June 7, 2013 by Justin Ewers
CEQA Roundup - The Good, Bad & Potentially Bad: What business thinks of reform bills
Bills addressing legal uncertainty around the Ballona Wetlands decision received some resistance. (Photo Credit: stonebird/Flickr)
The CEQA reform debate was put largely aside this week as lawmakers work to finalize the state budget before next week's deadline. The short breather provided an opportunity for a post-mortem on the legislative process so far—with one analysis by a group of land use attorneys offering an early glimpse of where business interests, in particular, are likely to seek changes in the months ahead. (More on that below.)
What CEQA proposals are still moving
Of the more than two dozen CEQA bills introduced this winter, only five made it out of their house of origin last week, meaning they could still become law this year.
Perhaps the biggest surprises were the stumbles of the most comprehensive CEQA changes backed by environmentalists, Asm. Ammiano's AB 953 and Sen. Evans's SB 617. Both bills contained the same proposal to address lingering legal uncertainty surrounding the recent Ballona decision, a legal change that is popular with some Dems—but particularly unpopular with the state Chamber of Commerce, which tagged both bills as "job killers." It will be worth watching to see if the bills' legal language makes its way into one of the five CEQA bills still moving.
The Land Use & Development Law Report offers a helpful roundup of the CEQA changes that are still on the table. Their summary:
Active CEQA bills:
- SB 731, the "CEQA Modernization Act of 2013.″ (See CAeconomy's summary of what the bill does—and doesn't do.)
- AB 37, which would require lead agencies to prepare their records of proceedings at the same time they prepare environmental documents for certain projects
- AB 543, which would require translation of certain CEQA notices and CEQA document summaries if 25% of nearby residents are non-English-speaking
- AB 436 and AB 380, which would impose additional CEQA notice and filing requirements
CEQA bills that did not make the cut:
- SB 787, the same far-reaching and controversial CEQA reform proposal that first surfaced in August 2012
- Proposals for specialized divisions within superior courts to handle CEQA case
- Efforts to overturn recent appellate court decisions [including Ballona] holding that CEQA concerns the effects of projects on the environment—not effects of the environment on projects
- Three bills, or portions of those bills, that would have extended the 2011 Environmental Leadership Act's CEQA streamlining provisions to additional categories of projects
Where business may push back
Sen. Steinberg's SB 731, with its focus in streamlining the CEQA process for infill developments, remains the most comprehensive piece of reform legislation. As we pointed out last week, in spite of the unanimous support for the bill in the Senate, disagreements still exist over many of the bill's details.
While environmentalists haven't detailed their quibbles in the last few weeks, a group of land-use attorneys at the law firm Manatt, Phelps, & Phillips recently posted a critical analysis of the bill's provisions—offering a window into where business interests may seek changes in the months ahead.
The Manatt analysis divides the bill's proposals into four categories: Good, Bad, Potentially Bad, and Status Quo. The attorneys consider only one of the bill's provisions "good:" Steinberg's removal of "aesthetic" impacts from the CEQA process. As Manatt puts it, this "removes a subjective matter from environmental review, resulting in possible time/cost savings for qualifying projects."
Many of the other changes the bill would make—including Steinberg's proposals to set new thresholds for common urban environmental impacts like noise, traffic, and parking—are viewed by Manatt with a fair bit of skepticism.
These proposals seem likely to be the focus of debate—and amendments to tighten up language—now that the bill has moved to the Assembly:
- Setting new "thresholds" for common urban environmental impacts – Manatt's take: "Potentially Bad: Noise, traffic and parking are quintessential local issues. Statewide standards may result in local battles over the need for more specific local thresholds of significance, and the nature/scope of local thresholds."
- New requirements that draft CEQA findings be made public sooner – Manatt's take: "Bad: Additional noticing will result in increased processing costs for project proponents and could result in significant delay if revisions to findings and additional public review are necessary."
- Allowing administrative record to be prepared concurrently with the project (instead of at the end): Manatt's take: "Potentially Bad: Currently written such that only the applicant may make this request. May encourage CEQA litigation since administrative record will already be prepared (and paid for) at time of project approval."
- New annual report requirements to demonstrate mitigation of environmental impacts: Manatt's take: "Potentially Bad: Heightened local agency oversight of project implementation and ongoing CEQA compliance. Additional opportunities for CEQA lawsuits where report identifies deficiencies with implementation of mitigation measures. Additional annual costs to project proponents until satisfaction of all MMRP conditions."
- Prohibiting project opponents from performing last-minute "document dumps" to slow down CEQA review process: Manatt's take: "Status quo: While the legislation states that it intends to make changes to Section 21091, no changes to Section 21091 are actually proposed in SB 731 as currently drafted."