June 2018

Updates from AEP's Legal and Legislative Review Committee

CEQA Exemption Advisory Released by OPR

The Governor’s Office of Planning and Research (OPR) has announced the completion of a technical advisory regarding exemptions from CEQA that are located outside of Division 13 of the Public Resources Code. This is a helpful quick reference reminder of exemptions that are identified in other parts of California law. A copy of the technical advisory is here (http://opr.ca.gov/ceqa/technical-advisories.html).

Bill Update

With 2018 being a high-profile election year and the final year of Governor Brown’s tenure, the Legislature’s policy activity has been largely overshadowed.  However, that does not mean that the hallways of the Capitol are not buzzing with activity.

The Legislature has reached that halfway mark in terms of Legislative Process.  Last week was the deadline for all bills to pass from their House of Origin or be dead for the year.  The Legislature will hold policy committee hearings for the next three weeks, followed by the July Recess. Additionally, by next Friday, June 15, the Legislature must pass, and Governor Brown must sign, the 2018/19 State Budget.  All this sets up the next couple weeks as a very busy time in the Capitol.

On top of the processes in Sacramento, California June Primary election was held yesterday.  While the primary mostly just sets the stage for the November General Election, there are a few immediate changes.  First, Democratic Senator Newman from Orange County was recalled for his vote on the gas tax last year and replaced by a Republican former Assemblywoman Ling Ling Chang.  This eliminates the two-thirds majority Democrats held in the Senate.  Additionally, two of the Assembly seats that were vacated when sitting Assemblymembers resigned amid sexual harassment allegations were filled for the remainder of the year.  Both will remain as Democratic seats, reinstalling a Democratic Supermajority in the Assembly.

With regards to environmental legislation, 2018 remains a much quieter year than 2016 or 2017 when major greenhouse gas reduction bills like SB 32 and housing streamlining bills like SB 35 were passed by the legislature.  With CEQA remaining a hot political topic in the Capitol, especially as it relates to the discussion around housing and local governments, we have seen several substantial bills thus far. Below is the list of key bills AEP has been monitoring and discussing.

2018 Legislation that AEP is tracking

AB 2447 (Reyes)
This bill is being sponsored by environmental justice advocates and would add new, specific and detailed noticing requirements under CEQA for certain types of projects in or near a Disadvantaged Community (DAC). The bill would require the Office of Environmental Health Hazard Assessment (OEHHA) to develop a list of all industrial related facilities that emit air pollutants, water contamination, or other negative health impacts.  OEHHA will also publish a map of all DACs.  If a listed project is proposed in or near a DAC, then new, additional noticing requirements will kick in.  AEP has concerns about the scope of projects that may be listed by OEHHA, as well as the burdens of the new requirements, which mandate notices be in multiple language and that scoping hearings be held in the DACs during specific times and specified locations.  AEP is providing feedback on the bill to the Legislature.
AB 2341 (Mathis)
This bill would say that, for projects that are reconstructing dilapidated buildings in urban areas and that include housing, the aesthetic effects are not significant effects on the environment for purposes of CEQA and that the lead agency is not required to evaluate the aesthetic effects of those projects.  While the overwhelming majority of Republican-authored CEQA bills fail to pass, this bill has moved smoothly through the process and is now in the Senate.  AEP is monitoring the bill, but has not yet taken a position.  Most stakeholders agree that the limited scope of this bill could be helpful at rejuvenating dilapidated buildings and getting more housing built.
AB 1804 (Berman)
This bill is a re-introduction of AB 1404 (Berman) from last year, which stalled.  It would require OPR to expand the current categorical infill exemption to apply to unincorporated areas (counties). Currently, the infill exemption, which OPR created in the Guidelines, is only available to incorporated cities. There remains a legal and process question about whether and how that legislature can amend an OPR-created categorical exemption, but the policy idea is largely supported by stakeholders.  AEP has been following the bill closely and engaging with the author and OPR as questions regarding the bill occur.
AB 2782 (Friedman)
This bill would authorize lead agencies, in describing and evaluating projects, to consider the positive economic, legal, social, technological, or other benefits of, and the negative impacts of denying, the project.  AEP believes that lead agencies likely already have this authority and would most likely not want to include such arguments in an EIR, which could then be litigated.
SB 827 (Wiener)
This bill was the most high-profile housing bill of 2018 but failed to make it out of the Senate due to intense neighborhood and local government opposition.  The bill would have established an incentive for building housing near high-quality transit by exempting these developments from certain zoning standards, especially relating to height limitations.  A development in a transit-rich housing zone will be exempted from local controls on maximum residential density, maximum floor area ratio, and minimum automobile parking spaces.  While the bill failed this year, the author, Senator Wiener from San Francisco, has stated he will continue to pursue a similar policy.  AEP was closely monitoring the bill before it failed in the Assembly Housing Committee.
AB 3023 (Medina)
This bill would have required lead agencies to post notices and environmental documents on either (1) their website, or (2) to the State Clearinghouse database at OPR.  AEP is generally supportive of the creation of the State Clearinghouse at OPR as a repository for all CEQA documents in the state. However, we only support centralized noticing if done to make the process more efficient and publicly accessible, not if it makes it more cumbersome.  OPR is currently undertaking a major overhaul of the Clearinghouse and intends to eventually incorporate many of the goals of this bill.  For that reason, the bill did not move forward out of the Assembly Natural Resources Committee. 
SB 1341 (Glazer)
As the AEP Legislative Committee has observed in other in the past, this bill would have required anyone challenging a lead agency decision pursuant to CEQA to disclose the entities or individuals funding the effort.  This bill has been introduced many times over the years, but never passes from its policy committees.  This bill followed the same trajectory and is not moving forward.
AB 3027 (Chavez)
This bill was a novel approach to attempting to limit lawsuits under CEQA.  It would have limited the recovery of attorneys fees in a CEQA case to only (1) a home, property or business owner within a specified mailing radius of the proposed project, or (2) an environmental non-profit with at least 50,000 members.  The bill received substantial support from developers, but equally strong opposition from environmental groups.  The bill failed to get sufficient votes in Assembly Natural Resources Committee and died. 

We strive to keep our members with up-to-date information on matters important to environmental professionals. The latest information from AEP's Legal and Legislative Review Committee can always be viewed on the  CEQA and Public Policy Program webpage.