BILL ANALYSIS Ó AB 890 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: AB 890 AUTHOR: Olsen AMENDED: January 13, 2012 FISCAL: No HEARING DATE: July 2, 2012 URGENCY: No CONSULTANT: Randy Pestor SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT SUMMARY : Existing law : 1)Under the California Environmental Quality Act (CEQA): a) Requires lead agencies with the principal responsibility for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines). (Public Resources Code §21000 et seq.). b) Contains exemptions relating to roads, for example: i) Operation, repair, maintenance, or minor alteration of existing private or public structures involving negligible or no expansion, including existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (including road grading for the purpose of public safety). (CEQA Guidelines §15301(c)). ii) Minor public or private alterations to land, water, or vegetation, including, but not limited to, "grading on land with a slope of not less than 10 percent . . ." (CEQA Guidelines §15304(a)). iii) Restriping of streets or highways to relieve traffic congestion. (Public Resources Code §21080.19). AB 890 Page 2 iv) Any railroad grade separation project that eliminates an existing grade crossing or reconstructs an existing grade separation. (§21080.13). v) The institution or increase of passenger or commuter services on rail or highway rights-of-way already in use, including modernization of existing stations and parking facilities. (§21080(b)(10)). vi) Facility extensions not to exceed four miles in length required to transfer passengers from or to exclusive public mass transit guideway or busway public transit services. (§21080(b)(12)). This bill , under CEQA: 1) Exempts a project or an activity to repair, maintain, or make minor alterations to an existing roadway if the project is initiated by a city or county to improve public safety, the project does not cross a waterway, and the project involves negligible or no expansion of an existing use. 2) Sunsets January 1, 2016. COMMENTS : 1) Purpose of Bill . According to the author, "AB 890 would create a statutory exemption from the California Environmental Quality Act (CEQA) for minor public safety roadway improvements within roadway. This measure doesn't exempt projects that cross waterways and increase capacity of existing use. AB 890 streamlines the process for minor roadway improvements for cities and counties to improve road safety." The author notes that "Cities and counties need to be able to quickly perform some public work projects. Public safety must be a clear priority of the state, and CEQA at times has hindered cities and counties from performing their basic duties." AB 890 Page 3 2) Brief background on CEQA . CEQA provides a process for evaluating the environmental effects of a project, and includes statutory exemptions, as well as categorical exemptions in the CEQA guidelines. If a project is not exempt from CEQA, an initial study is prepared to determine whether a project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR. Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project. Prior to approving any project that has received environmental review, an agency must make certain findings. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures. If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the proposed project, the effects of the mitigation measure must be discussed but in less detail than the significant effects of the proposed project. 3) CEQA and federal NEPA review . Many highway improvement projects are also funded with federal funds and are thereby also subject to the National Environmental Policy Act (NEPA). According to information in the Caltrans "Third Report to the California Legislature Pursuant to Section 820.1 of the California Streets and Highways Code, January 1, 2011," 4,277 environmental documents were prepared under the Caltrans federal surface transportation project delivery pilot program, with most also being joint CEQA/NEPA documents, and 4,054 of these documents were categorical exclusions under NEPA. According to the report, "Two lawsuits have been initiated against Caltrans over the past three years under the Pilot Program." AB 890 Page 4 4) Blaming CEQA . It is not unusual for certain interests to assert that a particular exemption will expedite construction of a particular type of project and reduce costs. This, however, frequently overlooks the benefits of adequate environmental review where lead and responsible agencies are legally accountable for their actions: to inform decisionmakers and the public about project impacts, identify ways to avoid or significantly reduce environmental damage, prevent environmental damage by requiring feasible alternatives or mitigation measures, disclose to the public reasons why an agency approved a project if significant environmental effects are involved, involve public agencies in the process, and increase public participation in the environmental review and the planning processes. If a project is exempt from CEQA, certain issues should be addressed. For example: How can decisionmakers and the public be aware of impacts, mitigation measures, and alternatives of a project because of the exemption? Is it appropriate for the public to live with the consequences when a project is exempt and impacts may not be mitigated and alternatives may not be considered regarding certain matters, such as air quality, water quality, and noise impacts? Because adverse project impacts do not disappear when they are not identified and mitigated, does an exemption result in a direct transfer of responsibility for mitigating impacts from the applicant to the public ( i.e. , taxpayers) if impacts are ultimately addressed after completion of the project? If taxpayers, rather than the project applicant, are ultimately responsible for mitigating certain impacts of such a project after project completion, what assessments or taxes will be increased to fund mitigation or pay for alternatives at a later date? AB 890 Page 5 It is also not unusual for certain interests to blame CEQA lawsuits. However, according to a study on the issue, "Despite criticisms that CEQA often results in litigation, CEQA-related litigation is relatively rare." The study noted that the number of lawsuits to the number of CEQA reviews "yields an estimate of one lawsuit per 354 CEQA reviews." Those citing CEQA and CEQA litigation as a problem do not indicate the result of that litigation. Were significant impacts that were not evaluated in the initial document ultimately addressed? What would have been the result if those impacts had not been mitigated ( e.g. , flooding, exposure of people to hazards, inadequate public services, congestion)? When some suggest that CEQA "reforms" may be needed, others note various provisions of CEQA that already provide streamlined approaches, including master and focused EIRs; transit priority and residential project streamlining (enacted by SB 375 (Steinberg, Ducheny) Chapter 728, Statutes of 2008); expedited review for environmental mandated projects; special procedures for various types of housing projects (enacted by SB 1925 (Sher, Polanco) Chapter 1039, Statutes of 2002); various litigation, mediation, tiering, and other revisions (SB 1456 (Simitian) Chapter 496, Statutes of 2010); amendments to procedures relating to findings of overriding consideration (AB 231 (Huber) Chapter 432, Statutes of 2010); infill project and other streamlining provisions (SB 226 (Simitian) Chapter 469, Statutes of 2011); and several categorical exemptions contained in the CEQA Guidelines. Challenges to CEQA determinations must be commenced within an unusually short 30 days of an agency's filing of a notice of determination. Also, no later than 20 days from the date of service upon a public agency, the public agency must file a notice with the court setting a time and place for all parties to meet and attempt to settle the litigation. 1) Information needed . Committee staff met with staff from the author and sponsor March 23, 2012, along with some supporters and opponents of this bill. At the conclusion of the meeting, committee staff requested responses to the AB 890 Page 6 following questions in order to evaluate the potential need for this bill: a) has the county been challenged for determining that a highway improvement project is subject to an existing categorical exemption, and if so how often has the county been challenged; b) how many road improvement projects used the existing categorical exemptions and how many negative declarations or other environmental documents were prepared for these projects; and c) how many road improvement projects were subject to the exceptions to the use of categorical exemptions, and what were those exceptions. Since the March 23, 2012, meeting, committee staff only received a response to the first question - and the county is "not aware of any cases in which the County was sued over the use of a categorical exemption." 2) Support and opposition concerns . According to the Tuolumne County Board of Supervisors in supporting and sponsoring AB 890, "These studies and mitigation seem to be taking longer periods of time and higher costs to complete. The result is a reduction in financial resources available to make public safety improvements to existing roadways." The board notes that it "has advocated for a change in the law that regains a proper perspective as to CEQA compliance costs relative to the actual disturbance of the physical environment within already established right of ways." According to opponents, "Current law already provides two alternatives to a full-scale CEQA exemption, which we believe will achieve the author's goals while still identifying and mitigating any significant impacts of the project." Opponents also note that "while the author may intend to deal with only minor impacting projects, the fact is, the bill could also exempt projects that have significant effects on archaeological, Native American heritage sites, and riparian endangered plant and species." 3) Related legislation . AB 1665 (Galgiani) exempts from CEQA the closure of a railroad grade crossing by order of the Public Utilities Commission if the PUC finds the crossing to present a public safety threat, and AB 2245 (Smyth) exempts a project for Class II bikeways undertaken by a AB 890 Page 7 city or county within an existing right-of-way under certain conditions. The Senate Environmental Quality Committee will also hear these bills July 2, 2012. SB 1380 (Rubio) exempts a bicycle plan for an urbanized area from CEQA for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles. SB 1380 was approved by the Senate Environmental Quality Committee April 30, 2012 (6-0), and will be heard by the Assembly Natural Resources Committee July 2, 2012. SOURCE : Tuolumne County SUPPORT : Associated Builders and Contractors of California, Associated General Contractors, Association of California Cities - Orange County, California Chamber of Commerce, California State Association of Counties, California State Council of Laborers, Madera County Board of Supervisors, Orange County Business Council, Regional Council of Rural Counties, Southwest Riverside County Legislative Council, Stanislaus County, Transportation Agency for Monterey County, Tulare County Board of Supervisors OPPOSITION : California League of Conservation Voters, California Native Plant Society, Planning and Conservation League, Sierra Club California