Steinberg Submits SB 731 to Reform CEQA
By Robert Cruickshank, February 23, 2013
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:Many of these proposals make a ton of sense. Encouraging infill development is a very important part of reducing carbon emissions, since dense areas well-served by transit have smaller carbon footprints than low-density auto-dependent areas. With the climate crisis far and away the biggest threat to the environment, encouraging infill development is exactly what CEQA should be designed to do. I also like the idea of sending back just parts of an EIR for revision rather than tossing the entire document, although it might be wise to limit this to infill development and to mass transit projects.
* 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.
The second item, expediting things like bike lanes and mass transit (including, perhaps, high speed rail?) is also welcome news, since again these alternatives are essential to reducing carbon emissions. Cars and trucks represent 35% of California’s overall carbon emissions as of 2009, by far the largest single category.
The third item might just address the Level of Service problem I described on Thursday, potentially allowing cities like San Francisco to strictly limit or maybe even do away with LOS as a category for review and mitigation under CEQA. But we’ll have to wait for more detailed bill text to determine how exactly this would work.
The language regarding “tiering” is sure to be controversial. Environmentalists had fought the
concept since it was first floated back in August. Steinberg’s proposal appears to have some significant innovations to address those concerns. First, it requires the general plans to have a “recently approved” EIR, although how recent isn’t specified. It also requires them to have “sufficient detail,” an undefined but potentially significant requirement. And it gives money to local governments to help update their plans, addressing a concern that outdated plans could be used to enable bad projects to be built.
My guess is that the CEQA defenders will not support this concept. And they may balk at other parts of the bill. We’ll see what happens in the coming weeks.
Steinberg’s proposal was almost lost amidst the energy generated by the day’s bigger news, that of
Sen. Rubio’s resignation. Sen. Rubio was the key backer of CEQA reform, and many speculated that Sen. Rubio may have decided to leave in part because CEQA reform wasn’t going to go his way. On the other hand, this proposal looks like something he could have lived with, especially since it includes tiering language.
Rubio’s departure has two significant effects. First, it is undoubtedly a blow for CEQA reform efforts. Rubio’s departure deprives the effort of a key leader, but the manner of his departure – especially his destination – will not help reconcile those concerned about reform to this proposal.
Opposition to hydraulic fracking for oil production in the Monterey Shale has been growing, and it is an opposition I personally share. Chevron is one of the major property owners of land in the Monterey Shale, especially in western Kern County. By heading to Chevron, Sen. Rubio has already started to generate questions about a possible connection between fracking and CEQA reform. Ethan Elkind at Legal Planet makes the point explicitly:
With the news that CEQA “reform” champion and State Senator Michael Rubio resigned today to lobby for Chevron, I have to wonder if his push for CEQA reform was really just to benefit oil and gas fracking. Sure, CEQA reform proponents liked to trumpet how a weakening of the law will help businesses and infill development and the like, but the reality was that the standards-based reform effort that Rubio and others advocated would primarily have benefited large sprawl projects — and of course the fracking industry, based in Rubio’s district in Kern County. Certainly there is not a lot of infill development happening in Kern County right now to motivate the former State Senator to champion reform for that outcome. And not only is Rubio an interested party in the oil and gas industry, but Tina Thomas, the lawyer who worked with Rubio to draft his CEQA reform legislation, counts Chevron as one of her clients.
So why would fracking proponents care to push for changes to CEQA? Currently, California and the United States do not have regulations in place to address fracking, and CEQA has been largely ignored when it comes to this extraction process. But in 2011, California Department of Conservation employees who review permits for new fracking projects (correctly) argued that CEQA review should apply to these projects. In response, the Brown Administration promptly fired them. But with the law on the side of CEQA proponents, companies like Chevron had to know that California’s premiere environmental law would delay and possibly limit their fracking projects. That’s where Thomas and Rubio came in, joined by longstanding business critics of CEQA.Elkind’s analysis has already been widely circulated among environmentalists and climate hawks worried about the CEQA reform effort. If Sen. Rubio’s goal was to help speed CEQA reform, his move to Chevron has instead undermined that project.
The other major impact of Sen. Rubio’s resignation is that it temporarily deprives the Democrats of a supermajority in the State Senate. That’s because an empty chair is functionally equivalent to a Republican seat – 27 of the 40 seats are needed to have a 2/3 majority in the Senate, even if some of those 40 seats are vacant. Democrats had a 29-11 advantage in the Senate after the November election, but because three of the Democratic seats are now vacant, they only have 26 votes, one shy of a supermajority. They’ll get seat number 27 back on March 12 when a special election in San Diego is held, and likely get seat number 28 back in May when a special election in the San Gabriel Valley is held.
Rubio’s seat has a strong Democratic majority, so his successor is likely to be another Democrat. Rumors have been flying that Fran Florez might run, which triggered rumors that her arch-rival Nicole Parra might run. I’ve also seen the name of Assemblymember Henry Perea mentioned for this seat, and he has been a strong advocate of high speed rail.
So the Democratic supermajority is safe. But CEQA reform certainly is not. After yesterday, SB 731′s passage looks less likely than it did just a day or two ago.