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SB-44 California Environmental Quality Act: streamlined judicial review: environmental leadership transit projects.(2021-2022)

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Date Published: 12/07/2020 09:00 PM
SB44:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 44


Introduced by Senator Allen

December 07, 2020


An act to add Section 21168.6.9 to the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


SB 44, as introduced, Allen. California Environmental Quality Act: streamlined judicial review: environmental leadership transit projects.
The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.
This bill would establish specified procedures for the administrative and judicial review of the environmental review and approvals granted for environmental leadership transit project, as defined, undertaken by a public agency. The bill would require the Judicial Council, on or before April 1, 2022, to adopt rules of court establishing procedures requiring actions or proceedings seeking judicial review pursuant to CEQA or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agency’s action related to an environmental leadership transit project. The bill would require the environmental leadership transit project to meet certain labor requirements.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 21168.6.9 is added to the Public Resources Code, to read:

21168.6.9.
 (a) For purposes of this section, the following definitions apply:
(1) “Environmental leadership transit project” means a project proposed by a public agency to construct a fixed guideway and related fixed facilities that meets all of the following conditions:
(A) The fixed guideway operates at zeroemissions.
(B) (i) If the project is more than two miles in length, the project reduces emissions by no less than 400,000 metric tons of greenhouse gases directly in the corridor of the project defined in the applicable environmental document over the useful life of the project, without using offsets.
(ii) If the project is no more than two miles in length, the project reduces emissions by no less than 50,000 metric tons of greenhouse gases directly in the corridor of the project defined in the applicable environmental document over the useful life of the project, without using offsets.
(C) The project reduces no less than 30,000,000 vehicle miles traveled in the corridor of the project defined in the applicable environmental document over the useful life of the project.
(D) The project is consistent with the applicable sustainable communities strategy or alternative planning strategy.
(E) The project is consistent with the applicable regional transportation plan.
(F) The public agency demonstrates how it has incorporated sustainable infrastructure practices to achieve sustainability, resiliency, and climate change mitigation and adaptation goals in the project, including principles, frameworks, or guidelines as recommended by one or more of the following:
(i) The sustainability, resiliency, and climate change policies and standards of the American Society of Civil Engineers.
(ii) The Envision Rating System of the Institute for Sustainable Infrastructure.
(iii) The Leadership in Energy and Environment Design (LEED) rating system of the United States Green Building Council.
(2) “Fixed guideway” has the same meaning as is defined in Section 5302 of Title 49 of the United States Code.
(3) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(4) “Skilled and trained workforce” has the same meaning as provided in Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(b) (1) Except as provided in paragraph (2), an entity shall not be prequalified or shortlisted or awarded a contract by the public agency to perform any portion of the environmental leadership transit project unless the entity provides an enforceable commitment to the public agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades.
(2) Paragraph (1) does not apply if any of the following requirements are met:
(A) The public agency has entered into a project labor agreement that will bind all contractors and subcontractors performing work on a project or contract to use a skilled and trained workforce, and the contractor agrees to be bound by that project labor agreement.
(B) A project is being performed under the extension or renewal of a project labor agreement that was entered into by the public agency before January 1, 2022.
(C) The public agency has entered into a project labor agreement that will bind all contractors and all of its subcontractors at every tier performing a project to use a skilled and trained workforce.
(c) On or before April 1, 2022, the Judicial Council shall adopt rules of court that apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification of an environmental impact report for an environmental leadership transit project or the granting of any project approval that require the action or proceeding, including any potential appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court.
(d) (1) The draft and final environmental impact report for a project shall include a notice in not less than 12-point type stating the following:

THIS ENVIRONMENTAL IMPACT REPORT IS SUBJECT TO SECTION 21168.6.9 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD, IF ANY, FOR THE DRAFT ENVIRONMENTAL IMPACT REPORT. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OR ADOPTION OF THE ENVIRONMENTAL IMPACT REPORT OR THE APPROVAL OF THE PROJECT DESCRIBED IN SECTION 21168.6.9 OF THE PUBLIC RESOURCES CODE IS SUBJECT TO THE PROCEDURES SET FORTH IN THAT SECTION. A COPY OF SECTION 21168.6.9 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS ENVIRONMENTAL IMPACT REPORT.
(2) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.
(3) Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that document.
(4) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years’ experience in land use and environmental law or science, or mediation. The lead agency shall bear the costs of mediation.
(D) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify the environmental impact report or to grant project approval.
(6) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(A) New issues raised in the response to comments by the lead agency.
(B) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(C) Changes made to the project after the close of the public comment period.
(D) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting or monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, if the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(E) New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7) The lead agency shall file the notice required by subdivision (a) of Section 21152 within five days after the last initial project approval.
(e) (1) The lead agency shall prepare and certify the record of proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court.
(2) No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency after the date of the release of the draft environmental impact report that is a part of the record of proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared by the lead agency.
(3) Notwithstanding paragraph (2), documents relied on by the lead agency that were not prepared specifically for the project and are copyright-protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of the documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(4) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such comments available to the public in a readily accessible electronic format within five days of their receipt.
(5) Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(6) The lead agency shall indicate in the record of proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (c) and need not include the content of the comments as a part of the record of proceedings.
(7) Within five days after the filing of the notice required by subdivision (a) of Section 21152, the lead agency shall certify the record of proceedings for the approval or determination and shall provide an electronic copy of the record of proceedings to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record of proceedings for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9) Any dispute over the content of the record of proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record of proceedings shall file a motion to augment the record of proceedings at the time it files its initial brief.
(10) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.