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By Judy Davidoff and Alex Merritt
In the 2011 session, the California Legislature and the Governor
passed several bills to amend CEQA. As summarized below, these bills
streamline the review process for green projects, environmental
leadership projects, and a proposed football stadium; relax water supply
assessment requirements for photovoltaic and wind energy projects; and
clarify requirements for naming and serving real parties in interest in
1. SB 226 (Simitian)
SB 226 amends CEQA and other parts of the Public Resources Code to facilitate review of certain green projects.
Solar Energy Projects
SB 226 exempts from CEQA projects that propose to install a solar energy
system on the roof of an existing building or at an existing parking
An "existing parking lot" must have been used for parking vehicles at
the time of application and for at least the previous two years.
A "solar energy system" includes all associated equipment. However, associated equipment:
The exemption does not apply if any associated equipment would otherwise require one of the following:
The exemption does not apply if installation of the system at an existing parking lot would involve:
The exemption does not apply to any transmission or distribution facility or connection.
General Plan Amendments and Scoping Meetings
Existing law requires an agency seeking to adopt or substantially amend a
general plan to refer the proposed action to any city or county
abutting the affected area or to any school district that may be
Existing law also requires an agency to hold a scoping meeting for a
project if it is of statewide, regional, or areawide significance, or if
it may affect highways and Caltrans has requested a scoping meeting.
SB 226 authorizes an agency to concurrently refer a proposed action and hold a required scoping meeting.
Greenhouse Gas Emissions and Categorical Exemptions
SB 226 amends CEQA to provide that a project's greenhouse gas emissions
cannot alone make a categorical exemption from CEQA inapplicable, so
long as the project complies with applicable regulations and
requirements relating to greenhouse gas emissions.
SB 226 limits CEQA review for qualifying infill projects.
The bill defines "infill project" as a project that meets the following conditions:
An infill project must satisfy both of the following conditions to qualify for limited CEQA review:
SB 226 limits the scope of CEQA review for qualifying infill projects
as follows. If an agency has previously certified an EIR for adoption
or amendment of a general plan, community plan, specific plan, or zoning
code, CEQA review for a qualifying infill project is limited to the
An EIR prepared to analyze effects of a qualifying infill project need not consider the following:
This new section on infill projects will not apply until the state has developed infill guidelines.
Guidelines for Infill Projects
SB 226 requires the state to adopt guidelines for implementing the new
section on infill projects. The guidelines must include statewide
standards for infill projects that promote recent environmental
legislation and other environmental goals.
OPR must prepare and submit the guidelines to the Natural Resources
Agency by July 1, 2012, and the Natural Resources Agency must certify
and adopt them by January 1, 2013.
Solar Thermal Powerplants
Existing law establishes a certification program for thermal
powerplants. This is a certified regulatory program that is exempt from
certain CEQA requirements.
SB 226 makes it easier for a proposed solar thermal powerplant to change
from solar thermal technology to photovoltaic technology. If a proposed
solar thermal powerplant has already applied for certification under
the regulatory program, it may petition to convert to photovoltaic
technology without needing to file an entirely new application. To be
eligible, the proposed powerplant must satisfy certain timing
requirements, and must undergo supplemental environmental review, public
notice and comment, and at least one public hearing.
2. AB 900 (Buchanan)
AB 900 is the Jobs and Economic Improvement Through Environmental
Leadership Act of 2011. It adds Chapter 6.5 to the Public Resources
The Act authorizes the governor to certify certain projects as
"environmental leadership development projects" and it creates
procedures for streamlining judicial review of these projects. The Act's
purpose is to create jobs and encourage projects that will benefit the
The Act defines "environmental leadership development projects" to include the following:
The Act allows the developer of a leadership project to apply to the
governor for streamlining benefits. The governor may certify a project
for streamlining benefits if all the following conditions are met:
The Act gives certified projects the following streamlining benefits:
The Act establishes the following requirements for preparing the administrative record for a certified project:
The applicant must notify the lead agency prior to the release of the
DEIR that it is electing to proceed as a leadership project.
The Act only becomes operative if SB 292 is enacted and takes effect by January 1, 2012.
The Act sunsets on January 1, 2015.
[Sheppard Mullin previously blogged on AB 900 at http://www.realestatelanduseandenvironmentallaw.com/new-rules-and-legislation-california-legislature-passes-bills-to-expedite-judicial-review-of-ceqa-challenges-for-selected-projects.html.]
3. SB 292 (Padilla)
SB 292 establishes alternative administrative and judicial review
procedures for a proposed stadium and event center in Los Angeles. It
adds Section 21168.6.5 to CEQA
The bill only applies to the Convention Center Modernization and Farmers
Field Project, which proposes to (i) replace the West Hall of the Los
Angeles Convention Center with a new convention hall, and (ii) construct
a new football stadium and event center.
The bill requires the lead agency to impose certain conditions of approval on the project, including:
The bill requires the lead agency to hold public workshops after
releasing the DEIR and before holding a public hearing on the project.
The bill requires the lead agency to make the following documents
electronically available to the public: the DEIR, documents relating to
the DEIR, comments on the DEIR, and the record of the proceedings.
The bill allows any person who comments on the DEIR to submit a request
for nonbinding mediation that identifies disputed issues. If during
mediation the lead agency, the applicant, and any commenter agree on a
measure to address a disputed issue, that measure becomes a condition of
approval of the project. After a commenter agrees to a measure, that
commenter may not raise the underlying issue in a challenge to the
The bill provides that the lead agency need not consider comments
submitted after the public comment period closes, with certain
The bill requires electronic filing of briefs and notices.
The bill requires any challenge to the project approvals or the EIR to
be filed in the Second District Court of Appeal, and it imposes an
expedited schedule for filing, service, briefing, and issuance of a
The bill imposes an expedited schedule for filing, serving, opposing,
and deciding a petition for review in the California Supreme Court.
[Sheppard Mullin previously blogged on SB 292 at http://www.realestatelanduseandenvironmentallaw.com/new-rules-and-legislation-california-legislature-passes-bills-to-expedite-judicial-review-of-ceqa-challenges-for-selected-projects.html.]
4. SB 267 (Rubio)
SB 267 amends the Water Code to exempt cities and counties from
preparing water supply assessments for proposed photovoltaic or wind
energy projects that would require no more than 75 acre-feet of water
The Water Code requires preparation of water supply assessments for
certain defined projects that are subject to CEQA. When a city or county
considers such a project, it must identify the public water systems
that may supply water to the project and request that the public water
systems prepare a water supply assessment. If the city or county does
not identify a public water system, it must prepare the water supply
SB 267 revises the definition of covered projects to exclude any
proposed photovoltaic or wind energy project that would require no more
than 75 acre-feet of water per year. The bill went into effect
immediately, so these projects no longer trigger the water supply
SB 267 provides that the original language in the Water Code will be
reinstated on January 1, 2017. After this date, the exemption from the
water supply assessment requirement will no longer apply.
5. AB 320 (Hill)
AB 320 amends CEQA to clarify who a petitioner must name as a real party in interest in a CEQA action.
Before the amendment, CEQA required a petitioner to name the "recipient
of an approval" as a real party in interest and to serve that party
within 20 business days of serving the public agency.
But CEQA did not define "recipient of an approval" and this led to confusion about who petitioners should name and serve. In Imperial v. Superior Court
(2007), it was ambiguous whether two parties were "recipients of an
approval" and after petitioner failed to name them as real parties in
interest and serve them, the court dismissed the action. AB 320 seeks to
eliminate confusion and prevent such dismissals by striking "recipient
of an approval" and replacing it with more definite guidance on who to
name and serve.
Specifically, the amendment requires a public agency to identify in its
notice of approval, notice of determination, or notice of exemption any
person specified in CEQA's definition of a "project" in Sections
21065(b) and (c). This includes a person whose activity is "supported in
whole or in part through contracts, grants, subsidies, loans, or other
forms of assistance from one or more public agencies" (21065(b)), and a
person who is issued a "lease, permit, license, certificate, or other
entitlement for use by one or more public agencies" (21065(c)). The
petitioner must then name and serve as a real party in interest any
person identified in the public agency's notice. If there is no notice,
petitioner must name and serve any person specified in 21065(b) and (c),
as reflected in the agency's record of proceedings.
The amendments are effective January 1, 2012.
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