CEQA Roundup: Reform bill amendments reveal what’s been taken off the table
Senate leader Darrell Steinberg's CEQA bill, SB 731, went through some major revisions. (Steinberg Photo Credit: Angel Cardenas, Capitol Photo Credit: Violeta Vaquiero)
CORRECTION – An earlier version of this article contained an error about a specific provision of Steinberg’s CEQA legislation, saying the proposal had been removed. That provision, which aims to limit the types of lawsuits that can be filed late in the CEQA planning process, remains in the bill.
For the last year, the scope of the debate over the California Environmental Quality Act has been slowly narrowing--a winnowing process that became starkly apparent this week, when expansive amendments made to Sen. Darrell Steinberg's reform bill, SB 731, were made public.
For months, the Senate leader has been seeking what he has called the "elusive middle ground" on CEQA--an effort he has jokingly referred to as the How to Make No Friends Act. After leaving behind then-Sen. Michael Rubio's comprehensive (and controversial) reform ideas of last summer, Steinberg has focused on what he hoped business, environmental, and labor leaders could agree on: the need to streamline the CEQA process for environmentally friendly infill development and renewable energy projects.
While his bill passed unanimously out of the Senate earlier this summer, consensus has proved harder to achieve in closed-door negotiations with stakeholders. A set of amendments made to the bill after a July committee hearing--and released this week--have made it increasingly clear what he may be forced to give up to keep his reform effort moving.
The Senate leader has managed to hold on to one of his bill's most far-reaching ideas: removing aesthetic and (in the latest version) parking impacts from the CEQA process for infill projects. (Though these provisions come with several important caveats--more on that below).
But these proposals alone won't quiet critics of CEQA's cumbersome process and maddening delays. Much of Steinberg's original, expansive language intended to do just that has been removed from the bill--including a description of what he called his top two priorities: directing the Legislature to explore ways to streamline CEQA to provide "greater certainty" for both infill development and renewable energy projects.
With the bill now headed for a hearing of the Assembly's Committee on Local Government later this month, we take a closer look at what is--and isn't--in the bill.
Broad intent language targeting infill: Throughout his push for CEQA reform, Steinberg has said his aim is to speed up the CEQA review process for the vital infill projects California needs to achieve its climate goals--an idea he reiterated in a press conference Wednesday. This visionary language has been amended out of the bill, as has a specific call to bring "greater certainty" to infill development. The bill also backs away from efforts to expand the state's definition of infill development itself.
Prohibition of 'late hits:' Also amended out are clear statutory rules to prohibit so-called "late hits" and "document dumps" that critics say are designed to delay projects late in the environmental review process.
A new role for the Attorney General: Steinberg's original bill tasked the Attorney General with collecting information on the frequency of CEQA lawsuits and who is behind them--a major source of disagreement among environmentalists and business groups. While sources privy to the details of Steinberg's negotiations say the governor's office has expressed interest in adding more teeth to this provision by allowing the AG to go so far as to reopen these settlement agreements, the new amendments go in the other direction. He is now handing responsibility for developing reports on CEQA lawsuits to the California Research Bureau ("subject to the availability of funds"), which will be responsible for providing a report to the Legislature that includes the names of CEQA petitioners and the types of action filed.
Exempting "aesthetics" and (now) "parking:" The amended bill continues to propose removing "aesthetics" from the CEQA equation for residential and transit-oriented developments--and now adds parking to the mix, as well, in an effort to settle a series of muddled court decisions on the subject. These proposals would not prohibit a community from developing their own local rules on these issues, but it would mean infill project opponents could no longer use CEQA to tie a project up in court simply because they don't like the way it looks or how it deals with parking. These new provisions come with two big caveats: Aesthetic impacts on historical or cultural resources must still be considered under CEQA, and the bill's new parking provision is aimed only at the issue of parking spaces, not the impact of "traffic congestion on air quality." How much this clarifies the law remains unclear.
Setting new "thresholds" for noise impacts: In a previous version, Steinberg sought to set new "thresholds" for traffic, noise, and parking--common urban environmental impacts that have become major obstacles to infill projects. But the new bill only calls for thresholds for noise impacts, as well as what the bill calls "transportation impacts for transit-oriented infill projects." (Amended out is a directive to lawmakers to review similar land-use impacts to see if other thresholds could be set in the future.) In its current form, the bill continues to avoid setting these thresholds. Instead, it directs the Governor's Office of Planning & Research to create guidelines for the new thresholds--which would likely be challenged in court, making the timing of their enactment uncertain.
A concession to renewable energy: Steinberg's updated bill continues to create a new position for an Advisor on Renewable Energy Facilities to be a champion for renewable energy projects in the governor's office, a position that would expire at the end of 2016. The bill also includes a provision that would allow renewable energy project applicants to make a case to public agencies through the CEQA process touting the environmental virtues of their projects, from cutting emissions to reducing traffic.
Increasing transparency in the administrative process: The new amendments have left untouched most of the bill's array of procedural fixes--from allowing lead agencies to respond to CEQA complaints via the Internet to allowing courts to issue partial "remands" of only the sections of an environmental document that don't comply with the law (though that provision is still intent language only).
Who will be happiest about these changes?
Labor leaders will be pleased by what seems to be a concerted effort to dial back Steinberg's attempts to reduce CEQA litigation over infill projects. Most of the procedural changes sought by environmentalists remain in the bill, but environmental leaders may remain concerned over how new thresholds will be set--and how the bill's exemption of aesthetics and parking will be resolved. The new coalition of public works agencies will be disappointed to see language prohibiting "late hits," in particular, has been removed from the bill.
As for the business leaders who have been pushing for what they call "meaningful" reform: The new amendments to Steinberg's legislation appear to be another--potentially decisive--step away from the comprehensive, long-lasting changes to CEQA they have been seeking.