On February 22, 2013, Senator President Pro Tempore Darrell Steinberg introduced SB 731, a bill the Senator’s website press release described as “outlining the detailed intent that strengthens [CEQA’s] protection of the state’s environment and residents while modernizing the law to help the growth of California’s economy.” Notable features of SB 731 include:
- The bill is “bare bones” in the sense that it currently consists of only one section and seven (7) subsections ((a) through (g)) that state the “intent of the Legislature” to enact or amend various provisions of CEQA (and other laws) to attain various ends, but do not set forth the actual statutory language of the proposed enactments or amendments.
- The bill proposes to adopt as a statute the CEQA Guidelines’ highly- qualified infill development exemption at 14Cal.Code Regs. § 15183.3, and to “explore amendments to expand the definition of “infill” and to accommodate infill development in the Central Valley.”
- The bill proposes establishment of uniform thresholds of significance for impacts in the areas of noise, aesthetics, parking and traffic LOS, so that projects not exceeding such thresholds would be subject to no further CEQA review for such impacts. The bill also proposes Legislative “review [of] other similar land-use-related impacts to determine if other thresholds of significance can be set.” However, the bill would also essentially allow local agencies to “opt out” of the uniform thresholds and impose their own stricter thresholds should they so choose.
- The bill proposes unclear statutory amendments to the Government Code and/or CEQA to avoid duplicative CEQA review for projects in compliance with specific plans for which a valid EIR has been prepared, and to explore similar treatment for other types of plans that are consistent with SB 375 sustainable communities strategies or that have a certified EIR less than 5 years old.
- The bill proposes CEQA litigation reforms including: (1) establishing clear procedures for trial court remand to lead agencies to fix portions of CEQA documents without need of recirculating the entire document; (2) exploring options under which courts could allow project approvals to remain in place pending CEQA compliance; and (3) amending CEQA to establish clear statutory rules under which process-delaying “late hits” and “document dumps” by project opponents would be prohibited or restricted absent substantive EIR or project changes.
In its current form, SB 731 does not address: (1) codification of “CEQA-in-reverse” caselaw; (2) uniform standards for mitigation; (3) combatting lawsuits that are economically rather then environmentally motivated; and (4) reforming provisions concerning the timing, content, and manner of preparation of the record so as to expedite CEQA litigation. The bill’s failure to address these and other areas will undoubtedly be disappointing to many CEQA reform advocates. Additionally, while some of SB 731’s proposals appear to be positive steps in the direction of meaningful CEQA reform, the bill is clearly currently in only an embryonic stage, and the “devil” will be in the “details” to come. In short, it is far too soon to tell how SB 731’s rather amorphous statements of legislative “intent” will play out when the proposed statutory language of the amendments and enactment is actually drafted.
In another CEQA development, Senator Noreen Evans (D-Santa Rosa) announced on February 25, 2013, her introduction of two bills (SB 617 and SB 754) that point in the opposite direction from CEQA reform. Touted on the Senator’s website press release as bills that “seek to preserve and protect some of the nation’s leading community and environmental protection laws[,]” the proposals are endorsed by leaders of the Sierra Club and Planning and Conservation League. Significant aspects of Senator Evans’ proposals as highlighted on her website include:
- Legislatively overturning judicial decisions holding that CEQA does not operate “in reverse,” i.e., it requires analysis only of a proposed project’s impacts on the existing environment, not the environment’s impacts on the project. Evans calls these decisions “unwise” and her SB 617 bill would expand the scope of required CEQA analysis to include impacts of the existing environment on proposed projects and their users. (SB 617)
- Altering CEQA’s “baseline” rules to exclude from the “baseline” against which project impacts are measured current environmental conditions resulting from past illegal actions. (SB 754)
- Precluding real party in interest project developers from contracting for or even “overseeing” CEQA review for their projects. (SB 754)
- “Limiting” the “shelf-life” of an EIR to a maximum of 7 years. (SB 754)
- “Raising the ceiling” on mitigation for archeological resources impacts, and providing enforcement for mitigation measures.
The proposals of Evans, who chairs the Senate Judiciary Committee, are obviously concerning to advocates of CEQA reform as they seek to expand and make CEQA’s provisions more onerous to the agencies and project applicants who must comply with them.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.