Amended  IN  Senate  April 05, 2022
Amended  IN  Senate  March 16, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 1118

Introduced by Senator Borgeas

February 16, 2022

An act to amend Section 21168.9 of the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


SB 1118, as amended, Borgeas. California Environmental Quality Act: judicial relief.
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 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 authorizes a court, in an action or proceeding brought challenging the determination, finding, or decision of a public agency on the ground of noncompliance with CEQA, to enter, among other things, an order to void the determination, finding, or decision, in whole or in part.
This bill would instead authorize a court to enter such an order in an action or proceeding if the court finds that the determination, finding, or decision of a public agency was made with a prejudicial lack of compliance, as defined, with CEQA. The bill would require the court, before entering the order, to issue written findings that the order is necessary to avoid or mitigate a specific, adverse impact, as defined, and that there is no feasible method to satisfactorily avoid or mitigate the specific adverse impact without rendering the project financially or practically infeasible. defined, upon the environment, public health, or public safety. The bill would make findings and declarations related to these provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) When the California Environmental Quality Act (CEQA) (Division 13 (commencing with Section 21000) of the Public Resources Code) was first signed into law in 1970 by Governor Ronald Reagan, it was believed that CEQA would help protect California’s environment and natural resources by requiring greater detail about the environmental impacts of public projects and by creating a process that would ensure that only the most feasible and environmentally responsible projects moved forward.
(b) While CEQA has played an important role in protecting and preserving California’s environment and natural resources, it has also become apparent that certain provisions of CEQA have been used to facilitate needless and costly litigation that is unrelated to environmental protection and oftentimes filed by persons looking to derail a project or further an ulterior motive.
(c) Every year, numerous housing, infrastructure, school construction, renewable energy, and forestry management projects are delayed or derailed due to questionable litigation brought under CEQA, with many more projects never making it past the conceptual stage because of the outsized risk of litigation. Recently, in 2022, an estimated 3,000 prospective freshmen at the University of California at Berkeley were told that they would not be able to attend the university in the fall because the construction of a student housing project was delayed due to a CEQA legal challenge.
(d) That CEQA lends itself to these lawsuits is not lost on the California Legislature. Every year, the Legislature passes new exemptions or relaxations of CEQA’s requirements for various special projects, showing that even the most ardent defenders of CEQA understand that its onerous requirements and potential to create litigation are simply too much for some projects.
(e) It is the intent of the Legislature to address the outsized and unnecessary litigation risks that are created by CEQA in two important ways, as follows:
(1) By codifying language from Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, in which the California Supreme Court upheld the principle that insubstantial or merely technical violations are not grounds for relief. This change will make it clear to state agencies and the courts that minor, inconsequential violations of CEQA will not be grounds for relief, and that absolute perfection in preparing an environmental document is not a requirement under CEQA. The change will also make it harder to use CEQA for improper purposes, since it will ensure that only serious violations of CEQA create a risk of legal relief.
(2) Adding and repurposing language from the Housing Accountability Act, Senate Bill 167 (Chapter 368 of the Statutes of 2017), to limit the ability of the courts to order special relief on an approved project where it is necessary to avoid or mitigate a specific adverse impact to public health or safety. Not every violation of CEQA has the potential to harm the public health or safety. Ordering special relief in those instances serves no compelling state interest and, more often than not, threatens the viability of a useful and needed project that has already committed countless hours of effort and significant investment capital.

SEC. 2.

 Section 21168.9 of the Public Resources Code is amended to read:

21168.9.
 (a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made with a prejudicial lack of compliance with this division, the court shall enter an order that includes one or more of the following:
(1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part.
(2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division.
(3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division.
(b) Before issuing an order pursuant to subdivision (a), a court shall first issue written findings that, based on a preponderance of the evidence, the order is necessary to avoid or mitigate a specific, adverse impact upon the environment, public health health, or safety, and there is no feasible method to satisfactorily avoid or mitigate the specific adverse impact without rendering the project financially or practically infeasible. public safety.
(c) An order pursuant to subdivision (a) shall include only those mandates that are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. The trial court shall retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division.
(d) Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way. Except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court.
(e) For the purposes of this section, the following definitions apply:
(1) “Prejudicial lack of compliance” means that the deficiency in the determination, finding, or decision of the public agency was made without substantial relevant information about the project’s likely adverse impacts. Insubstantial or merely technical violations are not grounds for relief.
(2) “Specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.