Archives: March 2013

NEPA/CEQA Project Integration Handbook Available for Public Comment

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The Governor’s Office of Planning and Research (OPR) and the White House Council on Environmental Quality (CEQ) are soliciting input on the public review draft of “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” The handbook strives to improve efficiency, transparency and coordination in the joint environmental review process, in order for federal and state agencies to continue to pursue shared goals and to meet the requirements of both statutes. This draft handbook identifies key similarities and differences between the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) and provides suggestions to assist agencies, project applicants, and members of the public in identifying early on the potential coordination challenges that may arise during the environmental review process and in enhancing effective participation in review. Developing a common understanding of the NEPA and CEQA review processes and their differences at the beginning of a joint review process will assist agencies in avoiding delay. The draft handbook also provides a framework for a memorandum of understanding (MOU) between two or more agencies entering into a joint NEPA/ CEQA review process. Finally, the handbook summarizes and compares NEPA with the California Energy Commission’s licensing process.

The draft is open for public comment until April 19, 2013 at 5:00 p.m. Eastern Time.

The draft handbook identifies specific opportunities for coordinating NEPA and CEQA review and states the following goals:

  • Encourage federal agencies to choose one lead agency to work with a CEQA co-lead agency;
  • Encourage federal and California agencies to conduct public hearings, public comment periods, and final review periods jointly where possible;
  • Recommend that federal and California agencies develop a joint public review timeline that incorporates the applicable public participation requirements under both statutes;
  • Suggest that federal and California agencies preparing a joint EIS/EIR include a section in each impact analysis that makes a CEQA significance determination; and
  • Recommend that agencies preparing a joint EIS/EIR select a range of alternatives broad enough to meet CEQA requirements and discuss them at a level of detail that would meet NEPA requirements. 

The draft handbook also includes information for agencies planning to enter into a MOU to guide a joint NEPA/CEQA process. A MOU can define the roles of each agency and establish the framework of the environmental review. The draft handbook suggests that MOUs be used to address issues such as which agency will communicate with the applicant, allocating the responsibility for reviewing and responding to public comments, and determining the applicable time frames and milestones. MOUs can also define how the agencies will resolve disagreements. 

The draft NEPA/CEQA handbook is a comprehensive project planning resource for agencies and proponents of projects in California that require federal approval. 

The Handbook is available here: http://opr.ca.gov/docs/NEPACEQAHandbookMarch2013.pdf

Comments may be submitted here: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit

Senator Jerry Hill Appointed to the Senate Environmental Quality Committee. CEQA Bills of Interest

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Senator Jerry Hill was appointed to the Senate Environmental Quality Committee on March 6, 2013, to replace Senator Michael Rubio, who resigned at the end of February.

The committee considers bills on CEQA, water and air pollution, toxic materials and other environmental concerns.

Senator Hill served in the Assembly from 2008-2012 and joined the state Senate last year. He previously served as a member of the San Mateo City Council and San Mateo County Board of Supervisors.

“(Hill) is well-positioned to appreciate the complexities of this challenge, and well-versed in the false dichotomy that pitches business against the environment,” Senate pro Tem Darrell Steinberg said while announcing the appointment. “California has led, and will continue to lead the nation in smart, environmentally sustainable economic growth.”

The Senate Environmental Quality Committee may consider the following CEQA-related bills:

AB 37 (Perea) would require the lead agency, at the project applicant’s request, to prepare a record of proceedings concurrently with the preparation of negative declarations, mitigated negative declarations, EIR’s, and other environmental documents for specified projects. AB 37 would amend Section 21167.6 of the Public Resources Code and repeal Section 21167.6.2.

AB 515 (Dickinson) would establish a CEQA compliance division of the Superior Court in any county in which the Attorney General maintains an office, and would vest the division with original jurisdiction over CEQA actions and joined matters related to land use and other environmental laws. AB 515 would add Section 25536.3 to the Government Code.

AB 823 (Eggman) would instruct lead agencies to require mitigation measures which provide replacement acreage to ensure agricultural production capacity for projects that convert agricultural lands for nonagricultural uses. AB 823 would add Section 21095.5 to the Public Resources Code.

AB 953 (Ammiano) would revise the definitions of “environment” and “significant effect on the environment”, and require lead agencies to include a detailed statement in the EIR of any significant effects that may result from locating a proposed project near, or attracting people to, existing or reasonably foreseeable natural hazards or adverse environmental conditions. AB 953 would amend Sections 21060.5, 21068 and 2110 of the Public Resources Code.

AB 1323 (Mitchell) would state the intent of the Legislature to enact legislation that would reduce the time and expense associated with the environmental review of qualifying wind energy projects without affecting the required environmental studies and required mitigation of those studies.

SB 436 (Jackson) would require a lead agency to conduct at least one public scoping meeting for specified projects and to provide notice to specified entities of at least one public scoping meeting. This bill would also require the notices to be posted on the Office of Planning and Research website and the lead agency’s website, respectively. SB 436 would amend Sections 21083.9, 21092, 21108, and 21152 of the Public Resources Code.

SB 525 (Galgiani) would provide that a project by the San Joaquin Regional Rail Commission and the California High-Speed Rail Authority to improve the existing track and structures on the railroad right-of-way used by the Altamont Commuter Express service qualifies for an exemption from CEQA. SB 525 would amend Section 21080 of the Public Resources Code.

SB 617 (Evans) would affect the timing and posting of CEQA related notices through the State Clearinghouse, alter certain CEQA exemptions, alter the definition of Climate Readiness, and affect Tribal Notification. SB 617 would, among other changes, amend Sections 21060.5, 21068, 21080.5, 21083.9, 21092, 21092.2, 21092.3, 21100, 21108, 21152, and 21161; and repeal Sections 21080.01, 21080.02, 21080.03, and 21080.04 of the Public Resources Code.

SB 731 (Steinberg) would state the intent of the Legislature to enact legislation revising CEQA to, among other things, provide greater certainty for smart infill development, streamline the law for specified projects, and establish a threshold of significance for specified impacts. This bill is currently in outline form and is expected to be significantly amended this year or next year.

SB 787 (Berryhill) is a reintroduction of last year’s proposals by Senator Rubio. SB 787 adds Division 13.6 (commencing with Section 21200) to the Public Resources Code.

Decision to List Polar Bear as Threatened Species under the Endangered Species Act Affirmed.

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On March 1, 2013, the D.C. Circuit Court of Appeals upheld the listing of the polar bear as a threatened species under the federal Endangered Species Act.

The U.S. Fish and Wildlife Service listed the polar bear as threatened in 2008 because of shrinking sea-ice habitat. Industry groups challenged the listing determination under the Administrative Procedure Act’s “arbitrary and capricious” standard, arguing that the agency failed to establish a foreseeable extinction risk.  Environmental groups challenged the listing as insufficiently protective, arguing that the polar bear should be listed as endangered.

The District Court rejected all challenges on summary judgment, finding that the claims “amount to nothing more than competing views about policy and science” and therefore the agency receives deference.

The Court of Appeals emphasized that “a court is not to substitute its judgment for that of the agency”. The Court further noted, “The Listing Rule is the product of FWS’s careful and comprehensive study and analysis. Its scientific conclusions are amply supported by data and well within the mainstream on climate science and polar bear biology.”

The opinion is a win for both federal and state agencies that routinely base administrative decisions on scientific modeling and other complex data.

CEQA Bills of Interest Introduced

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CEQA Modernization

On February 22, State Senate President pro Tem Darrell Steinberg (D-Sacramento) introduced SB 731, which contains intent language designed to reduce duplication in EIRs by expanding the use of “tiering”, allowing the courts to send back for repair only the portion of an EIR that is found to be incomplete or lacking required specificity, limiting or prohibiting “late hits” and “document dumps” designed solely to delay projects late in the environmental review process, and aappropriating $30 million in new funding to local governments to update their general, area, and specific plans so that they can be better used to “tier” and streamline environmental review of projects built pursuant to those plans.

AB 731 has been read for the first time, it has not yet been referred to committee.

CEQA and the Courts

Assemblymember Roger Dickinson (D-Sacramento) introduced Assembly Bill 515 on February 21, to establish regional CEQA courts which would have exclusive jurisdiction over CEQA litigation.

AB 515 would establish two compliance courts, one in Northern California and one in Southern California, with sole original jurisdiction to review writ of mandate cases involving CEQA. The decisions of the newly established CEQA compliance courts would be appealable only to the Supreme Court. The CEQA compliance courts would issue preliminary decisions, based upon the briefing before oral argument. In the event of a ruling against a public agency under AB 515, the court’s decision would have to identify the agency’s error and specify an action to be taken in subsequent administrative proceedings to correct the error.

AB 515 has not yet been referred to committee.

In January, Senate Majority Leader Senator Ellen Corbett (D-San Leandro) introduced SB 123 to create a division within each Superior Court specific to lawsuits regarding CEQA or other environmental topics. Existing law requires counties with a population of over 200,000 to have one or more judges with CEQA experience. SB 123 removes the population limit and expands the type of environmental cases heard by CEQA Judges.

SB 123 has been referred to the Senate Judiciary Committee.

CEQA and High Speed Rail

On February 21, State Senator Galgiani (D-Stockton) introduced SB 525, which provides that a project by the San Joaquin Regional Rail Commission and the High-Speed Rail Authority to improve the existing tracks, structure, bridges, signaling systems, and associated appurtenances located on the existing railroad right-of-way used by the Altamont Commuter Express service qualifies for the CEQA exemption listed at section 21080(d)(10) of the Public Resources Code. The exemption currently excludes projects for the institution or increase of passenger or commuter services on rail or highway rights-of-way already in use, including modernization of existing stations and parking facilities.

SB 525 may be acted upon on or after March 25, 2013.

(By Holly Roberson)