BILL ANALYSIS Ó
AB 892
Page 1
Date of Hearing: April 25, 2011
ASSEMBLY COMMITTEE ON TRANSPORTATION
Bonnie Lowenthal, Chair
AB 892 (Carter) - As Amended: April 27, 2011
SUBJECT : Department of Transportation (Caltrans): environmental
review process: federal pilot program
SUMMARY : Provides for the extension of Caltrans' National
Environmental Policy Act (NEPA) delegation authority by
extending a waiver of sovereign immunity under two different
programs, as specified. Specifically, this bill :
1)Extends the sunset date for the limited waiver of 11th
Amendment sovereign immunity from citizens' lawsuits from
January 1, 2012, to January 1, 2019, thereby allowing Caltrans
to continue to assume federal responsibilities pursuant to the
NEPA Delegation Pilot Program (Pilot Program) authorized under
the federal Safe Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
2)Similarly, eliminates the sunset date for the limited waiver
of 11th Amendment sovereign immunity from citizens' lawsuits
thereby allowing Caltrans to indefinitely continue to assume
federal responsibilities under NEPA pursuant to the
Categorical Exclusion (CE) Assignment Program authorized under
SAFETEA-LU.
3)Requires Caltrans to report to the Legislature, as specified,
on or before January 1, 2014 and January 1, 2019.
EXISTING LAW :
1)Specifies that Caltrans has full possession and control of
state highways.
2)Establishes, under the 11th Amendment to the United States
Constitution that each state has sovereign immunity from being
sued in federal court.
3)Establishes, under federal law (SAFETEA-LU), a limited-term
Pilot Program wherein five states, including California, may
assume federal responsibilities for all NEPA actions as long
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as the states assume all associated risks, including
responding to citizen lawsuits filed in federal court.
4)Authorizes, under federal law (SAFETEA-LU), the CE Assignment
Program wherein states may assume duties of the Federal
Highway Administration (FHWA) relative to NEPA CE actions as
long as those states assume all associated risks, including
responding to citizen lawsuits filed in federal court.
5)Authorizes Caltrans, until January 1, 2012, to waive the
state's 11th Amendment sovereign immunity rights and to
specifically consent to the jurisdiction of the federal court
when sued by any person seeking to enforce rights under
pursuant to the NEPA delegation Pilot Program and CE
Assignment Program.
6)Requires Caltrans to, by January 1, 2009, and again by January
1, 2011, to submit a report to the Legislature containing an
analysis of the environmental review process, and cost and
time savings attributed to participation in the Pilot Program
and CE Assignment Program.
FISCAL EFFECT : According to Caltrans, an average of 12.8
personnel years (PYs) of staff time were expended annually to
participate in the CE Assignment Program and Pilot Program.
Additional costs include approximately $80,000 for 520 hours for
legal staff work in 2009/2010 and undisclosed expenditures for
consultant cost.
COMMENTS : Under federal law, transportation projects in
California that use federal funds, require a federal permit, are
proposed to be built on federal land, or are jointly undertaken
by a federal agency are subject to environmental review under
the NEPA. FHWA, on behalf of the U.S. Department of
Transportation (U.S. DOT), has responsibility for reviewing and
approving NEPA documents prepared for federal-aid highway
projects proposed for construction in California with the U.S.
DOT assuming liability in the event lawsuits are filed under
NEPA.
In 2005, SAFETEA-LU authorized states to assume FHWA's NEPA
responsibilities in two ways. The first was through the CE
Assignment Program which allowed qualifying states on an ongoing
basis to determine if a transportation project qualifies for a
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CE, a type of NEPA action that does not involve significant
impacts. To participate in the CE Assignment Program a state is
required to enter into an MOU with FHWA and agree to waive its
11th Amendment sovereign immunity to be sued in federal court.
The second program authorized under SAFETEA-LU was the Pilot
Program, which authorized five states (including California) to
apply to assume FHWA's authority for all other NEPA actions
including Environmental Assessments (EAs), typically produced
for smaller less controversial projects, and Environmental
Impact Statements (EISs), and typically produced for larger,
more complex projects having greater environmental impacts.
Participants wishing to take part in the Pilot Program were
required to make application to FHWA and agree to waive 11th
Amendment sovereign immunity to be sued in federal court.
Unlike the CE Assignment Program, the Pilot Program was offered
only on a limited term with the expiration of the program
coinciding with the expiration of SAFETEA-LU.
The intent of the Pilot Program was to test a method for
speeding up the federal environmental review and approvals for
transportation projects while maintaining existing levels
environmental protections. According to FHWA, states are
subject to the same procedural and substantive requirements of
the U.S. DOT in carrying out NEPA actions. California is one of
three states participating in the CE Assignment Program and the
only state participating in the Pilot Program.
In 2006, Caltrans sponsored legislation to obtain a limited
waiver of 11th Amendment sovereign immunity from citizen's
lawsuits so that they would be eligible to participate in the CE
Assignment Program and Pilot Program. AB 1039 (Nunez), Chapter
31, Statutes of 2006, authorized Caltrans to accept the
jurisdiction of the federal courts while carrying out the
responsibilities assumed under NEPA until January 1, 2009, and
identified specific reporting requirements.
Caltrans received federal approval to participate in the Pilot
Program on July 1, 2007, and as of that date began assuming
federal responsibilities for NEPA actions. As the sunset date
for the limited waiver of sovereign immunity provided under AB
1039 approached, Caltrans sought an extension of the sunset date
through AB 2650, Carter, Chapter 248, Statutes of 2008, which,
in addition to added reporting requirements, extended the sunset
of the limited waiver of 11th Amendment sovereign immunity from
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citizen's lawsuits to January 1, 2012.
On the federal side, as the expiration of SAFETEA-LU neared in
2010, Congress extended the authorization by continuing
resolution until August 2012. This extension has allowed
Caltrans to continue to participate in the CE Assignment Program
and the Pilot Program. Caltrans has noted that they expect the
new federal transportation bill to contain a provision for the
Pilot Program, however, if it does not, the Pilot Program would
end and with it, the need for a limited waiver of sovereign
immunity. (The CE Assignment Program, however, would extend
indefinitely).
The author contends that this bill would allow Caltrans to
continue to continue to participate in the CE assignment program
indefinitely, as authorized by SAFETEA-LU and, by extending the
sunset for the limited waiver of 11th Amendment sovereign
immunity from citizen's lawsuits to January 1, 2019, would allow
Caltrans to continue to participate in the Pilot Program through
what is expected to be the duration of the new federal
transportation bill.
Committee concerns: The committee does not have concerns with
allowing Caltrans to permanently assume duties associated with
the CE Assignment Program, since the time expended to produce,
review, and approve CE documents is relatively minor and the
risk of lawsuits on these documents is negligible.
Regarding the Pilot Program, the committee feels that extending
the sunset on the waiver of sovereign immunity will allow
Caltrans to continue to participate in the Pilot Program (so
long as it is authorized by future federal transportation
legislation) and collect more data on the benefits of the
program relative to the costs-information that will be needed by
the Legislature should Caltrans seek permanent authority for
assuming federal responsibilities for NEPA actions.
One example of where additional time to test the Pilot Program
would be helpful is for complex projects involving EIS
documents. According to Caltrans, only one EIS document has
been reviewed and approved under the Pilot Program to date.
Since projects warranting EIS's are typically more complex,
experience significant processing delays, and, according to
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Caltrans, receive the majority of legal challenges, more
testing on these types of project would provide useful
information as to whether or not similar project delivery time
savings can be achieved these projects. This is particularly
true since many of these projects typically have larger,
overarching environmental requirements such as the California
Environmental Quality Act (CEQA) compliance and other state and
federal environmental permit requirements that can contribute to
overall project delivery delays independent of the NEPA process.
The author has agreed to include a provision for reporting to
the Legislature, in conformance with reporting requirements set
forth in AB 2650, by Caltrans on or before January 1, 2014 and
again on January 1, 2019.
Previous legislation :
AB 2650 (Carter) Chapter 248, Statutes of 2008, extended the
state's existing limited waiver of its Eleventh Amendment
sovereign immunity from citizens' lawsuits, thereby enabling the
Caltrans to continue its assumption of National Environmental
Policy Act (NEPA) responsibilities under an ongoing pilot
program.
AB 1039 (Nunez) Chapter 31, Statutes of 2006, Chapter 31,
Statutes of 2006, was part of a package of bills placing several
infrastructure-related bond authorizations on the November 7,
2006 statewide ballot and contained other environmental
streamlining provisions, established the pilot program at
Caltrans that allowed Caltrans to enter into an MOU with the
FHWA to take on the federal government's environmental review
responsibilities for transportation projects and waived the
state's 11th Amendment sovereign immunity from lawsuits as a
prerequisite for taking on the federal responsibilities.
SB 1812 (Runner) of 2006 would have until January 1, 2009,
provided that the
State of California consents to the jurisdiction of the state
and federal courts with regard to the compliance, discharge, or
enforcement of the responsibilities assumed pursuant to the
surface transportation project delivery pilot program, and made
related provisions. That bill required that Caltrans submit to
the Legislature a report by January 1, 2008, relating to the
surface transportation project delivery pilot program. The
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contents of SB 1812 was placed into AB 1039 (Nunez), Chapter 31,
Statutes of 2006, as part of infrastructure bond authorizations
on the November 7, 2006 statewide ballot.
REGISTERED SUPPORT / OPPOSITION :
Support
California Department of Transportation (Sponsor)
Association of General Contractors
Automobile Club of Southern California
California State Association of Counties
City of Merced
City of Selma
City of Fowler
League of California Cities
Orange County Transportation Authority
Professional Engineers in California Government
San Diego Association of Governments
Transportation Agency for Monterey County
Tulare County Association of Governments
Opposition
None on file
Analysis Prepared by : Victoria Alvarez / TRANS. / (916) 319-
2093