BILL NUMBER: AB 231CHAPTERED BILL TEXT CHAPTER 432 FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2010 APPROVED BY GOVERNOR SEPTEMBER 29, 2010 PASSED THE SENATE AUGUST 24, 2010 PASSED THE ASSEMBLY AUGUST 31, 2010 AMENDED IN SENATE AUGUST 20, 2010 AMENDED IN SENATE AUGUST 9, 2010 AMENDED IN SENATE JUNE 23, 2010 AMENDED IN SENATE JUNE 26, 2009 AMENDED IN SENATE JUNE 18, 2009 AMENDED IN ASSEMBLY APRIL 29, 2009 INTRODUCED BY Assembly Member Huber FEBRUARY 5, 2009 An act to amend Section 21094 of the Public Resources Code, relating to the environment, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 231, Huber. Environment: California Environmental Quality Act: overriding consideration. (1) 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. The 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. For projects whose environmental impacts can not be mitigated to less than significance, existing law authorizes a lead agency to find that specified overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment. If an EIR has been prepared and certified for a program, plan, policy, or ordinance, a lead agency is required to use a tiered EIR for a later project if the lead agency determines that the later project is consistent with the program, plan, policy, or ordinance, and satisfies other criteria. This bill would authorize a lead agency, until January 1, 2016, to incorporate by reference a finding of overriding consideration made in a prior EIR for a later project if specified conditions are met, including that the lead agency determines that the later project's significant impacts on the environment are not greater than or different from those identified in the prior EIR. (2) This bill would incorporate additional changes to Section 21094 of the Public Resources Code proposed by this bill and SB 1456, to be operative only if this bill and SB 1456 are both enacted and become effective on or before January 1, 2011, and this bill is enacted last. (3) This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 21094 of the Public Resources Code is amended to read: 21094. (a) (1) If a prior environmental impact report has been prepared and certified for a program, plan, policy, or ordinance, the lead agency for a later project that meets the requirements of this section shall examine significant effects of the later project upon the environment by using a tiered environmental impact report, except that the report on the later project need not examine those effects that the lead agency determines were either (1) mitigated or avoided pursuant to paragraph (1) of subdivision (a) of Section 21081 as a result of the prior environmental impact report, or (2) examined at a sufficient level of detail in the prior environmental impact report to enable those effects to be mitigated or avoided by site-specific revisions, the imposition of conditions, or other means in connection with the approval of the later project. (2) If a prior environmental impact report has been prepared and certified for a program, plan, policy, or ordinance, and the lead agency makes a finding of overriding consideration pursuant to subdivision (b) of Section 21081, the lead agency for a later project that uses a tiered environmental impact report from that program, plan, policy, or ordinance may incorporate by reference that finding of overriding consideration if all of the following conditions are met: (A) The lead agency determines that the project's significant impacts on the environment are not greater than or different from those identified in the prior environmental impact report. (B) The lead agency incorporates into the later project all the applicable mitigation measures identified by the prior environmental impact report. (C) The prior finding of overriding considerations was not based on a determination that mitigation measures should be identified and approved in a subsequent environmental review. (D) The prior environmental impact report was certified not more than three years before the date findings are made pursuant to Section 21081 for the later project. (E) The lead agency has determined that the mitigation measures or alternatives found to be infeasible in the prior environmental impact report pursuant to paragraph (3) of subdivision (a) of Section 21081 remain infeasible based on the criteria set forth in that section. (3) On and after January 1, 2016, a lead agency shall not take action pursuant to paragraph (2) with regard to incorporating by reference a prior finding of overriding consideration, and paragraph (2) shall become inoperative on January 1, 2016. (b) This section applies only to a later project that the lead agency determines (1) is consistent with the program, plan, policy, or ordinance for which an environmental impact report has been prepared and certified, (2) is consistent with applicable local land use plans and zoning of the city, county, or city and county in which the later project would be located, and (3) is not subject to Section 21166. (c) For purposes of compliance with this section, an initial study shall be prepared to assist the lead agency in making the determinations required by this section. The initial study shall analyze whether the later project may cause significant effects on the environment that were not examined in the prior environmental impact report. (d) All public agencies that propose to carry out or approve the later project may utilize the prior environmental impact report and the environmental impact report on the later project to fulfill the requirements of Section 21081. (e) If tiering is used pursuant to this section, an environmental impact report prepared for a later project shall refer to the prior environmental impact report and state where a copy of the prior environmental impact report may be examined. SEC. 1.5. Section 21094 of the Public Resources Code is amended to read: 21094. (a) (1) If a prior environmental impact report has been prepared and certified for a program, plan, policy, or ordinance, the lead agency for a later project that meets the requirements of this section shall examine significant effects of the later project upon the environment by using a tiered environmental impact report, except that the report on the later project is not required to examine those effects that the lead agency determines were either of the following: (A) Mitigated or avoided pursuant to paragraph (1) of subdivision (a) of Section 21081 as a result of the prior environmental impact report. (B) Examined at a sufficient level of detail in the prior environmental impact report to enable those effects to be mitigated or avoided by site-specific revisions, the imposition of conditions, or by other means in connection with the approval of the later project. (2) If a prior environmental impact report has been prepared and certified for a program, plan, policy, or ordinance, and the lead agency makes a finding of overriding consideration pursuant to subdivision (b) of Section 21081, the lead agency for a later project that uses a tiered environmental impact report from that program, plan, policy, or ordinance may incorporate by reference that finding of overriding consideration if all of the following conditions are met: (A) The lead agency determines that the project's significant impacts on the environment are not greater than or different from those identified in the prior environmental impact report. (B) The lead agency incorporates into the later project all the applicable mitigation measures identified by the prior environmental impact report. (C) The prior finding of overriding considerations was not based on a determination that mitigation measures should be identified and approved in a subsequent environmental review. (D) The prior environmental impact report was certified not more than three years before the date findings are made pursuant to Section 21081 for the later project. (E) The lead agency has determined that the mitigation measures or alternatives found to be infeasible in the prior environmental impact report pursuant to paragraph (3) of subdivision (a) of Section 21081 remain infeasible based on the criteria set forth in that section. (3) On and after January 1, 2016, a lead agency shall not take action pursuant to paragraph (2) with regard to incorporating by reference a prior finding of overriding consideration, and paragraph (2) shall become inoperative on January 1, 2016. (b) This section applies only to a later project that the lead agency determines is all of the following: (1) Consistent with the program, plan, policy, or ordinance for which an environmental impact report has been prepared and certified. (2) Consistent with applicable local land use plans and zoning of the city, county, or city and county in which the later project would be located. (3) Not subject to Section 21166. (c) For purposes of compliance with this section, an initial study shall be prepared to assist the lead agency in making the determinations required by this section. The initial study shall analyze whether the later project may cause significant effects on the environment that were not examined in the prior environmental impact report. (d) All public agencies that propose to carry out or approve the later project may utilize the prior environmental impact report and the environmental impact report on the later project to fulfill the requirements of Section 21081. (e) (1) If a lead agency determines pursuant to this subdivision that a cumulative effect has been adequately addressed in a prior environmental impact report, that cumulative effect is not required to be examined in a later environmental impact report, mitigated negative declaration, or negative declaration for purposes of subparagraph (B) of paragraph (1) of subdivision (a). (2) When assessing whether there is a new significant cumulative effect, the lead agency shall consider whether the incremental effects of the project are cumulatively considerable. (3) (A) For purposes of paragraph (2), if the lead agency determines the incremental effects of the project are significant when viewed in connection with the effects of past, present, and probable future projects, the incremental effects of a project are cumulatively considerable. (B) If the lead agency determines incremental effects of a project are cumulatively considerable, the later environmental impact report, mitigated negative declaration, or negative declaration shall examine those effects. (4) If the lead agency makes one of the following determinations, the cumulative effects of a project are adequately addressed for purposes of paragraph (1): (A) The cumulative effect has been mitigated or avoided as a result of the prior environmental impact report and findings adopted pursuant to paragraph (1) of subdivision (a) of Section 21081 as a result of the prior environmental impact report. (B) The cumulative effect has been examined at a sufficient level of detail in the prior environmental impact report to enable the effect to be mitigated or avoided by site-specific revisions, the imposition of conditions, or by other means in connection with the approval of the later project. (f) If tiering is used pursuant to this section, an environmental impact report prepared for a later project shall refer to the prior environmental impact report and state where a copy of the prior environmental impact report may be examined. (g) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. SEC. 2. Section 1.5 of this bill incorporates amendments to Section 21094 of the Public Resources Code proposed by both this bill and SB 1456. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2011, (2) each bill amends Section 21094 of the Public Resources Code, and (3) this bill is enacted after SB 1456, in which case Section 1 of this bill shall not become operative. SEC. 3. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: To promote, as soon as possible, the creation of jobs in the state by expediting the environmental review of a project, thereby preserving the public peace, health, and safety, it is necessary for this measure to take effect immediately.