California Supreme Court to local agencies: hypothetical future baselines in CEQA are not per se improper in all cases, but likely are improper in the vast majority

Jeffer Mangels Butler & Mitchell LLP Neill E. Brower : lexology – excerpt

An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the “baseline” for analysis under the California Environmental Quality Act (“CEQA”). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (“Neighbors”), Case No. S202828, narrowly upholds the environmental impact report (“EIR”) prepared for phase 2 of the Exposition Corridor Transit Project (“Expo Phase 2”) and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report (“EIR”) for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions “would detract from an EIR’s effectiveness as an informational document” by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a “no project” alternatives analysis… (more)

Use of future baselines not always acceptable in CEQA determinations.

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Judge: Supervisors Illegally Approved Trabuco Housing – Impacts on traffic and wildlife not properly evaluated

By NICK GERDA : voiceofoc – excerpt

supervisors violated CEQA by not properly studying the impacts to traffic on Santiago Canyon Road, along with impacts to native wildlife and the effect of lifting a requirement that dedicated open space be “natural.”

When the Orange County Board of Supervisors last year approved the controversial Saddle Crest development in Trabuco Canyon, members of the board were called out for a faulty environmental study and the large amount of campaign contributions they received from the development’s backers.

Now, an Orange County Superior Court judge has ruled that the approval was illegal.

The ruling, issued last week by Judge Steven Perk, states that the county failed to comply with the California Environmental Quality Act (CEQA), state land-use law and the county’s own land-use plans.

Perk prohibited the county “from taking any action to implement the project until compliance with the requirements of CEQA and CEQA guidelines, state Planning and Zoning Laws, Orange County General Plan and the Foothill-Trabuco Specific Plan have been met.”…

In response to the project’s approval by the supervisors, a coalition of conservation groups sued the county, arguing that supervisors violated CEQA by not properly studying the impacts to traffic on Santiago Canyon Road, along with impacts to native wildlife and the effect of lifting a requirement that dedicated open space be “natural.”

When it came to traffic, the activists asserted that the county was under counting actual traffic flows by changing the analysis from the “highway capacity manual” (HCM) approach to “volume-to-capacity” (V/C), which only analyzed a small stretch of Santiago Canyon Road.

“Using the V/C method effectively understates true traffic volumes on rural roads like Santiago Canyon Road,” their petition states.

The judge agreed… (more)

County Policy on Ag Land Solar Power Moves to CEQA Stage

By Ron McNicoll : independentnews.com – excerpt

A new draft of solar power policies for rural installations in East County is moving ahead with a supervisor’s direction to staff to prepare an environmental document for a general plan amendment.

Supervisor Scott Haggerty, chairman of the Alameda County Supervisors Board’s Transportation and Planning Committee, gave the direction to staff. The other committee member, Nate Miley, was absent. The five-member board places only two supervisors on each of its committees, so that there would be no three-member quorum of the full board when an issue comes to a vote…

Staff members will spend time discussing among themselves whether a full EIR or a negative declaration would be prepared. Then the environmental document will go through the same public process that the draft policy did, with stops at a public information and discussion meeting, the planning commission, the agricultural advisory commission, and finally the board of supervisors. The supervisors might not see it until spring, said planning director Albert Lopez.

The draft, in its current form, would allow construction of Solar Energy Facilitites (SEF) for exporting power from Valley agricultural land to the regional power grid on a case-by-case approval.

There would be a cap, yet to be determined, on how much of the county’s 3000 acres of “Important Farmland” could be used. A cap ranging between 500 and 1000 has been discussed.

The policy says that the county will give “highest priority” to the encouragement of urban solar development. Urban solar installations are usually placed on rooftops. They supply electricity to the property on which they are installed. People concerned about saving agricultural land from solar installations said it’s important to cut the electricity demand by encouraging urban solar installations(more)

CEQA Roundup – The Good, Bad & Potentially Bad: What business thinks of reform bills

by Justin Ewers : caeconomy.org – excerpt

The CEQA reform debate was put largely aside this week as lawmakers work to finalize the state budget before next week’s deadline. The short breather provided an opportunity for a post-mortem on the legislative process so far—with one analysis by a group of land use attorneys offering an early glimpse of where business interests, in particular, are likely to seek changes in the months ahead. (More on that below.)

What CEQA proposals are still moving

Of the more than two dozen CEQA bills introduced this winter, only five made it out of their house of origin last week, meaning they could still become law this year.

Perhaps the biggest surprises were the stumbles of the most comprehensive CEQA changes backed by environmentalists, Asm. Ammiano’s AB 953 and Sen. Evans’s SB 617. Both bills contained the same proposal to address lingering legal uncertainty surrounding the recent Ballona decision, a legal change that is popular with some Dems—but particularly unpopular with the state Chamber of Commerce, which tagged both bills as “job killers.” It will be worth watching to see if the bill’s legal language makes its way into one of the five CEQA bills still moving.

The Land Use & Development Law Report offers a helpful roundup of the CEQA changes that are still on the table. Their summary:

Active CEQA bills:

  • SB 731, the “CEQA Modernization Act of 2013.″ (See CAeconomy‘s summary of what the bill does—and doesn’t do.)
  • AB 37, which would require lead agencies to prepare their records of proceedings at the same time they prepare environmental documents for certain projects
  • AB 543, which would require translation of certain CEQA notices and CEQA document summaries if 25% of nearby residents are non-English-speaking
  • AB 436 and AB 380, which would impose additional CEQA notice and filing requirements

CEQA bills that did not make the cut:

  • SB 787, the same far-reaching and controversial CEQA reform proposal that first surfaced in August 2012
  • Proposals for specialized divisions within superior courts to handle CEQA case
  • Efforts to overturn recent appellate court decisions [including Ballona] holding that CEQA concerns the effects of projects on the environment—not effects of the environment on projects
  • Three bills, or portions of those bills, that would have extended the 2011 Environmental Leadership Act’s CEQA streamlining provisions to additional categories of projects

Where business may push back (more)

 

 

CEQA Roundup: For a moment, everyone lines up behind Steinberg

by Justin Ewers : caeconomy.org – excerpt

For one day this week, at least, all of the major players in the CEQA debate seemed to be on the same page: Which is to say, directly behind Senate President pro Tem Darrell Steinberg.
After several months of public squabbling over how to change the state’s premier environmental law, Steinberg made his pitch for his CEQA reform bill to the Senate’s environmental quality committee—and the line of people testifying in support went almost out of the committee room’s door.
“People on all sides are serious about this,” Steinberg told the committee. “I’ve come to the conclusion that CEQA doesn’t need to be fundamentally rewritten, but it needs to be updated. There are parts of the law that ought to be changed.”
Real disagreements still exist over how best to proceed (more below on where the debate seems headed), but on Wednesday, Steinberg was flanked by leaders of the business coalition supporting reform and environmental groups that have opposed overhauling the law. Queued up behind him were advocates from the newly-formed public works coalition—the public agencies responsible for implementing CEQA—as well as a range of affordable housing groups, alternative energy producers, and city planners.

What everyone agrees on
All seemed to agree on one thing: Steinberg’s SB 731 is a good-faith effort to reform the state’s more than 40-year-old environmental law… (more)

 

 

CEQA Reform Update

By Douglas Aikins : jdsupra.com

Three flavors of reform

Between the two types of CEQA burdens, abuse of litigation is the least difficult to justify, and the easiest to fix. The two main CEQA reform bills in the Legislature, however, address mainly the burden of excessive environmental analysis, by exempting certain topic areas from repetitive study.

SB 731 (Steinberg, D- Sacramento) is fairly modest. It would allow EIR’s and Negative Declarations to omit study of certain environmental topic areas (noise, traffic, aesthetics, etc.) if a project did not exceed specified statewide impact standards. On the positive side, SB 731 would allow shorter, cheaper CEQA compliance documents in many instances. On the negative side, it requires qualifying projects to comply with new regulations favoring renewable energy projects, infill development, transit, bicycle and similar “green” projects.

SB 787 (Berryhill, D- Modesto) reprises a more aggressive reform proposal, supported by the Silicon Valley Leadership Group*, among others. This approach would reduce both regulatory burdens and litigation burdens. It would omit the need for analysis of environmental impacts when they can be shown to comply with existing state and federal limits on pollution, emissions, wetland fill, etc., and it would prohibit CEQA litigation contesting Lead Agencies’ determinations that compliance with existing regulatory standards will adequately mitigate projects’ adverse environmental impacts.

A third pending CEQA reform bill merely tries to make CEQA litigation more efficient, by allowing Lead Agencies to prepare the administrative record simultaneously with a project’s CEQA compliance documents. SB 617 (Evans, D- Santa Rosa) would save time by making these processes coincide, but the additional early expense of preparing an administrative record would be justified only where a litigation challenge is certain. SB 617 also would require additional environmental analysis, by reversing a line of cases which exempted from CEQA study “impacts of the environment on the project,” that is, the effects of locating a project in a sensitive location, as opposed to “impacts of the project on the environment,” CEQA’s primary focus. See Ballona Wetlands Land Trust v. City of Los Angeles (2nd Dist. 2011) 201 Cal App 4th 455… (more)

OP-ED: Is it time to revisit CEQA?

By Sue Lempert : smdailyjournal.com – excerpt

State Sen. Jerry Hill, D-San Mateo, has a major challenge. He’s the new chair of the important Environmental Quality committee, which among other things, will be considering possible changes to the California Environmental Quality Act, also known as CEQA. Gov. Jerry Brown called for reform of CEQA in his State of the State address. Now, state Senate President Pro Tem Darrell Steinberg is introducing Senate Bill 731 to do just that. Both the governor and Steinberg feel the act has been used or misused for corporate competition (one corner gas station trying to stop a competitor from adding more pumps), by unions to force project labor agreements, and by opponents of infill development and transportation projects to delay or stop work.
CEQA was signed into law in 1970 by then governor Ronald Reagan to provide a statewide policy of environmental protections. CEQA requires analysis and public disclosure of possible environmental impacts and necessary mitigation. It has been a mandatory part of California state and local government land use decision making. It has also been the basis of numerous lawsuits. According to the governor and senators Steinberg and Hill, it has been used to stop development often for reasons that have nothing to do with environmental protection. It also has not been updated to reflect new environmental challenges including climate change and sea level rise.

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PROTECT ENVIRONMENTAL RIGHTS: Planning Commission, Thursday., March 14, 12 PM

By Howard Wong

Hello Everyone:
IMPORTANT HEARINGS!  Forward this to friends and colleagues.
THREATS TO OUR ENVIRONMENTAL BILL OF RIGHTS
Proposed CEQA legislation weakens public’s right to know and to participate.

The 1970 California Environmental Quality Act (CEQA) gives environmentalists, neighborhoods, disadvantaged communities, ethnic minorities, cultural groups, Labor and the average citizen a chance to fight bad projects and powerful special interests.  History demonstrates that rigid state power and greased projects have bad consequences; by example, rampant freeway construction, filling in the Bay, destruction of ethnic neighborhoods, demolitions of the Western Addition/ Lower Fillmore/ Nihonmachi, disregard of environmental justice, erosion of open space, snubbing nature conservancy, demolition of historic resources, weakening health protections and ramrodding misguided development projects.
Please testify to oppose the proposed CEQA legislation.

UNIVERSITY OF CALIFORNIA HASTINGS, COLLEGE OF THE LAW, CIVIL JUSTICE CLINIC: RE:  CEQA Amendments’ practical impact to community advocates
Conclusion:  The Amendments arguably would better reflect state law and streamline the CEQA process for various projects. However, they pose a substantial risk of significantly curtailing public participation and the ability of public officials to make well-informed decisions, contrary to the purpose of CEQA. The current fair argument standard should be preserved, requirements providing notice of CEQA determinations should be strengthened, and appeal procedures should be formalized and simplified.

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CEQA Roundup: What’s next after Rubio?

March 01, 2013 by Justin Ewers : caeconomy.org – excerpt

he CEQA legislation has taken a backseat to the news story of Rubio’s Senate departure.
California political reporters have spent much of the last week taking a deep dive into the implications of Michael Rubio’s departure from the Senate—while largely ignoring the actual CEQA legislation Sen. Darrell Steinberg introduced last Friday…

But What about CEQA?(more)

What the papers have not yet done in any detail is examine what’s in SB 731, Sen. Steinberg’s reform bill—or the two dozen other CEQA-related bills that have now been introduced.
The Economic Summit offered this brief analysis of Steinberg’s legislation, which includes intent language that focuses mostly on speeding up the CEQA process for infill development projects.
This week, Barbara Schussman, managing partner at the law firm Perkins Coie, provided a more comprehensive look at where Steinberg seems headed.  “The bill is more remarkable for what it lacks,” she says, “than for what it contains.” Unlike then- Sen. Rubio’s CEQA reform effort of last year, Steinberg has left behind the so-called standards approach, which environmentalists refused to support. And he says he won’t touch rules governing who can bring a CEQA lawsuit, which labor was opposed to.
Absent those two provisions, Steinberg’s bill seems likely to shift the CEQA conversation away from what appeared to be a looming political showdown. Its focus on environmentally-conscious infill development projects also makes the bill’s passage more likely (though environmentalists still remain wary)…

Barbara Schussman’s, take on where Steinberg has proposed changes:

    • Significance Thresholds. The bill calls for the Legislature to set thresholds of significance for noise, aesthetics, parking and traffic levels of service.  The idea is that if a project can meet such a threshold, no additional environmental review would be required for those impacts.
    • Limited Review for Specified Projects. The bill proposes to convert CEQA Guidelines addressing infill development to statutory provisions.  It also expresses an intent to explore amendments to expand the definition of “infill” to include projects in the Central Valley, and to further streamline CEQA review for renewable energy, advanced manufacturing, transit, bike, pedestrian, and renewable energy transmission projects.
    • Projects Implementing Specific Plans and Sustainable Communities Strategies. The bill proposes to tighten up existing streamlining provisions to provide greater certainty and avoid duplicative CEQA review for projects implementing a specific plan.  The bill also suggests that similar treatment might be available for projects implementing Sustainable Communities Strategies adopted under SB 375 or other types of plans adopted within the past five years.
    • Late Hits and Data Dumps. The bill states an intention to address the practice of filing last minute comment letters, often containing voluminous data and new information.
    • Judicial Remedies.  The bill would provide clearer instructions to courts in crafting a remedy that preserves portions of a CEQA document that are not found to violate CEQA.  The bill also calls for exploring options to keep approvals in place so that projects can proceed while an agency cures a CEQA defect.

(more)

Steinberg Submits SB 731 to Reform CEQA

Feb 23rd, 2013 | Posted by : cahsrblog.com – excerpt

Yesterday State Senate President Pro Tem Darrell Steinberg submitted SB 731, a bill to reform the California Environmental Quality Act. But that was overshadowed by the even more dramatic news that the primary backer of CEQA reform in the legislature, State Senator Michael Rubio, was resigning to take a lobbying job at Chevron.
First up, SB 731. The bill itself lacks detail and is a placeholder that describes the legislature’s intent. According to information released by Sen. Steinberg’s office, SB 731 would “modernize” CEQA through the following steps:

Key elements of SB 731 include:

* Updating CEQA to encourage and expand infill developments to reduce urban sprawl. This will help jump start the state’s housing market while promoting development consistent with state climate and planning laws like SB 375.

* Expedite the CEQA process, without compromising underlying public disclosure or environmental protection, for new investments in clean energy, bike lanes and transportation projects that help California meet its renewable energy, clean air, jobs, and transit goals.

* Modernize CEQA and its implementing regulations to set clear minimum thresholds for impacts like parking, traffic, noise and aesthetics to allow local agencies to standardize mitigation of those impacts. This change would preserve local control to set more stringent thresholds where communities choose to do so.

* Reduce duplication in Environmental Impact Report filings by expanding the use of “tiering.” This streamlines and limits further paperwork whereby local land use plans that have sufficient detail and recently completed EIRs can be used by people building projects within those plans.

* Where Environmental Impact Reports have been successfully challenged, allow the courts to send back for repair only the portion of the EIR that is found to be incomplete or lacking required specificity. This would eliminate the need for the entire EIR to be recirculated for public comment which can create additional delays.

* In those cases where project developers and agencies haven’t made any substantive change to a project and the public has already had time to comment on it, limit or prohibit so-called “late hits” and “document dumps” designed solely to delay projects late in the environmental review process.

* Appropriate $30 million in new funding to local governments to update their general, area, and specific plans so that they can be better used to “tier” and streamline environmental review of projects built pursuant to those plans.

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