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 









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                 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 










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              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," 










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              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  

            













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