Environmental Law Alert: Recent California Environmental Legislation

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Although Governor Schwarzenegger vetoed many legislative bills due to the State budget stall, he did sign some of importance. Below is a brief review of some of the 2008 environmental bills that were recently signed.

SB 375 (Steinberg) Greenhouse Gas Emissions

SB 375 seeks to encourage urban development, decrease vehicle miles traveled, and ultimately reduce greenhouse gas (GHG) emissions. To achieve these goals, SB 375 implements a variety of land use and planning requirements and incentives, as discussed below.

a. Setting of the Regional GHG Reduction Targets—Timeline and Implication

SB 375 directs CARB to create a Regional Targets Advisory Committee (RTAC) by January 31, 2009 and requires CARB to develop a methodology for assigning a target GHG emission level for 18 geographical regions. These regions include single county and multi-county entities governed by Metropolitan Planning Organizations (MPOs). Under SB 375, MPOs must generate a Regional Transit Plan (RTP) for the cities or counties under their jurisdiction and update the RTP every eight years. By September 30, 2009, the RTAC must make GHG reduction target recommendations to CARB for each of the MPO regions. CARB must provide each MPO with a draft target GHG emission level by June 30, 2010, and a final target emission level by September 30, 2010. Each MPO must incorporate this target GHG emission level into its next RTP update.

b. Sustainable Communities Strategy—A Smart Growth Blueprint

SB 375 mandates inclusion of a new element in the RTP, the Sustainable Communities Strategy (SCS). After September 30, 2010, MPOs must draft an SCS that includes, at the very least, the following factors: (1) the general location of land uses, residential densities, and building intensities in the region, (2) identification of areas in the region that can sufficiently house all economic segments of the population over the eight-year life of the RTP, and (3) a proposed transit network that coincides with the proposed housing development in a way that will reduce GHG emissions. In other words, the RTP should site expected housing development near public transit hubs.

c. Regional Housing Needs Assessment and General Plan Housing Element Requirements

SB 375 attempts to better connect transportation planning and development through the SCS. First, SB 375 adjusts the General Plan housing element update cycle from five years to eight years to coincide with the timeline for the RTP update and the Regional Housing Needs Assessment (RHNA) update, which is prepared by Department of Housing and Community Development, in consultation with area councils of governments. Second, SB 375 requires the MPOs to allocate each city or county's "fair share" of the total housing need via the RHNA in a manner that is consistent with the SCS. Finally, under SB 375, local governments must include a significant number of new data points in their General Plan housing element and refine the housing element so that it becomes consistent with the SCS.

d. New CEQA Exemptions and Streamlining Processes Implemented by SB 375

SB 375 encourages certain development by eliminating the requirement under the California Environmental Quality Act (CEQA) to analyze GHG emissions and other impacts of certain residential projects if such projects are consistent with the SCS or will be sited near public transportation. Additionally, such projects need not evaluate particular alternatives to the proposed project.

SB 375 also creates a category of project known as a "Transit Priority Projects" and creates an exemption or streamlined CEQA review process for such projects. A Transit Priority Project (TPP) contains at least 50% residential use, has a minimum net density of 20 units per acre, and is located within one-half mile of a major transit stop. A project designated as a TPP may either be totally exempt from CEQA or receive a new form of streamlined environmental review called a Sustainable Communities Environmental Assessment. A project may qualify for this streamlined review if it incorporates all feasible mitigation measures from prior applicable environmental impact reports. A Sustainable Communities Environmental Assessment is also subject to a substantial evidence standard, which is a more difficult standard for project opponents to challenge.

Finally, a TPP that adopts SB 375 authorized mitigation measures such as requirements for the installation of traffic control improvements or the provision of transit passes to future residents need not comply with any additional mitigation measures for traffic impacts of the project.

Although the Governor ultimately signed this controversial bill, in his signing message he noted the necessity for clarifying legislation that would make four changes to SB 375: (1) expand the transportation project exemption, (2) expand the CEQA "opt out" provision, (3) fix timing conflicts between housing element updates and adoption of RTPs, and (4) eliminate certain inconsistencies between traffic mitigation requirements and SB 375 mitigation requirements. Stoel Rives will continue to be involved in the clarification legislation that is forthcoming in 2009.

In addition to SB 375, several other pieces of environmental legislation have recently been signed into law.

SB 1473 (Calderon) Green Building Standards
SB 1473 gives the Building Standards Commission the power to approve, develop, and adopt green building standards for occupancies, in consultation with other relevant state agencies. It also imposes a new fee on all applications for building permits of $4 per $100,000 in value. These fees will fund the development, adoption and publication of green building standards.

SBX21 (Perata) Over 8$ Billion in Appropriations for Water Quality, Water Storage, and Flood Control
This bill appropriates significant sums of money for various water-related bond programs previously approved by California voters. SBX21 appropriates approximately $185 million to Department of Water Resources for emergency and flood programs. The bill appropriates approximately $487 million to Department of Public Health for various water quality improvement projects that protect drinking water supplies, and other water projects.

AB 2921 (Laird) Williamson Act
AB 2921 modifies procedures to identify and respond to breaches of Williamson Act contracts. Notably, a landowner found to have a potential material breach of a Williamson Act contract can no longer seek to cancel the contract. Additionally, if a landowner is potentially in breach of the Williamson Act contract, AB 2921 allows the landowner and city or county to meet and confer with the Department of Conservation to resolve the potential breach.

AB 1879 (Feuer)/SB 509 (Simitian) Green Chemistry Legislation
AB 1879 and SB 509 are companion bills that seek to develop consistent means to evaluate risk, reduce exposure, and identify safer non-chemical alternatives to the harmful chemicals found in consumer products. AB 1879 requires the Department of Toxic Substances Control (DTSC), by January 1, 2011, to establish a process to identify, evaluate, and regulate chemicals and chemical ingredients with the potential to have a significant adverse impact on public health and the environment. In tandem, SB 509 requires DTSC to establish a publicly available Toxic Information Clearinghouse Website that catalogs the effects and hazardous traits of various chemicals, and lists environmental and toxicological data.

AB 1510 (Plescia) Exemptions from the Subdivision Map Act
This bill creates two new exemptions from requirements of the Subdivision Map Act. AB 1510 exempts leases and easements relating to solar energy systems, and biogas projects that utilize agricultural waste or byproducts from the land where the project is located. These exemptions apply if the solar energy or biogas project is subject to review under other local agency ordinances regulating design and improvement, or if the project is subject to other discretionary action by the local agency.

AB 1960 (Nava)/AB 2911 (Wolk) Oil Spills
These two bills expand regulations and potential liability for inland oil production facilities. AB 1960 requires the Department of Conservation, Division of Oil, Gas and Geothermal Resources to regulate minimum maintenance standards for oil and gas production facilities, and increases penalties for specified violations, such as oil spills. AB 2911 expands the Oil Spill Prevention and Response Act to include spills and discharges in inland waters, and increases administrative and civil penalties for spills in marine waters.

Additionally, other environmental legislation has been signed into law throughout the year, including the following:

SB 732 (development of guidelines and regulations for environmental initiative)
SB 947 (consultation with transportation facilities under CEQA)
SB 1285 (acquisition of resource conservation lands)
SB 1646 (air pollution fees)
SB 1662 (emission reduction offsets for Sacramento area)
SB 155 (vapor recovery systems)
SB 1781 (waste management)
AB 2991 (air pollution research)
AB 2522 (air pollution control district fees)
AB 2945 (state parks and wilderness areas)
AB 2922 (air pollution penalties: fuel containers)
AB 2954 (San Francisco Bay restoration)
AB 1225 (California Ocean Protection Trust Fund)
AB 2222 (groundwater quality monitoring)
AB 1358 (planning: transportation)
AB 2729 (hazardous substances and underground storage tanks)
AB 2680 (water bond loans)
SB 1161 (petroleum underground storage tanks)
AB 1898 (flood control funds for Napa River)
AB 578 (energy study)
AB 31 (parks and community development)
SB 27 (Delta emergency preparedness)
AB 2650 (vehicle air pollution)
AB 1903 (liability regarding flood control and water conservation facilities)
AB 2356 (water quality and funding)
SB 1395 (lead plumbing)
SB 1334 (drinking water pipes)
AB 2901 (lead jewelry)
AB 2765 (pesticides)
AB 2763 (invasive pests)
AB 2286 (hazardous waste)
AB 2071 (plastic bags or containers)
AB 1860 (unsafe products: recall or warning)
SB 1739 (oil spill plan)
AB 2935 (oil spill prevention and response)
AB 2031 (oil spill prevention and response)
SB 380 (renewable energy resources)
AB 2804 (solar initiative)
AB 2768 (pricing of solar energy systems)
AB 2466 (local government and renewable energy)
AB 2180 (solar energy systems)
AB 1451 (property tax exclusion from solar energy systems)
AB 2267 (energy incentives)
SB 1723 (pesticide recycling and certification)
AB 2857 (alternative rates for energy)
AB 3081 (Sierra Nevada Conservancy)
AB 1972 (solid waste)
AB 2679 (solid waste)
AB 3025 (polystyrene packaging)
AB 2280 (density bonuses)
AB 2069 (local planning)
AB 2785 (wildlife conservation and habitat connectivity)
AB 109 (alternative fuels and vehicle technologies)
AB 3018 (green collar jobs)
SB 1185 (subdivision maps)
SB 607 (regulations for winegrowers)
AB 2720 (technical changes to CEQA mandates)
AB 1764 (Williamson Act definitions)
SB 1431 (parks and recreation: easements)
AB 242 (LAFCO annexation)
SB 562 (fishery restoration)
AB 541 (genetically engineered plants)
AB 2604 (developer fees)
AB 2404 (water efficiency programs)
SB 1436 (protected species and agricultural activities)
SB 1206 (pest control)

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Melissa A. Foster
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