AB 406 – CEQA practitioners, public information, source of information

 
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To the AEP Membership:

AB 406 (Jackson, D-Santa Barbara), was introduced in response to Friends of La Vina v. County of Los Angeles (284 Cal.Rptr. 171[Cal.App. 2 Dist., 1991]).  By establishing new standards for the disclosure of information used in the preparation of an EIR and conflict-of-interest standards for EIR practitioners, including restrictions on the obligations of environmental consultants to project developers, the author hoped to reduce certain abuses in the application of the CEQA process. 

More specifically this bill would establish new restrictions on the use of information in the CEQA process depending on the source and/or origin of the information for the purpose of minimizing conflicts of interest for project proponents, consultants to project proponents and lead agencies.  Among other things, this bill would: 

  • Prohibit a person, including the project applicant or applicant's retained consultant, from submitting a draft environmental review document to the public agency responsible for reviewing the project;
     

  • Prohibit a public agency responsible for reviewing environmental documents from accepting comments on a draft document, or part thereof, until commencement of the comment period;
     

  • Require the lead agency to independently review and analyze all evidence before adopting findings and conclusions and to base those findings and conclusions on substantial evidence in the record.

The AEP Legislative Committee supported the bill in concept and worked extensively with the author’s office and the bill sponsor (the Planning and Conservation League) towards ensuring that the bill did not overreach.  Negotiations between AEP and the author’s office were incomplete when the author determined that the AB 406 should become a two-year bill.

Because of the widespread AEP membership interest in AB 406, a measure that would have significantly changed the CEQA review process, the AEP Legislative Committee thought that you would be interested in these recent developments:

  • AB 406 was headed for defeat on the Assembly Floor back in June until the author requested and obtained the Floor's consent to expunge the record in exchange for the author's agreement to re-refer the bill to the Assembly Floor Inactive File.  By nullifying the pending defeat of  AB 406, the bill qualifies as a 2-year bill.  All 2-year bills still in their house of origin remain eligible to begin moving again in January 2004 when he Legislature reconvenes.  The decision to move the bill is up to the author.  If AB 406 (or any other similarly situated bill) fails to pass the Assembly by January 31, 2004, however, the bill may no longer be considered in the 2003-04 Legislative Session and is truly dead bill at that time.
     

  • AB 406 may not be reconsidered until January 2004.  
     

  • The AEP Legislative Committee was actively engaged in the final changes made to the bill and received commitments to resolve certain remaining issues should the bill be revived.  
    Early on, the AEP Legislative Committee conveyed to the author and sponsors of AB 406 an acknowledgment that there was room for improvement in the statute addressing the independence of the CEQA process but, at the same time, expressed significant concerns to the author and sponsors over the details of this proposed legislation.  AEP became directly involved in amending this bill and worked closely with the author's representatives toward a workable solution.  In mid-May, the author's representatives offered AEP (and others) a number of significant amendments that addressed many of our concerns.  Based on this good-faith effort, the AEP Legislative Committee communicated a "support in concept" position to the author on May 21, 2003, predicated on the author's commitment to work with us toward our mutual interests.  
     
    The author's good-faith amendments, addressing many of AEP's concerns, are reflected in the June 2 version of the bill .  The author's representatives committed to working with us in the Senate on the remaining concerns, should the bill pass the Assembly.  

The AEP Legislative Committee's position on this bill and proposed amendments are attached for your consideration.  Additional information can be found at www.leginfo.ca.gov.  
 
Should you have any questions concerning this bill, or any other bill currently before the California State Legislature, please contact your chapter representative to the AEP Legislative Committee or contact the Chair, Curtis Alling directly at allingc@edaw.com.

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