BILL ANALYSIS Ķ
AB 892
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CONCURRENCE IN SENATE AMENDMENTS
AB 892 (Carter)
As Amended July 13, 2011
Majority vote
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|ASSEMBLY: |77-0 |(May 16, 2011) |SENATE: |37-0 |(August 22, |
| | | | | |2011) |
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Original Committee Reference: TRANS.
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.
The Senate amendments :
1)Require a single report be submitted by the Department of
Transportation (Caltrans) to the Legislature on January 1,
2016.
2)Require that the report include Caltrans and local
agency-sponsored projects and address specified requirements.
3)Provide a January 1, 2017, sunset.
4)Specify that the state is liable for decisions made and
responsibilities assumed prior to the sunset.
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 Safe Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU), a limited-term Pilot Program wherein five
states, including California, may assume federal
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responsibilities for all NEPA actions as long as the states
assume all associated risks, including responding to citizen
lawsuits filed in federal court.
4)Authorizes, under federal law SAFETEA-LU, the Categorical
Exclusion (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 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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version passed by the Senate.
FISCAL EFFECT : According to the Senate Appropriations Committee
this bill would result in costs ranging from $750,000 to $1.5
million annually but notes that these costs would be offset by
potentially significant savings resulting from avoided
construction cost escalation.
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
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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
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 of
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 (Nuņez), 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 (Nuņez) approached, Caltrans sought an extension of the
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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 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 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 Assembly Transportation Committee staff
do 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 Assembly Transportation
Committee staff feel 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
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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
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.
Previous legislation: AB 2650 (Carter), Chapter 248, Statutes
of 2008, extended the state's existing limited waiver of its
11th 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 (Nuņez), 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
contents of SB 1812 (Runner) were placed into AB 1039 (Nuņez),
as part of infrastructure bond authorizations on the November 7,
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2006, statewide ballot.
Analysis Prepared by : Victoria Alvarez / TRANS. / (916) 319-
2093
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