United States: 2013 CEQA And Land Use Legislative Roundup: Baby Steps, Few Leaps As California Remains Committed To Sustainable Policies

Although 2013 was not a banner year for the passage of new environmental legislation, Governor Brown did sign several bills that make modest changes to the California Environmental Quality Act (CEQA), revisit incentives for the environmental cleanup of redevelopment sites, and establish a new regulatory regime for hydraulic fracturing, or "fracking." Notable bills, all of which go into effect on January 1, 2014, are discussed below.

The legislation that made it past the Governor's desk underscores the state's commitment to addressing climate change and promoting healthy, sustainable communities. These goals fall squarely in line with the draft Governor's Environmental Goals and Policy Report (EGPR) released in September. The new EGPR, which can be found here, will be the first adopted since 1978. It calls for comprehensive policy approaches to implement these goals, including decarbonizing the state's energy and transportation systems and fostering sustainability on a regional level. By identifying key pathways forward, it lays the framework for state agencies to develop new programs and also informs state budgeting and infrastructure investment.

CEQA – SB 743 (STEINBERG)

After abandoning a beleaguered year-long effort to overhaul CEQA the day before a final vote on the legislation, Senator Darrell Steinberg instead pushed through Senate Bill 743. (Our alert on these earlier efforts at broader CEQA reform can be found here.) This CEQA bill salvages from his original legislation three streamlining provisions for infill projects and combines them in a single bill, which includes streamlining for the new Sacramento Kings arena. The final reform package, while certainly not sweeping, does send a message that transit-oriented development and "green" leadership projects are essential state priorities.

Infill Development

Senate Bill 743 reflects Steinberg's long-standing focus on CEQA streamlining for residential and mixed use infill projects. To qualify for the special infill rules, a project must be located in a "transit priority area," defined as any area within one-half mile of a major rail or bus stop.

  • New Traffic Methodologies. The bill requires the Governor's Office of Planning and Research (OPR) to develop new criteria for calculating transportation impacts within transit priority areas and, at OPR's election, outside transit priority areas. Currently, a project's transportation impacts are quantified based on changes in the levels of service (i.e., automobile traffic delays) for nearby roadways and intersections. The levels of service metric can create disproportionately high hurdles for infill projects, which by definition are sited in urban areas where existing roadway capacity can be constrained. The bill directs OPR to explore alternative metrics and circulate draft revisions to the CEQA Guidelines by July 1, 2014.

    Potential alternative metrics include the reduction of greenhouse gas emissions, the development of multimodal transportation networks, diversity of land uses, and vehicle miles traveled. Once the revisions are adopted, automobile delay as measured by levels of service will generally not be considered a significant impact under CEQA.

    Alternatively, in regions where a sustainable communities strategy (SCS) has been adopted pursuant to SB 375, local governments may designate "infill opportunity zones" where level of service standards will not apply.

    This change will potentially cause a radical shift in traffic analysis, particularly for infill projects. Whether that shift is helpful in practice by providing streamlining and certainty to the environmental review process remains to be seen. The draft guidelines proposed by OPR are sure to draw lots of attention.
  • Aesthetics and Parking Impacts. The bill provides that aesthetics and parking impacts cannot be considered significant impacts under CEQA for residential and mixed use developments in transit priority areas. However, aesthetic impacts to historical and cultural resources are an exception, and aesthetic impacts may still be considered pursuant to local design review ordinances.
  • Local Standards. With regard to transportation, parking and aesthetic impacts from infill development, the bill expressly allows local agencies to adopt thresholds of significance that are more protective of the environment. This provision potentially undermines the benefits to infill development described above.
  • Infill Exemption. The bill expands an existing CEQA exemption for residential projects that are consistent with a Specific Plan for which an environmental impact report was certified to include mixed use projects as well. To qualify, a project must also be consistent with the applicable SCS – a criterion which could be difficult to meet given that not all regions have adopted an SCS and some of those that have are currently tied up in litigation.

Sacramento Kings Arena / AB 900 Fix

Following controversial precedent for other sports teams around the state, SB 743 fast-tracks environmental review for a new arena for the Sacramento Kings. The bill allows the City of Sacramento to acquire the arena property through eminent domain prior to completing CEQA review, creates a compressed timeline for public review, and provides for dispute resolution through non-binding mediation.

The bill also amended AB 900's jurisdictional and streamlining provisions in several respects. Notably, SB 743 repeals the provision that provided original jurisdiction to the Court of Appeal and required the court to issue a decision within 175 days of the filing of a petition. In its place, the new law requires the Judicial Council to adopt (by July 1, 2014) new rules of court mandating that lawsuits challenging Environmental Leadership Development Projects, including any appeals, must be resolved within 270 days of certification of the administrative record.

REDEVELOPMENT OF CONTAMINATED SITES – AB 440 (GATTO)

As the need for urban redevelopment increases, site contamination remains a significant obstacle. Assembly Bill 440 restores some of the contaminated site cleanup functions that were available to former redevelopment agencies pursuant to the Polanco Redevelopment Act. The bill vests these powers in cities, counties and housing authorities, and specifically gives local agencies the right to obtain environmental information from property owners, the authority to compel cleanup on properties that an agency has found to be blighted by contamination, the right to recover the full costs of cleanup, and immunity for any releases addressed in an approved cleanup plan. Notably, the immunity runs with the land and extends to the local agency, the developer and its lenders, and subsequent purchasers and their lenders.

Unlike cleanup actions that were undertaken by redevelopment agencies, however, cleanup actions ordered by local agencies pursuant to AB 440 do not have the benefit of property tax increment financing or another dedicated funding source. Rather, the responsible party is liable to the local agency for the full cost of the cleanup. While AB 440 gives communities powerful tools to continue improving blighted areas in the wake of the dissolution of redevelopment agencies, it also exposes owners of contaminated land to another agency that can compel cleanup.

FRACKING – SB 4 (PAVLEY)

In response to growing national concern over the potential environmental and human health effects of hydraulic fracturing ("fracking"), the legislature established a framework for a comprehensive new regulatory regime in California that will have important consequences for the oil and gas industry. Senate Bill 4 requires fracking operators, for the first time, to obtain state fracking permits, provide notice of planned fracking activity to nearby property owners, disclose chemicals used during operations (with certain trade secret exceptions), and monitor air and groundwater quality near fracking wells. True to California's trendsetting nature, SB 4 is one of the country's first pieces of fracking legislation.

The bill represents a major shift from the status quo, as fracking is currently subject to minimal regulation in California. Under current law, well operators provide notice of intent to commence drilling operations to the State Department of Conservation's Division of Oil, Gas, and Geothermal Resources (DOGGR) and are deemed to have the agency's approval if it fails to provide a response within 10 working days. Since affirmative agency approval is not necessary, CEQA is often not triggered or the fracking activity is covered by an exemption or negative declaration, rather than a full environmental impact report (EIR).

Senate Bill 4 directs DOGGR to develop comprehensive new fracking regulations by January 1, 2015 based upon an independent, peer-reviewed scientific study conducted by the Secretary of the Natural Resources Agency evaluating the impacts of well stimulation treatments. DOGGR must also certify an EIR by July 1, 2015 on the impacts of well stimulation in the state, which creates uncertainty about the level of CEQA review required, if any, in the interim. It also remains to be seen whether, in the future, EIRs will be prepared for each fracking permit or set of permits or whether CEQA review will be conducted on a more programmatic level.

In the interim, fracking will continue to be allowed in California for well operators that certify compliance with the bill's disclosure and notification requirements.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jennifer R. Jeffers
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions