Bill Increasing Environmental Litigation Clears Assembly Policy Committee Hurdle
Similar Senate Legislation Scheduled for Consideration in May
(April 22, 2013) A California Chamber of Commerce-opposed “job killer” bill that increases California Environmental Quality Act (CEQA) litigation passed an Assembly policy committee last week.
AB 953 (Ammiano; D-San Francisco) invites more litigation over CEQA projects by overturning a recent court decision and allowing project opponents to challenge environmental impact reports (EIRs) that don’t adequately evaluate and mitigate impacts related to conditions and physical features in the environment like sea-level rise and fault lines.
In other words, it would require project applicants to evaluate and mitigate for effects of the environment on their projects, not just the effects their projects might have on the environment.
Similar legislation, SB 617 (Evans; D-Santa Rosa), is scheduled to be considered by the Senate Environmental Quality Committee on May 1.
Both AB 953 and SB 617 dramatically expand CEQA’s requirements at a time when the Legislature should be more appropriately focused on updating the 43-year-old law to address legitimate concerns about unnecessary litigation while reinforcing the existing statute’s core purpose of environmental protection and public review.
Attack on CEQA
AB 953 and SB 617 are an attack on the core of the CEQA, namely, that CEQA requires consideration of the impacts of a project on the environment, not the other way around.
As detailed below, a variety of other California laws already address issues such as floods, fire hazards, and earthquakes (for example, natural issues that may have an impact on projects).
Both bills ignore these robust bodies of law and inject into CEQA further uncertainty and increased litigation costs for projects ranging from affordable housing and hospitals to schools and infrastructure.
Covered by Other Laws
The natural hazards AB 953 and SB 617 seek to address are already covered in a myriad of substantive laws in California:
Flood hazards are addressed in the Legislature’s package of flood bills in 2007 and building codes. In addition, flood damage prevention measures also are found in the California Building Code.
Fire hazards are addressed in both the building code and defensible space regulations.
Seismic hazards (the entire State of California falls within the three worst “seismic design categories”) are addressed in the building codes.
All three of these subjects are covered in the Natural Hazards Disclosure Statement and many more are covered in other disclosure laws. There are a myriad of potential impacts of the existing environment on a project that are required to be addressed in substantive ways outside of, and more effectively than by injecting them into CEQA, in order to protect the occupants of new development.
Courts have repeatedly held that CEQA is not concerned with the effect of the environment on proposed projects. As a 1995 appellate court ruling commented, consideration of the effect of the environment on the project is “beyond the scope of CEQA.”
The same appellate court noted in a 2009 decision that the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.
The review and approval of proposed projects in California are governed by a host of laws to ensure the health, safety, and environmental protection of Californians and the communities in which they live.
AB 953 and SB 617 ignore these laws and assume CEQA is the only law in the land. Ironically, one of the results of AB 953 and SB 617 would be to drive development away from infill sites and toward the urban fringe—a dynamic that flies in the face of SB 375, the 2008 law aiming to reduce greenhouse gas emissions from the transportation sector, and a host of smart growth policies throughout the state.
Finally, the requirements of both bills duplicate existing laws that are more effective than CEQA.
AB 953 passed the Assembly Natural Resources Committee on April 15, 5-3.
Ayes: Chesbro (D-North Coast), Garcia (D-Bell Gardens), Skinner (D-Berkeley), Stone (D-Scotts Valley), Williams (D-Santa Barbara).
Noes: Bigelow (R-O’Neals), Grove (R-Bakersfield), Patterson (R-Fresno).
Absent/abstaining/not voting: Muratsuchi (D-Torrance).