HomeMy WebLinkAbout1993-07-13 - AGENDA REPORTS - STATE LEGISIATION BILL 919 (2)AGENDA REPORT
CONSENT CALENDAR
DATE: July 13,1993
SUBJECT: State Legislation: Senate Bill 919
DEPT: Management Services
BACKGROUND
City Manager
Item to be p s by:
Michael P. rphy MRq
Existing law provides that under the California Environmental Quality Act (CEQA), lead public
agencies are generally required to prepare or cause to be prepared, and certify the completion
of, an Environmental Impact Report (EIR) on any project which they propose to execute or
approve which may result in substantial or potentially adverse change in the environment.
CEQA also requires the preparation of a negative declaration by the lead agency when a project
does.not have the potential to significantly impact the environment.
California business has cited excess regulation as one of the primary causes for businesses
closing, leaving the state or choosing not to expand in or relocate to California. The bill's
author notes that CEQA has been used to "delay, frustrate, and block efforts of businesses to
achieve efficient, effective, and timely review of permitting."
On January 12, 1993, a joint hearing of the Senate Committees on Governmental Organization,
Judiciary, Local Governmental, Natural Resources and Wildlife, and Housing and Urban Affairs
was held for the purposes of examining whether CEQA is fulfilling its intended role of
protecting the environment or whether it produces excessive regulation at significant cost
without necessarily safeguarding the environment. Testimony was presented to the Joint
Committee by a variety of public and private sector interests, including government agencies,
business groups, environmental organizations and educational institutions.
Senate Bill 919 was introduced in response to recommendations discussed at the hearing. It is
Senator Dills desire to clarify the original intent of CEQA so as to guarantee both the integrity
of environmental review and the ability of jobs to be created in the state.
app�OdC�D
Agenda Item:
THIS BILL:
1. Declares that the purpose of the changes proposed to CEQA by the bill is to encourage the
modernization and expansion of job intensive and job creating manufacturing businesses in
California.
2. Provides intent language to the courts directing that judicial review in CEQA cases shall be
based.upon substantial evidence in light of the whole record as opposed to the "fair argument"
rule that a project may have an impact on the environment.
3. Provides that neither an EIR nor negative declaration is required for any project involving
the construction of housing or neighborhood commercial facilities, or the modification or
expansion of an existing commercial or industrial facility if the lead agency follows a prescribed
criteria.
4. Exempts from CEQA review any modification of an existing commercial or industrial facility
that results in a net reduction of emissions into the environment.
5. Exempts from CEQA review any modification or maintenance of an existing commercial or
industrial facility that results from or is necessary to comply with any requirement imposed
pursuant to any law or regulation for the protection of the environment.
6.. Exempts from CEQA review projects which result in a 20% or less net increase in production
capacity, if there is no net increase in regulated emission or discharge. This exemption would
not apply if other permit or review requirements provide for CEQA review.
7. Exempts from CEQA review the renewal or reissuance of a permit, extension or renewal of a
lease, or the transfer of ownership or operations, for an existing commercial or industrial facility
which does not result in any new significant effect on the environment.
8. Provides that any project which consists of modernization or expansion of an existing
commercial or industrial facility may be approved if the public agency makes findings that
specific economic, social employment or other benefits outweigh the significant adverse effects
of the project on the environment.
Proponents of the bill claim this measure does not impact the intent or substantive portions of
CEQA. They further note the need to eliminate environmental review of proposals to modify or
expand existing commercial and industrial facilities in order to create more jobs in California
and make California more competitive in the global economy. The further argue that challenges
under the "fair argument' contention are the source of extensive litigation and cost to
governments and project proponents. They believe that the "substantial evidence" in light of the
whole record review produces a quicker and equally sound judicial review.
Opponents argue that the bill would substantially weaken CEQA by decreasing agency
accountability. They note that a stronger showing of evidence would be required before a
project would be mandated to have an EIR. Opponents state that public scrutiny of projects
would be decreased as the number of required EIRs is reduced.
The League of California Cities is opposed to the bill citing the removal of local control. AB
1179 would eliminate local discretionary authority regarding environmental analysis of specified
types of development projects.
The City Council Legislative Committee, while sensitive to the concerns of business, believes
that local governments must retain decision making authority on individual projects.
Furthermore, projects located outside the City limits, but with impacts on City infrastructure
and resources, must have a mechanism, such as a negative declaration, upon which
environmental issues can be raised for discussion. The Committee recommends an opposed
position unless the bill is amended to retain local project environmental review authority on a
project specific basis.
RECOMMENDATION
Adopt City Council Legislative committee's recommendation to oppose SB 919 unless amended.
Transmit statements of opposition to Santa Clarita's legislative delegation, Senator Dills, League
of California Cities, Contract Cities Association and Independent Cities Association.
MPM592.doc
CA SB 919 06/15/93 Page 11
Amended
AMENDED IN SENATE MAY 17, 1993
AMENDED IN SENATE APRIL 28, 1993
SENATE BILL No. 919
-------------------
Introduced by Senator Dills
March 4, 1993
3ii0 ===ice== C0i = �i 6 339Es
An act to amend Section 65941 of the Government Code, and to amend
Sections 21080.7 and 21082.2 of, and to add Sections 21080.24, 21080.25,
21080.26, and [D> 21081 <D] [A> 21081.4 <A] to, the Public Resources
Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
SB .919, as amended, Dills.. Environmental quality.
(1) Existing law, the California Environmental Quality Act, requires
a lead agency, as defined, to prepare an environmental impact report on
any project which it proposes to carry out or approve that may have a
significant effect on the environment, with specified exemptions.
This bill would provide that, in certain cases, an environmental
impact report or negative declaration is not required for, and, in other
cases, the act does not apply to, the modification or expansion of an
existing commercial or industrial facility.'The bill would impose a
state -mandated local program by imposing new duties on local agencies
with regard to determining the applicability of, giving notice of, and
filing notice of, the exemptions.
(2) The act prohibits a public agency from -carrying out or approving
a project for which an environmental impact report has been completed
which identifies one or more significant effects on the environment
unless the agency makes one or more of specified findings, which may
include a finding that specific economic, social; or other
considerations make infeasible the mitigation measures or alternatives
identified in'the environmental impact report.
This bill would authorize the agency to approve a project if,
instead of that specified finding, it'finds that -specific economic, .
social, employment, or other benefits outweigh the significant adverse
effects on the environment associated with the project.
(3) The act requires the Jead agency to determine whether a project
may have a significant effect on the environment based on substantial
evidence in the record, and requires a court, in an action or proceeding
challenging an action "of a public agency on the grounds of noncompliance
with the act, to determine whether the action of the agency is supported
CA SB 919 06/15/93 1 Page 2
by substantial evidence in light of the whole record. State guidelines
adopted by the Secretary of the Resources Agency to implement the act
require the preparation of an environmental impact report if it can be
fairly argued on the basis of substantial evidence that the proposed
project may have a significant effect on the environment.
This bill would require the lead agency to make its.determination
based on substantial evidence in light of the whole record, and not on
the basis that there is a fair argument that the project may have -'a
significant effect on the environment. The bill would make legislative
findings -and declarations regarding, among other things, the standard to
be followed by courts in reviewing those agency actions.
(4) Existing law prohibits a lead'agency under the act,.in
establishing criteria for the completeness of an application for a
development project, from requiring the informational equivalent of an
environmental impact report as a prerequisite for completeness of the
application.
This bill would also apply that prohibition to a responsible agency,
and would prohibit the lead or responsible'agency from otherwise
requiring proof of compliance with the act as such a prerequisite.
(5).The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: yes.
The people of the State of California do enact as follows:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) There is no greater measure of a state's economic strength than
its ability to provide jobs for its citizens. ,
(b) The ability of California as a state to create jobs is a direct
measure of the state's capacity to improve California's quality of life,
generate the revenue needed for vital public services, and provide new
economic opportunities for all Californians.
(c) The state has.lost about 300,000 jobs during 1992, and is no
longer able to provide jobs for new workers entering the work force.
(d) California government and manufacturers must develop common
goals for creating new jobs and must work together to achieve those
goals. A unified business effort is essential to nurture a competitive
manufacturing climate in California.
(e) The purpose of_the changes made by this act to the California
CA SB 919
06/15/93
Page 3
Environmental Quality Act (CEQA) (Division 13 (commencing with Section
21000) of the Public Resources Code) is to encourage the modernization
and expansion of job -intensive and job -creating manufacturing businesses
in this state. It is the further purpose of this act to encourage the
modernization and expansion of the California manufacturing community to
place the state in an economically competitive position in the national
and international marketplace. It is an additional purpose of this act
to encourage the installation of new manufacturing facilities in the
state to create new jobs for our.citizens who are now entering the work
force.
(f) To achieve the creation of new job -intensive businesses and to
retain existing job producing businesses in the state, it is essential .
that governmental permitting procedures be rendered efficient,
effective, and timely. Contrary to the intent of the Legislature,
however, the implementation of CEQA has been used to delay, frustrate,
and block efforts of businesses to achieve efficient, effective, and
timely review of permitting.
(g) Excessive delays, costs, and the frustration of the.efforts of
businesses to obtain permitting for modernization and expansion of
job -creating facilities has been due in part to excessive and
unjustified litigation created by the "fair argument" rule which was
created by the California courts as a standard of review of governmental
actions under CEQA.
(h) The court -created doctrine of judicial review is based upon
whether a "fair argument" can be made to contradict an agency's decision
regarding environmental impact review. Evidence in support of an agency
determination appears to be disregarded even if the weight of the
evidence would favor agency action. The "fair argument" rule was adopted
by the California Supreme Court in No Oil, Inc. v. City of Los Angeles
(1974), 13 Cal. 3d 68, at pages 75 and 85, and followed in such
decisions as Friends of "B" Street v. City of Hayward (1992), 106 Cal.
App. 3d 988, at pages 1000-1003. This rule was also written into the
state guidelines adopted by the Secretary of the Resources Agency
pursuant to.Section 21083. Those decisions and those provisions of the
state guidelines are in contradiction to the clear language and
legislative intent of Section 21168 of the Public Resources Code, which .
was added by Chapter 1154 of the Statutes of'1972 and became effective
December 5, 1972, as well as Section 21082.2 of the Public Resources
Code.
(i) It is the intent of the Legislature that the clear language of
Section 21082.2 of the Public Resources Code shall apply as the standard•
for public agency determinations under Sections 21100 and 21151 of the
Public Resources Code, and that court review of agency actions under
Sections 21168 and 21168.5 of the Public Resources Code and Section
1094.5 of the Code of Civil Procedure follow the standard in Section
21168 which provides as follows:
"[T]he court shall not exercise its independent judgment in the
evidence but shall only determine whether the act or decision is
supported by substantial evidence in light of the whole record."
SEC. 2. Section 65941 of the Government Code is amended to read:
CA SB 919 06/15/93 Page 4
65941. (a) The information compiled pursuant to Section 65940 shall
also indicate the criteria which the agency will apply in order to
determine the completeness of any application submitted to it for a
development project.
(b) If'a public agency is a lead or responsible agency for purposes
of the California Environmental Quality Act, Division 13 (commencing
with Section 21000) of the Public Resources Code, that criteria shall
not require the applicant to submit the informational equivalent of an
environmental impact report as part of a complete application, or to
otherwise require proof of compliance with that act as a prerequisite to
a permit application being deemed complete. However, that criteria may
require sufficient information to permit the agency to make the
determination required by Section 21080.1 of the Public Resources Code.
SEC. 3. Section 21080.7 of the Public Resources Code is amended to.
read,
21080.7. (a) No environmental impact report or negative declaration
is required for any project involving the construction of housing or
neighborhood commercial facilities, or the modification or expansion of
an existing commercial or industrial facility, in an urbanized area if .
the lead agency does all of the following:
(1) Finds, after giving notice pursuant to subdivision (b) or (c) of
Section 21092 and following the procedure prescribed by law or
regulation which would be necessary to make.a determination pursuant to
Section 21080.1, all of the following:
(A) The project is consistent with a specific plan which has been
adopted pursuant to Article 8 (commencing with Section 65450) of Chapter
3 ofTitle7 of the Government Code or, in the coastal -zone, a local
coastal program certified pursuant to Article 2 (commencing with Section
30510) of Chapter 6 of Division 20.'
(B) The plan or program was adopted pursuant to the procedure
established by Article 8 (commencing with Section 65450) of Chapter 3 of
Title 7 of the Government Code not more than five years prior to the
finding made pursuant to this section.
(C) The plan.or program has been the subject of an environmental
impact report.
(D) The environmental impact report is sufficiently detailed so that
the significant adverse effects of the project,on the environment and
measures necessary to mitigate or avoid any such effects can be
determined, including significant physical effects on existing
structures and neighborhoods of historical or aesthetic significance, if
any, exist in the area covered by,the plan or program, and measures
necessary to mitigate those effects.
(2) Makes one or more of the findings as.required pursuant to
Section 21081.
(3) Files a notice of the decision on the proposed activity with the
CA SB 919 06/15/93 Page 5
county clerk. Those notices shall be available for public inspection,
and a list of the notices shall be posted on a weekly basis in the
office of the county clerk. Each list shall remain posted for a period
of 30 days.
(b) As used in this section:
(1) "Neighborhood commercial facilities" means those commercial
facilities which are an integral part'of a project involving the
construction of housing and which will serve the residents of the
housing.
(2). "Urbanized area" means a central city or cities and surrounding
closely settled territory, as defined by the United States Department of
Commerce Bureau of the Census in the Federal Register, Volume 39, Number
85, for Wednesday, May 1, 1974, at pages 15202 and 15203 and as
periodically updated.
(3) "Existing commercial or industrial facility" means a permitted
facility in existence on January 1, 1993, which occupies a parcel
designated as commercial or industrial in the county general plan.
SEC. 4. Section 21080.24 is added to the Public Resources Code, to
read:
21080.24. This division does not apply to a project to modernize or
expand an existing commercial or industrial facility that results in a
net increase in production capacity of 20, percent or less [A> if there
is no net increase in any regulated emission or discharge, except that
this exemption does not apply if any other permit or review requirement
imposed pursuant to any,law or regulation provides for review under this
division <A] .
SEC. 5. Section 21080.25 is added to the Public Resources Code, to
read:
21080.25. 'This division does not apply to any modification of an
existing commercial or industrial facility that results from any
requirement imposed pursuant to any law, or regulation for the protection
of the environment.
SEC. 6. Section 21080.26 is added to the Public Resources Code, to
read:
-21080.26. This division does not apply to any modification of an
existing commercial or industrial facility that results in a net
reduction of emissions to the environment.
SEC. 7. Section 21081.4 is added to the,Public Resources Code, to
read:
21081.4.. Notwithstanding Section.21081, any project which consists
of the modernization or expansion of an existing commercial or
industrial facility may be approved if the public agency makes one or
more of the findings set forth in subdivisions (a) and (b) of Section.
21081, or makes a finding that specific economic,'social, employment, or
CA SB 919 06/15/93 Page 6
other benefits outweigh the.significant adverse effects on the
environment associated with the project.
SEC. :8. Section 21082.2 of the Public Resources Code is.amended to
read:
21082.2. (a) The lead agency shall, for purposes of Section 21100
or 21151, determine whether a project may have a significant effect on
the environment based on substantial evidence in light of the whole
record.
(b) The existence of public controversy over the environmental
effects of a project or the existence of a fair argument that a project
may have a significant effect on the environment shall not require the
.preparation of an environmental impact report if there is no substantial
evidence in light of the whole record before the agency that the project
may have a significant effect on the environment. `
(c) Statements in an environmental impact report and comments with
respect to an environmental impact report shall not be deemed
determinative of whether the project may have a significant effect on
the environment.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
local agency or school district has the authority to levy, service
charges, fees, or assessments sufficient to pay for the program or level
of service mandated by this act. Notwithstanding Section 17580 of the
Government Code, unless otherwise specified in this act, the provisions
of this act shall become operative on the same date that the act takes
effect pursuant to the California Constitution.
END OF REPORT