BILL ANALYSIS                                                                                                                                                                                                    



                                                                SB 787
                                                                       

                       SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                               Senator Jerry Hill, Chair
                               2013-2014 Regular Session
                                            
           BILL NO:    SB 787
           AUTHOR:     Berryhill
           AMENDED:    April 18, 2013
           FISCAL:     Yes               HEARING DATE:     May 1, 2013
           URGENCY:    No                CONSULTANT:       Joanne Roy
            
           SUBJECT  :    CALIFORNIA ENVIRONMENTAL QUALITY ACT 

            SUMMARY :    
           
            Existing law  :Under the California Environmental Quality Act  
           (CEQA), 

           1) Requires lead agencies with the principal responsibility for  
              carrying out or approving a proposed discretionary project to  
              prepare a negative declaration, mitigated declaration, or  
              environmental impact report (EIR) for this action, unless the  
              project is exempt from CEQA (CEQA includes various statutory  
              exemptions, as well as categorical exemptions in the CEQA  
              guidelines).  (Public Resources Code 21000 et seq.).  If  
              there is substantial evidence, in light of the whole record  
              before a lead agency, that a project may have a significant  
              effect on the environment, the lead agency must prepare a  
              draft EIR.  (CEQA Guidelines 15064(a)(1), (f)(1)).

           2) Requires thresholds of significance adopted as part of a lead  
              agency's environmental review process to be developed through  
              a public review process.  A threshold of significance is "an  
              identifiable quantifiable, qualitative or performance level  
              of a particular environmental effect, non-compliance with  
              which means the effect will normally be determined to be  
              significant by the agency and compliance with which means the  
              effect normally will be determined to be less than  
              significant."  When adopting thresholds of significance, a  
              lead agency may consider thresholds of significance  
              previously adopted or recommended by other public agencies or  
              recommended by experts.  (CEQA Guidelines 15064.7).

            









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           This bill  creates the Sustainable Environmental Protection Act  
           (SEPA), which does the following:

           1) Provides legislative intent that:

              a)    States CEQA was enacted in 1970 to maintain a quality  
                 environment, and that in the 40 years following enactment  
                 "Congress and the Legislature have each adopted more than  
                 100 laws to protect environmental quality" in 17  
                 environmental topical areas.

              b)    References various environmental laws, "all enacted  
                 after 1970 . . ." while asserting that environmental laws  
                 and regulations identify compliance obligations of general  
                 applicability and provide greater clarity or are beyond  
                 the ad hoc review process created by CEQA, and in enacting  
                 these measures avoids "the sometimes conflicting and often  
                 duplicative ad hoc environmental review and mitigation  
                 requirements."

           2) Requires an environmental document prepared under CEQA to  
              disclose all applicable environmental laws, and defines  
              "applicable environmental laws" to be those referenced in the  
              measures legislative intent and meets certain requirements.

           3) Specifies that the above "disclosure obligations" are  
              intended to foster environmental and public participation in  
              the public review process required under CEQA or other  
              applicable laws, including the Ralph M. Brown Act.

           4) Limits environmental review under those topical areas listed  
              in the legislative intent.

           5) Prohibits a cause of action under CEQA based on an  
              environmental topical area listed in the legislative intent  
              if the environmental document discloses a requirement of  
              compliance with an applicable environmental law or  
              regulation, plan, permit, license, or authorization  
              application and approval processing procedures.  

           6) Prohibits a cause of action under CEQA if the project  
              "conforms to the use designation, density, or building  









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              intensity in a land use plan or was included in another  
              applicable plan [as identified under the measure] and the  
              lead agency conditions project approval on compliance with  
              applicable mitigation measures contained in the  
              [environmental document] for the applicable plan."

           7) Provides that the above prohibition of causes of action does  
              not prohibit a cause of action to enforce compliance with  
              other existing local, state, and federal law.

           8) Provides that a lead agency is not required to evaluate  
              aesthetics under CEQA and that the lead agency is not  
              required to make findings on or relating to aesthetics unless  
              a project has potentially significant aesthetic impacts on an  
              official state scenic highway.

           9) Provides that SEPA does not change a lead agency's duty to  
              evaluate effects on Native American resources.

           10)Provides that SEPA applies only to projects for which the  
              lead agency or applicant has agreed to provide an annual  
              mitigation compliance report in electronic format.

           11)Provides that the above provisions do not preclude an agency  
              from requiring information or analysis, or imposing  
              conditions of approval, under other laws or CEQA.

           12)Requires that an environmental review document prepared  
              pursuant to CEQA is limited to considering only the  
              environmental topical areas listed in the legislative intent  
              and only to the extent those topical areas are relevant to  
              the project.


            COMMENTS  :

            1) Purpose of Bill  .  The author states, "When enacting CEQA and  
              subsequent amendments, the Legislature declared its intent to  
              ensure that all public agencies provide substantial  
              consideration to preventing environmental damage while  
              allowing for a satisfying and livable place for every  
              Californian.  This bill seeks to further the purposes of CEQA  
              by better integrating applicable planning laws and  









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              regulations that did not exist when CEQA was first passed,  
              while avoiding conflicting and duplicative ad hoc  
              environmental review that is often required by CEQA.  This  
              bill appeals to local control and broader environmental law  
              (which is already over complex as it is, see legislative  
              intent language to get a small taste).  It also provides for  
              an environmental document in an electronic format, fostering  
              the public's accessibility to full review of the project's  
              impacts."

            2) Thresholds of significance and regulatory standards  .  Under  
              current law, a threshold of significance is "an identifiable  
              quantifiable, qualitative or performance level of a  
              particular environmental effect, non-compliance with which  
              means the effect will normally be determined to be  
              significant by the agency and compliance with which means the  
              effect normally will be determined to be less than  
              significant."

           Under SB 787, Section 21202(a)(1) provides that "compliance with  
              the applicable standards for impacts that occur or might  
              occur as a result of approval of the project shall be the  
              exclusive means of evaluating and mitigating environmental  
              impacts under CEQA regarding the subject of that law,  
              notwithstanding any other provision of law."

           Such reliance on a regulatory standard, as required under this  
              measure, is inconsistent with current law.  For example, in  
              Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d  
              692, 270 Cal. Rptr. 650 (1990), the court found that a lead  
              agency incorrectly determined that air quality impacts would  
              be less than significant when the smokestack emissions for a  
              proposed cogeneration plant would comply with applicable air  
              quality regulations and standards, because the agency failed  
              to consider "on-site" (smokestack) and "secondary" (train and  
              truck traffic to deliver coal, the proposed fuel) emissions  
              together in assessing the significance of the overall  
              project's impacts.

           The court came to a similar conclusion in Riverwatch v. San  
              Diego County (Palomar Aggregates), 76 Cal. App. 4th 1428, 91  
              Cal. Rptr. 2d 322 (1999), where the court held that an EIR  
              for a proposed rock quarry failed to evaluate all air quality  









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              impacts resulting from the quarry operation.  The county  
              believed emission levels would meet San Diego Air Pollution  
              Control District (APCD) standards, and the court found that  
              the EIR considered only the quarry process emissions and not  
              particulate emissions caused by drilling, handling, storage,  
              and transport of the rock and sand.  While the APCD standards  
              were for the stationary source (quarry), CEQA requires the  
              EIR to evaluate significance of all project-related pollution  
              emissions.

            3) Project impact "topic areas"  .

           SB 787 specifies that the CEQA Guidelines currently provide that  
              project impacts be evaluated based on 17 topics.  Nothing in  
              current law limits CEQA to 17 topic areas.  It seems that the  
              author is referencing Appendix G of the CEQA Guidelines, the  
              "environmental checklist form."

           It is noteworthy, however, that Appendix G is prefaced by the  
              following:

                NOTE: The following is a sample form and may be tailored to  
                satisfy individual agencies' needs and project  
                circumstances. It may be used to meet the requirements for  
                an initial study when the criteria set forth in CEQA  
                Guidelines have been met. Substantial evidence of potential  
                impacts that are not listed on this form must also be  
                considered. The sample questions in this form are intended  
                to encourage thoughtful assessment of impacts, and do not  
                necessarily represent thresholds of significance.

              Not only does SB 787 freeze these 17 topics in statute,  
              rather than allowing analysis of any other potential  
              significant impacts, this measure also precludes CEQA from  
              filling in the gaps in existing laws.  CEQA also addresses  
              other matters, such as cumulative impacts, direct and  
              indirect impacts, and mandatory findings of significance.

              Emerging issues addressed under CEQA may also precede a  
              particular state or federal law.  For example, the analysis  
              of greenhouse gas (GHG) impacts under laws like CEQA, and its  
              federal counterpart National Environmental Policy Act (NEPA),  
              did not commence with the passage of the California Global  









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              Warming Solutions Act of 2006.

              Guidance for addressing GHG issues under NEPA for federal  
              environmental documents was provided October 8, 1997.   
              According to the Chairman of the Council on Environmental  
              Quality in 1997, "Because of the potentially substantial  
              health and environmental impacts associated with climate  
              change, the Council on Environmental Quality is issuing this  
              guidance today calling on federal agencies to consider, in  
              the context of the NEPA process, both how major federal  
              actions could influence the emissions and sinks of greenhouse  
              gases and how climate change could potentially influence such  
              actions."

              In 2003, in  Border Power Plant Working Group v. U.S.  
              Department of Energy  (S.D. Cal 2003) 20 F.Supp2d 997,  
              1028-1029, a federal district court found that NEPA requires  
              consideration of potential environmental impacts from a  
              proposed natural gas turbine's generation of carbon dioxide,  
              a greenhouse gas, and rejected the argument that  
              consideration of this impact is not required.

              Former Attorney General Bill Lockyer also commented on the  
              lack of analysis of GHG issues in environmental documents  
              prior to enactment of the CGWSA.  For example, in a letter  
              dated March 30, 2006, regarding the Orange County  
              Transportation Authority 2006 Long-Range Transportation Plan  
              Draft EIR, the Attorney General stated, "Despite the Plan's  
              heavy reliance on vehicular travel and improvements to  
              freeways, roads and streets, and the acknowledged increase in  
              vehicle travel that the Plan will encourage, the DPEIR never  
              analyzes one of the most important environmental impacts of  
              vehicular emissions - greenhouse gases and resulting climate  
              change." 

              SB 97 (Dutton) Chapter 185, Statutes of 2007, subsequently  
              required OPR, on or before July 1, 2009, to prepare, develop,  
              and transmit to the Resources Agency amendments to the CEQA  
              guidelines to assist public agencies in the mitigation of  
              GHG's or the effects of GHG's as required under CEQA,  
              including the effects associated with transportation and  
              energy consumption, and required the Resources Agency to  
              certify and adopt those guidelines by January 1, 2010.









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            4) Overriding fair argument standard  .  A discretionary project,  
              which is not exempt from CEQA, requires a Lead Agency to  
              prepare an initial study to determine whether the project may  
              have a significant adverse effect on the environment.  If  
              there is substantial evidence, in light of the whole record  
              before a lead agency, that a project may have a significant  
              effect on the environment, the lead agency must prepare a  
              draft EIR.  If not, then a negative declaration or mitigated  
              negative declaration is appropriate.  This is known as the  
              fair argument standard.  In other words, a negative  
              declaration is inappropriate if it can be "fairly argued"  
              that the project may cause significant environmental impacts  
              and therefore an EIR is appropriate. 

           SB 787 overrides the fair argument standard because under this  
              measure "compliance with the applicable standards for impacts  
              that occur or might occur as a result of approval of the  
              project shall be the exclusive means of evaluating and  
              mitigating environmental impacts under [CEQA] regarding the  
              subject of that law, notwithstanding any other provision of  
              law."  Also, under SB 787, "A cause of action shall not be  
              commenced . . . for noncompliance with [CEQA] based on an  
              environmental topical area [listed in these measures] for  
              which the environmental document prepared for purposes of  
              [these measures] discloses a requirement of compliance with  
              an applicable environmental law . . .".

           This issue was addressed when Communities for A Better  
              Environment, Environmental Protection Information Center, and  
              Desert Citizens Against Pollution challenged several 1998  
              revisions to the CEQA Guidelines.  The California Building  
              Industry Association was allowed to intervene in the action.   
              Communities for a Better Environment v. California Resources  
              Agency, 103 Cal. App. 4th 98, 126 Cal. Rptr. 441 2d (2002).

           The trial court invalidated several Guidelines sections,  
              including a provision where a lead agency is directed to  
              determine that an effect is not significant, regardless of  
              whether other substantial evidence would support a fair  
              argument that the effect may be environmentally significant,  
              if a proposed project has an environmental effect that  
              complies with a regulatory standard as defined under the  









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              Guidelines provision.

           On appeal, the Court of Appeal agreed with the trial court on  
              this matter:  "The direction [of this Guidelines change]  
              relieves the agency of a duty it would have under the fair  
              argument approach to look at evidence beyond the regulatory  
              standard, or in contravention of the standard, in deciding  
              whether an EIR must be prepared.  Under the fair argument  
              standard, any substantial evidence supporting a fair argument  
              that a project may have a significant effect would trigger  
              the preparation of an EIR.  A well-known CEQA treatise  
              recognized this dilemma as well, stating:  '[S]ubdivision (h)  
              . . . appears to dispense with the traditional 'fair  
              argument' standard otherwise applicable to the decision  
              whether to prepare a[n] . . . EIR . . . Notably, where  
              existing regulatory standards, as defined, address a  
              particular category of impact, the lead agency need not treat  
              the impact as potentially significant whenever any  
              substantial evidence in the record supports a conclusion.'"

            5) Prohibiting CEQA cause of action for conformance with certain  
              planning matters  .  SB 787 also prohibits a cause of action  
              under CEQA if the project "conforms to the use designation,  
              density, or building intensity in a land use plan or was  
              included in another applicable plan [as identified under the  
              measure] and the lead agency conditions project approval on  
              compliance with applicable mitigation measures contained in  
              the [environmental document] for the applicable plan."

           Under SB 787, an "applicable plan" is either:  a) a land use  
              plan, such as a general plan, specific plan, or sustainable  
              communities strategy that establishes use designations,  
              densities, and building intensities"; or b) a plan to improve  
              or maintain public facilities or infrastructure to be funded  
              in whole or in part by public funds and is adopted by a  
              local, regional, or state agency.

           A general plan, however, addresses far more issues than simply  
              the "use designation, density, or building intensity."  A  
              general plan must include seven mandated elements, including  
              land use, circulation, housing, conservation, open space,  
              noise, and safety elements.  (Government Code 65302).  Yet,  
              SB 787 prohibits a cause of action under CEQA if a project  









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              merely conforms to the use designation, density, or building  
              intensity in the plan and complies with "applicable  
              mitigation measures" in the environmental document for that  
              plan.

           An "applicable plan" under SB 787 could also include a capital  
              facilities plan.  Environmental impacts addressed under CEQA  
              for such a plan may be quite limited, and thereby restrict  
              environmental analysis of subsequent projects conforming to  
              that plan and any mitigation measures needed for subsequent  
              projects.

           This provision could apply to an outdated plan with inadequate  
              CEQA analysis and ineffective mitigation measures, which also  
              fails to consider changed conditions and more recent  
              circumstances such as hazardous wastes and climate change.   
              This provision would also enable use of outdated plans that  
              are inconsistent with a recent general plan or sustainable  
              communities plan under SB 375, for example, or a plan with a  
              certified environmental document that was challenged and  
              found to be inadequate.

            SOURCE  :        Author  

           SUPPORT  :       California Chamber of Commerce
                          California Citizens Against Lawsuit Abuse
                          California Retailers Association
                          Silicon Valley Leadership Group
            
           OPPOSITION  :    Planning and Conservation League
                          Sierra Club California