On September 25, 2014, Governor Edmond G. Brown, Jr., signed Assembly Bill (AB) 52, which expands the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.)[1] to include a new category of resources that must be evaluated – “tribal cultural resources.” To shed some light on AB 52’s implementation, the Governor’s Office of Planning and Research (OPR) released a Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA, on May 1, 2015, for 30 days of public comment. The document is intended to provide guidance to lead agencies regarding the substantive and procedural requirements that go into effect on July 1, 2015.

The law requires lead agencies to consider tribal cultural values in their environmental documents, in addition to the scientific and archaeological values that must be evaluated under preexisting provisions of CEQA, when determining impacts and mitigation.  The requirements of AB 52 apply to a project that has a notice of preparation of an environmental impact report (EIR) or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015. (Pub. Resources Code, § 21084.3 (c).) Other key amendments to CEQA include:

• Mandating early tribal consultation prior to and during CEQA review with a requirement to formally conclude consultation. (Pub. Resources Code, §§ 21080.3.1, subd. (b), 21080.3.2.)
• Establishing tribal cultural resources, a new CEQA category of resources (Pub. Resources Code, § 21074), for which tribes may have expertise. (Pub. Resources Code, § 21080.3.1, subd. (a).)
• Establishing that a significant impact on tribal cultural resources is a significant effect on the environment. (Pub. Resources Code, § 21084.2.)
• Requiring OPR to revise the CEQA checklist, to make consideration of tribal impacts separate from consideration of impacts to other cultural resources. (Pub. Resources Code, § 21083.09.) The regulatory process for the adoption of its updates must occur on or before July 1, 2016.

One of the most significant implications of AB 52 is that the lead agency cannot commit to preparation of a negative declaration or a mitigated negative declaration until the newly required tribal cultural resource consultation has occurred since the consultation could result in the need for more detailed analysis appropriate to an EIR. (Pub. Resources Code, § 21080.3.1, subd. (b) [consultation process must be undertaken “prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project”]; see also Pub. Resources Code, § 21080.3.2 [“consultation may include discussion concerning the type of environmental review necessary”].) Because tribes may be considered experts on tribal cultural resources under AB 52, a tribe’s conclusion that a project has the potential to significantly impact a tribal resource may be considered a “fair argument” that the project may have significant environmental impacts. Accordingly, a tribe’s opinion during the consultation process may necessitate the preparation of an EIR.

[1] AB 52 amends Public Resources Code Section 5097.94, and adds Public Resources Code Sections 1073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3.