California Environmental Law Blog - Insight and information for the environmental and natural resource industry

Senator Michael Rubio (D-Shafter) announced today that he is resigning from the California State Senate, effective today.  Senator Rubio made headlines at the end of the 2012 legislative session when he introduced a bill to significantly reform the California Environmental Quality Act (CEQA).  At that time, he agreed to work with Senator Darrell Steinberg (D-Sacramento) to develop a CEQA reform bill in the current legislative session.  Now, on the last day to introduce new bills, Senator Rubio has resigned and a significant CEQA reform bill has yet to see the light.  Without Senator Rubio leading the charge for CEQA reform, the effort may once again falter.

My colleague, Barbara Brenner, posted an environmental law alert on the recently published CEQA decision issued by the California Third District Court of Appeal in Mount Shasta Bioregional Ecology Ctr. v. County of Siskiyou, No. C064930, 2012 Cal. App. LEXIS 1088 (Cal. Ct. App. Sept. 26, 2012).  The case is significant because it provides precedent for a lead agency and project proponent to reject project alternatives that are not feasible, thus avoiding the time and cost of analyzing infeasible alternatives.  In addition, the Court concluded that analysis of the project and the No Project alternative constituted a reasonable range of alternatives where the agency could identify no other feasible alternatives.  Based on the Court’s determination, a record clearly showing there is no feasible project alternative can be upheld.

In a decision reflecting perhaps the worst-case scenario for the redevelopment community, the California Supreme Court largely upheld Assembly Bill X1 26, which requires the dissolution of redevelopment agencies across the State, but invalidated Assembly Bill X1 27, which would have given redevelopment agencies an option of continuing to exist if the agencies shared their tax revenues.  Redevelopment agencies in California now must proceed to dissolve, and transfer control to successor agencies, which are expected to be the city or county.  The successor agency will be responsible for performing existing obligations, but no new redevelopment obligations can be assumed.

California has two more laws in place to help facilitate development of renewable energy projects after Governor Brown signed Senate Bill 267 and Senate Bill 618 over the weekend. 

SB 267 modifies the existing requirements to prepare a water supply assessment for projects that meet certain size thresholds.  Under the new law, a photovoltaic or wind energy generation facility that demands no more than 75 acre-feet of water per year is exempt from the water supply assessment requirements.  By eliminating this aspect of project analysis, this law is expected to help reduce the time and cost associated with permitting new photovoltaic and wind projects, which typically do not have high water demand.

SB 618 includes two separate sets of amendments to the current law that are intended to facilitate renewable energy projects.  First, the bill amends California Fish and Game Code provisions that relate to fully protected species.  Prior to SB 618, the California Endangered Species Act prohibited harming or disturbing (also known as “taking”) species that have been listed as fully protected.  The new law allows for incidental take of fully protected species where a conservation plan has been approved and is being implemented to ensure protection of those species.  This bill is particularly important to wind development in California, which has been struggling to address potential project impacts to the Golden Eagle and California Condor, two species that are listed as fully protected.  The bill also creates a mechanism for Williamson Act contracts, which are essentially agricultural preserve easements, to be converted to solar use easements under circumstances where the Department of Conservation determines that the property lacks agricultural value due to soil conditions and other considerations.

These new laws are the most recent in a series of reforms the Governor has signed to facilitate renewable energy development in California.  SB 16 and ABX1 13, companion bills which were signed by the Governor on September 22, 2011 and August 29, 2011, respectively, are intended to streamline California Department of Fish and Game’s permitting process.  In addition, we previously reported on AB 900, which streamlines the appeal process for certain large “leadership projects” in California.  AB 900 was signed by the Governor on September 27, 2011.  While AB 900  is not specific to energy projects, there are likely to be energy projects that meet the threshold for and qualify as a leadership project, thus benefitting from the streamlined appellate process set forth in that new law.

After a late evening of floor sessions on June 28, 2011, both the Senate and the Assembly, with a majority vote, passed the “Democratic Budget”.  Governor Brown signed some of the $85.9 billion budget which includes bills ABX1 26 and ABX1 27.  ABX1 26 and ABX1 27,  both by Assembly member Bob Blumenfield (D-San Fernando Valley), eliminate redevelopment agencies.

ABX1 26 (SBX1 14 and ABX1 26), is the first of the two-bill budget package to eliminate redevelopment agencies. Each redevelopment agency is replaced by a “successor agency.”  The bill also provides for an orderly wind-down of redevelopment agency activities including payment of existing debt and the continuation of pass-throughs. ABX1 26 is similar to the Governor’s initial proposal under AB 101 and SB 77 to eliminate redevelopment agencies. However, unlike those bills, ABX1 26  does not provide for any payment to the state. Under this bill, as of October 1, 2011 redevelopment agencies would cease to exist as corporate governmental entities. Until that date, agencies are prohibited from taking essentially any actions other than payment of existing indebtedness and performance of existing contractual obligations. On October 1, all agency property and obligations would be transferred to successor agencies, except for the assets of the low and moderate income housing fund. Existing balance in low and moderate income housing fund will be distributed to schools, counties, and special districts. 

ABX1 27 (SBX1 15 and ABX1 27), the related bill to ABX1 26, creates an alternative voluntary ongoing redevelopment agency program. The bill states that agencies that make specified annual payments are exempt from elimination. ABX1 27 provides that, notwithstanding SBX1 14 or ABX1 26, an agency may continue to operate and function if the community has enacted an ordinance by November 1, 2011. The contents of the ordinance are described simply as needing ”to comply with the bill's provisions.” Additionally, in order for a redevelopment agency to remain in existence, city or county must make payment to schools, fire protection districts, and transit districts. The amount of the payment for each city or county is calculated by the Department of Finance and communicated to cities and counties not later than August 1, 2011. Should a city or county fail to make the required payments after adoption of the ordinance, then the redevelopment agency would be subject to the elimination provisions of SBX1 14 and ABX1 26.

Several organizations have been vocal in their opposition to these bills and, given the Governor’s signature, there will likely soon be litigation to challenge their validity.