On February 20, 2025, Senator Scott Wiener introduced Senate Bill No. 607 (SB 607), a proposed law that is relatively short in text length, but which would engender major CEQA reforms if enacted as currently drafted. The bill would add three new, and amend two existing, statutory sections of CEQA, as discussed below.
Proposed New Public Resources Code Section 21080.08
Subdivision (a) of this proposed new statute would entirely exempt from CEQA “a rezoning that is consistent with an approved housing element” while subdivision (b) would clarify that the exemption “does not apply to a rezoning that would allow for the construction of a distribution center or for oil and gas infrastructure.” (As will be seen below, the latter qualification – essentially excluding warehouse and fossil fuel projects from the proposed reforms – applies to all parts of the proposed legislation.)
Proposed Amendments to Public Resources Code Section 21080.1
These proposed amendments would add several paragraphs making two significant substantive changes to the current statute. First, if a lead agency determines after a preliminary review that a project would qualify for a categorical exemption except for failing to meet a single condition of the exemption – while determining it meets all the other conditions – then the “agency shall limit the scope of an environmental impact report [for the project] to the condition of [the] categorical exemption that the lead agency determines… disqualifies the project from eligibility under the categorical exemption[.]” This proposed limitation on an EIR’s scope would thus not apply to projects “disqualified from a categorical exemption for failing to meet two or more conditions of the… exemption,” nor would it apply to projects related to a distribution center or oil and gas infrastructure. Limiting the analytic scope of certain EIRs in this way would appear to significantly alter current law requiring a “full EIR” whenever even a single potential impact renders a negative declaration (or exemption) unavailable. (See, e.g., Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300, 308-311, and cases cited, and my 11/8/21 post on that case here for a fuller discussion of this issue as it relates to negative declarations; see also my 9/3/24 post on Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) 104 Cal.App.5th 223, which can be found here, for a discussion of this issue as it relates to partially exempt projects.)
The proposed statutory amendments’ second significant substantive change (which also would not apply to distribution center or oil and gas infrastructure-related projects) reads as follows: “The lead agency’s determination to adopt a negative declaration or mitigated negative declaration shall be upheld if there is a fair argument that substantial evidence supports the determination.” Yes, you read that correctly: this language would ostensibly do away with the long-established, judicially-created “fair argument” standard governing the preparation of EIRs, and provide that when it can be fairly argued that substantial evidence supports a lead agency’s determination that a project will not have a significant environmental effect, a negative declaration or MND must be upheld and an EIR cannot be required. Needless to say, this would be a truly monumental and transformative piece of CEQA reform legislation if it were ever ultimately enacted as proposed by Senator Wiener.
Proposed New Public Resources Code Section 21083.03
This proposed new statute would require the Office of Land Use and Climate Innovation (“OLUCI”), by mid-2026, to prepare and transmit to the Natural Resources Agency for certification and adoption “refinements” to the Class 32 infill development exemption that would establish a number of changes to increase the exemption’s applicability and usefulness. For purposes of compliance with CEQA Guidelines section 15332(a), a project would also be eligible for the infill exemption “if it is consistent with the zoning designated by the local jurisdiction’s most recently adopted housing element” if that element has been certified by HCD. A project would be eligible – whether or not it is substantially surrounded by urban uses pursuant to section 15332(b) – if located in an area that OLUCI has determined to be an eligible urban infill site. (OLUCI would also be required by SB 607 to map such sites within all incorporated cities by mid-2026, and to include sites where the most recent general plan or HCD-certified housing element has a designation consistent with infill development.) “Objective and measurable thresholds” of significance would also be required to be established for purposes of section 15332(d)’s condition that project approval “would not result in any significant effects relating to traffic, noise, air quality, or water quality.” Under the proposed law none of the current exceptions to categorical exemptions contained in Guidelines section 15300.2 – i.e., including those addressing unusual circumstances, cumulative impacts, hazardous waste sites, and scenic and historical resources – would apply any longer to the Class 32 exemption; further, if an infill project is not eligible for the exemption, “only the reasons for the ineligibility shall be subject to CEQA review.”
CEQA does not define “infill development” (Working Families of Monterey County v. King City Planning Commission (2024) 106 Cal.App.5th 833, my 11/21/24 post on which can be found here), and while the proposed bill’s current broad language leaves a number of specific details to be resolved in the future, SB 607’s proposed changes – which again would not apply to distribution center or oil and gas infrastructure-related projects – would obviously be quite significant in greatly expanding the usefulness and applicability of the infill exemption and narrowing the scope of CEQA review even for “infill projects” that do not fully qualify for it.
Proposed New Public Resources Code Section 21165.5
This proposed new statute (which, again, wouldn’t apply to distribution center or oil and gas infrastructure projects) would apply to post-litigation CEQA review of projects for which a statutory or categorical exemption was found to have been improperly applied by a lead agency; for such projects, “the subsequent environmental review… shall be limited to the facts the action or proceeding relied upon that disqualified the project from the… exemption.” (It is unclear whether this limitation would turn on the facts alleged by the successful CEQA petitioner or those cited and relied on by the Court’s writ order.)
Proposed Amendment to Public Resources Code Section 21167.6(e)
This is probably the least consequential of the proposed SB 607 amendments, and would exclude from the broadly inclusive, statutorily defined contents of CEQA administrative records the internal agency “communications of persons tangential to or far removed from project decisionmaking, unless those communications are related to a project that would construct or is related to a distribution center or oil and gas infrastructure[.]”
Conclusion and Implications
Has the famously smart and land use-wonky Senator Wiener hit the political third rail with this proposed legislation, or does fortune (and a continuing state-wide housing crisis) favor the bold? As introduced, SB 607 proposes a number of major – and generally applicable, except for explicitly disfavored distribution center and oil and gas infrastructure projects – changes to CEQA’s current rules for (1) rezonings consistent with HCD-approved housing elements; (2) the scope and content of EIRs; (3) the use of and standard of judicial review for negative declarations; (4) the applicability of exemptions; and (5) the scope of CEQA review of projects that don’t quite qualify for (or are judicially disqualified from) otherwise applicable exemptions. While there is undoubtedly much more to come in terms of potential legislative action on this bill, as it has just recently been introduced, and the “devil” will lie in future “details,” Senator Wiener’s SB 607 is a very significant CEQA reform proposal and definitely one to watch.
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