Bill Text: CA SB995 | 2019-2020 | Regular Session | Amended


Bill Title: Environmental quality: Jobs and Economic Improvement Through Environmental Leadership Act of 2011: housing projects.

Spectrum: Partisan Bill (Democrat 12-0)

Status: (Engrossed) 2020-08-31 - In Senate. Concurrence in Assembly amendments pending. [SB995 Detail]

Download: California-2019-SB995-Amended.html

Amended  IN  Assembly  August 25, 2020
Amended  IN  Assembly  August 12, 2020
Amended  IN  Assembly  July 27, 2020
Amended  IN  Senate  June 18, 2020
Amended  IN  Senate  June 02, 2020
Amended  IN  Senate  May 19, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 995


Introduced by Senators Atkins, Wiener, Caballero, and Rubio
(Principal coauthors: Senators Lena Gonzalez, Hill, and McGuire)
(Coauthors: Senators Durazo and Roth)
(Coauthors: Assembly Members Burke, Santiago, and Ting)

February 12, 2020


An act to amend Sections 21180, 21181, 21183, 21185, 21189.1, and 21189.3 of, and to add Sections 21157.8, 21183.5, 21183.6, 21184.7, and 21187.5 to, the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


SB 995, as amended, Atkins. Environmental quality: Jobs and Economic Improvement Through Environmental Leadership Act of 2011: housing 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 (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 authorizes the preparation of a master EIR and authorizes the use of the master EIR to limit the environmental review of subsequent projects that are described in the master EIR, as specified.
This bill would require a lead agency to prepare a master EIR for a general plan, plan amendment, plan element, or specified plan for housing projects where the state has provided funding for the preparation of the master EIR.
The Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (leadership act) authorizes the Governor, until January 1, 2020, to certify projects that meet certain requirements, including a requirement that the project applicant agrees to pay the costs of the court of appeal in hearing and deciding a case challenging a lead agency’s action on a certified project and certain labor-related requirements, for streamlining benefits provided by the leadership act related to compliance with CEQA and streamlining of judicial review of action taken by a public agency to require a judicial action to be resolved within 270 days of the filing of the certified record of proceedings with the court. 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 EIR. The leadership act is repealed by its own terms on January 1, 2021.
This bill would extend the authority of the Governor to certify a project to January 1, 2024. The bill would authorize the Office of Planning and Research to charge a fee on an applicant seeking certification for costs incurred by the Governor’s office in the implementation of the leadership act. The bill would additionally include housing development projects, as defined, meeting certain conditions as projects eligible for certification. The bill would, except for those housing development projects, require the quantification and mitigation of the impacts of a project from the emissions of greenhouse gases, as provided. The bill would provide for the certification by the Governor of a project alternative described in an EIR for a certified project, as provided. The bill would additionally require the project applicant, as a condition of certification, to agree to pay for the costs of the trial court in hearing and deciding the case. The bill would revise and recast the labor-related requirements for projects undertaken by public agencies and for projects undertaken by private entities. The bill would instead specify that the time period for the final resolution of any judicial action is 270 business days after the filing of the record of proceedings with the court. 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, 2025. The bill would instead repeal the leadership act on January 1, 2025. 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 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 21157.8 is added to the Public Resources Code, to read:

21157.8.
 (a) To streamline and expedite environmental review for housing projects, a lead agency shall prepare a master environmental impact report for a general plan, plan amendment, plan element, or specific plan for housing projects where the state has provided funding for the preparation of the master environmental impact report.
(b) The preparation and certification of a master environmental impact report, if prepared and certified consistent with this division, shall allow for the limited review of subsequent housing projects that are described in the master environmental impact report as being within the scope of the master environmental impact report, if the use of the master environmental impact report for subsequent housing projects are consistent with Sections 21157.1 and 21157.6.
(c) A negative declaration or mitigated negative declaration shall be prepared for a subsequent housing project if both of the following occur:
(1) An initial study has identified potentially new or additional significant effects on the environment that were not analyzed in the master environmental impact report.
(2) Feasible mitigation measures or alternatives will be incorporated to revise the proposed subsequent project, before the negative declaration is released for public review, to avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment will occur.
(d) If there is substantial evidence in light of the whole record before the lead agency that the proposed subsequent housing project may have a significant effect on the environment and a mitigated negative declaration is not prepared, the lead agency shall prepare a focused environmental impact report pursuant to Section 21158.

SEC. 2.

 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 Leadership in Energy and Environmental Design (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. 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.
(4) (A) A housing development project that meets all of the following conditions:
(i) The project is located on an infill site.
(ii) For a project that is located within a metropolitan planning organization for which a sustainable communities strategy or alternative planning strategy is in effect, the project is 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.
(iii) Notwithstanding paragraph (1) of subdivision (a) of Section 21183, a project eligible pursuant to this paragraph will result in a minimum investment of fifteen million dollars ($15,000,000), but less than one hundred million dollars ($100,000,000), in California upon completion of construction.
(iv) (I) Except as provided in subclause (II), at least 15 percent of the housing project is dedicated as housing that is affordable to lower income households, as defined in Section 50079.5 of the Health and Safety Code. Upon completion of a project that is qualified pursuant to this paragraph and is certified by the Governor, the lead agency or applicant of the project shall notify the Office of Planning and Research of the number of housing units and affordable housing units established by the project.
(II) Notwithstanding subclause (I), if a local agency has adopted an inclusionary zoning ordinance that establishes a minimum percentage for affordable housing within the jurisdiction in which the housing project is located that is higher than 15 percent, the percentage specified in the inclusionary zoning ordinance shall be the threshold for affordable housing.
(v) (I) Except for the use as a “residential hotel,” as defined in Section 50519 of the Health and Safety Code, no part of the housing project shall be used for a rental unit for a term shorter than 30 days, or designated for hotel, motel, bed and breakfast inn, or other transient-lodging use.
(II) No part of the housing project shall be used for manufacturing or industrial uses.
(B) For purposes of this paragraph, “housing development project” means a project for any of the following:
(i) Residential units only.
(ii) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.
(iii) Transitional housing or supportive housing.
(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.

SEC. 3.

 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, 2024.

SEC. 4.

 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) (1) Except as provided in paragraph (2), the project will result in a minimum investment of one hundred million dollars ($100,000,000) in California upon completion of construction.
(2) Paragraph (1) does not apply to a leadership project described in paragraph (4) of subdivision (b) of Section 21180.
(b) 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 and promote apprenticeship training. For purposes of this subdivision, a project is deemed to create jobs that pay prevailing wages, create highly skilled jobs, and promote apprenticeship training if the project applicant demonstrates to the satisfaction of the Governor that the project will comply with Section 21183.5.
(c) (1) For a project described in paragraph (1), (2), or (3) of subdivision (b) of Section 21180, the project does not result in any net additional emission of greenhouse gases, including greenhouse gas emissions from employee transportation. For purposes of this paragraph, a project is deemed to meet the requirements of this paragraph if the project applicant demonstrates to the satisfaction of the Governor that the project will comply with Section 21183.6.
(2) For a project described in paragraph (4) of subdivision (b) of Section 21180, the project does not result in any net additional emission of greenhouse gases, including greenhouse gas emissions from employee transportation.
(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 trial court and the 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.

SEC. 5.

 Section 21183.5 is added to the Public Resources Code, to read:

21183.5.
 (a) For purposes of this section, the following definitions apply:
(1) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(2) “Skilled and trained workforce” has the same meaning as provided in Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(b) (1) For a project undertaken by a public agency that is certified pursuant to this chapter, except as provided in paragraph (2), an entity shall not be prequalified or shortlisted or awarded a contract by the public agency to perform any portion of the project unless the entity provides an enforceable commitment to the public agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades.
(2) Paragraph (1) does not apply if any of the following requirements are met:
(A) The public agency has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the project or contract to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.
(B) The project or contract is being performed under the extension or renewal of a project labor agreement that was entered into by the public agency before January 1, 2021.
(C) The entity has entered into a project labor agreement that will bind the entity and all of its subcontractors at every tier performing the project or contract to use a skilled and trained workforce.
(c) For a project undertaken by a private entity that is certified pursuant to this chapter, the project applicant shall do both of the following:
(1) Certify to the lead agency that either of the following is true:
(A) The entirety of the project is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(B) If the project is not in its entirety a public work, all construction workers employed in the execution of the project will be paid 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, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the project is subject to this subparagraph, then, for those portions of the project that are not a public work, all of the following shall apply:
(i) The project applicant shall ensure that the prevailing wage requirement is included in all contracts for the performance of the work.
(ii) All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.
(iii) (I) Except as provided in subclause (III), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided by that section.
(II) Except as provided in subclause (III), the obligation of the contractors and subcontractors to pay prevailing wages 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, by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee through a civil action under Section 1771.2 of the Labor Code. 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.
(III) Subclauses (I) and (II) do 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.
(iv) Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing shall not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.
(2) Certify to the lead agency that a skilled and trained workforce will be used to perform all construction work on the project. All of the following requirements shall apply to the project:
(A) The applicant shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to complete the project.
(B) Every contractor and subcontractor shall use a skilled and trained workforce to complete the project.
(C) (i) Except as provided in clause (ii), the applicant shall provide to the lead agency, on a monthly basis while the project or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the lead agency pursuant to this clause shall be a public record under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and shall be open to public inspection. An applicant that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the project using the same procedures for issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(ii) Clause (i) does not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure.

SEC. 6.

 Section 21183.6 is added to the Public Resources Code, to read:

21183.6.
 (a) The quantification and mitigation of the impacts of a project described in paragraph (1), (2), or (3) of subdivision (b) of Section 21180 from the emissions of greenhouse gases shall be as follows:
(1) The environmental baseline for greenhouse gas emissions shall be established based upon the physical conditions at the project site at the time the application is submitted in a manner consistent with Section 15125 of Title 14 of the California Code of Regulations as those regulations existed on January 1, 2020.
(2) The mitigation of the impacts resulting from the emissions of greenhouse gases shall be achieved pursuant to the following priority:
(A) Direct emissions reductions from the project through implementation of project features, project design, or other measures, including, but not limited to, energy efficiency, installation of renewable energy electricity generation, and reductions in vehicle miles traveled.
(B) If all of the project impacts cannot be feasibly and fully mitigated by direct emissions reductions as described in subparagraph (A), the remaining unmitigated impacts shall be mitigated by direct emissions reductions in the same community or adjacent communities.
(C) If all of the project impacts cannot be feasibly and fully mitigated by direct emissions reductions as described in subparagraph (A) or (B), the remaining unmitigated impacts shall be mitigated through the use of offsets that would also reduce the emissions of criteria air pollutants or toxic air contaminants. The offsets shall be undertaken in a manner consistent with Division 25.5 (commencing with Section 38500) of the Health and Safety Code, including, but not limited to the requirement that the offsets be real, permanent, quantifiable, verifiable, and enforceable, and shall be undertaken from sources in the community within which the project is located or in adjacent communities.
(D) If all of the project impacts cannot be feasibly and fully mitigated by the measures described in subparagraph (A), (B), or (C), the remaining unmitigated impacts shall be mitigated through the use of offsets that would also reduce the emissions of criteria air pollutants or toxic air contaminants and shall be undertaken in a manner consistent with subparagraph (C) and shall be undertaken from sources that provide a specific, quantifiable, and direct environmental and public health benefit to the community in which the project is located.
(b) It is the intent of the Legislature, in enacting this section, to maximize the environmental and public health benefits from measures to mitigate the project impacts resulting from the emissions of greenhouse gases to those people that are impacted most by the project.

SEC. 7.

 Section 21184.7 is added to the Public Resources Code, to read:

21184.7.
 The Office of Planning and Research may charge a fee on an applicant seeking certification pursuant to this chapter for the costs incurred by the Governor’s office in the implementation of this chapter.

SEC. 7.SEC. 8.

 Section 21185 of the Public Resources Code is amended to read:

21185.
 The Judicial Council shall adopt a rule of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification of the environmental impact report for an environmental leadership development project certified by the Governor pursuant to this chapter or the granting of any project approvals that require the actions or proceedings, including any potential appeals to the court of appeal or the Supreme Court, be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court.

SEC. 8.SEC. 9.

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

21187.5.
 (a) For purposes of this section “project 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 as those regulations existed on January 1, 2020.
(b) Before a lead agency’s approval of a project alternative described in an environmental impact report for a leadership project certified by the Governor pursuant to this chapter, the Governor may, upon application of the project applicant, certify the project alternative pursuant to this chapter if the project alternative meets the definition of a leadership project pursuant to Section 21180 and complies with Section 21183 as those sections existed at the time of the Governor’s certification of the leadership project. The project applicant shall supply evidence and materials that the Governor deems necessary to make a decision on the application to certify the 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 the certification of a project alternative pursuant to this section. The findings made by the Governor pursuant to this section are not subject to judicial review.
(c) The rule of court adopted pursuant to Section 21185 applies to actions or proceedings brought to attack, review, set aside, void, or annul a public agency’s approval of a project alternative certified pursuant to this section on the grounds of noncompliance with this division.

SEC. 9.SEC. 10.

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

21189.1.
 If, before January 1, 2025, 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. 10.SEC. 11.

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

21189.3.
 This chapter shall remain in effect until January 1, 2025, and as of that date is repealed unless a later enacted statute extends or repeals that date.

SEC. 11.SEC. 12.

 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.
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