Thursday, September 15, 2011

AIA California Council on CEQA Reform

Legislature Passes 3 CEQA “Reform” Bills – One Bill Limits CEQA “Reform” to LEED Silver Certified Projects

The State Legislature passed three bills to either exempt certain types of projects from CEQA review or to allow other types of projects to benefit from an expedited CEQA review, including one bill that requires LEED Silver Certification to be eligible for the expedited CEQA process which the AIACC opposed. All three bills were passed on the very last day of session in 2011, and the Governor has until October 9th to sign or veto these bills.
The California Environmental Quality Act, or CEQA, to put it quite simply, is the law that requires projects’ significant effects on the environment to be publicly identified and mitigated. Additionally, CEQA allows the public to challenge whether the identified significant effects are accurate or the mitigation measures sufficient.
It may not surprise many of you that CEQA sometimes is used as a tool for purposes other than identifying and mitigating significant effects. Indeed, it has been used by project opponents to stop projects they don’t like, and it has been used as a tool to force non-environmental concessions from developers.
These three bills were written and passed in response to concerns that the misuse of CEQA is harming the economy in California and stopping the creation of thousands of jobs.
One of the bills passed, SB 226, exempts from CEQA review the installation of a solar energy system on the roof of an existing building or at an existing parking lot. Another bill, SB 292, creates an expedited judicial review for the proposed downtown Los Angeles football stadium and convention center. The expedited judicial review is intended to save significant time, and money, during any legal challenge claiming the identified environmental effects or mitigation measures sufficient. SB 292 also requires significant traffic and air quality mitigation measures.
The third bill, AB 900, allows large projects ($100+ million) an expedited CEQA review process if the projects create prevailing wage and living wages jobs, and are either clean energy projects, or infill residential, retail, commercial, sports, cultural, entertainment, or recreational projects that meet specified environmental goals, including a requirement that the projects are certified as LEED Silver or higher. To be available for the expedited review under AB 900, the project must meet all of the required conditions, be selected by the Governor for this process, and have the Governor’s selection confirmed by the Joint Legislative Budget Committee (subjecting the approval of projects to the political process could be a story by itself!).
The language in AB 900 that was voted on the last day of session was only made available to the public the morning of the last day. AIACC staff was able to obtain a draft of the language the afternoon before, and the AIACC testified against the LEED certification language when AB 900 was heard in a State Senate Policy Committee the morning of the last day.
The AIACC objection was two-fold.
First, connecting the points will be very difficult and problematic. CEQA is a pre-development process, while LEED certification is a post-occupancy process, a process that can take place years after the CEQA review process. There is no guarantee that a project actually will be awarded LEED certification, which begs the question: what happens if a project doesn’t? AB 900 includes language suggesting this requirement is enforceable. This could lead to unnecessary and problematic litigation involving the architect, even if the failure to secure LEED certification was not the fault of the architect.
And second, the LEED criteria is developed by a private entity, the USGBC, without any requirement or legal obligation to involve the public in the development of the criteria. While the AIA and its members have a good working relationship with the USGBC – a significant portion of LEED APs are AIA architects – and a shared vision on the direction of the built environment, the AIACC believes it is inappropriate to use privately developed criteria as a requirement in California law. The AIACC, along with many others, suggested that CalGreen Tier II be used in place of LEED. CalGreen is a part of the California building code, and as such was developed and adopted as a California regulation, a process that is by law open to public participation. The AIACC believes requiring the AB 900 projects to be designed and constructed according to CalGreen Tier II is better public policy.
AB 900 passed the Legislature, but not without significant resistance. The authors of AB 900 have promised to continue listening to the concerns raised by the AIACC and others, and will carry legislation next year to make “technical fixes” to AB 900. This is not a promise to replace LEED with CalGreen Tier II; it was an acknowledgment that the arguments made by the AIACC and others were causing questions to be asked.
The AIACC will fully participate in efforts between now and next year, when the Legislature returns, to replace LEED with CalGreen Tier II, should the Governor sign AB 900 into law.
About Mark Christian
Mark Christian, Hon. AIACC, is the Director of Legislative Affairs for the AIA California Council, a position he has held since 1999. In this position, Mark is responsible for monitoring the CA State Legislature, identifying bills of interest to the profession, developing and implementing strategies for the positive outcome of legislation of interest to the profession, and representing the profession before the legislature. Prior to joining the AIACC, Mark worked for the State Assembly for nine years in several capacities, including as a policy consultant on several significant environmental laws. He holds a B.A. in Economics from the California State University, Sacramento.

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