BILL ANALYSIS Ó
AB 1665
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1665
AUTHOR: Galgiani
AMENDED: April 18, 2012
FISCAL: Yes 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 railroad projects that
include, for example:
i) Any railroad grade separation project that
eliminates an existing grade crossing or reconstructs
an existing grade separation. (§21080.13).
ii) 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)).
iii) 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)).
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2)Under the Public Utilities Act, provides various powers to
the California Public Utilities Commission (PUC) relating to
railroad crossings. (Public Utilities Code §1201 et seq.).
This bill exempts the closure of a railroad crossing from CEQA
by order of the PUC, pursuant to the above powers of the PUC
under the Public Utilities Act, if the PUC finds the crossing
to present a threat to public safety.
COMMENTS :
1) Purpose of Bill . According to the PUC, sponsor of AB 1665,
this bill "would clarify the ĘPUC's] authority over rail
crossings in California with specific respect to closing
dangerous at-grade crossings without adverse consequences
to the purposes and provisions of ĘCEQA]. Current law now
leaves ĘPUC's] jurisdiction in this regard in question
following passage of AB 660 (Galgiani) Chapter 315,
Statutes of 2008."
The ĘPUC] also asserts that "In the wake of the tragic gas
pipeline explosion in San Bruno on September 9, 2010, the
ĘPUC] has redoubled its efforts to identify any and all
potential threats to public safety or potential hindrances
to achieving the state's safety objectives. While
unrelated to gas pipelines, AB 1665 touches on a topic that
has been identified by the ĘPUC] as a potential safety
threat and in need of statutory clarity."
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.
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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) 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
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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?
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)
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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) Seeking clarification or misinterpreting the law ? Current
law exempts any railroad grade separation project that
eliminates an existing grade crossing or reconstructs an
existing grade separation.
As noted above, the PUC indicates that AB 1665 is needed
because AB 660 (Galgiani) Chapter 315, Statutes of 2008,
leaves PUC jurisdiction in question. AB 660 amended
provisions relating to a program for funding grade
separation projects (Streets and Highways Code §2450 et
seq.).
This current grade crossing program includes definitions for
certain terms, including "grade separation" and "project."
"Grade separation" means the structure necessary to
separate the roadway from the railroad grade for the number
of lanes on the existing highway. "Project" means "the
grade separation and other structures that actually
separate the vehicular roadway from the railroad tracks . .
." The project may consist of: a) alteration or
reconstruction of existing grade separations, or b)
construction of new grade separations to eliminate existing
grade crossings. AB 660 repealed a third definition of
"project" - removal or relocation of highways or railroad
tracks to eliminate existing grade crossings (formerly
§2450(b)(3)).
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PUC asserts that Streets and Highways Code §2450(b)(3) was
stricken by AB 660, and that by striking this section, "the
removal or relocation of a highway or railroad tracks
(i.e., crossing closure removing the street or highway from
the railroad tracks) is no longer within the definition of
a grade crossing for purposes of the CEQA exemption."
However, removal or relocation of a street or highway is still
part of a grade separation under this program. Also, there
was no reference in the current CEQA grade separation
exemption (Public Resources Code §21080.13) to the
definitions in Streets and Highways Code §2450 - even if
those definitions ever referenced closure of a railroad
grade crossing - and the definitions in §2450 are clearly
"For purposes of this chapter" (i.e., the grade separation
program).
The PUC even admits that "While Streets and Highways Code
Section 2450 states explicitly that its provisions apply
for purposes of Chapter 10 of Division 3 of the Streets and
Highways Code, legal counsel for the ĘPUC], the railroad
industry and local agencies have traditionally used Streets
and Highways Code Section 2450 for guidance in helping
interpret Public Resources Code Section 21080.13 and the
meaning of a 'grade separation project' in lieu of a
definition provided anywhere else in statute."
It is not clear how the PUC could reach such a conclusion,
even before AB 660. Moreover, the legislative history of
SB 549 (Johnson) Chapter 58, Statutes of 1982, that enacted
the current CEQA grade separation exemption, makes no
reference to railroad grade crossing closures or to any
definition in the Streets and Highways Code or other
provision of law. AB 1665, therefore, does not merely
provide "clarity" following passage of AB 660.
2) Clearing the way for high-speed rail (HSR) related road
closures ? The proposed HSR project would result in several
at grade crossing closures. Although grade separation and
closure issues are considered part of the HSR project and
program EIRs, certain organizations have challenged the
adequacy of some of those EIRs. AB 1665 could enable the
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HSR Authority to begin approving crossing closures with the
AB 1665 CEQA exemption while litigation is pending on these
HSR EIRs.
The governor also recently announced the following recommended
amendments to CEQA: a) allow the HSR Authority to
"piecemeal" certain parts of the project; b) prohibit
project injunctions if the HSR Authority does not comply
with CEQA and certain conditions are met; and c) provide
legislative intent that the HSR program EIR is certified.
3) Outstanding issues ? As noted above, current law exempts a
grade separation project from CEQA that eliminates or
reconstructs an existing grade separation.
Should the closure of a railroad grade crossing by order of
the PUC based on a public safety threat finding also be
exempt from CEQA? If the committee believes that this
crossing closure should be exempt from CEQA, then this
exemption should not be used for the high-speed rail
project and there should be a sunset on this provision so
that the Legislature can consider the effect of this
exemption. The PUC should also be required to file the
notice of exemption with the Office of Planning and
Research.
4) Related legislation . AB 890 (Olsen) exempts certain
roadway improvement projects, and AB 2245 (Smyth) exempts a
project for Class II bikeways undertaken by a 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.
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SOURCE : California Public Utilities Commission
SUPPORT : Alameda Corridor-East Construction Authority,
American Council of Engineering Companies
OPPOSITION : None on file.