BILL ANALYSIS Ó AB 2245 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: AB 2245 AUTHOR: Smyth AMENDED: May 15, 2012 FISCAL: No 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 bicycle facilities that include, for example: i) Operation, repair, maintenance, or minor alteration of existing private or public structures involving negligible or no expansion, including existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (including road grading for the purpose of public safety). (CEQA Guidelines §15301(c)). ii) Minor public or private alterations to land, water, or vegetation, including, but not limited to, "creation of bicycle lanes on existing rights-of-way." (CEQA Guidelines §15304(h)). AB 2245 Page 2 iii) Restriping of streets or highways to relieve traffic congestion. (Public Resources Code §21080.19). 2)Under the California Bicycle Transportation Act: a) Authorizes a city or county to prepare a bicycle transportation plan that must include certain elements (e.g., proposed land use and settlement patterns, existing proposed bikeways and bicycle facilities, bicycle safety and education facilities, project priorities for implementation, past expenditures and future financial needs). (Streets and Highways Code §891.2). b) Defines bikeways as follows: a) Class I bikeway, such as a "bike path," with a completely separated right-of-way for the exclusive use of bicycles and pedestrians with motorist crossflows minimized; b) Class II bikeway, such as a "bike lane," that provides a restricted right-of-way for exclusive or semiexclusive bicycle use with through travel by motor vehicles or pedestrians prohibited, but with vehicle parking and crossflows by pedestrians and motorists permitted; and c) Class III bikeway, such as an onstreet or offstreet "bike route," that provides a right-of-way designated by signs or markings and shared with pedestrians or motorists. (§890.4). This bill , under CEQA: 1) Exempts a project for Class II bikeways undertaken by a city or county within an existing road right-of-way. If a city or county determines that a Class II bikeway is exempt under this provision, then the city or county must prepare an assessment of any traffic and safety impacts of the project and hold a public hearing to review those impacts and hear and respond to public comments. 2) Sunsets January 1, 2017. COMMENTS : AB 2245 Page 3 1) Purpose of Bill . According to the author, "Current law requires transportation projects to undergo rigorous environmental review - this currently extends to the re-striping of a road that has already undergone CEQA review. As gas prices continue to escalate and we ramp up efforts to curb emissions, it is incumbent upon the state to encourage the development of more bike-able communities. AB 2245 will achieve this by exempting Class II bike lanes, those created by restriping existing roadways, from CEQA." The author also notes that "The County of Los Angeles just recently approved an ambitious plan to add 832 miles of new bikeways. Many of these will be of the Class II variety where simple restriping is all that is needÝed] to connect communities for non-motorized travel. Class I and III bikeways where new paths are being constructed through the environment will not be exempted under this bill, requiring those to continue to undergo CEQA review." 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. 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 AB 2245 Page 4 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 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 AB 2245 Page 5 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) 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. AB 2245 Page 6 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) Bikeway legislation . SB 1380 (Rubio): a) provides an exemption for a bikeway plan for an urbanized area consisting of restriping existing streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, bicycle parking and storage, and related storage if certain requirements are met (e.g., noticed public hearings, measures to mitigate bike and pedestrian safety impacts); b) sunsets January 1, 2018, so that the exemption can be evaluated and any unanticipated consequences considered; and c) requires a notice of exemption for a plan to be filed with the Office of Planning and Research (OPR) to assist in this evaluation. SB 1380 was approved by the Senate Environmental Quality Committee April 30, 2012 (6-0), and the Senate May 29, 2012 (36-2). According to the author of AB 2245, as noted above, Los Angeles County recently approved a bikeway plan and many of these will be Class II bikeways where restriping is all that is needed. However, Class III bikeways may also require restriping. If the Committee believes that the AB 2245 exemption is needed, then to be clearer - and consistent with SB 1380 - it would be more appropriate for AB 2245 to: a) instead refer to restriping of streets and highways for bicycle lanes that are consistent with a bikeway plan; b) require hearings to be in areas affected by the project, and specify the hearing notice requirements; c) require the notice of exemption to be filed with OPR; and d) sunset January 1, 2018, rather than January 1, 2017. 2) Support and opposition concerns . According to the Automobile Club of Southern California in supporting AB 2245, "The encouragement of greater bicycling as a viable mode of transportation through the provision of these facilities should provide a net environmental benefit." AB 2245 Page 7 According to the United Transportation Union in opposing this bill, "The addition of Class II bikeway projects, undertaken by a city, county, or a city and county within an existing right-of-way, to the exemptions of current CEQA requirements, creates an unsafe condition for all motorists and bike riders in California." 3) Related legislation . AB 890 (Olsen) exempts certain roadway improvement projects, and AB 1665 (Galgiani) exempts from CEQA the closure of a railroad grade crossing by order of the Public Utilities Commission if the PUC finds the crossing to present a public safety threat (the Senate Environmental Quality Committee will also hear these bills July 2, 2012), and SB 1380, as discussed above. SOURCE : Assemblymember Smyth SUPPORT : American Council of Engineering Companies of California, Associated Builders and Contractors of California, Automobile Club of Southern California, California Chamber of Commerce, California Park & Recreation Society, City of Los Angeles, Los Angeles County Metropolitan Transportation Authority, Regional Council of Rural Counties, Southwest California Legislative Counsel, State Park Partners Coalition OPPOSITION : United Transportation Union