Reporting

August 21, 2013 by Justin Ewers

CEQA Roundup: What would Steinberg’s bill actually do for infill?


(photo credit: Bob August)

In last week's contentious final committee hearing on CEQA, Sen. Darrell Steinberg emphasized that his reform efforts, in the waning days of the legislative session, would remain focused on a singular goal--streamlining the CEQA process for the infill developments California needs to reduce urban sprawl and reach its climate goals. "When in doubt," Steinberg said, alluding to the still-elusive compromise he seeks between business, labor, and environmentalists, "do good policy."

But does Steinberg's legislation, as written, do that?

With the legislative session drawing to a close--and with Steinberg continuing to juggle proposed amendments and work to keep the governor interested in CEQA--more and more voices outside Sacramento have begun to pose this very question: What exactly will Steinberg's bill do to streamline CEQA for infill projects--and is the Senate leader's approach good policy for the economy, for communities, and for the environment?

Editorial boards aren't so sure

Three of the state's biggest newspapers published editorials this week expressing doubts about Steinberg's existing legislation and its three major components: removing "aesthetics" and parking from the CEQA process (with several big exceptions), promoting new environmental standards for noise and transportation impacts (again, with important caveats), and making an array of changes to CEQA's complex procedural rules.

The San Diego Union Tribune concluded this week that these proposals--and their caveats--ultimately add up to "a narrow bill," one that is "disappointing in its modesty." The San Francisco Chronicle said Steinberg's reforms have "fallen short." The San Jose Mercury News, pushing Steinberg to do "something worthwhile," says "SB 731 won't even do much of what he says he wants to accomplish."

Tip-toeing up to reform…

For those who support more infill development in California--and who would like to see this development occur in a way that supports workers, local economies, and the environment (the goal of the Summit's own Regulations Action Team)--this may be the most pointed criticism aimed yet at this year's CEQA legislation.

As negotiations continue with stakeholders and the governor, Steinberg has been highlighting one positive step the bill makes: Its dramatic expansion of the definition of infill. By applying the bill's CEQA changes to the "transit priority areas" defined by the state's landmark land-use law, SB 375, Steinberg's proposals would be operative in most of urbanized California.

"There are those who might look at the term infill and think it would only be a narrow bill," Steinberg said last week. "But I'd commend them to look at maps of the regions of the state that have completed their SB 375 planning exercises. Because the swath of land that's included…is quite expansive. By focusing on infill, we can incentivize a whole host of projects beyond residential areas."

…but not going much further

It is not this new definition that critics are concerned about, however. It is what Steinberg's legislation does (and doesn't do) to streamline the CEQA process in this expansive new infill area.

After last week's hearing, much of the focus was on Steinberg's tough words for the business leaders who have pulled their support from the bill. But as negotiations continue, the most public--or at least the most pointed--criticism of the legislation has come from another group: The public agencies that will be responsible for implementing it.

"We do feel we have a very important perspective," Kathy Mannion said in last week's hearing on  behalf of the Public Works Coalition, an alliance of the public agencies responsible for conducting CEQA reviews--a group that represents nearly every school, college, university, city, county and special district in California. "Our preference would be deletion of many sections of the bill."

Public agencies' surprisingly extensive critique of Steinberg's legislation was detailed in a recent bill analysis by the consultant to the Assembly Local Government Committee. In addition to the Public Works Coalition, the analysis reveals the League of California Cities, Rural County Representatives of California, and Association of California Water Agencies have all expressed serious concerns that the bill will not only further complicate the CEQA process--it may actually increase CEQA litigation.

Three major issues

As Steinberg continues to seek a final compromise--and win the support of the governor while he's at it--he will need to find a way to address at least three major issues:

1. Tiering and the definition of 'new information:' Steinberg has said he wants his bill to limit lawsuits filed in the late stages of residential development projects, and he has proposed a way to prevent further litigation--in some narrow cases--against projects that comply with a local plan that has already undergone environmental review. "We tighten up the process by saying projects can't be stopped by late action that is speculation, flimsy information, or mere opinion," Steinberg said last week. 

Public agencies argue, however, that the bill's legal language doesn't actually go that far. As the committee bill analysis puts it: "There is general consensus among the Public Works Coalition, the Rural County Representatives of California, and the League of California Cities that the addition of language regarding 'new information' in this section creates confusion. They argue that it is unnecessary because it simply restates existing law, and that its inclusion could have unintended consequences."

Business coalition critics of the legislation, meanwhile, have pointed out that this provision includes only one type of neighborhood plan--and not others--while also changing the legal standard for these projects in a counterproductive way, replacing the existing "substantial evidence" standard for review with a lower "fair argument" standard. This would allow project opponents to stop a development that was consistent with an approved EIR by arguing only that the project "may have" significant new impacts.

Bottom line: While the bill's tiering provisions seem to reduce CEQA litigation with one hand, they may be opening a new avenue to lawsuits with the other. (In the last week, Steinberg has said he is working on a "new concept" for tackling this problem, though the details have not yet been worked out.)

2. Removing some environmental impacts, setting thresholds for others:  At the heart of Steinberg's reform proposal is an effort to remove some controversial urban environmental impacts from the CEQA process--aesthetics and parking--while setting new "thresholds" for others, including noise and transportation. Steinberg's bill directs the governor's Office of Planning and Research to set guidelines for these new "thresholds" by next summer.

Public agencies, however, do not believe OPR is the appropriate body to set these thresholds: They are. As the bill analysis puts it: "The PWC, RCRC, League and ACWA all oppose [this provision]…These groups believe that public agencies, and not OPR, are in the best position to determine significance thresholds  for noise and traffic standards, while taking into consideration site specific local conditions and the local environment."

The argument can certainly be made that it will be difficult for OPR to set a noise threshold, for example, that works in both rural Napa County and the heart of downtown San Francisco. But even more questions are being raised about the exceptions now attached to the biggest changes the bill makes to CEQA: removing aesthetics and parking from the process. In the current version of the bill, aesthetic impacts on historical or cultural resources must still be considered under CEQA, and the bill's new parking provision is aimed only at the issue of parking spaces, not the impact of "traffic congestion on air quality."

While these proposals--the most far-reaching in Steinberg's bill--may close the door to some CEQA litigation, in other words, they still offer a clear roadmap for potential project opponents to find grounds for a lawsuit.

3. Other CEQA process changes: Public agencies save some of their most pointed criticism for the array of changes Steinberg seeks to make to CEQA's administrative process itself--changes they believe will lead to more, not less, CEQA litigation. In particular, they are opposed to:

  • A new requirement that lead agencies post CEQA findings online 15 days before a project is approved. (Public agencies' take: "This notice period would add new responsibilities for public agencies, extend the CEQA process, and create a new avenue for CEQA litigation.")

  • A new rule requiring lead agencies to produce annual reports monitoring project's environmental mitigation efforts. (Public agencies' take: "Requiring annual mitigation reports will be time and resource intensive, and potentially divert resources from implementing mitigation, in addition to providing more opportunities for project opponents to challenge projects based on the alleged failure to complete mitigation measures")

  • A new rule requiring CEQA's administrative record to be prepared "concurrently" with the CEQA process. (Public agencies' take: "This provision could dramatically increase the number of records prepared even if litigation is never filed, and would impose requirements on public agencies that would be extremely costly and resource intensive.")

Categories: CEQA

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