California Assembly Bill 406
Environmental Review Becomes Objective

AB 406 (Jackson)
As amended April 3, 2003

ADDITIONAL AMENDMENTS

MOCK-UP
5/15/03

The amendments in this mock-up are in relation to the bill as amended April 3, not in relation to existing law.

.......SECTION 1. The Legislature finds and declares the following:
.......(a) In order to fulfill the purpose of the California Environmental Quality Act (commencing with Section 21000 of the Public Resources Code) to provide public agencies and the general public with detailed and accurate information about the environmental impacts of a proposed project and to identify alternatives to the project or ways to mitigate or avoid the environmental impacts, it is essential that California Environmental Quality Act documents be prepared in a full, fair, and impartial manner.
.......(b) Confidentiality agreements between project proponents and their consultants can impair the ability of public agencies and the general public to know and understand the potential environmental impacts of a proposed project. Therefore, it is the intent of the Legislature to restrict the use of confidentiality agreements in connection with the California Environmental Quality Act.
.......SEC. 2. Section 21082.1 of the Public Resources Code is amended to read:
.......21082.1. (a) A draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration prepared pursuant to the requirements of this division shall be prepared directly by, or under contract to, a public agency. No other person, including the project applicant or a consultant retained by the project applicant, may submit a draft, or part thereof, required by this division to the public agency responsible for review of the project.
.......(b) Notwithstanding subdivision (a), this section is not intended to prohibit, and may not be construed as prohibiting, a public agency from preparing a draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration that the public agency prepares for another public agency pursuant to a contract with that public agency, or for a project that the public agency intends to carry out itself.
.......(c) This section is not intended to prohibit, and may not be construed as prohibiting, a person to the public agency responsible for preparing a draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration required by this division.
.......(d) The lead agency shall do all of the following:
.......(1) Independently review and analyze all information, reports, and declarations required by this division, before adopting findings or conclusions.
.......(2) Circulate draft documents that reflect its independent judgment.
.......(3) As part of the adoption of a negative declaration or a mitigated negative declaration or certification of an environmental impact report, find that the report or declaration reflects the independent judgment of the lead agency.
.......(4) Submit a sufficient number of copies of the draft environmental impact report, proposed negative declaration, or proposed mitigated negative declaration, and a copy of the report or declaration in an electronic form as required by the guidelines adopted pursuant to Section 21083, to the State Clearinghouse for review and comment by state agencies, if any of the following applies:
.......(A) A state agency is any of the following:
.......(i) The lead agency.
.......(ii) A responsible agency.
.......(iii) A trustee agency.
.......(B) A state agency otherwise has jurisdiction by law with respect to the project.
.......(C) The proposed project is of sufficient statewide, regional, or areawide environmental significance as determined pursuant to the guidelines certified and adopted pursuant to Section 21083.
.......SEC. 3. Section 21089 of the Public Resources Code is amended to read:
.......21089. (a) A lead agency may charge and collect a reasonable fee from a person proposing a project subject to this division to cover the estimated costs incurred by the lead agency in preparing and reviewing a draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration for the project and for other related work necessary to comply with this division in connection with the project. The fee may include the cost to the public agency of retaining environmental consultants. Litigation expenses, costs, and fees incurred in actions alleging noncompliance with this division under Section 21167 are not recoverable under this section.
.......(b) The Department of Fish and Game may charge and collect filing fees, as provided in Section 711.4 of the Fish and Game Code. Notwithstanding Section 21080.1, a finding required under Section 21081, or any project approved under a certified regulatory program authorized pursuant to Section 21080.5, is not operative, vested, or final until the filing fees required pursuant to Section 711.4 of the Fish and Game Code are paid.
.......SEC. 4. Section 21160 of the Public Resources Code is amended to read:
.......21160. (a) Whenever a person applies to a public agency for a lease, permit, license, certificate, or other entitlement for use, the public agency may require that person to submit data and information that may be necessary to enable the public agency to determine whether the proposed project may have a significant effect on the environment, or that may be necessary to prepare a draft environmental impact report.
.......(b) If any portion of the data and information submitted constitutes "trade secrets", as defined in Section 6254.7 of the Government Code, that portion may not be included in the draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration, or otherwise disclosed by a public agency. This section may not be construed to prohibit the exchange of properly designated trade secrets between public agencies that have lawful jurisdiction over the preparation of the draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration.
.......(c) Whenever a person applies to a public agency for a lease, permit, license, certificate, or other entitlement for use that is subject to this division, the project applicant may not enforce against its own consultants a confidentiality agreement that inhibits or prevents the disclosure to the public agency or, except for trade secrets, as defined in Section 6254.7 of the Government Code, or records protected under Section 6254.10 of the Government Code, to the public, of data and information regarding a baseline environmental conditions, potential environmental impacts of the project, potential mitigation measures, or project alternatives.
.......SEC. 5. Section 21099 is added to the Public Resources Code, to read:
.......21099. Access to the site of a project under review pursuant to this division shall be granted to employees of, or consultants retained by, a public agency carrying out its responsibilities pursuant to this division under the terms of, and subject to the conditions specified in, Section 65105 of the Government Code.
.......SEC. 6. (a) Section 2 of this act is intended specifically to supersede the court’s decision in Friends of La Vina v. County of Los Angeles (App. 2 Dist. 1991) 232 Cal.App.3d 1446 that a project applicant under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) may prepare, or employ others to prepare, a draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration. Section 2 of this act is not intended to affect any other part of those decisions or any rights or obligations of the parties to those cases or any other case decided on the basis of those decisions before the operative date of this act.
.......(b) This act is not intended to require a public agency to incur additional, unreimbursed costs in instances in which it is both the lead agency and the project applicant for a project under review pursuant to the California Environmental Quality Act (commencing with Section 21000 of the Public Resources Code).
.......SEC. 7. This act shall become operative on July 1, 2004
.......SEC. 8. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.