The California Environmental Quality Act is a cornerstone of the state’s environmental protection program, requiring public agencies to review the impacts of both private development and public infrastructure projects. However, developers and local governments have long complained that costly and time-consuming environmental impact reports and ensuing litigation can jeopardize even environmentally desirable projects, such as infill development and renewable energy. On October 4, the Governor signed the last of three “streamlining” bills intended to address these concerns.1 Hailed by some as promoting jobs, attacked by others as undercutting CEQA, these bills actually offer only limited benefits, under such restrictive conditions that few projects will qualify. Thus their effect on project development likely will be less than advocates claim and critics fear, while their effectiveness at generating jobs remains to be seen.
The first bill, Senate Bill 292 (Padilla), applies to just one project, the Farmers Field football stadium in Los Angeles proposed by Anschutz Entertainment Group (AEG). S.B. 292 substantially reduces the time required for the courts to resolve a lawsuit challenging the environmental impact report (EIR) for the stadium project. A challenge must be filed directly in the California Court of Appeal, which must decide the case within 175 days. If that decision is appealed, the California Supreme Court must reach a decision within another 45 days.
Senate Bill 292
S.B. 292 also addresses “data dumping”: CEQA allows litigants to sue on issues first raised at the final hearing on a project, to which they may bring piles of documents that the lead agency has no real opportunity to evaluate. The bill allows the City of Los Angeles to disregard most comments made after the close of the written comment period on the Draft EIR.
Limiting the entire judicial review to just over seven months and precluding data dumps will save significant time and money for the City and AEG. However, to receive these benefits, the project must achieve zero net emissions of greenhouse gases (GHG) from automobile trips to the stadium, and achieve a “trip ratio” (i.e., number of automobiles driven to the stadium divided by number of spectators) of no more than 90% of the trip ratio of any other National Football League stadium. Moreover, S.B. 292 does not affect the EIR process, the environmental protections of CEQA (except to the extent that it adds more stringent GHG and trip ratio requirements), nor even the standard of judicial review – only its speed. Accordingly, to see the bill as a profound attack on CEQA seems excessive, unless one views last-minute data dumps and protracted litigation as fundamental features of CEQA.
Assembly Bill 900
The second bill, A.B. 900 (Buchanan), is an effort to respond to demands to extend CEQA streamlining beyond the single Los Angeles stadium project and other single-project bills. This bill requires that lawsuits challenging EIRs for qualified projects be filed directly in the Court of Appeal, which must decide the case within 175 days. However, that streamlined judicial review is the only benefit the bill provides to developers and agencies; it lacks S.B. 292’s Supreme Court deadline and anti-data-dumping provision.
To receive this sole benefit, the project must be certified by the Governor as an “environmental leadership development project”: an infill development or clean energy project which invests at least $100 million within the state, creates highly skilled, high-wage construction and permanent jobs, and achieves zero net GHG emissions. Infill projects must be in the “Leadership in Energy and Environmental Design” (LEED) Silver category, achieve 10% higher transportation efficiency than comparable projects, and be consistent with strategies for coordinated land use and transportation planning under prior legislation, adopted in 2008 in Senate Bill 375.
The certified projects must complete their EIRs and the statute of limitations must run before A.B. 900 sunsets in June 2014. As with S.B. 292, the actual environmental protections of CEQA – the EIR process, the consideration of impacts and alternatives, the obligation to mitigate where feasible, and the standards applied by courts during the expedited judicial review – remain unaffected. Hence, environmentalists’ concerns and developers’ enthusiasm again seem overstated.
Senate Bill 226
The third bill, S.B. 226 (Simitian), is a grab bag of provisions intended to expedite infill development and renewable energy projects. For infill projects, the bill limits EIR analyses to impacts that are project-specific or are new or more severe than those addressed in a prior EIR for a general plan or similar planning-level action. Moreover, the EIR need not consider growth-inducing impacts or alternative locations, densities and building intensities. These provisions would genuinely streamline the time and effort required in the EIR review process, avoiding duplicative reassessment of issues already addressed in prior EIRs.
However, these benefits are available only for projects meeting a long list of strict qualifications and satisfying “statewide standards for infill projects.” The bill directs the Natural Resources Agency to adopt these standards, which must promote various goals including S.B. 375 strategies, transit proximity, GHG reductions, water use reductions, energy efficiency and public health protection. Few projects will pass through the eye of this needle.
S.B. 226 also includes a CEQA exemption for solar energy systems installed on existing building roofs or in existing parking lots. For solar thermal power plant projects certified by the California Energy Commission (CEC), the bill allows conversion to photovoltaic technology, which otherwise would not qualify for streamlined CEC review – but only until June 30, 2012. Finally, for all projects (not only infill or renewable energy), S.B. 226 provides that projects with non-zero GHG emissions may still qualify for categorical exemptions from CEQA. Generally, categorical exemptions from CEQA cannot be used for projects with significant impacts due to “unusual circumstances” or cumulative impacts. In theory, a contribution to cumulative climate change, by itself, could preclude a categorical exemption. In practice, however, lead agencies generally rely on these exemptions without treating GHG emissions as “unusual” or cumulatively significant in this sense.
The Bottom Line
In sum, S.B. 292, A.B. 900 and S.B. 226 represent an assortment of small steps forward, but no giant leap for CEQA reform. Lead agencies and project proponents remain frustrated by NIMBY opponents who profess support for infill and clean energy projects, but not here – where “not here” sometimes seems to mean “not anywhere.” Meanwhile, environmental advocates are skeptical of anything that dilutes the environmental and procedural protections of CEQA. With these three bills, the first round of CEQA reform under Governor Brown has gone to those seeking to allow only limited streamlining, for very few projects. Still, pressure to speed projects, create jobs and encourage infill development and clean energy will not go away. More CEQA reform efforts can be expected in the next legislative session.
Additional analysis of these bills, including the full lists of project qualifications and goals in both A.B. 900 and S.B. 226 is available here.