A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:
SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA.
As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public Input, CEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743. OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.
The proposed section 15064.3 includes two new criteria for analyzing transportation impacts: (1) for land use projects, “vehicle miles traveled,” defined as “distance of automobile travel associated with a project,” and (2) for transportation projects, “induced vehicle travel.” The Guideline also includes provisions focusing on safety, methodology, and alternatives and mitigation.
How the new transportation metric may affect CEQA analysis going forward is not completely clear, but what is clear is that major changes are in the works. The basic paradigm shift being proposed is that being stuck in traffic – i.e., congestion, or “automobile delay,” which LOS seeks to measure – is no longer going to be the measuring stick for transportation and traffic impacts. Whether “vehicle miles traveled” or “induced vehicle travel” prove superior metrics, and if so, in what respects, remains to be seen. The new proposal has elicited substantial concerns and questions from many CEQA practitioners, including whether it will worsen or adequately account for air pollution and noise impacts from increased congestion, and without achieving the corresponding “infill” benefits desired.
AB 52: Expanding CEQA’s Reach Over Native American Cultural Resources.
On September 25, 2014, the Governor’s office announced that he had signed AB 52, a measure sponsored by Assemblymember Mike Gatto. AB 52 adds several provisions to CEQA dealing with impacts on “tribal cultural resources” of importance to California Native American tribes. “A project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment.” (Pub. Resources Code, § 21084.2, added by Stats. 2014, ch. 532, § 9.) “Tribal cultural resources” is defined broadly to include “[s]ites, features, places, cultural landscapes, sacred places, and objects.” (Pub. Resources Code, § 21074, added by Stats. 2014, ch. 532, § 4.) AB 52 thus provides an additional “hook” upon which project opponents may seek to hang potential CEQA claims.
AB 52 also creates additional procedures for consultation between a lead agency and a California tribe “that is traditionally and culturally affiliated with the geographic area of the proposed project” where the tribe requests notice of projects within that area. (Pub. Resources Code, § 21080.3.1, added by Stats. 2014, ch. 532, § 5.) The consultation must include a discussion of proposed mitigation measures “capable of avoiding or substantially lessening potential significant impacts to a tribal cultural resource.” (Pub. Resources Code, § 21080.3.2, added by Stats. 2014, ch. 532, § 6.) Moreover, the ultimate environmental document must address significant impacts on “tribal cultural resources” and alternatives and mitigation for the same. (Pub. Resources Code, § 21082.3, added by Stats. 2014, ch. 532, § 7.) The law also includes a list of potential mitigation measures that may be appropriate for relevant projects. (Pub. Resources Code, § 21084.3, added by Stats. 2014, ch. 532, § 10.)
AB 1104: Out of the Pipeline.
The same announcement for AB 52 also signaled that Governor Brown had signed another CEQA reform measure, AB 1104. This minor change expands an existing exemption for certain pipelines to include pipelines for the transportation of “biogas” (natural gas “derived from anaerobic digestion of dairy animal waste”) in the counties of Fresno, Kern, Kings, and Tulare.
SB 270: Statewide Ban on Plastic Bags.
While not a CEQA amendment, Governor Brown signed a CEQA-related law – SB 270 – on September 30, 2014. This bill adds Chapter 5.3 to the Public Resources Code, enacting new sections 42280 through 42288. As of July 1, 2015, the law will ban stores from handing out single-use carryout bags, defined as “a bag made of plastic, paper, or other material that is provided by a store to a customer at the point of sale and that is not a recycled paper bag or a reusable grocery bag.” It also requires a minimum charge of 10¢ for recycled paper bags and reusable grocery bags.
The state law’s connection to CEQA is that a number of local (city and county) plastic bag bans have been enacted in California, and they have been challenged frequently by industry groups on CEQA grounds. Even the California Supreme Court’s ruling against such an attack in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 did not dissuade subsequent (unsuccessful) suits in Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863 and Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209. Given its vigorous and litigious opposition to the local bans, SB 270 must be a tough pill for the plastic bag industry to swallow.
Questions? Please contact Arthur F. Coon or Matthew C. Henderson of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty 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.