits for up to 50 percent of the greenhouse gas emissions reductions necessary to achieve the requirement of this subdivision. The applicant shall, to the extent feasible, place the highest priority on the purchase of offset credits that produce emission reductions within the city or air district where the project is located. Any offset credits shall be verified by a third party accredited by the State Air Resources Board. In no event shall offset credits be used from a project located outside the United States.
(4) The State Air Resources Board may adopt an applicant fee to cover its costs of making this determination.
(d) The project applicant demonstrates compliance with the requirements of Chapters 12.8 (commencing with Section 42649) and 12.9 (commencing with Section 42649.8) of Part 3 of Division 30, as applicable.
(e) The project applicant has entered into a binding and enforceable agreement that all mitigation measures required pursuant to this division to certify the project under this chapter shall be conditions of approval of the project, and those conditions will be fully enforceable by the lead agency or another agency designated by the lead agency. In the case of environmental mitigation measures, the applicant agrees, as an ongoing obligation, that those measures will be monitored and enforced by the lead agency for the life of the obligation.
(f) The project applicant agrees to pay the costs of the Court of Appeal superior court and court of appeal in hearing and deciding any case, including payment of the costs for the appointment of a special master if deemed appropriate by the court, in a form and manner specified by the Judicial Council, as provided in the Rules of Court adopted by the Judicial Council pursuant to Section 21185.
(g) The project applicant agrees to pay the costs of preparing the record of proceedings for the project concurrent with review and consideration of the project pursuant to this division, in a form and manner specified by the lead agency for the project.
(h) (1) The project achieves a 20-percent reduction in vehicle miles traveled per capita compared to existing development, as determined by the Office of Planning and Research.
(2) For purposes of paragraph (1), for projects that are at least two-thirds residential uses by square footage, the project shall not generate vehicle travel per capita more than 80 percent of vehicle miles traveled per capita in the city or region where the project is located.
(3) For purposes of paragraph (1), for commercial projects, the project shall not attract vehicle travel per employee more than 80 percent of the existing vehicle miles traveled per employee for the region.

SEC. 4.

 Section 21184 of the Public Resources Code is amended to read:

21184.
 (a) The Governor may certify a project for streamlining pursuant to this chapter if it complies with the conditions specified in Section 21183.
(b) (1) Prior to Before certifying a project, the Governor shall make a determination that each of the conditions specified in Section 21183 has been met. These findings are not subject to judicial review.
(2) (A)If the Governor determines that a leadership project is eligible for streamlining pursuant to this chapter, he or she the Governor shall submit provide that determination, and any supporting information, to the Joint Legislative Budget Committee for review and concurrence or nonconcurrence. Committee.

(B)Within 30 days of receiving the determination, the Joint Legislative Budget Committee shall concur or nonconcur in writing on the determination.

(C)If the Joint Legislative Budget Committee fails to concur or nonconcur on a determination by the Governor within 30 days of the submittal, the leadership project is deemed to be certified.

(c) The Governor may issue guidelines regarding application and certification of projects pursuant to this chapter. Any guidelines issued pursuant to this subdivision are not subject to the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

SEC. 2.SEC. 5.

 Section 21184.3 is added to the Public Resources Code, to read:

21184.3.
 An environmental leadership development project shall be subject to the rules and regulations set forth in this chapter that are in place on the date the Governor certified the environmental leadership development project pursuant to this chapter.

SEC. 3.SEC. 6.

 Section 21187.5 is added to the Public Resources Code, to read:

21187.5.
 (a) Before a lead agency’s approval of a project certified by the Governor pursuant to this chapter, the Governor may, upon application of the project applicant, certify a project Alternative for streamlining pursuant to this chapter if the Alternative also complies with the conditions that were set forth in Section 21183 at the time of the Governor’s original certification. The project applicant shall supply evidence and materials that the Governor deems necessary to make a decision on the application to certify a project Alternative. Any evidence or materials provided by the project applicant shall be made available by the Governor to the public at least 15 days before the Governor certifies a project Alternative pursuant to this chapter. Paragraph (2) of subdivision (b) of Section 21184 shall not apply to a project Alternative certified by the Governor.
(b) For purposes of this section, “Alternative” means an alternative studied in a leadership project’s environmental impact report pursuant to Section 15126.6 of Title 14 of the California Code of Regulations.

SEC. 4.SEC. 7.

 Section 21189.1 of the Public Resources Code is amended to read:

21189.1.
 If, before January 1, 2026, 2024, a lead agency fails to approve a project certified by the Governor pursuant to this chapter, then the certification expires and is no longer valid.

SEC. 5.SEC. 8.

 Section 21189.3 of the Public Resources Code is amended to read:

21189.3.
 This chapter shall remain in effect until January 1, 2026, 2024, and as of that date is repealed.

SEC. 6.SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.