CEQA: Targeted Reforms for California’s Core Environmental Law

CEQA: Targeted Reforms for California’s Core Environmental Law Report #279 | May 2024 Milton Marks Commission on California State Government Organization and Economy www.lhc.ca.gov LITTLE HOOVER COMMISSION Dedicated to Promoting Economy and Pedro Nava Efficiency in California State Government Chair The Little Hoover Commission, formally known as the Milton Anthony Cannella Marks “Little Hoover” Commission on California State Government Vice Chair Organization and Economy, is an independent state oversight agency. Dion Aroner* By statute, the Commission is a bipartisan board composed of David Beier five public members appointed by the governor, four public Asm. Phillip Chen members appointed by the Legislature, two senators and Gil Garcetti two assemblymembers. José Atilio Hernández Jason Johnson In creating the Commission in 1962, the Legislature declared its purpose: Sen. Dave Min Asm. Liz Ortega ...to secure assistance for the Governor and itself in Janna Sidley† promoting economy, efficiency and improved services in the Sen. Scott Wilk transaction of the public business in the various departments, agencies and instrumentalities of the executive branch of †Served as subcommittee chair the state government, and in making the operation of all *Served on study subcommittee state departments, agencies and instrumentalities, and all expenditures of public funds, more directly responsive COMMISSION STAFF to the wishes of the people as expressed by their elected Ethan Rarick representatives... Executive Director Tamar Foster The Commission fulfills this charge by listening to the public, consulting with the experts and conferring with the wise. In the Deputy Executive Director course of its investigations, the Commission typically empanels Krystal Beckham advisory committees, conducts public hearings and visits Daniel Harris-McCoy government operations in action. Ashley Hurley Shara McAlister Its conclusions are submitted to the Governor and the Legislature for their consideration. Recommendations often take the form Allie Powell of legislation, which the Commission supports through the legislative process. Contacting the Commission All correspondence should be addressed to the Commission Office: Little Hoover Commission 925 L Street, Suite 805, Sacramento, CA 95814 (916) 445-2125 | LittleHoover@lhc.ca.gov This report is available from the Commission’s website at www.lhc.ca.gov. 2 | LITTLE HOOVER COMMISSION Table of Contents EXECUTIVE SUMMARY ......................................................................5 CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW .....................................................................7 Introduction .....................................................................................................7 How CEQA Functions .......................................................................................8 CEQA Litigation ..............................................................................................10 The CEQA Debate as a Proxy Battle ............................................................11 Legislative Actions on CEQA .........................................................................12 Recommendations ........................................................................................14 Study Proposals .............................................................................................17 APPENDIX A .....................................................................................23 APPENDIX B ......................................................................................25 APPENDIX C .....................................................................................28 NOTES ...............................................................................................39 CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 3 Letter from the Chair May 8, 2024 The Honorable Gavin Newsom Governor of California The Honorable Mike McGuire The Honorable Brian Jones President pro Tempore of the Senate Senate Minority Leader and members of the Senate The Honorable Robert Rivas The Honorable James Gallagher Speaker of the Assembly Assembly Minority Leader and members of the Assembly DEAR GOVERNOR AND MEMBERS OF THE LEGISLATURE: In March of 2023, the Little Hoover Commission launched a study to review California’s bedrock environmental law – the California Environmental Quality Act. California’s environmental landscape has incalculably benefited from CEQA, which requires agencies to review proposed projects to assess potential impacts to the environment and mitigate those impacts to the degree feasible. This law must be upheld now and for the protection of generations to come. However, during the Commission’s study, we concluded that, like any law, CEQA is not perfect. In this report, we examine the current state of CEQA and whether reforms are necessary. We offer targeted, limited suggestions to improve the law’s functioning and to ensure it is accomplishing its purpose. The Commission respectfully submits this work and stands prepared to help you take on this challenge. Sincerely, Pedro Nava, Chair Little Hoover Commission 4 | LITTLE HOOVER COMMISSION Executive Summary For more than half a century, the California CEQA as Proxy Environmental Quality Act has been a bedrock of environmental protection, and has played a role CEQA debates often serve as proxy battles for a in countless environmental victories, including the variety of related but distinct policy contests. In protection of old-growth Redwoods, lands near Lake particular, CEQA tends to be the battlefield for Tahoe, and the San Francisco Bay. Often, CEQA’s debates over land-use and local control. This adds protections have been most profound in the most an additional challenge to analyzing CEQA, in that it disadvantaged and vulnerable communities, where can be difficult to disentangle CEQA from other policy negative environmental impacts have often been debates. greatest in the past. Legislative Action on But it is also true that CEQA, like any law, can have damaging, often unintended, consequences. It is an CEQA expensive and lengthy process that can add years to project timeframes. It can be used for purposes that Recent legislative efforts to reform CEQA have have little relationship to environmental protection. been extensive, including changes signed into Its strong bias toward the status quo means that law by Governor Newsom just this past summer. it can be used to block projects that would help Among other things, these recent reforms seek to improve the environment. extend and expand judicial streamlining in hopes of compressing litigation timelines. The recency of Additionally, policymakers must weigh the these reforms suggests some degree of caution value of goals that can sometimes be in tension in assessing the law at this moment, and thus or competition, such as the importance of our Commission refrains from making specific environmental protection versus the merit of recommendations regarding compressed timelines building more housing. for CEQA litigation. We believe the state should wait to measure the success of recent reforms before CEQA Litigation embarking on major additional changes. At the same time, the introduction just in the past few years of Most CEQA projects do not result in litigation. On roughly 200 bills that would have changed CEQA— average, about 200 CEQA lawsuits are filed each year measures that are listed in this report—suggests that in California, or about two percent of all projects many policymakers believe some reform to CEQA is subject to CEQA review. At the same time, research needed. suggests that when CEQA litigation does occur, it often targets residential projects, which are needed Recommendations as California seeks to lessen its high housing costs. According to research by both the law’s defenders We believe that CEQA should be retained as a and detractors, housing projects are the most strong form of environmental protection. Its value is common single type of project challenged by CEQA especially apparent in disadvantaged communities litigation. that often have a history of environmental degradation. However, we also recommend targeted and limited reforms. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 5 Strengthen standing Study Items requirements. The Legislature should commission in-depth studies The state should establish the same standing of several areas of potential CEQA reform: the requirement to file a suit under CEQA as exists under creation of CEQA courts, the translation of CEQA the National Environmental Policy Act, the federal law documents, the potential for a bonding requirement after which CEQA was in many respects modeled. for CEQA litigation, the use of vehicle miles traveled (VMT) analysis, and whether there should be a period “Data Dumps” and “Late Hits.” of time during which analytical models are “locked in,” and in which newly developed alternative models The submission of public input should be limited need not be used. to the public comment periods, and lead agencies should not be required to consider information submitted after the end of the public comment period, although there should also be an exception for information that could not have been known during the public comment period. Create a broad, simplified exemption for infill housing. The state should exempt all infill housing from CEQA review. Provide for additional judicial training. The Legislature should provide funding sufficient to extend CEQA judicial training from two days to a full week. Deference to statute and CEQA guidelines. The Legislature should strongly reaffirm existing statutory language that courts should defer to the procedural and substantive requirements of statute and the CEQA Guidelines. Significance thresholds and mitigations. The state should establish clear parameters for significance thresholds and for analysis and mitigation of impacts. 6 | LITTLE HOOVER COMMISSION CEQA: Targeted Reforms for California’s Core Environmental Law Introduction ◊ Stopping the installation of oil wells in the middle of a residential community in Arvin, a small For more than half a century, the California community at the Southern end of the San Joaquin Environmental Quality Act (CEQA) has been a Valley. bedrock of environmental protection. In a state with ◊ Requiring extensive mitigation measures designed unparalleled environmental endowments, but also a to reduce emissions and improve safety at a history of serious environmental degradation, CEQA pesticide plant in Pittsburg, in the Bay Area. has provided substantial protection of the state’s natural resources. Any fair and thorough assessment of CEQA must include these benefits the law has brought to At root, the value of CEQA is displayed in the fact that California. California’s extraordinary environment its fundamental requirement—that public agencies deserves extraordinary protection, and CEQA has evaluate the environmental impact of proposed been a bedrock of that protection. projects, disclose those impacts to the public, and mitigate them to the degree feasible—now seems But there are also critical evaluations of CEQA, and almost inherent to good governance. It may be these too must be considered. These assessments difficult for many Californians to imagine a state in include: which government agencies could take substantial actions without even considering the impact on the ◊ CEQA can be an expensive and lengthy process, especially for large or complicated projects. This environment, but that is the California that existed is true even if there is not litigation. Preparation before CEQA. In its more specific impacts, the of an Environmental Impact Report under CEQA benefits of CEQA have been concrete.1 CEQA litigation can take a year or longer and cost hundreds of has played a role in protecting some of California’s thousands of dollars, or even, in some cases, more most famous environmental treasures: than $1 million.2 One study of CEQA litigation ◊ Protecting old-growth Redwoods in Humboldt found that on average, litigation adds almost two County. years to project timeframes. In the face of such lengthy delays, financing can vanish, stopping a ◊ Preserving the Martis Valley near Lake Tahoe. project even if it would eventually have survived ◊ Ensuring the protection of the Owens Valley, along the CEQA process and been approved. the eastern side of the Sierra. ◊ CEQA can be used for purposes that have little ◊ Stopping significant threats to the San Francisco relationship to environmental protection, such Bay. as efforts to preclude development opposed by Often, CEQA’s protections have been most nearby residents, to target competing businesses, profound in the most disadvantaged and vulnerable or to ensure that certain labor standards are communities, those where negative environmental included in a given project. impacts have often been greatest in the past. For ◊ CEQA has a strong bias toward the status quo, example, CEQA litigation also played a role in: and generally assumes that change is harmful to CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 7 the environment and that maintaining the status conditions under which man and nature can exist in quo is environmentally benign or beneficial. This productive harmony to fulfill the social and economic means that CEQA can be used to block projects requirements of present and future generations.”3 that would help improve the environment. CEQA requires public agencies considering a Aside from these direct impacts of CEQA both pro discretionary project—a project they may approve and con, policymakers must weigh the value of or reject as they see fit—to study the proposal for competing public values, such as the importance potential environmental impacts, analyze the scale of of environmental protection versus the merit of those impacts, disclose the project’s environmental building more housing. In some cases both can be impacts to the public, and mitigate them to the accomplished simultaneously, but at other times, extent feasible. these goals exist in mutual tension and balance. Signed into law by Governor Ronald Reagan in the Cognizant of these the various assessments of CEQA, fall of 1970, CEQA was part of a broad response to and of the importance of the law’s impact on many the growth of the modern environmental movement aspects of California’s governance, the Little Hoover (the first Earth Day had occurred earlier that year, Commission began a series of hearings to consider for example) and to the passage of the National input from stakeholders, academic researchers, Environmental Policy Act, which was signed into law policymakers, and others regarding the current on New Year’s Day, 1970. Like its federal model, CEQA impact of CEQA, and whether changes to the law are was a response to the realization that inadequate needed. Beginning in March of 2023, the Commission attention had been paid to the environmental held five hearings on CEQA. We took testimony from consequences of development decisions. 24 invited witnesses and heard public comment from many additional stakeholders. Commission staff CEQA has changed considerably over its lifespan. interviewed dozens of people involved in the CEQA What began as a 4-page statute is now almost 160 debate, including legal practitioners, environmental pages. The administrative CEQA Guidelines that experts, business interests, the environmental justice explain the operation of the law and interpret 50 community, organized labor, academic experts, years of judicial rulings stretch for a further 150 and many others. Staff also received hundreds pages, with an additional 50 pages of appendices. of pages of written comment… and reviewed relevant research from many sources. This report The growth and increasing complexity of CEQA is the summarizes the Commission’s findings and, in line product of both judicial action and legislative statute, with the Commission’s statutory charge, makes and of the interplay between the two. recommendations to the Legislature and governor Through most of its history, the growth and for CEQA reforms. application of CEQA has been driven as much, and How CEQA Functions perhaps more, by court rulings as by statutory change. Within a few years of CEQA becoming law, CEQA declares that it is the policy of the state to, two key court cases dramatically expanded the “develop and maintain a high-quality environment scope of CEQA. In Friends of Mammoth v. Board of now and in the future, and take all action Supervisors of Mono County (1972), the California necessary to protect, rehabilitate, and enhance the Supreme Court extended CEQA to cover private environmental quality of the state.” The law also activities that required permits from public declares that it is state policy to, “Create and maintain agencies. No Oil, Inc. v. City of Los Angeles (1974) 8 | LITTLE HOOVER COMMISSION then established that agencies must prepare an review documents; and sometimes lead agency and Environmental Impact Report (EIR), “whenever it applicant will collaborate in the review process. can be fairly argued…that the project may have a 1. DOES CEQA APPLY? significant environmental impact.” Subsequent court First, the relevant public agency must determine if rulings have expanded the number and variety of the proposed activity is a project subject to CEQA; environmental impacts that must be analyzed under that is, is it a “whole action” subject to the public CEQA and guide how impacts are analyzed and agency’s discretionary approval that has potential reported. to either cause a direct physical change in the The Legislature, in turn, has also shaped CEQA’s environment or to cause a foreseeable indirect growth and development. In part in response change in the environment. to the perceived burden of CEQA review, the If the project is ministerial—that is, if agency Legislature has created an array of CEQA exemptions authorization is required so long as the project meets and streamlining measures. Meanwhile, state specified requirements—then CEQA does not apply. government has also revised CEQA to advance policy priorities. For example, with the goal of reducing car- In addition, a project may be exempt from CEQA related greenhouse gas emissions, the Legislature under a range of statutory or categorical exemptions. in 2013 passed SB 743, which changed how If an exemption applies, the agency may file a Notice transportation impacts are evaluated under CEQA, of Exemption (NOE). (Lead agencies may require moving from an analysis of how projects will affect a project to go through CEQA review even if an traffic congestion to analyzing how they will impact exemption could apply, especially if they believe that vehicle miles traveled (VMT). the exemption might be subject to legal challenge). There is a 35-day statute of limitation for challenging The CEQA Process an agency’s decision that a project is exempt from Implementation of CEQA is governed by the CEQA CEQA. Guidelines, administrative guidelines developed by 2. INITIAL STUDY the Governor’s Office of Planning and Research (OPR) If CEQA applies to a project (and if the project does and issued by the Natural Resources Agency. The not qualify for an exemption), then the lead agency CEQA Guidelines reflect statutory requirements and conducts an initial study to determine whether the further incorporate court decisions with respect to project may have significant environmental impacts. interpreting and implementing statute. Appendix G of the CEQA Guidelines identifies 21 CEQA generally proceeds through a 3-step process environmental factors that lead agencies should (Appendix A to this background memo includes OPR’s consider when reviewing projects, and further full flowchart for the CEQA process). The public entity identifies 73 types of impact that should be evaluated carrying out the project or responsible for approving for potential significance. the project is the “lead agency.” In the case of private projects, the relationship between the project 3. ENVIRONMENTAL REVIEW applicant and the lead agency can vary: sometimes Negative Declaration or Mitigated Negative the lead agency may drive the environmental Declaration: If the lead agency determines that review; sometimes the applicant may carry out there is no substantial evidence that the project will the review subject to lead agency approval of the have a significant impact on the environment, it may CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 9 issue a Negative Declaration (ND). Alternatively, if the CEQA Litigation initial study reveals potentially significant impacts and the lead agency adopts changes to the project Crucial to the debate over CEQA is the frequency that eliminate these potential impacts or reduce and impact of litigation, both because litigation is them to less-than-significant levels, then the agency the chief method through which CEQA can stop may issue a Mitigated Negative Declaration (MND). environmental harm, and because the extent, frequency and unpredictability of litigation are Negative Declarations and Mitigated Negative often cited as the causes of CEQA’s most damaging Declarations are subject to a 20-day public comment negative effects. period (if state agencies are involved, the comment period for Negative Declarations and Mitigated Most CEQA projects do not result in litigation. The Negative Declarations is 30 days). Lead agencies are number of lawsuits is small in proportion to the total not required to respond to the public comments number of projects that proceed through CEQA. On received, but they must consider them before average, about 200 CEQA lawsuits are filed annually determining whether to approve the project. in California, and only about two percent of all projects subject to CEQA review result in litigation.4 Environmental Impact Review (EIR): If the lead In part, CEQA has a low rate of litigation because agency determines that there may be significant of the law’s breadth. CEQA applies to all projects impacts that cannot be mitigated to less-than- requiring discretionary approval by a public agency, significant levels, it must prepare an Environmental and thus includes many minor projects with minimal Impact Report. The EIR must provide a description impact, and which therefore proceed with minimal of the project, evaluate environmental impacts and review, and certainly without litigation. Furthermore, disclose the impacts that will have significant impact, many projects proceed under exemptions or some explain how the project will mitigate those impacts, form of streamlined review. This is especially true of and meaningfully discuss project alternatives that multifamily housing projects. One study found that would reduce adverse environmental impacts. in responding jurisdictions, fewer than 10 percent As part of the EIR process, the lead agency must also of housing projects—and slightly under a quarter of release the draft EIR for public comment for at least residential units—required an EIR.5 In short, CEQA 30 days (and at least 45 days if state agencies are litigation is rare as a percentage of all CEQA projects involved) and respond in the final EIR to all significant because CEQA applies to so many things—literally environmental points raised during the public thousands of projects across the state every year. comment period. The lead agency must also update At the same time, research also suggests that its analysis to incorporate any comments that reveal when CEQA litigation does occur, it often targets deficiencies in the draft EIR. residential projects, which are valuable as California If the lead agency decides to approve a project that seeks to lessen its high housing costs while includes adverse impacts that cannot be feasibly simultaneously addressing climate change. Much mitigated to a less-than-significant level, the lead of the research has been conducted by partisans, agency must issue a Statement of Overriding vigorous in either their defense or criticism of Considerations that explains why the social, CEQA, but one finding is actually fairly consistent — economic, or other beneficial features of the project approximately a quarter of CEQA suits target some outweigh the unavoidable impacts. form of housing development, the most common single type of project challenged by CEQA litigation. 10 | LITTLE HOOVER COMMISSION The mutual vitriol of the CEQA debate is such from the Department of Housing and Community that this finding is often overlooked, as partisans Development shows that housing development on all sides argue that their precise statistics are applications for nearly 200,000 units were submitted most accurate. However, we note that the Rose in 2020, and for nearly 400,000 over 2019 and 2020. Foundation, a strong defender of CEQA, found that It is not clear which of these figures (or what other 26.2 percent of CEQA suits in 2019-2021 challenged figure) best represents that California’s overall either “housing only” or “mixed-use” projects, while housing pipeline in 2020, considering timeframes for Jennifer Hernandez, a leading CEQA critic, found that approving housing developments.11 The precise scale residential projects were the subject of 25 percent of of CEQA’s impact is thus uncertain. CEQA lawsuits in 2013-15.6 More broadly, the impact of CEQA may not be the In other areas, researchers disagree strongly. For litigation that actually occurs, but rather the law’s example, one study found that the most frequently influence in other ways, some of which are difficult if targeted type of housing projects were multifamily/ not impossible to measure. UC Davis law professor mixed use projects—45 percent of CEQA lawsuits Chris Elmendorf, who has studied CEQA’s impact targeting residential projects targeted multifamily on housing, has raised this issue: “The small share projects.7 The same research found that 70 percent of approved projects that face CEQA litigation is of challenged housing units (approximately 10,000 only the tip of an iceberg: it doesn’t tell us anything units) in the 5-county Los Angeles region were in about payoffs that were made to avoid litigation, transit priority areas.8 This research suggests that or expenses that were incurred to bulletproof CEQA litigation more frequently targets housing environmental review documents, or projects that than it does industrial sites and that CEQA may faced litigation and were withdrawn because of it, or disproportionately impact the kinds of dense, project that were never proposed in the first place transit-oriented projects that California policymakers because developers judged the CEQA compliance generally identify as critical to meeting state climate costs and litigation risks to be too high.”12 goals. Also, CEQA litigation, when it occurs, may This difficulty of measuring CEQA’s impact extends disproportionately challenge housing in higher even more broadly, in that there is no counter- income neighborhoods—78 percent of challenged factual universe in which California existed for the units were in such communities.9 However, there past half-century without CEQA. Both defenders and are caveats. First, this research uses a very broad detractors of the law have sometimes been guilty of definition of infill development, counting as infill assuming that the state’s general historical arc of the any development within city limits, whereas the past half-century is due to CEQA, as when defenders Governor’s Office of Planning and Research defines cite the California’s continued economic growth13 or infill development as building on unused and detractors cite the state’s general shortfall of housing underutilized lands within existing development construction. Though the case is impossible to prove, patterns.10 Furthermore, a finding that a significant we suspect that California would have experienced portion of CEQA litigation targets a given kind of both strong economic growth and insufficient project may not be particularly instructive given housing construction in the past 50 years even if how rarely litigation occurs at all. For example, the CEQA had never been enacted. research cited above concludes that nearly 50,000 residential units were challenged by CEQA litigation in 2020, but it is not clear how many units were in California’s housing pipeline over that period. Data CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 11 Amid the passionate arguments of both CEQA The CEQA Debate as a defenders and detractors —CEQA must be preserved Proxy Battle as it is or CEQA must be overhauled immediately— it is easy to overlook the considerable efforts Another important fact about CEQA is that debates by policymakers to fine-tune the law. In fact, over the law can function as proxy battles for a Commission staff have identified more than 200 variety of related, but distinct, policy contests. In bills proposed since 2019 that would have made particular, CEQA tends to be the battlefield for substantive changes to CEQA. Seventy-four of those debates over land-use and local control. In part, bills were signed into law. (A list of those bills is this is the result of state government using CEQA included in this report as Appendix C). The very fact as a means for advancing state policy priorities, like that so many bills have been introduced in so short a reducing vehicle miles traveled and greenhouse gas time—and that several dozen were approved by the emissions. In part, it is because the CEQA process Legislature and signed by the governor—suggests can provide a means of contesting projects that that collectively, the policymaking community does individuals or groups may oppose for a range of not believe CEQA should be preserved exactly as it is, reasons. and that some reforms are needed. This adds an additional challenge to analyzing CEQA Perhaps most notably, in the summer of 2023, as and considering how the CEQA process can be the Commission was conducting hearings on CEQA, improved. It can, for example, be difficult to approach Governor Newsom proposed and eventually signed CEQA’s relationship to housing without getting into law significant reforms, including the extension drawn into debates over the relationship between and expansion of judicial streamlining that seeks densification, gentrification, and displacement, on to ensure faster legal review of certain projects. the one hand, and over the tensions between transit- Obviously there has not yet been time to fully study oriented development and housing affordability, on or assess these bills. In fact, the recency of these the other. These are complicated and contentious bills causes our Commission to refrain from specific policy questions in their own right. Trying to address recommendations in certain areas—specifically with them and CEQA simultaneously can make finding regard to the implementation of condensed timelines actionable policy solutions more challenging. for judicial review of CEQA cases or the streamlining However, disentangling CEQA from other policy of the administrative record—as we wait to see the debates can also be difficult since they are so closely full implementation and impact of the measures. intertwined. In these areas, we believe policymakers should refrain from immediate change that is too extensive Legislative Actions on or too drastic, and rather should allow time for the significant reforms enacted this year to take effect. CEQA However, as a reference guide for policymakers and others, we include the following description of the Recent legislative efforts to change CEQA have been 2023 reforms. extensive, and the fact that many changes in CEQA have occurred recently—including some that were 2023 CEQA Legislation just signed into law last year—suggests some degree of caution in assessing the law at this moment. In 2023, legislators passed and the governor signed into law twenty-four bills that made changes related 12 | LITTLE HOOVER COMMISSION to CEQA. Half of these bills added or extended CEQA (Caballero), by removing internal communications exemptions for specific projects or types of projects. on non-substantive materials, such as meeting All but two of these exemption bills focused on invitations.25 housing-related projects and actions.14 Many focused Finally, legislators sought to add more clarity to specifically on certain affordable housing projects— CEQA. For example, AB 1633 (Ting) provides that a such as those that are 100 percent affordable (AB disapproval under the Housing Accountability Act 1449, Alvarez),15 located on land owned by private includes failure to issue an exemption from CEQA or colleges or religious institutions (SB 4, Wiener),16 failure to adopt certain environmental documents undertaken by the City and County of Los Angeles under specified circumstances. According to the (AB 785, Santiago),17 or are developed on state author, the bill aims to curb agencies’ efforts to draw surplus lands and are for formerly incarcerated out environmental review on projects until they are individuals (SB 240, Ochoa Bogh).18 no longer economically feasible.26 Legislators also modified the scope of the type Previous CEQA legislation of impacts that require analysis under CEQA. AB 356 (Mathis) extends the sunset, until 2029, of a The reforms in 2023 built upon a substantial body of law allowing lead agencies to waive consideration additional legislative work on CEQA in recent years. of aesthetic impacts for certain projects, such as The Legislature has generally considered several those to refurbish or replace derelict buildings.19 dozen bills annually that would make changes to Additionally, AB 1307 (Wicks), deems that noise CEQA, whether by exempting projects from CEQA, generated by occupants is not considered a creating mechanisms to streamline CEQA review, “significant effect” under CEQA.20 or updating some element of the CEQA process. This includes bills to change CEQA statute, as well Legislators provided for various forms of CEQA as bills that would make changes to other sections streamlining. SB 286 (McGuire) allows for the of California law with the effect of altering CEQA’s streamlining of offshore wind permitting.21 SB 149 impact on projects—for example, bills that make (Caballero) extends the sunset, until 2032, of a law approval of particular kinds of project ministerial allowing streamlining benefits for certain projects have the effect of removing those projects from that are certified as environmental and labor CEQA review. leaders. The bill also provides streamlined judicial review for certain energy, transportation, water, and There are many potential changes to CEQA that semiconductor projects.22 SB 91 (Umberg) extends have been featured in proposed legislation. These the deadline and sunset for one year of expedited include: expanding CEQA exemptions; encouraging judicial review of certain “environmental leadership” use of “tiering” and other streamlining mechanisms; transit projects located in Los Angeles County.23 limiting duplicative lawsuits; requiring transparency from the backers of CEQA lawsuits; limiting CEQA’s Several administrative changes were made to CEQA, application when other environmental laws apply; to both add and remove requirements. Per SB 69 addressing “late hits” and “document dumps”; (Cortese) local agencies must send CEQA notices— creating specialized CEQA courts; expanding that they were already required to send to county ministerial pathways for classes of priority projects; clerks and interested parties—to OPR, which they and requiring CEQA lawsuits to be settled within must post to the State Clearinghouse website.24 The particular timeframes. administrative record was streamlined under SB 149 CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 13 Some legislation has aimed at comprehensive mind the different application of the law in different CEQA reform or modernization, while a much larger locations, and for different types of projects. number of bills have aimed at more tailored changes. 1. Strengthen standing Although discussion of CEQA reform often focuses on requirements to sue under changes designed, at least in the eyes of CEQA critics, CEQA. to make the law more efficient or less burdensome, there have also been significant legislative proposals In comparison to federal and other states’ for strengthening or expanding CEQA. These environmental review laws, CEQA has an unusually include bills that would require projects to consider broad threshold for establishing standing to sue. the environmental justice implications of adverse Based on statute and current case law, parties may impacts and adopt additional mitigations to address sue under CEQA if “beneficially interested” in the impacts on environmental justice communities. case, even if that interest is not environmental. Recommendations By contrast would-be plaintiffs looking to sue a project for a violation of the National Environmental CEQA is neither a curse on California, nor is it perfect. Policy Act (NEPA) must show that the harms they We believe that certain targeted and limited reforms claim that they will suffer from the alleged violation could improve the functioning of CEQA, allowing for fall within NEPA’s “zone of interests.” That is, the beneficial projects to proceed more rapidly, without harm must be related to the interests that NEPA was sacrificing necessary environmental protections. designed to promote. A plaintiff can thus sue under In considering each of our recommendations, NEPA for redress for environmental harms, but not we encourage policymakers to bear in mind the for economic harms. differences in the application of CEQA toward In order to limit the use of CEQA for pursuing non- different locations of the state, and different kinds environmental goals, the Commission recommends of projects. Testifying before our Commission, Sean strengthening standing requirements to sue Hecht of the Earthjustice California Regional Office for alleged violations of CEQA. Specifically, the noted that most observers would agree that CEQA’s Commission recommends establishing the same protection of communities with a history of economic standing requirements to launch a suit under disadvantage and environmental degradation is CEQA as exist for NEPA. The Commission further different than its operation in communities with a recommends that the Legislature specifically state history of privilege, where residents often are, in in statute that the intent of CEQA is environmental truth, more interested in preserving community protection and that the law should not be used for attributes than in protecting the environment. suits that do not align with this intent. Yet, Hecht noted, the law is agnostic about those differences. Chris Elmendorf, Martin Luther King Jr. The Commission understands that plaintiffs who Professor of Law at UC Davis, told the Commission are determined to use CEQA to achieve economic that the state should identify projects that are goals may be able to find ways around standing good for the environment and seek to “scale back” requirements. However, by obligating plaintiffs to CEQA for those projects, also a recognition that articulate an environmental rationale for their suit, CEQA can operate differently in different contexts. stronger standing requirements create the potential As policymakers consider the following specific for judges to dismiss suits that cannot clear this recommendations, we recommend that they bear in 14 | LITTLE HOOVER COMMISSION threshold. The Commission believes that this can judicial proceedings that the information could not help deter some abuse of CEQA, while generally reasonably have been submitted during the public reaffirming CEQA’s core purpose and intent. comment period or earlier in the review process. 2. Address “Data Dumps” and 3. Create a broad, simplified “Late Hits.” exemption for infill housing. CEQA statute language allows for new information Although CEQA is not the only cause of California’s to be inserted into the review process at any time housing crisis, addressing CEQA is a key ingredient to prior to the close of the last public hearing before building the housing that California needs. California final project approval (even after the close of the will never achieve its housing goals as long as CEQA public comment period). Project opponents can take has the potential to turn housing development advantage of this feature to introduce significant into something akin to urban warfare—contested (and copious) new information at the last minute. As block by block, building by building. Moreover, as a result, an aspect of CEQA intended to encourage long as lengthy review and the threat of litigation public input and engagement with that input on the discourages homebuilding within California’s cities, part of lead agencies can become a tactical tool for housing development will only continue to be pushed creating delays, for setting up grounds for litigation, further from urban centers and into greenfield and for creating leverage vis-à-vis the lead agency to areas—exactly the kind of development that state extract a settlement or project changes. government otherwise seeks to discourage. In order to create a more efficient CEQA process The Washington State Legislature recently voted to and remove undue burden from lead agencies, exempt housing within urban growth boundaries California needs to put an end to these practices and from environmental review. California should follow substantially limit the submission of input outside the this example. public comment period. The Commission recommends that the state The Commission recommends that the Legislature exempt all infill housing from CEQA review— revise CEQA statute to limit the submission of input without additional conditions or qualifications. during the environmental review process to public This exemption would apply both in cities and in comment periods. Lead agencies should further not urbanized, non-incorporated areas. The Commission be required to consider information submitted after suggests that for purposes of this exemption, infill the end of the public comment period. housing should be understood as that which is developed on sites that are at least three quarters There should, however, be an exception to this for surrounded by existing urban uses. This requirement information that was not known and could not have should ensure that the exemption does not promote been known with reasonable diligence during the additional urban sprawl and should prevent public comment period. To prevent abuse of this greenfield developments from being able to take provision, the Legislature should set a high bar for advantage of the exemption. establishing that any such input legitimately could not have been provided during the public comment The Commission appreciates the importance period. If such information becomes the basis of of policy questions about labor conditions, litigation, the individuals or entities that submitted it displacement and gentrification, and public input should bear the burden of demonstrating early in the on the shape of community development. These CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 15 are important issues, but they should not be part of 5. Request courts to show environmental analysis with respect to infill housing. greater deference to statute and Instead, these are all issues that can and should CEQA Guidelines. instead be addressed through the planning process or through specific laws and regulations, whether at Existing statute language (21083.1) states that it is the local level or statewide. the intent of the Legislature that courts should not interpret CEQA in a manner that “imposes procedural 4. Provide for additional judicial or substantive requirements beyond those explicitly training. stated” in statute or in the CEQA Guidelines. However, the absence of clearer parameters and In addition to the creation of CEQA courts, the bright lines in both statute and Guidelines has Commission further recommends providing left substantial room for judicial interpretation. additional funding for the training of CEQA judges. This will probably not change until OPR and the Currently, California judges, justices, and their Legislature establish more definitive parameters for research attorneys receive training on CEQA through environmental review under CEQA. the Judicial Council’s Center for Judicial Education and In conjunction with establishing clearer parameters Research. This training generally consists of annual, for the execution of CEQA, as called for in the two-day courses and is provided by a balanced preceding recommendation, the Legislature should faculty team of highly experienced justices and also strongly reaffirm the language in 21083.1 that attorneys. courts should in the future defer to the procedural In the Commission’s view, additional training is and substantive requirements established in statute called for given CEQA’s complexities and level of and Guidelines. specialization. As Arthur Wylene, General Counsel The previous recommendation will ensure that for the Rural County Representatives of California, statute and CEQA Guidelines more fully and more observed to the Commissioners, CEQA has essentially explicitly establish procedural and substantive evolved its own body of common law. In addition, requirements for CEQA. The Legislature needs to CEQA cases often ask judges to rule on legal matters then further affirm its intent that courts defer to that center on highly technical questions relating those requirements. to scientific analysis and review and that involve complicated questions regarding local and state 6. Provide clearer parameters policy. and guidance for significance The Commission suggests providing sufficient thresholds and mitigations. funding to extend CEQA training from two days to a full week. This will allow for more extensive education The governor and Legislature should establish into CEQA and will better prepare judges to address clear parameters for significance thresholds and cases that have significant and complicated policy for analysis and mitigation of impacts, starting with implications. those categories of impact that are most frequently the subject of litigation. To this end, the Commission recommends that the Governor’s Office of Planning and Research establish 16 | LITTLE HOOVER COMMISSION which categories of impact are subject to the most statute, then their approach will not be subject to litigation and which feature the greatest uncertainty legal challenge—and this is a point that should be regarding where thresholds of significance should expressed in statute. fall and how impacts should be analyzed. These The Commission is under no illusions that this an are likely to include aesthetics, GHG emissions, easy or straightforward task. Local governments vehicle miles traveled (VMT) analysis, and noise. OPR and agencies value their discretion in establishing should further determine where existing statute thresholds, while it is likely to be exceedingly difficult and case law are sufficiently well defined that clear to arrive at specific standards that work statewide or parameters, thresholds, and accepted approaches that find acceptance from both industry associations can be spelled out through the Guidelines, and and environmental advocates. Arriving at thresholds where statutory changes will be needed to provide and standards that will satisfy diverse stakeholders definitive guidance as to how lead agencies should while allowing for some discretion on the part of local analyze and mitigate particular impacts. Where governments is a daunting task. statutory changes are required, the governor should work closely with the Legislature to articulate clear However, it is time for state government to devote parameters and benchmarks in statute, or to specify the time, energy, and resources to clearly define what that those parameters should be laid out in the CEQA analysis is sufficient under CEQA and should carry a Guidelines. presumption of adequacy. The Commission does not make any specific Study Proposals recommendations relating to where parameters should be set, though it does suggest recognizing On several issues often mentioned as areas California’s geographic diversity and the need of potential CEQA reform, our Commission to balance statewide goals with recognition of recommends further study to identify the potential local control. Establishing clearer thresholds and benefits and drawbacks of various proposals for parameters does not necessarily need to consist change. We seek here to identify and explicate the of establishing single statewide numbers or issues with which policymakers must grapple, rather measures. Depending on the particular impact in to advance recommendations for specific change. question, it will probably be appropriate to continue In this way, we hope to further the discussion in to defer to standards set by regional regulatory the Legislature and other policymaking venues, bodies or by local governments. However, whether and provide nuance, clarity and perspective and through Guidelines or through statute language, policymakers consider reform options. state government should establish clear floors for significance thresholds, and for properly analyzing 7. CEQA Courts and mitigating those impacts. CEQA cases pose unique challenges for the California The resulting parameters and guidance should give judiciary at both the trial and appellate levels. Given lead agencies a realistic and practicable pathway the ever-increasing complexity of the science at for balancing among the state’s priorities around the root of many cases, and the expansion of CEQA housing, climate action, inclusive development, and analysis to include issues related to global climate social justice. They should also carry the presumption change, these challenges have only increased in that if a lead agency observes these parameters recent years, and are likely to continue to do so. and the approaches laid out in the Guidelines or in CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 17 At the trial level, CEQA’s complexity and its of the state. These specialized divisions would have prominence in the judicial workload is reflected by heard CEQA cases and cases brought in other areas the requirement that any county with more than of environmental law, as determined specifically by 200,000 residents appoint at least one CEQA judge, the Judicial Council. with the goal of increasing judicial expertise for CEQA AB 515 (Dickinson, 2013) would have created at least cases. two “CEQA compliance courts” in the state, with At the appellate level, CEQA’s impact on the Judiciary original jurisdiction over CEQA cases. Judges would has been described by former Chief Justice Tani have been appointed to these courts directly by Cantil-Sakauye. Based on research by staff at the governor, and their decisions would have been the California Supreme Court, the former Chief appealable only to the California Supreme Court, in Justice has said that in the first 50 years of the Act’s effect bypassing the Courts of Appeal. existence, from 1970 to 2020, the California Supreme Advocates of proposals for specialized courts have Court published 48 CEQA cases, a greater number generally maintained that they would increase than cases dealing with any other discreet area of judicial expertise, produce more consistent judicial civil law, such as the Unruh Civil Rights Act; unfair interpretations of CEQA, and generally hasten competition claims; employment, wage and hour law; the litigation process. Detractors offer various or cases dealing with the interpretation of Prop. 13. “I perspectives and come from different camps within can say confidently that in the last half century, CEQA the broader CEQA debate. Environmentalists and cases have commanded more of the Supreme Court’s other defenders of the current CEQA system have attention than any other civil law topic,” the Chief often maintained that inconsistent rulings are not Justice said. Furthermore, the judicial focus on CEQA an overriding problem under the current system, is growing: staff research conducted by the Supreme that delays are not principally caused by judicial Court shows that CEQA produced more published inexperience in CEQA cases, that creating specialized cases from 2000 to 2020 than in the first 30 years of courts is costly, and that such courts, if created on a its existence.27 This tendency for CEQA to consume regional or statewide basis, would further distance judicial resources is also present at the Courts of CEQA litigation from local decision-making, a core Appeal, which published 979 CEQA opinions during value of CEQA generally. From the other side of the Act’s first 50 years. the debate, some critics of CEQA have argued that In recognition of the challenges faced by judges in specialized courts would fail to address what they see dealing with CEQA cases, there have been numerous as the core problems of CEQA. These critics also have proposals to create a specialized CEQA court or argued that large-population counties, which now courts, either at the trial or appellate levels, or by have specialized CEQA judges, have not substantially effectively combining the current role of trial courts reduced what critics see as CEQA abuse.28 and the Courts of Appeal in one specialized court. Academic analysis of specialty courts addressing Two examples of specialized-court proposals were many topics has often identified many of the embodied in competing bills introduced in the advantages and disadvantages cited above, but has Legislature in 2013, although neither passed. also raised one additional disadvantage not often SB 123 (Corbett, 2013) would have created a new mentioned in the CEQA-specific debate: “capture” by “environmental and land use division” in two or more the interests the court is designed to adjudicate. One superior courts within each of the appellate districts analysis of specialty courts notes, “In effect, over time 18 | LITTLE HOOVER COMMISSION the court might slowly but inexorably be captured environmental degradation in diverse communities, it by its own specialized bar, resulting in the loss of is unsurprising that advocates have repeatedly called confidence by the general bar and the public in the for translation requirements as a way to maximize court’s independence and objectivity.”29 accessibility and awareness. The California Judicial Council has generally opposed We recognize the potential benefits of translating legislative efforts to mandate the creation of specialty CEQA documents. At its core, CEQA is a public- courts, both with regard to environmental law and disclosure law, ensuring that members of the other matters. The Council, for example, opposed public have broad accessibility to information both of the 2013 bills cited above. A legislative staff regarding proposals for actions that may impact analysis of SB 123 notes that the Judicial Council had the environment. In the half-century of the law’s expressed concerns that the costs of a specialized existence, California has experienced a vast increase environmental court would impinge on the ability of in ethic diversity, and in the share of Californians for courts to address other matters. Especially in the face whom English is not a native language. of such fiscal constraints, courts need the flexibility At the same time, we recognize the substantial to manage their own affairs, the Judicial Council also financial cost of translating CEQA documents, argued.30 some of which stretch for hundreds or even Given the extreme complexity of these issues, and thousands of pages, often with dense scientific cognizant of the separation-of-powers concerns that language and concepts. Indeed, translation of entire can accompany judicial reforms, we recommend documents may in some cases serve little purpose that the Legislature commission a study of the need in achieving broader public awareness, since the for, and workability of, proposals for a separate complexity of CEQA cases can render the documents CEQA court. This study should broadly encompass indecipherable to even the most educated lay reader, the many proposals for CEQA court creation that regardless of language. Additionally, opponents of have been made previously, both in legislation and past proposals for translation requirements have elsewhere. It should include, though not be limited expressed a concern that claims of inaccurate to, input from the Judicial Council, and should translation would raise a new avenue of legal attempt to determine how many such courts would action against a project.31 Last, any requirement for be necessary and appropriate to ensure expeditious translation would have to address detailed questions resolution of cases, based upon the anticipated case such as how many languages a document should be load. The study should also attempt to measure the translated into, and what standard of translation is degree to which a newly created CEQA court would acceptable. create more predictability and certainty in CEQA It is possible that technology may soon ease cases, avoiding the conflicting or divergent rulings translation substantially, dramatically reducing that can now emerge from CEQA jurisprudence. the cost and time required. On the other hand, 8. Document Translation the complexity of CEQA documents may pose too great a hurdle even to the extraordinary capacity California’s size and diversity almost ensures that of emerging Artificial Intelligence technologies. Our linguistic accessibility will be a component of every Commission lacks the technical expertise even to public policy issue, and CEQA is no exception. assess the current state of translation technologies Currently there is no requirement for the translation in relation to CEQA documents, let alone the likely of CEQA documents, and given the history of CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 19 future landscape. Thus, we recommend that the California Department of Human Resources for Legislature require a study of the costs and benefits review. Agencies with limited public contact with of CEQA translation. One model for such a study non-English speaking public and fewer than 25 is Senate Bill 950, a broad CEQA reform measure full-time public-contact employees can request introduced in the Legislature in 2020, which would an exemption from the law.33 Unsuccessful have required the Office of Planning and Research to attempts to amend the law include lowering the develop translation requirements for CEQA notices threshold from five percent to three percent,34 and other documents into non-English languages. requiring state agencies to translate forms and The translation guidelines would have, at minimum, procedures for submitting complaints related to required mandatory translation into non-English violations of the Act and making them available languages spoken by a “substantial number” of on their website’s homepage,35 and expanding the people served by the lead agency, as defined under definition of “substantial” to require the provision the Dymally-Alatorre Bilingual Services Act. The bill of services when there are 1,000 or more non- outlined a non-exhaustive list of documents that English residents of a county in which the local would have required translation, including most office of a state agency is located (if fewer than the notices prepared under CEQA, and if requested, pre-existing five percent threshold).36 statements of overriding consideration. The bill would have also stated that public agencies’ decisions ◊ California Department of Health Care Services’ Threshold and Concentration Standard Languages. could not be invalidated by minor translation errors. Medi-Cal managed care plans are required Finally, the bill would have required the availability to provide written translation of member of translation equipment and services at specified information when a prevalent number of eligible public hearings or meetings.32 beneficiaries’ primary language is not English. Other existing statutory schemes might provide Under methodology established by the state’s other models, and as a resource for policymakers, Department of Health Care Services, a non-English we summarize here some of the existing legal language is considered prevalent under two requirements for linguistic diversity and accessibility: circumstances: when 3,000 or five percent of the eligible beneficiary population, whichever is lower, ◊ Dymally-Alatorre Bilingual Services Act. Enacted in within a service area has indicated that their 1973, the Dymally-Alatorre Bilingual Services Act primary language is not English (identified as a requires state agencies (and their local offices) threshold standard language), or when 1,000 non- involved in providing information or services to English speaking eligible beneficiaries, within the the public to have a sufficient number of bilingual service area, are concentrated in a single ZIP code staff and translated documents available when or 1,500 are in two contiguous ZIP codes (known five percent or more of the public they serve as a concentration standard language).37 speak a particular non-English language and have limited English proficiency. Every other year, ◊ The Voting Rights Act and California Elections agencies are required to conduct a survey over 10 Code, Section 14201. The federal Voting Rights self-selected days to assess their public contact Act requires that translated election materials with non-English speakers. Survey results—as be made available in counties where more well as an implementation plan that outlines than 10,000 or five percent of all total voting- significant problems or deficiencies and proposes age citizens are members of a single-language solutions where warranted—are submitted to the minority group, have depressed literacy rates, and 20 | LITTLE HOOVER COMMISSION do not speak English very well. Specific language that they are not abusing the law, rather than obliging groups for states and county jurisdictions are the developer to demonstrate that the lawsuit is identified by the U.S. Census Bureau and updated vexatious. The same logic could be applied to clean every five years. Further, California Elections Code, energy projects necessary to meet California’s Section 14201 requires that county elections climate goals. A bonding requirement could allow officials provide translated copies of ballots and plaintiffs to petition for exemption on the basis of related instructions in precincts where three economic hardship. percent or more of voting-age residents are However, defenders of the current CEQA process members of a single-language minority and argue that bonding requirements merely raise the lack sufficient skills in English to vote without bar for access to the courts to enforce CEQA, and assistance. The Secretary of State must determine might raise it so high as to prevent many petitioners which precincts meet these criteria by January 1st from filing at all. Given the nature of CEQA of each year with a gubernatorial election.38 enforcement—private action in the courts—this 9. Establish bonding could reduce the enforcement of CEQA’s protections requirements for plaintiffs. for the environment. With regard to housing, CEQA defenders argue that CEQA is not the principal Some CEQA critics recommend strengthening and cause of high housing costs in the state, attributing expanding existing statutory provisions that aim those high costs to land cost, construction cost, local to discourage bad-faith litigation by requiring the zoning, the lack of financing for affordable housing, posting of a bond for CEQA lawsuits. Existing law and the aggregate demand caused historically by (Code of Civil Procedure, Section 529.2) allows the California’s large population. With regard to clean developers of low- and moderate-income housing energy projects, CEQA defenders note that while projects,39 when facing a civil action that may delay such projects may have overall environmental the project or prevent it from being carried out, to benefits to the state, they may pose particular apply to the court to require that the plaintiff post environmental harm to local communities by, for a bond of up to $500,000 for any damages suffered example, impacting local wildlife populations or as a result of delays to the project. For the court to disturbing areas sacred to Native American tribes. order the posting of a bond, the defendant must 10. Require OPR to review and show that the suit was launched in bad faith and that the plaintiff will not suffer undue economic hardship study the effects of SB 743 / from being required to post the bond. vehicle miles traveled (VMT) analysis. Defendants currently bear the burden of demonstrating that the bond will not pose an undue The Commission endorses the Legislature’s economic burden on the plaintiff. The Legislature goal in the passage of SB 743 (Steinberg, 2013). should study whether it is advisable to shift the The legislation deserves credit for addressing burden from the defendant to the plaintiff. If the problem of induced traffic. The shift from constructing more housing, especially housing that studying loss of service to analyzing vehicle miles includes affordably priced units, is a priority for traveled further makes great sense for urban and California state government, then it may make sense metropolitan areas. to obligate the person who sues a housing project under CEQA to bear the burden of demonstrating CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 21 However, while the Commission endorses the intent 11. Locking in Models behind SB 743, it observes that there is considerable question around the law’s implementation and Current case law under CEQA requires lead execution. First, there is question whether VMT agencies to use the most up-to-date significance requirements are reasonable or practical for rural thresholds and analytical models available. For California. Second, the cost of mitigating against VMT, large, complicated projects that undergo extensive especially with respect to housing, is still debated review—and that are subject to significant legal and uncertain. Third, the effectiveness of mitigations challenge—this requirement can lead to substantial currently employed to address VMT is often unclear. difficulties. The release of new regulatory standards Fourth, if the intent of VMT analysis is to deter sprawl during the review process can force projects to throw style development, are there more straightforward out existing analysis and start over. These issues ways to achieve this policy end without adding to the become even more difficult for projects that are burden of CEQA review? caught up in lengthy litigation, where new models and standards can force successive rounds of review The Commission does not pass judgment on SB 743, and project redesign that are then litigated in turn. OPR’s implementation of the law, or on whether Some practitioners speak of environmental review VMT should factor into CEQA analysis. However the descending into a “CEQA infinite loop.” Commission believes that there are valid questions about SB 743’s effectiveness and about the costs However, we also note that the requirement associated with implementation. It also believes to use the most recent standards and models that California state government needs to begin is understandable. Scientific knowledge about addressing the questions that critics have raised environmental impacts is ever-changing, and the regarding SB 743 and VMT analysis. protection of the environment and of vulnerable communities is of such importance that policymakers To this end, the Commission recommends that may logically choose to require use of the most OPR either undertake itself or commission a study contemporary findings, even if that results in that reviews the initial implementation of VMT substantial costs or delay. requirements. This study should report on the effects of VMT analysis, the effectiveness of VMT mitigation We recommend that the Legislature commission measures, the cost of VMT mitigation, how different a study to examine the benefits and drawbacks of geographies have experienced VMT implementation, some reasonable period during which project review and whether it is reasonable to continue to require and litigation could proceed to completion regardless statewide implementation of VMT requirements. of new modeling that might emerge. California policymakers may conclude that the benefits of analyzing and mitigating VMT statewide are worth the costs. However, the Commission believes that state government first needs a better understanding of both the costs and benefits of including VMT analysis in CEQA review. California policymakers also need this information to determine if including VMT analysis in CEQA remains the best means of achieving the associated policy goals. 22 | LITTLE HOOVER COMMISSION Appendix A: CEQA Process Flowchart Public agency determines whether the activity is a “project” Not a project Project Project is ministerial No possible significant effect Public agency determines if the project is exempt Statutory exemption Categorical exemption Not Exempt Public agency evaluates project to determine if there is a possibility that the project may have a significant effect on environment Possible significant effect Notice of Exemption No further action Determination of lead agency where may be filed required under CEQA more than one public agency is involved LEAD AGENCY RESPONSIBLE AGENCY Lead agency prepares initial study Respond to informal Consultation consultation Lead agency decision to prepare EIR or Negative Declaration Negative Declaration EIR Lead agency sends Notice of Prepara- tion to responsible agency Respond to Notice of Preparation as to contents of draft EIR Consultation Lead agency prepares draft EIR Lead agency gives public notice of availability of Lead agency files Notice of Completion and Negative Declaration gives public notice of availability of draft EIR Comments on adequacy of draft EIR or Negative Consultation Public Review Period Public Review Period Declaration Lead agency prepares final EIR including responses to comments on draft EIR Decision-making body considers final EIR or Negative Declaration prepared by lead agency Consideration and approval of EIR by decision-making body Consideration and approval of Negative Declaration by decision-making body Findings on feasibility of reducing or avoiding significant environ- Findings on feasibility of reducing or mental effects avoiding significant environmental effects Source: California Association of Environmental Professionals Decision on permit Decision on project Note: This flowchart is included in the CEQA Guidelines. The “lead agency” is the public agency responsible for State Agencies Local Agencies State Agencies Local Agencies approving or carrying out the project. The “responsible agency” is a public File Notice of File Notice of agency with discretionary approval File Notice of File Notice of Determination Determination authority over a portion of the CEQA Determination Determination with Office of with Office of review, and is available to the lead with County with County Planning & Planning & agency and project applicant to Clerk Clerk Research Research provide guidance on applicable rules and regulations. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 23 Appendix B: Major Legislative Actions acre, are at least 50 percent residential, located Enacted Bills within one-half mile of a major transit stop or a quarter-mile of a high-quality transit corridor; meet Despite the failure of high-profile CEQA legislation, energy efficiency requirements; and meet minimum the State Legislature has enacted numerous changes affordable housing requirements. and updates to CEQA in the past decade. A 2021 study commissioned by the Rose Foundation, an SB 226 - Simitian (2011): SB 226 provided an advocacy organization that supports conservation exemption for the installation of solar power systems and environmental justice, identified 38 distinct CEQA on the roofs of existing structure. It also included exemptions that were established by the Legislature provisions to facilitate use of the existing categorical between 2002 and 2021, as well as 11 changes to Class 32 urban infill exemption by specifying criteria CEQA procedure or judicial review that were enacted for establishing when projects were adequately by the Legislature during that period (including supported by existing planning documents.41 requirements that courts rule on certain CEQA cases within 270 days).40 AB 900 – Buchanan and Gordon (2011) and SB 7 – Atkins (2021). In 2011, Legislature created a process Focusing on more recent legislative sessions, for projects displaying environmental leadership Commission staff have identified dozens of bills (Environmental Leadership Projects) to receive that were signed into law since 2019 that make expedited judicial review. Environmental Leadership substantive changes to CEQA (see Appendix C). Projects must result in a minimum investment of $100 million, must use a skilled and trained Most of these bills provide exemptions that remove workforce, and must meet criteria for transportation projects fully or partially from CEQA review, or that efficiency and environmental sustainability. Certified create streamlined pathways through CEQA review projects are then eligible for expedited judicial for particular classes of projects (like infill housing, review, with a goal of judicial review being completed green energy projects, or projects with significant within 270 days.42 economic benefits—not to mention certain sports arenas). There have also been efforts (like SB 375 In 2021, the Legislature extended this program in 2008 and SB 743 in 2013) to align CEQA review through 2025 with the passage of SB 7. SB 7 also more fully with state priorities relating to housing, expanded the Environmental Leadership program transportation, and environmental sustainability— to include housing projects that include a minimum though there is debate and disagreement regarding investment $15 million and that meet a minimum the effectiveness of these updates. threshold of affordable units. SB 375 - Steinberg (2008): SB 375 requires SB 743 – Steinberg (2013): SB 743 updated analysis metropolitan planning agencies to develop of transportation impacts under CEQA, requiring Sustainable Communities Strategies that align CEQA analysis of transportation impacts to consider transportation and land use planning to achieve state vehicle miles traveled (VMT) rather than level of greenhouse gas reduction goals. SB 375 provides service (LOS). In effect, with SB 743, analysis of CEQA exemptions and streamlining mechanisms transportation impacts shifted from looking at designed to promote environmentally sustainable levels of traffic congestion to looking at how much housing development. This includes a CEQA additional auto travel a proposed project would exemption for projects that are: less than 8 acres, create. Under SB 743, housing projects that are less than 200 units, have a net density of 20 units/ within ½ mile of transit or in low-VMT neighborhoods 24 | LITTLE HOOVER COMMISSION are not required to conduct transportation analysis corridors zones for large retail and office buildings. or mitigation. SB 6 allows housing projects in commercial corridors to invoke SB 35.44 SB 743 also provided for expedited environmental review for the Kings Basketball arena in Sacramento. These bills were the source of major contention because they contain differing requirements relating SB 35 – Wiener (2017): Provides a ministerial to labor standards. AB 2011 requires projects to pathway for the approval of multifamily housing pay prevailing wages and (if over a particular size) projects in jurisdictions not meeting their Regional to employ apprentices, but does not mandate the Housing Needs Assessment. In order to take use of a “skilled and trained” workforce—i.e. does advantage of SB 35, housing projects must meet not mandate the use of a unionized workforce. a minimum threshold of affordable units and, Conversely, SB 6 requires use of a “skilled and depending on the size of the project, either pay trained” workforce.45 workers prevailing wages or use a skilled and trained workforce. Since application of SB 35 is ministerial, AB 2011 received support from the California it provides a de facto CEQA exemption, by removing Conference of Carpenters and SEIU California, while approval of the project from the lead agency’s the State Building and Construction Trades Council discretion. SB 35 currently includes a 2025 expiration. supported SB 6. SB 423 – Wiener (2023): Extends SB 35 and Unsuccessful Bills eliminates the provisions relating to use of a skilled and trained workforce while maintaining the Comprehensive Reform / requirements relating to prevailing wages.43 Modernization SB 288 (2020) / SB 922 – Wiener (2022): SB SB 317 – Rubio (2012): This bill put forward by 288 created a pilot exemption for sustainable Senator Michael Rubio aimed to modernize CEQA in transportation projects; SB 922 extends this light of other state and federal environmental laws exemption to 2030. This is an exemption for and regulations. SB 317 would have prohibited CEQA sustainable transit and active transportation projects, lawsuits when projects complied with other local, including projects that make walking and biking safer, state, and federal environmental laws—when other that speed up bus service, that make it possible to environmental laws applied, the CEQA documents run bus service on highways, and that modernize and would focus on encouraging disclosure, but lawsuits build light rail stations. To qualify, projects must be would not be permitted against projects complying located in an existing public right-of-way, must not with existing environmental laws. The bill would also add new automobile capacity, must not demolish have limited lawsuits against projects that complied affordable housing, and must use a skilled and with CEQA-certified existing plans (General Plans, trained workforce or have a project labor agreement Community Plans, etc.).46 in place. Larger projects must further meet public participation requirements and complete a racial The bill failed in the face of intense opposition equity analysis. within the Legislature and from environmental advocates. Opponents argued that limiting CEQA’s AB 2011 – Wicks (2022) / SB 6 - Caballero (2022): application to planning level documents and when AB 2011 established a ministerial pathway for other environmental law applied would potentially the permitting of housing projects in commercial allow heavily polluting industrial projects and sprawl CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 25 developments to proceed without meaningful SB 950 – Hannah-Beth Jackson (2020). SB 950 environmental review.47 A further point of opposition aimed to enact a number of proposed changes to was that the bill would have largely eliminated CEQA that emerged from the CEQA 2.0 effort, which the ability of CEQA to address community-level was initiated by the Planning and Conversation impacts—a key consideration for environmental League and included a multi-stakeholder working justice advocates.48 group that proposed updates to modernize CEQA. SB 731 – Steinberg (2013). SB 731 was a CEQA SB 950 would have created streamlined procedures reform measure lead by Senator Darrell Steinberg for record preparation in CEQA, strengthened that aimed to advance CEQA modernization following existing provisions that require the posting of a the failure of SB 317. As initially proposed, it aimed bond for challenges to affordable housing projects to encourage use of tiering, encourage use of judicial (to discourage bad-faith litigation), allowed for remedies (wherein the judge would require repair public comments to the final EIR in order to help only of the portion of the EIR found to be deficient), address the issue of late inputs, required reporting limit “late hits” and “document dumps,” appropriate of monetary settlements to the Attorney General, funds for updating local government planning and taken steps to increase CEQA expertise within documents, and support approval of environmentally the judiciary. SB 950 would also have required the beneficial projects—especially infill development.49 translation of certain CEQA documents into non- English threshold languages and would have added Senator Steinberg launched SB 731 with support environmental justice considerations to the impacts from a broad coalition that included environmental, to be considered under CEQA.52 business, and labor groups.50 However, maintaining support from these competing interests proved Ultimately, SB 950 did not advance out of committee. impossible. It received opposition from both organized labor and from industry and developer associations. The SB 731 went through significant revisions. The California Chamber of Commerce objected to the resulting bill focused on facilitating infill development legislation on the grounds that it included new CEQA while expanding CEQA requirements relating to requirements.53 noticing and mitigation. More specifically, the bill would have eliminated aesthetics as an impact under CEQA Courts CEQA for projects in transit priority areas, required SB 123 – Corbett (2013) / AB 515 – Dickinson (2013): OPR and the Natural Resources Agency to establish Both these bills called for the creation of specialized thresholds of significance for noise, transportation, courts for CEQA cases. and parking impacts in transit priority areas, and required lead agencies to report annually on SB 123 would have created a new “environmental mitigation compliance. According to some advocates and land-use division” within California’s county court of CEQA reform, the bill failed to adequately address system that would address lawsuits regarding CEQA problems in CEQA while proposing changes that and other environmental topics.54 were confusing, inadequate, unhelpful, or potentially burdensome; in the words of one critic, SB 731 AB 515 would have established two compliance amounted to “one step up and three steps back.”51 courts, one in Northern California and one in Southern California, with sole original jurisdiction Senator Steinberg ultimately tabled SB 731 to over CEQA cases. The decisions of these courts would concentrate on passing the narrower SB 743. 26 | LITTLE HOOVER COMMISSIONCEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 26 have been appealable only the State Supreme Court. SB 1340 – Glazer (2018): This bill would have This bill passed the Assembly, but did not pass out of required the Judicial Council to establish procedures committee in the Senate.55 requiring courts to adjudicate CEQA actions in connection with housing projects within 270 days, to The Judicial Council has historically opposed the the extent feasible. The bill died in committee. creation of a bifurcated court system. There is also concern that creation of CEQA courts, without Environmental Justice provision of adequate funding, would only add AB 1001 – Cristina Garcia (2022): Several legislative further strain to an already overburdened court proposals have sought to incorporate environmental system. In addition, some advocates of CEQA reform justice as an impact to be analyzed under CEQA, have suggested that the creation of CEQA courts or to more fully include environmental justice would fail to address what they see as the core considerations in CEQA analysis. Most recently, AB problems in CEQA.56 1001 would have required projects, when mitigating Transparency adverse effects on air or water quality that would impact disadvantaged communities, to mitigate those AB 2026 – Hadley (2016) / SB 1341 - Glazer (2018): effects directly in the affected community. These bills would both have required plaintiffs in CEQA lawsuits to identity any person or entity that AB 1001 passed in the Assembly before failing to contributed $1,000 or more to support the lawsuit. advance out of committee in the Senate. The bill received opposition from business advocates and Neither of these bills made it out of committee. Bill from some representatives of local government, on analysis for AB 2026 noted that it was opposed by the basis that it would have increased risk of CEQA both environmental groups and the State Building litigation.59 Trades Council. The Association of Environmental Professionals further observed with regard to SB 1341 that similar bills have been introduced many times and that none passed from policy committee.57 Housing Various housing bills have been proposed in recent years that aim to create “by right” approval processes for infill and multifamily housing. Although some of these bills have passed into law (as discussed in the next section), many have failed in the face of opposition. In 2016, Governor Brown proposed a budget trailer bill that would have allowed “by right” approval of multifamily housing projects that conformed with local zoning. This proposal died in the face of opposition from organized labor, environmental groups that argued it could lead to additional urban sprawl, and cities objecting to loss of local control.58 CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 27 Appendix C: CEQA Legislation, 2019-23 Commission staff identified 204 bills that lawmakers introduced from 2019 to 2023 to make changes to CEQA. Of these, 75 were signed into law and 129 died in the Legislature or were vetoed. 2023 LEGISLATION: PASSED (25 BILLS) Bill Author Description AB 498 Aguiar-Curry Ratifies the tribal-state gaming compact entered into between the State of California and the Federated Indians of Graton Rancheria, executed in March 2023. Also provides that, in deference to tribal sovereign- ty, certain actions related to this compact are not projects for purposes of CEQA. AB 1449 Alvarez Exempts from CEQA, until 2033, certain 100 percent affordable housing projects. SB 149 Caballero Extends the sunset, until 2032, of a law allowing streamlining benefits under CEQA for certain projects that are certified as environmental and labor leaders. Also provides streamlined judicial review under CEQA for certain energy, transportation, water, and semiconductor projects and removes internal com- munications on non-substantive materials, such as meeting invitations. SB 684 Caballero Requires local agencies to ministerially approve subdivision maps for specified projects in urban areas that include 10 or fewer housing units. AB 127 Committee on Clarifies that if OPR provides funding to a local government for a project, the local government, not the Budget office, is the lead for undertaking environmental reviews associated with that project. AB 134 Committee on Exempts specified capital outlay projects at San Quentin Rehabilitation Center from complying with State Budget Historic Preservation and CEQA requirements. SB 122 Committee on Exempts from CEQA specified actions related to the implementation of Colorado River water conservation Budget and agreements with the US Bureau of Reclamation. Fiscal Review SB 406 Cortese Exempts from CEQA actions taken by local agencies actions to provide financial assistance or insurance to develop and build housing for people with low- and moderate-income residential housing. SB 69 Cortese Requires local agencies in charge of CEQA projects to provide additional public notices about the project on specified timelines. Requires OPR to post those notices to the State Clearinghouse within 24 hours for a period of 30 days SB 771 Dodd Ratifies the tribal state gaming compacts between the State of California and the Cahto Tribe of the Laytonville Rancheria, the Ewiiaapaayp Band of Kumeyaay Indians, California, the Manchester Band of Pomo Indians of the Manchester Rancheria, California, the Resighini Rancheria, and the Sherwood Valley Rancheria of Pomo Indians of California, as specified. Also provides that, in deference to tribal sovereign- ty, certain actions related to those compacts are not projects for the purposes of CEQA. AB 531 Irwin Creates the Behavioral Health Infrastructure Bond Act of 2024 to, subject to voter approval, authorize $6.38 billion in general obligation bonds to finance permanent supportive housing for veterans and others, as well as, unlocked and locked behavioral health treatment and residential settings for individuals experiencing homelessness or at risk of homelessness with severe behavioral health challenges. Allows for “by right” streamlined, ministerial review for projects that are funded by this bond and that meet spec- ified labor standards and is licensed, and meets other specified standards. AB 356 Mathis Extends the sunset, until 2029, of a law allowing lead agencies to waive consideration of aesthetic impacts for certain projects, such as those to refurbish or replace derelict buildings. SB 286 McGuire Streamlines offshore wind permitting while establishing the State Lands Commission as the lead agency to manage CEQA for offshore wind energy projects in California SB 736 McGuire Exempts from CEQA projects that are developed on state surplus lands and are for formerly incarcerated individuals. SB 240 Ochoa Bogh Ratifies the tribal-state gaming compact between the State of California and the Redding Rancheria, California that on March 30, 2023. Also provides that, in deference to tribal sovereignty, certain actions related to those compacts are not projects for the purposes of CEQA. AB 854 Ramos Ratifies the tribal-state gaming compact between the State of California and the Redding Rancheria, California that on March 30, 2023. Also provides that, in deference to tribal sovereignty, certain actions related to those compacts are not projects for the purposes of CEQA. AB 876 Rivas (Robert) Exempts state and local approvals of the Pajaro River Project from specified waste discharge permit and lake and streambed alteration agreement requirements. Declares that the environmental assessment previously prepared for the project by the U.S. Army Corps of Engineers satisfies the requirements of CEQA. 28 | LITTLE HOOVER COMMISSION Bill Author Description AB 785 Santiago Provides exemptions from CEQA for low-barrier navigation centers, supportive housing, and transitional housing for youth and young adults, and affordable housing projects undertaken by the City and County of Los Angeles in specified areas until 2030. AB 1658 Santiago Ratifies 22 separate amendments to extend the terms of the 1999 tribal-state gaming compacts between the State of California and specified tribes. Provides that, in deference to tribal sovereignty, certain actions are not deemed projects for purposes of CEQA. AB 1633 Ting Provides that a disapproval under the Housing Accountability Act includes a local agency’s failure to make a determination of whether a project is exempt from CEQA, abuse of discretion, or failure to adopt certain environmental documents under specified circumstances, and makes several other changes, until 2031. SB 91 Umberg Permanently extends existing law that allows for a motel, hotel, residential hotel, or hostel that is convert- ed into a supportive housing or transitional housing project to be exempt from CEQA. Also extends the deadline and sunset for one year of expedited judicial review of certain “environmental leadership” transit projects located in Los Angeles County. AB 1307 Wicks Specifies that noise generated by occupants is not a significant effect on the environment for residential projects for purposes of CEQA. AB 1319 Wicks Exempts from CEQA Bay Area Housing Finance Authority actions to raise, administer, or allocate funding for tenant protection, affordable housing preservation, or new affordable housing production or to pro- vide technical assistance consistent with the authority’s purpose. SB 4 Wiener Requires certain housing development projects to be “use by right” on land owned by an independent institution of higher education or a religious institution, thus exempting those projects from CEQA. SB 423 Wiener Extends, until 2036, the sunset of law that created a streamlined, ministerial approval process for infill developments in localities that have not met their regional housing needs. 2022 LEGISLATION: PASSED (15 BILLS) Bill Author Description AB 185 Committee on Creates several new conditions that must be met for local educational agencies to access Level 3 Develop- Budget er Fees and utilize CEQA impact mitigation to ensure adequate school facilities are built when funding in the School Facility Program is exhausted and/or a school bond fails. AB 211 Committee on Provides that a separate environmental review process for the Hollister Ranch Coastal Access Program (in Budget Santa Barbara County), is conclusively presumed to satisfy certain CEQA requirements. AB 205 Committee on Allows certain solar, wind, and other qualifying clean energy projects to seek consolidated permitting at Budget the California Energy Commission (CEC) by June 30, 2029, if they adhere to certain standards. The eligible projects would also be qualified for expedited judicial review for litigation involving CEQA and requires the CEC to be the lead agency under CEQA. SB 118 Committee on Provides that enrollment or changes in enrollment, by themselves, do not constitute a project for purpos- Budget and es of CEQA. Fiscal Review AB 203 Committee on Revises the CEQA exemption for the State Water Resources Control Board to apply to actions taken by the Budget board to designate a groundwater basin as a probationary basin and the adoption or amendment of an interim plan and specifies that the exemption does not apply to projects that would implement actions taken pursuant to an adopted interim plan. SB 898 Dodd Ratifies 29 separate amendments to extend the terms, up to 18 months, of the 1999 tribal-state gaming compacts between the State of California and specified tribes. Also provides that, in deference to tribal sovereignty, certain actions related to those amended compacts are not projects for the purposes of CEQA. AB 2798 Fong (Vince) Prohibits a local agency, until 2024, from denying a permit for a short-term freight transportation use under specified circumstances, and provides that specified transportation uses on port properties are existing facilities for the purposes of CEQA. SB 900 Hurtado Ratifies the tribal-state gaming compacts entered into between the State of California and the following Indian tribes: the Santa Rosa Indian Community of the Santa Rosa Rancheria and the Middletown Ranche- ria of Pomo Indians of California. Also provides that, in deference to tribal sovereignty, certain actions related to these compacts are not projects for purposes of CEQA. SB 559 Hurtado Ratifies the tribal-state gaming compact entered into between the State of California and the Santa Rosa Indian Community of the Santa Rosa Rancheria, executed in August 2022. Also provides that, in deference to tribal sovereignty, certain actions related to this compact are not projects for purposes of CEQA. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 29 Bill Author Description SB 910 Hurtado Ratifies the tribal-state gaming compact entered into between the State of California and the Tejon Indian Tribe. Also provides that, in deference to tribal sovereignty, certain actions related to these compacts are not projects for purposes of CEQA. SB 679 Kamlager Establishes the Los Angeles County Affordable Housing Solutions Agency (LACAHSA), and authorizes LACAHSA to utilize specified local financing tools to fund renter protections and the preservation and pro- duction of housing units affordable to households earning up to 80 percent of the area median income. Also exempts certain actions taken by the agency from CEQA requirements. AB 1642 Salas Exempts from CEQA, until 2028, well projects that meet specified conditions. AB 2011 Wicks Creates a ministerial, streamlined approval process for certain 100 percent affordable housing projects in commercial zones and for mixed-income housing projects along commercial corridors, thereby exempting those projects from CEQA. SB 886 Wiener Exempts faculty and staff housing projects and student housing projects meeting specified requirements from CEQA until 2030. SB 922 Wiener Expands CEQA exemptions for specified transit, bicycle, and pedestrian projects, and extends these ex- emptions to 2030. 2021 LEGISLATION: PASSED (10 BILLS) Bill Author Description SB 44 Allen Requires the courts, until 2025, to resolve CEQA challenges within 365 days for up to seven transit projects in Los Angeles County that meet specific vehicle miles traveled and greenhouse gas emission criteria. AB 1344 Arambula Creates a CEQA exemption for needle and syringe exchange services. SB 7 Atkins Re-establishes certain expedited CEQA administrative and judicial review procedures for "environmental leadership development projects" for four years. SB 9 Atkins Requires ministerial approval of a housing development of no more than two units in a single-family zone (duplex), the subdivision of a parcel zoned for residential use into two parcels (lot split), or both. AB 140 Committee on Provides a CEQA exemption, until July 1, 2024, for Project Homekey projects, under certain circumstances. Budget SB 155 Committee on Exempts from CEQA, until 2025, projects that conserve, restore, protect, or enhance, and assist in the Budget and recovery of California native fish and wildlife, habitat upon which they depend or that restore or provide Fiscal Review habitat for California native fish and wildlife. SB 156 Committee on Exempts from CEQA a project consisting of linear broadband deployment in an existing right-of-way that Budget and meets certain requirements. Fiscal Review SB 302 Dodd Ratifies the tribal-state gaming compact entered into between the State of California and the Picayune Rancheria of Chukchansi Indians of California, executed in August 2021. Also provides that, in deference to tribal sovereignty, certain actions related to this compact are not projects for purposes of CEQA. AB 819 Levine Requires state-level lead agencies to post CEQA-related documents and notices on their website and to file them with OPR’s Statewide Clearinghouse. AB 957 Salas Ratifies the tribal-state gaming compacts entered into between the State of California and the following Indian tribes: the Santa Rosa Indian Community of the Santa Rosa Rancheria and the Middletown Ranche- ria of Pomo Indians of California. Also provides that, in deference to tribal sovereignty, certain actions related to these compacts are not projects for purposes of CEQA. 2020 LEGISLATION: PASSED (8 BILLS) Bill Author Description AB 168 Aguiar-Curry Creates a process for tribal scoping consultation for housing development proposals seeking review un- der the streamlined ministerial approval process created by SB 35 (Wiener, 2017). AB 83 Committee on Provides a CEQA exemption for Project Roomkey projects if certain requirements are met. Budget 30 | LITTLE HOOVER COMMISSION Bill Author Description AB 92 Committee on Authorizes the State Water Resources Control Board to issue a certificate or statement required by any Budget federal agency under federal water quality control laws that an activity subject to the jurisdiction of the state board will comply with applicable requirements of that federal law or any other appropriate require- ments of state law. Also authorizes the state board to issue these certificates or statements before com- pletion of any environmental review required under CEQA if the state board determines that waiting until completion of environmental review poses a substantial risk of waiver of the state’s certification authority under federal water quality control laws. Also requires the state board, to the extent authorized by federal law, to reserve authority to reopen and revise the certificate or statement as appropriate based on the information provided in the environmental document prepared for the project. SB 869 Dodd Ratifies tribal-state gaming compacts between California and various Native American tribes and provides that certain actions related to these compacts are not projects for the purposes of CEQA. AB 2731 Gloria Allows environmental analysis performed by the U.S. Navy to satisfy CEQA requirements for “transit-ori- ented development projects” for a specific project in San Diego. SB 974 Hurtado Creates CEQA exemptions for water infrastructure projects that “primarily benefit[] small disadvantaged community water systems.” AB 2421 Quirk Creates a ministerial procedure for approval of emergency use standby generators for large cell tower sites through 2024, thereby eliminating CEQA review. SB 288 Wiener Exempts from CEQA, until 2023, various transportation projects such as pedestrian and bicycle facilities projects, charging infrastructure for zero-emission buses, and new rapid transit, bus, or light rail service. 2019 LEGISLATION: PASSED (17 BILLS) Bill Author Description AB 782 Berman Codifies a CEQA categorical exemption for transfers of ownership of interests in land in order to preserve open space, habitat, or historical resources. SB 744 Caballero Makes changes to the existing streamlined process for supportive housing developments and creates a CEQA exemption for developments that qualify for No Place Like Home funding. AB 101 Committee on Provides a CEQA exemption for actions “taken by a public agency to lease, convey, or encumber land Budget owned by a public entity or to facilitate the lease, conveyance, or encumbrance of land owned by a public agency, or to provide financial assistance to, or otherwise approve, a Low Barrier Navigation Center con- structed or allowed by this bill.” AB 1824 Committee Grants CEQA exemptions, until 2025, to the closure of railroad crossings if those crossings are found to be on Natural a threat to public safety. Resources AB 1333 Dahle Ratifies the amendment to the tribal-state gaming compact entered into between the State of California and the Susanville Indian Rancheria, executed in October 2018. Would also provide that, in deference to tribal sovereignty, certain actions may not be deemed projects for purposes of CEQA. AB 1515 Friedman Prohibits a court from invalidating the approval of specified development projects in an order issued to remedy an updated community plan's noncompliance with CEQA. AB 1560 Friedman Adds bus rapid transit stations to the list of major transit stops for which CEQA exemptions apply. SB 632 Galgiani Requires the State Board of Forestry and Fire Protection to complete a programmatic EIR for the state’s vegetation treatment program, which could then “be used to complete priority fuel reduction projects to protect communities vulnerable to wildfires.” AB 430 Gallagher Creates a ministerial process for approval of housing developments in communities affected by the Camp Fire, thereby eliminating CEQA review. AB 753 Garcia (Eduardo) Ratifies a specified amendment to the tribal-state gaming compact entered into between the State of California and the Cabazon Band of Mission Indians, executed in August 2019. Would also provide that, in deference to tribal sovereignty, certain actions are not projects for the purposes of CEQA. SB 743 Hertzberg Requires a specified school district to meet certain requirements and include those requirements as terms and conditions in a design-build contract for the purpose of meeting contracting provisions related to CEQA. SB 674 McGuire Ratifies the tribal-state gaming compact entered into between the State of California and the Hoopa Valley Tribe, executed in October 2018. Also provides that, in deference to tribal sovereignty, certain actions related to this compact are not projects for purposes of CEQA. AB 143 Quirk-Silva Extends CEQA exemptions to homeless shelters in Alameda County, Orange County, and the City of San Jose constructed pursuant to a declared shelter crisis until 2023. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 31 Bill Author Description AB 1783 Rivas (Robert) Provides a ministerial process for approving certain farmworker housing projects, thereby eliminating CEQA review. AB 1197 Santiago Grants CEQA exemptions to activities related to “supportive housing and emergency shelters” in Los Angeles. SB 450 Umberg Grants CEQA exemptions to projects seeking to convert motels or other similar accommodations into “supportive or transitional housing.” AB 1485 Wicks Provides that CEQA shall not apply to decisions by the San Francisco Bay Area Transit District to lease, convey, or encumber land that it owns. Also provides that improvements located on land owned by the local government or the San Francisco Bay Area Transit District necessary to implement a project shall receive streamlined ministerial approval and not be subject to CEQA. 2023 LEGISLATION: FAILED (29 BILLS) Bill Author Description AB 1737 Bauer-Kahan Would have made certain licensed health facilities that provide reproductive health services subject to a streamlined ministerial review process and a “use by right," thereby exempting those projects from CEQA. SB 420 Becker Would have allowed certain electrical transmission facility projects to become eligible for CEQA streamlin- ing. SB 634 Becker Would have required certain "opportunity housing projects" be a “use by right” on areas zoned for mixed use, nonresidential zones permitting multifamily uses, medical or faith-based use. By authorizing addi- tional developments to be a "use by right" under certain circumstances, the bill would have expanded the exemption for the ministerial approval of projects under CEQA. AB 1719 Bonta Would have provided that CEQA does not apply to specified actions taken by the Department of Cannabis Control or a local jurisdiction that authorize certain commercial cannabis activities, if specified conditions are met. SB 768 Caballero Would have required the California Air Resources Board, in consultation with other private and public entities, to conduct a study for the Legislature on the use of vehicle miles traveled (VMT) as a metric for transportation impacts pursuant to CEQA by 2026. SB 239 Dahle (Brian) Would have, among other provisions, limited who can file certain lawsuits under CEQA to the Attorney General, precluded any suits from being filed for non-environmental purposes, prohibited a court from halting the construction or operation of a project unless it makes certain findings, and required certain suits challenging an EIR to be resolved in 365 days where feasible. SB 861 Dahle (Brian) Would have made certain water projects eligible for expedited administrative and judicial review under CEQA. AB 340 Fong (Vince) Would have required any written allegations of noncompliance with CEQA to be presented to the public agency at least 10 days before the final public hearing on the project. AB 914 Friedman Would have established a two-year time limit for a lead state agency to complete CEQA review and ap- prove or deny an application for an electrical infrastructure project. AB 1561 Gallagher Would have provided streamlined, ministerial approvals for certain housing projects in the City of Chico until 2029. AB 1630 Garcia (Eduardo) Would have granted ministerial approval and an expanded density/height bonus to certain off-campus student housing within 1,000 ft. of public university campuses, thus exempting those projects from CEQA. SB 393 Glazer Would have required disclosure of a person or organization that contributes more than $10,000 towards the cost of CEQA litigation challenging housing projects. Also would have prevented a CEQA action from being filed against a housing project that was included as part of a larger plan or project already approved following the completion of an environmental review. SB 651 Grove Would have streamlined judicial review for specified groundwater management projects that are chal- lenged under CEQA. AB 1532 Haney Would have made an office conversion project that meets certain requirements a "use by right" in all areas regardless of zoning, thus exempting those projects from CEQA. AB 1700 Hoover Would have specified that population growth, in and of itself, resulting from a housing project and noise impacts of a housing project are not an effect on the environment for purposes of CEQA. SB 508 Laird Would have eliminated the requirement for the Department of Cannabis Control to serve as a responsible agency under CEQA in certain circumstances. 32 | LITTLE HOOVER COMMISSION Bill Author Description SB 794 Niello Would have required CEQA actions challenging a commercial, housing, or public works project that has at least $25 million invested in it to be resolved within 365 days of filing. Would have also required a CEQA plaintiff to disclose any contributions he or she has received of $100 or more to help fund the legal action. SB 619 Padilla Would have allowed electrical corporations to select between the California Public Utilities Commission and the California Energy Commission as the lead CEQA agency for higher voltage transmission projects. AB 692 Patterson (Jim) Would have created a new CEQA exemption for egress routes in high-risk fire areas. AB 1152 Patterson (Joe) Would have required the time period for expiration of, and any timing requirements associated with conditions of approval identified in, a permit, agreement, or other entitlement for a project approved by a public agency to be stayed during the pendency of a legal action or proceeding challenging the approval of the project brought pursuant to CEQA. AB 1554 Patterson (Joe) Would have expressly exempted from CEQA fuels reduction projects in areas within moderate, high, and very high fire hazard severity zones. AB 978 Patterson (Joe) Would have required a person seeking judicial review of a CEQA decision on a housing project to post a bond of $1,000,000. AB 1334 Pellerin Would have exempted projects by a mobile home park owner to add new spaces to the park from CEQA. Would have also precluded local governments from charging certain fees if certain conditions were met. SB 422 Portantino Would have expanded expedited CEQA review provisions to apply to regulations requiring the reduction in emissions of greenhouse gases, criteria air pollutants, or toxic air contaminants, and requires all eligible projects to comply with specified construction labor requirements. SB 834 Portantino Would have authorized $25 billion in general obligations bonds through the California Family Home Con- struction and Homeownership Bond Act of 2022 to fund second mortgages and construction of for-sale housing. Would have also exempted from CEQA a project for the construction of new single-family homes if the project was eligible for the bill’s home construction program and meets certain requirements. AB 1318 Rivas (Luz) Would have increased the site limit from four acres to five acres for purposes of an existing CEQA exemp- tion for urban infill housing projects meeting specified criteria. SB 440 Skinner Would have authorized two or more local governments to establish a regional housing finance authority to raise, administer, and allocate funding for affordable housing and provide technical assistance at a regional level for affordable housing development. Also would have exempted actions taken by an author- ity to raise, administer, or allocate funding for affordable housing preservation, new affordable housing production, or to provide technical assistance from CEQA. AB 1488 Wallis Would have allowed certain water projects to be eligible for CEQA streamlining. SB 270 Wiener Would have revised the exemption for a university housing development project to require each building within the project to achieve a LEED Gold score of 79 or better. 2022 LEGISLATION: FAILED (26 BILLS) Bill Author Description SB 1284 Bates Would have removed a sunset for a CEQA exemption for interim motel conversion projects and would have eliminated the requirement that applicants for state housing and homeless programs comply with housing first policies. SB 778 Becker Would have added concrete to the Buy Clean California Act, requiring a successful project bidder to pro- vide the global warming potential of each concrete product used. The bill also would have specified that an action to implement the requirements of the bill is not a project for purposes of CEQA. SB 1118 Borgeas Would have stated in undertaking judicial review pursuant to existing CEQA provisions, courts shall find that insubstantial or merely technical omissions are not grounds for relief. SB 1410 Caballero Would have required OPR to study the implementation of the vehicle miles traveled (VMT) regulations and its impacts and, upon appropriation, create a grant program that would have provided financial assistance to local jurisdictions for implementing the VMT regulations. AB 2485 Choi Would have exempted from the requirements of CEQA emergency shelters and supportive housing. AB 168 Committee on Would have provided that enrollment or changes in enrollment, by themselves, do not constitute a project Budget for purposes of CEQA. SB 33 Cortese Would have made several changes to CEQA notification procedures, including allowing an individual to request CEQA notifications by e-mail. SB 739 Cortese Would have authorized a development proponent to submit an application to convert land that was previously used as a golf course to market-rate and affordable housing and would have provided that the application is subject to a streamlined, ministerial approval process, and not subject to a conditional use permit, if the development satisfies specified requirements. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 33 Bill Author Description AB 2719 Fong (Vince) Would have exempted from CEQA certain highway safety improvement projects. AB 1952 Gallagher Would have exempted from CEQA a project financed pursuant to the Infill Infrastructure Grant Program of 2019, and would make all legal actions, proceedings, and decisions undertaken or made pursuant to the program exempted from CEQA. AB 2445 Gallagher Would have required a person filing a CEQA lawsuit against an affordable housing project to post a $500,000 bond to cover the costs and damages to the affordable housing project incurred by the respon- dent or real party in interest. AB 1001 Garcia (Cristina) Would have required that all public agencies “give consideration to the principles of environmental jus- tice” when implementing CEQA and would have modified the process for mitigating a project’s air quality impacts on a disadvantaged community. SB 2214 Garcia (Cristina) Would have required charter schools and private schools to comply with the same siting requirements as public schools for evaluating a school site for potential hazardous substances, emissions, and waste. SB 1935 Grayson Would have streamlined CEQA review for the Concord Naval Weapons Station Reuse Project. SB 1148 Laird Would have provided that CEQA does not apply to the issuance of a state license for a project to engage in commercial cannabis activity if the appropriate local jurisdiction had met certain criteria. To qualify for the exemption, the bill would have also required that the local jurisdiction’s determination on the project or local ordinance to be final and not the subject of pending judicial review, as described. ACA 13 Mathis Would have required that two percent of the State’s General Fund revenue be dedicated to water infra- structure and development. Would have provided that the CEQA applies to projects funded this revenue, and prescribed drought resiliency projects, unless a project elected to be subject to streamlined review of an agency’s compliance with CEQA in accordance with specified procedures administered by the California Water Commission. SB 1274 McGuire Would have allowed streamlined CEQA review for a clean energy transmission project that upgrades exist- ing transmission infrastructure to bring renewable energy from an offshore wind project located within or adjacent to Humboldt County. SB 1154 Patterson (Jim) Would have exempted from CEQA, until 2029, public egress route projects to improve emergency access to and evacuation from certain housing subdivisions. SB 1136 Portantino Would have expanded expedited CEQA review provisions to apply to regulations requiring the reduction in emissions, pollutants, air contaminants, and requires all eligible projects to comply with specified con- struction labor requirements. AB 2218 Quirk-Silva Would have limited standing to bring a CEQA action again an infill housing development project to those that live within 20 of the project site. AB 1774 Seyarto Would have required that the Judicial Council to adopt rules of court to ensure CEQA-related actions per- taining to water conveyance or storage projects are resolved by the courts, to the extent feasible, within 270 days. SB 1404 Stern Would have required that the removal of three or more oak trees, as specified, constitute a significant effect on the environment under CEQA. AB 2656 Ting Would have specified that a local agency has disapproved a housing project in violation of the Housing Accountability Act if it fails to make a determination that a project is exempted from the CEQA, or fails to adopt, certify, or approve certain environmental documents under specified circumstances. AB 267 Valladares Would have extended a CEQA exemption, to 2026, for certain reduction projects undertaken on federal lands to reduce the risk of high-severity wildfire that have been reviewed under the National Environmen- tal Policy Act. SB 1369 Wieckowski Would have made an adaptive reuse project a "use by right" in all areas regardless of zoning. SB 1336 Wiener Would have provided that housing is a "use by right” on land owned by a religious institution or nonprofit college. 2021 LEGISLATION: FAILED (16 BILLS) Bill Author Description SB 627 Bates Would have effectively authorized "by right" construction of sea walls and other hard shorelines struc- tures statewide. AB 1170 Bigelow Would have ratified the tribal-state gaming compact entered into between the State of California and the Table Mountain Rancheria, executed in August 2021. Would have also provided that, in deference to tribal sovereignty, certain actions related to this compact are not projects for purposes of CEQA. 34 | LITTLE HOOVER COMMISSION Bill Author Description SB 59 Caballero Would have extended the operation of the provisional license program for medicinal and adult use canna- bis activities for an additional 6 years, until July 1, 2028; authorized new provisional licenses to be issued for an additional 6 months, until July 1, 2022, except that new provisional licenses may be issued after that date to “qualified equity applicants,” thereby also extending a CEQA exemption for the issuance of such provisional licenses; and authorizes licensing authorities to reinstate provisional licenses issued before that date until July 1, 2028. AB 1486 Carrillo In seeking judicial review under CEQA, before 2025, would have prohibited a court from issuing an order to suspend, invalidate, rescind, void, or set aside the decision for the housing element update project, except to the extent the court finds it necessary to avoid an imminent threat to public health and safety. AB 1260 Chen Would have exempted from CEQA, until 2023, projects to construct or maintain infrastructure to charge or refuel zero-emission trains if certain conditions are met. SB 37 Cortese Among other things, would have prohibited a project from using the "common sense" exemption from CEQA for a project at any site on the Cortese List, except for projects that meet specified conditions. SB 621 Eggman Would have allowed a ministerial, streamlined conversion of hotels and motels into multifamily housing if the development satisfies specified objective planning standards. AB 297 Gallagher Would have exempted certain projects or activities related to forest health and fuel reduction from CEQA. SB 506 Jones Would have prohibited a lead agency, in complying with CEQA, from considering the greenhouse gas emissions impacts of vegetation management projects. AB 953 Kiley Would have required the Department of Fish and Wildlife to separately track and account for all revenues collected under the filing fee provision (used to defray the costs of managing and protecting fish and wildlife trust resources) and all costs incurred in its role as a responsible agency or trustee agency under CEQA. AB 762 Lee Would have required charter schools and private schools to follow the same siting requirements as public schools for evaluating school sites for potential hazardous substances, emissions, or waste. SB 412 Ochoa Bogh Would have expanded the definition of an "emergency" in certain CEQA exemptions to include pre-emp- tive measures to prevent subsequent emergency situations. AB 1531 O'Donnell Would have designated the State Energy Resources Conservation and Development Commission as the lead agency and specified state agencies as responsible agencies for carbon capture and storage projects under CEQA. AB 621 Rivas (Robert) Would have provided CEQA streamlining for hospital projects that meets certain requirements. AB 1277 Rubio (Blanca) Would have created an expedited judicial review process for CEQA for student housing projects. AB 1212 Wood Would have ratified the tribal-state gaming compact entered into between the State of California and the following tribes: the Cahto Tribe of the Laytonville Rancheria, the Resighini Rancheria, and the Sherwood Valley Rancheria of Pomo Indians of California. The bill would also have provided that, in deference to trib- al sovereignty, certain actions related to this compact are not projects for purposes of CEQA. 2020 LEGISLATION: FAILED (40 BILLS) Bill Author Description SB 757 Allen Would have made certain zero-emission and public transit projects eligible for streamlined judicial review. SB 1120 Atkins Would have required ministerial approval of duplexes and specified subdivision maps. SB 995 Atkins Would have extended for four years the expedited CEQA administrative and judicial review procedure for “environmental leadership development projects." SB 1090 Bates Would have effectively authorized "by right" construction of sea walls/other hard shoreline structures in Orange and San Diego Counties. SB 858 Beall Would have designated the local land use authority with jurisdiction to approve emergency backup or standby generators as the lead agency for purposes of CEQA. AB 1279 Bloom Would have required specified housing developments to be a "use by right" in any high-opportunity area, as determined by the California Department of Housing and Community Development, if the develop- ment is located in any portion of the high-opportunity area, as specified. SB 1378 Borgeas Would have required a CEQA plaintiff or petitioner to disclose the identity of a person or entity that con- tributes in excess of $1,000 to help fund the legal action. SB 25 Caballero Would have established expedited administrative and judicial review procedures under CEQA for projects located in six specified counties, financed by a “qualified opportunity fund” or other specified means, and meeting other specified conditions. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 35 Bill Author Description SB 1289 Chang Would have exempted from CEQA, until 2029, certain housing and mixed-use projects. AB 2734 Chiu Would have required that if OPR’s CEQA exemption mapping tool shows a site meets the criteria for an exemption, a local agency cannot make a contrary finding unless it is supported by a preponderance of evidence. AB 2988 Chiu Would have made a supportive housing development a "use by right" in zones where emergency shelters are permitted. Also would have made a supportive housing development of 120 units or less (rather than 50 units or less) a "use by right" if it is located in a city with a population of 150,000 (rather than 200,000 or less) or the unincorporated area of a county with a population of 150,000 or less (rather than 200,000 or less). AB 2882 Chu Would have required private and charter schools to identify nearby sources of air pollution, consult with their local air districts, and meet certain siting requirements before constructing a new school. AB 94 Committee on Would have required actions or proceedings seeking judicial review pursuant to CEQA or granting of proj- Budget ect approvals for the UCSF Parnassus Heights project to be resolved within 270 days of filing the certified record of proceedings to the court. AB 3051 Diep Would have required a CEQA plaintiff or petitioner to disclose the identity of a person or entity that con- tributes in excess of $1,000 to help fund the legal action. AB 2580 Eggman Would have allowed a ministerial, streamlined conversion of non-residential hotels and motels into multi- family housing, thereby exempting the approval of development projects subject to that approval process from CEQA. AB 2706 Fong (Vince) Would have prohibited the plaintiff from electing to prepare the record of proceedings for CEQA challeng- es to projects exclusively located in a county with fewer than 1,000,000 residents or a city with fewer than 500,000 residents. AB 2323 Friedman Would have expanded CEQA exemptions for transit priority projects, transit-oriented development proj- ects, affordable agricultural housing projects, urban affordable housing project, and urban infill housing projects. AB 3279 Friedman Would have revised certain CEQA litigation procedures, including requiring the court to schedule a case management conference within 30 days of filing a CEQA complaint or petition. AB 3335 Friedman Would have expanded the definition of a Transit Priority Project to allow more projects to qualify for limited CEQA review. AB 2444 Gallagher Would have exempted certain wildfire defense vegetation management projects from CEQA. SB 1206 Gonzalez (Lena) Would have authorized a city or county to impose on an applicant for a permit for a broadband infrastruc- ture development project a reasonable fee for costs associated with the submission, and the expedited review, processing, and approval of an application, including, but not limited to, personnel costs as neces- sary, if the applicant elects for the expedited review and processing and agrees to pay that fee. Because the approval process established by the bill would have been streamlined and ministerial in nature, the approval of projects subject to this process would have been exempt from CEQA. SB 55 Jackson Would have made various changes to CEQA including, among other things, an exemption for emergency shelters, supportive housing, and transitional housing projects and an optional, alternate process for receiving public comments SB 950 Jackson Would have made various changes to CEQA including, among other things, an exemption for emergency shelters, supportive housing, and transitional housing projects and an optional, alternate process for receiving public comments AB 2470 Kamlager Would have enabled a streamlined, ministerial development process for developments that split one or more dwelling units within a multifamily housing development to create additional smaller dwelling units. AB 3296 Kiley Would have required the Department of Fish and Wildlife to separately track and account for all revenues collected under a filing fee provision (used to defray the costs of managing and protecting fish and wildlife trust resources) and all costs incurred in its role as a responsible agency or trustee agency under CEQA. AB 3297 Kiley Would have, for CEQA challenges over new housing projects, specified that prejudicial abuse of discretion occurred if the court found that the grounds of noncompliance with CEQA likely affected the decision of the public agency to approve the project and significantly affected the general public’s ability to evaluate the project’s overall impacts, and would have prohibited such action or proceeding unless the alleged grounds for noncompliance with CEQA were presented to the public agency by any person during the public comment period provided pursuant to CEQA in connection with the version of the EIR in which the alleged grounds first appeared. AB 609 Levine Would have added online noticing requirements for CEQA documents, including posting on lead agency websites and filing with OPR. 36 | LITTLE HOOVER COMMISSION Bill Author Description AB 2238 Mathis Would have ratified the tribal-state gaming compact entered into between the State of California and the Tule River Indian Tribe of California and executed on an unspecified date. Would have also provided that, in deference to tribal sovereignty, certain actions related to that amended compact are not projects for purposes of CEQA. ACA 22 Melendez Would have prohibited a court, in granting relief in an action or proceeding brought under CEQA, from enjoining a housing project, with a few exceptions. SB 1302 Morrell Would have prohibited additional or subsequent CEQA actions or proceedings if an action or proceeding under CEQA has already been instituted against a housing development project. AB 3005 Rivas (Robert) Would have expedited CEQA review and regulatory process for various state agencies to facilitate the replacement of the Leroy Anderson Dam and Reservoir in Santa Clara County. AB 2720 Salas Would have streamlined CEQA review for certain groundwater recharge projects. AB 3054 Salas Would have required a CEQA plaintiff or petitioner to disclose the identity of a person or entity that con- tributes in excess of $1,000 to help fund the legal action. AB 1907 Santiago Would have exempted from CEQA certain emergency shelters, supportive housing, or affordable housing projects throughout California. AB 2991 Santiago Would have extended for two years expedited CEQA judicial review procedures (under AB 900) for “envi- ronmental leadership development projects." AB 3300 Santiago Would have exempted from CEQA specified actions taken by a large city in connection with making land available or approving the development of low barrier interim interventions, affordable housing, or sup- portive housing funded under the bill. Also would have required the large city to file a notice of exemption with the clerk of the county in which the large city is located and OPR. AB 1934 Voepel Would have enabled a streamlined, ministerial approval process for developments that met specified objective planning standards, including that the development provide housing for persons and families of low or moderate income. SB 899 Wiener Would have provided that housing is a "use by right" on land owned by a religious institution or nonprofit college, thus exempting it from CEQA. SB 902 Wiener Would have allowed a city or county to pass an ordinance to zone any parcel for up to 10 units of residen- tial density per parcel in transit-rich or jobs-rich areas or urban infill sites, and exempts these ordinances from CEQA. SB 50 Wiener Would have established a streamlined ministerial approval process for neighborhood multifamily proj- ects, thereby exempting these projects from CEQA. 2019 LEGISLATION: FAILED (18 BILLS) Bill Author Description AB 1610 Bloom Would have prohibited a person from bringing an action or proceeding to seek judicial review of a public agency’s action or decision made pursuant to CEQA relating to the Hollywood Central Park project. SB 659 Borgeas Would have allowed the court to award reasonable attorney’s fees, upon certain findings, in a CEQA action related to infill housing development projects. AB 586 Diep CEQA exempts certain housing projects from its requirements if the project meets certain criteria, includ- ing that the project site is not located within the boundaries of a state conservancy. This bill would have deleted that specific criteria. AB 1149 Fong (Vince) Would have required the lead agency to prepare the record of proceedings in all CEQA cases. AB 1243 Fong (Vince) Would have prohibited CEQA from applying to various transportation infrastructure projects under cer- tain conditions. AB 1244 Fong (Vince) Would have, in an action or proceeding seeking judicial review under the act, prohibited a court from staying or enjoining a housing project for which an environmental impact report has been certified, unless the court made specified findings. AB 1177 Frazier Would have deleted the requirement that a skilled and trained workforce be employed on multifamily housing development projects seeking a streamlined, ministerial approval process, thereby expanding the number of projects eligible for CEQA exemptions. AB 431 Gallagher Would have provided CEQA exemptions for projects related to the provision of sewer treatment or water service and the improvement of evacuation in the Town of Paradise, as well as projects related to forest health and fuel reduction in Butte County. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 37 Bill Author Description SB 621 Glazer Would have established, until 2025, expedited, 270-day judicial review of CEQA challenges to “affordable housing projects” and would have required the Judicial Council to submit reports to the Legislature per- taining to CEQA litigation. AB 1272 Kiley Would have, for CEQA challenges over new housing projects, specified that prejudicial abuse of discretion occurred if the court found that the grounds of noncompliance with CEQA likely affected the decision of the public agency to approve the project and significantly affected the general public’s ability to evaluate the project’s overall impacts, and would have prohibited such action or proceeding unless the alleged grounds for noncompliance with CEQA were presented to the public agency by any person during the public comment period provided pursuant to CEQA in connection with the version of the EIR in which the alleged grounds first appeared. AB 231 Mathis Would have exempted from CEQA specified recycled water projects and the development and approval of building standards by state agencies for recycled water systems. SB 4 McGuire Would have established a streamlined, ministerial approval process for eligible neighborhood multifamily and transit-oriented projects, thereby exempting these projects from the CEQA approval process. SB 384 Morrell Would have established expedited administrative and judicial review of environmental review and approv- als granted for housing development projects with 50 or more residential units. Would have also prohibit- ed courts from staying or enjoining challenged projects with two narrow exceptions. AB 394 Obernolte Would have exempted from CEQA certain egress route projects that improve fire safety of an existing residential subdivision if specified conditions are met. AB 1706 Quirk Would have, until 2035, provided specified financial incentives (including exemption from CEQA) for residential housing developments in the San Francisco Bay area region that dedicate at least 20 percent of the housing units to households making no more than 150 percent of the area median income. AB 1673 Salas Would have required a CEQA plaintiff or petitioner to disclose the identity of a person or entity that con- tributes in excess of $1,000 to help fund the legal action. AB 490 Salas Would have established special administrative and judicial review procedures under CEQA for certain affordable housing projects in housing cost-burdened counties, including requiring the courts to resolve CEQA lawsuits on qualified projects within 270 days. AB 1251 Santiago Would have required that, if a local government fails to complete certain rezoning within one year, a hous- ing development in which at least 40 percent of the units have an affordable housing cost or affordable rent for lower income households be a "use by right" in all zones where multifamily, commercial, and mixed uses are permitted. 38 | LITTLE HOOVER COMMISSION Notes 1. Numerous organizations have produced 5. Janet Smith-Heimer and Jessica Hitchcock, compilations of what they see as key cases where “CEQA and Housing Production: 2018 Survey CEQA has protected portions of California’s of California Cities & Counties,” Association environment. Examples include “CEQA of Environmental Professionals, 2018, p. 12. Works: Protecting California’s Communities Retrieved from: https://www.califaep.org/docs/ and Environment,” https://ceqaworks.org/ CEQA_and_Housing_Report_1-30-19.pdf. ceqa-successes/; “CEQA: California’s Living 6. Janet Smith-Heimer and Jessica Hitchcock, “CEQA Environmental Law,” https://rosefdn.org/ by the Numbers: Myths and Facts,” The Rose wp-content/uploads/CEQA-California_s-Living- Foundation, May 2023, p. 32. Retrieved from: Environmental-Law-10-25-21.pdf; “CEQA by the https://rosefdn.org/wp-content/uploads/CEQA- Numbers: Myths and Facts,” https://rosefdn. By-the-Numbers-2023-5-5-23-Final.pdf. Jennifer org/ceqa-by-the-numbers-myths-facts/; and Hernandez, “California Environmental Quality Act “CEQA Everyday Heroes,” https://www.pcl.org/ Lawsuits and California’s Housing Crisis,” Hastings campaigns/ceqa/ceqa-everyday-heroes. Environmental Law Journal 24, no. 1 (Winter 2018), 2. For reviews of CEQA compliance time and pg. 26. cost, see “California’s High Housing Costs: 7. Jennifer Hernandez, David Friedman, and Causes and Consequences,” https://lao.ca.gov/ Stephanie DeHerrera, In the Name of the reports/2015/finance/housing-costs/housing- Environment, Holland & Knight, 2015, pp. costs.pdf; “CEQA in the 21st Century,” https:// 10-12, 14. Retrieved from: http://issuu. rosefdn.org/wp-content/uploads/2016/08/ com/hollandknight/docs/ceqa_litigation_ CEQA-in-the-21st-Century.pdf; and “Standardized abuseissuu?e=16627326/14197714. Regulatory Impact Assessment: CEQA Guidelines Updates,” https://dof.ca.gov/wp-content/uploads/ 8. Jennifer Hernandez, “California Environmental sites/352/Forecasting/Economics/Documents/ Quality Act Lawsuits and California’s Housing CEQAUpdatesSRIA_CNRA_12-6-17.pdf. Crisis,” Hastings Environmental Law Journal 24, no. 1 (Winter 2018), pp. 31-34. 3. CEQA is contained in the California Public Resources Code, beginning at section 21000. The 9. Jennifer Hernandez, “California Environmental quotations here are from section 21001. Quality Act Lawsuits and California’s Housing Crisis,” Hastings Environmental Law Journal 24, no. 4. Janet Smith-Heimer, Jessica Hitchcock, and 1 (Winter 2018), pp. 31-34. Greg Goodfellow, “CEQA: California’s Living Environmental Law: CEQA’s Role in Housing, 10. Sean Hecht, “Anti-CEQA Lobbyists Turn to Environmental Justice & Climate Change,” Rose Empirical Analysis, But Are their Conclusions Foundation, October 2021, p. 22. Retrieved from: Sound?” LegalPlanet, September 28. 2015, https://rosefdn.org/wp-content/uploads/CEQA- https://legal-planet.org/2015/09/28/anti-ceqa- California_s-Living-Environmental-Law-10-25-21. lobbyists-turn-to-empirical-analysis-but-are-their- pdf. This study used as the denominator conclusions-sound. projects subject to an EIR, a Mitigated Negative Declaration, or a Negative Declaration. Had the 11. California Department of Housing and study included other projects, such as those that Community Development, Annual Progress proceeded under CEQA exemptions, the litigation Reports – Data Dashboard and Downloads, rate would have been even lower. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 39 https://www.hcd.ca.gov/planning-and- 23. SB 91 (Umberg), Chapter 732, Statutes of 2023. community-development/housing-open-data- 24. SB 69 (Cortese), Chapter 860, Statutes of 2023. tools/housing-element-implementation-and-apr- dashboard. 25. SB 149 (Caballero), Chapter 60, Statutes of 2023. 12. Christopher S. Elmendorf and Timothy G. 26. AB 1633 (Ting). Assembly Floor Analysis. Duncheon, “When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic 27. Still, CEQA is not all-consuming for the courts. Change in Land Use Law,” UC David Legal Studies During the past 10 years, the California Supreme Research Paper Series, July 25, 2022, Revised Court has averaged 79 written opinions per year, Draft, p. 13, n. 81. Retrieved from https://papers. while the rate of CEQA opinions has been roughly ssrn.com/sol3/Delivery.cfm/SSRN_ID4172467_ one per year over the Act’s lifetime (48 opinions code345940.pdf?abstractid=3980396&mirid=1. in 50 years). 13. Janet Smith-Heimer, Jessica Hitchcock, and 28. Tina Thomas, Christopher Butcher, and Andrea Greg Goodfellow, “CEQA: California’s Living Lutge, “Modernizing CEQA Requires More than Environmental Law: CEQA’s Role in Housing, Repackaging CEQA Procedures,” CEQA Chronicles, Environmental Justice & Climate Change,” Rose February 15, 2013, https://www.ceqachronicles. Foundation, October 2021, p. V. Retrieved from: com/2013/02/modernizing-ceqa-requires-more- https://rosefdn.org/wp-content/uploads/CEQA- than-repackaging-existing-ceqa-procedures. California_s-Living-Environmental-Law-10-25-21. pdf. 29. Markus B. Zimmer, “Overview of Specialized Courts,” International Journal For Court 14. The other two bills focused on projects located Administration, August 2009. Retrieved from: on the grounds of the San Quentin Rehabilitation https://storage.googleapis.com/jnl-up-j-ijca- center and actions related to the implementation files/journals/1/articles/111/submission/ of Colorado River water conservation agreements proof/111-1-236-1-10-20131025.pdf. with the US Bureau of Reclamation. 30. SB 123 (Corbett, 2013). Senate Judiciary 15. AB 1449 (Alvarez), Chapter 761, Statutes of 2023. Committee Analysis. 16. SB 4 (Wiener), Chapter 771, Statutes of 2023. 31. California Retailers, et al. “SB 950 (Jackson) - California Environmental Quality Act: Housing 17. AB 785 (Santiago), Chapter 726, Statutes of 2023. and Land Use Oppose - As Amended March 19, 2020 - Job Killer.” May 12, 2020, https:// 18. SB 240 (Ochoa Bogh), Chapter 775, Statutes of calretailers.com/wp-content/uploads/2020/05/ 2023. Coalition-SB-950-Jackson-Oppose-JK-to-S.-EQ.pdf. 19. AB 356 (Mathis), Chapter 116, Statutes of 2023. Also, Rural County Representatives of California (RCRC), “Senate Bill (950) - Oppose Unless 20. AB 1307 (Wicks), Chapter 160, Statutes of 2023. Amended - As Amended March 19, 2020,” May 4, 2020. https://www.rcrcnet.org/sites/default/files/ 21. SB 286 (McGuire), Chapter 386, Statutes of 2023. useruploads/Resources/CEQA/2019_20_Letters/ 22. SB 149 (Caballero), Chapter 60, Statutes of 2023. SB_950_Ltr_to_Auth_05042020.pdf. 40 | LITTLE HOOVER COMMISSION 32. SB 950 (Jackson, 2020). 42. Paul Jacobs, “Review of Environmental Leadership Development Projects,” California Senate Office 33. Dymally-Alatorre Bilingual Services Act of 1973, of Research, April 2019, Retrieved from: https:// Gov. Code §§ 7290 – 7298. www.pcl.org/media/2019/09/2206-policy-matters- 04.19-environ.-leadership-projects.pdf. 34. AB 1531 (Salas, 2019). AB 3179 (Salas, 2019). 43. Sameea Kamal, “Will Controversial California 35. AB 2253 (Ting, 2014). Housing Law Become Permanent?” CalMatters, 36. AB 305 (Furutani, 2011). February 14, 2023, https://calmatters.org/ newsletters/whatmatters/2023/02/california- 37. California Department of Health Care Services. housing-crisis-law/. “All Plan Letter 21-004.” May 3, 2022. https:// www.dhcs.ca.gov/formsandpubs/Documents/ 44. Daniel R. Golub, Chelsea Maclean, and William E. MMCDAPLsandPolicyLetters/APL2021/APL21- Sterling, “California Legislature Creates Pathways 004.pdf. Also, Welfare and Institutions Code, for Residential Development on Commercially Section 14029.91. Available here: https://leginfo. Zoned Land,” Holland & Knight, September legislature.ca.gov/faces/codes_displaySection. 1, 2022, https://www.hklaw.com/en/insights/ xhtml?lawCode=WIC&sectionNum=14029.91. publications/2022/09/california-legislature- creates-pathways-for-residential-development. 38. California Secretary of State. “Language Requirements for Election Materials.” https:// 45. Hannah Wiley, “California Lawmakers Make a www.sos.ca.gov/elections/voting-resources/ Deal on Livable Wages and Affordable Housing language-requirements. in Two Bills Sent to Newsom” Los Angeles Times, August 29, 2022, https://www.latimes.com/ 39. Projects where 10 percent of units are designated california/story/2022-08-29/california-democrats- for rental or sale to lower income households; made-a-last-minute-labor-deal-on-bills-to- or where 10 percent of units are designated for increase-affordable-housing. sale to moderate-income households; or where 5 percent of units are designated for rental or sale 46. Josh Stephens, “Lawmakers Reject Major CEQA to very low-income households Reform (Updated),” August 23, 2012, California Planning & Development Report, https://www. 40. Janet Smith-Heimer, Jessica Hitchcock, and cp-dr.com/articles/node-3254. Greg Goodfellow, “CEQA: California’s Living Environmental Law: CEQA’s Role in Housing, 47. Josh Stephens, “Lawmakers Reject Major CEQA Environmental Justice & Climate Change,” Rose Reform (Updated),” August 23, 2012, California Foundation, October 2021. Retrieved from: Planning & Development Report, https://www. https://rosefdn.org/wp-content/uploads/CEQA- cp-dr.com/articles/node-3254. California_s-Living-Environmental-Law-10-25-21. 48. Justin Ewers, “CEQA Reform Isn’t What It Seems pdf. to Be – Law Professor’s Perspective,” California 41. Casey Shorrock Smith, “Streamlined Yet Forward, January 16, 2013, https://cafwd.org/ Underutilized: CEQA’s Class 32 Urban Infill news/ceqa-reform-isnt-what-it-seems-to-be-law- Exemption,” Remy Moose and Manley, LLP, professors-perspective/. https://www.rmmenvirolaw.com/tag/urban-infill. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 41 49. Justin Ewers, “CEQA Roundup: Senate Leader 56. Tina Thomas, Christopher Butcher, and Andrea Steinberg Intros CEQA Bill Hours After Rubio Lutge, “Modernizing CEQA Requires More than Resigns,” California Forward, February 22, 2013, Repackaging CEQA Procedures,” CEQA Chronicles, https://cafwd.org/news/ceqa-week-in-review- February 15, 2013, https://www.ceqachronicles. steinberg-says-reform-bill-on-its-way/. com/2013/02/modernizing-ceqa-requires-more- than-repackaging-existing-ceqa-procedures. 50. Justin Ewers, “CEQA Roundup: Senate Leader Steinberg Intros CEQA Bill Hours After Rubio 57. Association of Environmental Professionals, Resigns,” California Forward, February 22, 2013, Updates from AEP’s Legal and Legislative Review https://cafwd.org/news/ceqa-week-in-review- Committee, June 2018, https://www.califaep.org/ steinberg-says-reform-bill-on-its-way/. june_2018.php. 51. Arthur F. Coon, “The Direction of CEQA ‘Reform’ 58. Kristy Wang, “Bye-Bye to By-Right Housing,” The Under Proposed SB 731: One Step Up and Urbanist, January 11, 2017, https://www.spur.org/ Three Steps Back,” May 17, 2013, https://www. publications/urbanist-article/2017-01-11/bye-bye- ceqadevelopments.com/2013/05/17/the- right-housing. direction-of-ceqa-reform-under-proposed-sb- 59. Rural County Representatives of California 731-one-step-up-and-three-steps-back. (RCRC), “RCRC Helps Stop Major Legislation that 52. Planning and Conservation League, SB 950 Would Have Opened the Door for Even More (Jackson), CEQA 2.0 Factsheet, https://www.pcl. CEQA Litigation,” July 1, 2022, https://www. org/media/2020/03/CEQA-2.0-Factsheet-v2.pdf. rcrcnet.org/rcrc-helps-stop-major-legislation- would-have-opened-door-even-more-ceqa- 53. Adam Regele, “Job Killer Bill that Hinders Housing litigation. Construction to be Considered in Senate Committee,” California Chamber of Commerce, May 27, 2020, https://advocacy.calchamber. com/2020/05/27/job-killer-bill-that-hinders- housing-construction-to-be-considered-in-senate- committee. 54. Tina Thomas, Christopher Butcher, and Andrea Lutge, “Modernizing CEQA Requires More than Repackaging CEQA Procedures,” CEQA Chronicles, February 15, 2013, https://www.ceqachronicles. com/2013/02/modernizing-ceqa-requires-more- than-repackaging-existing-ceqa-procedures. 55. Holly Roberson, “CEQA Bills of Interest Introduced,” Remy Moose Manley, LLP, https:// www.rmmenvirolaw.com/ceqa-bills-of-interest- introduced. 42 | LITTLE HOOVER COMMISSION Little Hoover Commission Members CHAIR PEDRO NAVA | Santa Barbara JOSÉ ATILIO HERNÁNDEZ | Burbank Appointed to the Commission by Speaker of the Assembly Appointed by Speaker of the Assembly Anthony Rendon John Pérez in April 2013 and reappointed by Speaker in April 2023. Founder and CEO of IDEATE California, a of the Assembly Anthony Rendon in 2017 and again public relations and policy management firm. Also, founder in 2021. Government relations advisor. Former State and Board Chairman of ideateLABS. Former Director for Assemblymember from 2004 to 2010, civil litigator, External Affairs and Community Relations for ConnectEd: deputy district attorney and member of the state Coastal The California Center for College and Career. Commission. Elected chair of the Commission in March 2014. JASON JOHNSON | Napa Appointed by Governor Newsom in June 2023. Member VICE CHAIR ANTHONY CANNELLA | Ceres of the Land Trust of Napa County Board of Trustees and Appointed to the Commission by the Senate Rules Horary Commander of Travis Air Force Base. Former Committee in March 2022. Civil engineer and principal with Managing Partner at Founders Den. Founder and former Northstar Engineering Group. Former State Senator from CEO at August Home Inc. 2010 to 2018. Previously served on the Ceres City Council and was twice elected mayor of that city. Elected Vice Chair SEN. DAVE MIN | Irvine of the Commission in July 2023. Appointed to the Commission by the Senate Rules Committee in September 2021. Elected in November 2020 DION ARONER | Berkeley to represent the 37th Senate District. Represents Anaheim Appointed to the Commission by the Senate Rules Hills, Costa Mesa, Huntington Beach, Irvine, Laguna Beach, Committee in April 2019. Partner for Aroner, Jewel, and Laguna Woods, Lake Forest, Newport Beach, Orange, Ellis. Former State Assemblymember from 1996 to 2002, Tustin, and Villa Park. chief of staff for Assemblymember Tom Bates, social worker for Alameda County, and the first female president ASM. LIZ ORTEGA | San Leandro of Service Employees International Union 535. Appointed to the Commission by Speaker of the Assembly Anthony Rendon in March 2023. Elected in November DAVID BEIER | San Francisco 2022 to represent the 20th Assembly District. Represents Appointed to the Commission by Governor Edmund G. Hayward, San Leandro, most of Union City, portions Brown Jr. in June 2014 and reappointed in January 2018. of Dublin and Pleasanton, and several unincorporated Managing director of Bay City Capital. Former senior officer communities. of Genentech and Amgen, and counsel to the U.S. House of Representatives Committee on the Judiciary. JANNA SIDLEY | Los Angeles Appointed to the Commission by Governor Edmund G. ASM. PHILLIP CHEN | Yorba Linda Brown Jr. in April 2016 and reappointed in February 2020. Appointed to the Commission by Speaker of the Assembly Partner at Ichor Strategies and appointed to the Board Anthony Rendon in October 2021. Elected in November of the Los Angeles City Employee Retirement System 2016 to represent 55th District. Represents portions of Los (“LACERS”). Former general counsel at the Port of Los Angeles, Orange and San Bernardino counties and the Angeles and city attorney at the Los Angeles City Attorney’s cities of Brea, Chino Hills, Diamond Bar, La Habra, Industry, Office. Placentia, Rowland Heights, Walnut, West Covina and Yorba Linda. SEN. SCOTT WILK | Santa Clarita Appointed to the Commission by the Senate Rules GIL GARCETTI | Los Angeles Committee in April 2023. Elected in November 2016 to Appointed to the Commission by Governor Gavin Newsom represent the 21st Senate District. Represents communities in November 2021. Professional photographer and author in the Antelope, Santa Clarita, and Victor Valleys. of ten books. Former Los Angeles County District Attorney, Full biographies are available on the Commission’s teaching Fellow at Harvard University’s Kennedy School, website at www.lhc.ca.gov. and president of the California Science Center Foundation’s Board of Trustees. CEQA: TARGETED REFORMS FOR CALIFORNIA’S CORE ENVIRONMENTAL LAW | 43 “DEMOCRACY ITSELF IS A PROCESS OF CHANGE, AND SATISFACTION AND COMPLACENCY ARE ENEMIES OF GOOD GOVERNMENT.” By Governor Edmund G. “Pat” Brown, addressing the inaugural meeting of the Little Hoover Commission, April 24,1962, Sacramento, California Milton Marks Commission on California State Government Organization and Economy www.lhc.ca.gov