BILL ANALYSIS Ó AB 892 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: AB 892 AUTHOR: Carter AMENDED: May 10, 2011 FISCAL: Yes HEARING DATE: July 6, 2011 URGENCY: No CONSULTANT: Randy Pestor SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT SUMMARY : Existing law : 1) Under the federal National Environmental Policy Act (NEPA), requires a federal lead agency to prepare a finding of no significant impact (FONSI) or an environmental impact statement (EIS) under certain conditions, and provides for categorical exclusions. (42 U.S.C. §4321 et seq.). 2) 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.). If a project requires an EIR and EIS, the lead agency must, whenever possible, use the EIS as an EIR, and comply with other specified requirements (§21083.7). 3) Provides authority to the Department of Transportation (Caltrans) to have responsibility for NEPA compliance for certain transportation projects (Streets and Highways Code §820.1) by: a) Consenting to the jurisdiction of federal courts with regard to compliance and enforcement responsibilities assumed by Caltrans under federal law authorizing the state to assume environmental review responsibilities AB 892 Page 2 under NEPA. b) Providing that no immunity from suit may be asserted by Caltrans pursuant to the Eleventh Amendment of the U.S. Constitution. c) Requiring Caltrans to submit a report to the Legislature by January 1, 2009, and January 1, 2011, regarding certain matters. d) Provides that this authority does not affect the obligation of Caltrans to comply with state and federal law. e) Sunsets the above provisions January 1, 2012. This bill : 1) Requires Caltrans NEPA compliance reports to be submitted January 1, 2015, and January 1, 2018. 2) Extends the program sunset from January 1, 2012, to January 1, 2019, for NEPA environmental document responsibilities other than categorical exclusions; eliminates the sunset for categorical exclusion responsibilities; and provides that the categorical exclusion responsibility is operative as long as an authorized memorandum of understanding is effective. COMMENTS : 1) Purpose of Bill . According to the author, "AB 892 extends the expiration date for the State's existing limited waiver of its 11thAmendment sovereign immunity from citizens' suits, enabling the California Department of Transportation (Caltrans) to continue its assumption of National Environmental Policy Act (NEPA) responsibilities under the 'Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users' (SAFETEA-LU)." 2) Background . Transportation projects in California requiring a federal permit, using federal funds, proposed AB 892 Page 3 on federal lands, or undertaken by a federal agency are subject to NEPA. The Federal Highway Administration (FHWA), on behalf of the U.S. Department of Transportation (USDOT), is responsible for reviewing and approving NEPA documents prepared for federal aid highway projects proposed in California, and USDOT assumes liability for the project. The federal Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established a Surface Transportation Project Delivery Pilot Program, and designated California as one of five states eligible to participate in the program that delegates to states responsibilities of USDOT under NEPA. California must accept financial costs associated with the delegated authority and consent to liability for litigation under NEPA in federal court, along with a limited waiver of sovereign immunity. AB 1039 (Nunez) Chapter 31, Statutes of 2006, provided the needed authority and waiver for Caltrans to enter into a MOU with FHWA to participate in the program; required a January 1, 2008, report to the Legislature; and sunset January 1, 2009. AB 2650 (Carter) Chapter 248, Statutes of 2008, required January 1, 2009, and January 1, 2011, reports; revised the reporting requirements; and extended the sunset from January 1, 2009, to January 1, 2012. AB 892 requires January 1, 2015, and January 1, 2018, reports; extends the sunset for NEPA non-categorical exclusion environmental documents to January 1, 2019; provides no sunset for categorical exclusion environmental documents; provides that such authority is operative as long as authorized by a MOU; and strikes a provision requiring the state to be liable for decisions made and responsibilities assumed prior to the sunset. 3) Costs and benefits . According to the "Third Report to the California Legislature Pursuant to Section 820.1 of the California Streets and Highways Code, January 1, 2011," AB 892 Page 4 annualized costs under the pilot program have decreased from $1.9 million in fiscal year (FY) 2007-08 to $1.8 million in FY 2008-09, and $1.5 million in FY 2009-10 - and "the approval of final environmental documents took a median of 17.9 months less under the Pilot Program." According to Caltrans, 4,277 environmental documents were prepared under the program with most also being joint CEQA/NEPA documents. According to the report, "Two lawsuits have been initiated against Caltrans over the past three years under the Pilot Program." One of these cases involved a categorical exclusion which Caltrans subsequently withdrew and the case was dismissed. 4) Amendments needed . Extending a sunset for the NEPA program to 2019 does not provide sufficient legislative oversight, especially considering the federal pilot program is set to sunset August 10, 2012, and the categorical exemption MOU expires June 7, 2013 (which is then subject to renewal for a three-year period). A January 1, 2017, sunset for the program with a January 1, 2015, report would be more suitable for needed legislative oversight. Amendments are also needed to retain the requirement for the state to be liable for decisions made and responsibilities assumed prior to the sunset, and to address local agency sponsored projects in the report. SOURCE : California Department of Transportation SUPPORT : Alameda Corridor-East Construction Authority, Associated General Contractors, California State Automobile Association, Lake Forest, Lakewood, League of California Cities, Orange County Transportation Authority, Professional Engineers in California Government, OPPOSITION : None on file AB 892 Page 5