BILL ANALYSIS Ó
AB 2034
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Date of Hearing: April 4, 2016
ASSEMBLY COMMITTEE ON TRANSPORTATION
Jim Frazier, Chair
AB 2034
(Salas) - As Amended March 17, 2016
SUBJECT: Department of Transportation: environmental review
process: federal program
SUMMARY: Deletes the January 1, 2017, sunset for the California
Department of Transportation (Caltrans) to waive its 11th
Amendment right to sovereign immunity from lawsuits brought in
federal court so that Caltrans can continue, indefinitely, to
assume the role of the U.S. Department of Transportation (U.S.
DOT) for National Environmental Policy Act (NEPA) decision
making.
EXISTING LAW:
1)Specifies that Caltrans has full possession and control of
state highways.
2)Establishes the NEPA Assignment program, under federal law,
wherein states may assume federal responsibilities for NEPA
actions as long as the states also assume associated risks,
including responding to citizen lawsuits filed in federal
court.
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3)Authorizes Caltrans, until January 1, 2017, to waive the
state's 11th Amendment sovereign immunity rights and to
consent to the jurisdiction of the federal court when sued by
any person seeking to enforce rights pursuant to the NEPA
delegation program.
4)Requires Caltrans to submit a report to the Legislature, on or
before January 1, 2016, containing, among other things, a cost
benefit analysis with regard to its participation in the NEPA
Assignment program.
FISCAL EFFECT: Unknown
COMMENTS: According to the author, AB 2034 will allow Caltrans
to continue indefinitely the NEPA Assignment program thereby
allowing for the continued expediting of environmental review of
critical transportation projects. By allowing projects to be
completed sooner than would otherwise be the case, the author
believes that NEPA Assignment will create circumstances by which
transportation projects can be delivered more quickly to the
traveling public resulting in job creation as well as
transportation system improvements.
In the 2005, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
established a Surface Transportation Project Delivery Pilot
Program (later called the NEPA Assignment). This pilot program
designated California as one of five states eligible to
participate in a multi-year program that delegates
responsibilities of United States Department of Transportation
(U.S. DOT) and the U.S. Federal Highway Administration (FHWA)
under NEPA to the states. These responsibilities subjected
states to the same procedural and substantive requirements as if
they were carried out by U.S. DOT. The delegation of this
authority to the state made Caltrans the lead agency for
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environmental reviews for projects subject to NEPA. To
participate in NEPA Assignment, participating states were
required to accept the financial costs associated with the
delegated authority, as well as full liability for lawsuits
filed under NEPA in federal court. Therefore, in order to
participate, participating states were required to obtain a
limited waiver of their 11th Amendment sovereign immunity
thereby allowing them to be sued in federal court and providing
them the ability to defend against claims that may be brought
against the NEPA document.
In 2006, the Legislature passed AB 1039 (Núñez), Chapter 31,
Statutes of 2006, which, among other things, granted the
necessary waiver of sovereign immunity to Caltrans until January
1, 2009. With the waiver in place, Caltrans entered into a
memorandum of understanding with FHWA to participate in NEPA
Assignment effective July 1, 2007. In addition to granting the
waiver of sovereign immunity, AB 1039 also required that
Caltrans report to the Legislature with information regarding
the costs and benefits the state's participation in the program.
In reports provided to the Legislature pursuant to AB 1039, as
well as subsequent legislation, Caltrans has reported
significant reductions in processing times for NEPA documents
and, as a result, the Legislature has twice extended the limited
waiver of sovereign immunity first with the passage of AB 2650
(Carter), Chapter 248, Statutes of 2008, and again with the
passage of SB 892 (Carter), Chapter 482, Statutes of 2011. Each
of these extensions continued Caltrans' reporting requirement,
with the last required report submitted to the Legislature on
January 1, 2016.
To date, NEPA Assignment has apparently been successful in
reducing the amount of time for reviews and approvals of NEPA
documents and also resulted in streamlining the environmental
review process for joint NEPA/CEQA documents. For example,
since undertaking NEPA Assignment, Caltrans reports a 20%
reduction in the time to complete Final Environmental
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Assessments (EAs) and a 72% reduction in the time to complete
Final Environmental Impact Studies (EISs).
In addition to reporting to the Legislature, Caltrans is also
required to report to FHWA pursuant to NEPA Assignment
responsibilities. Caltrans data reported to both the
Legislature and FHWA shows that NEPA Assignment has been a
success with median time savings of 10.7 months in approving
draft EAs, 11.5 months for final EAs, 22.9 months for draft
EISs, and 130.8 months for final EISs.
When AB 1039 first passed, providing Caltrans with the ability
to participate in NEPA Assignment, the Legislature added a
sunset provision to the limited waiver of sovereign immunity so
that the program could be discontinued in the event that
Caltrans' involvement in the program proved costly. To date,
however, Caltrans' has been involved in a seven minor NEPA
lawsuits and has expended minimal time, comparatively,
addressing these lawsuits. With respect to cost and time
savings achieved by NEPA Assignment, the benefits clearly
outweighed by the costs.
With regard to reporting, Caltrans has continued responsibility
to report to U.S. DOT with regard to the program along with
ongoing FHWA monitoring requirement. Caltrans provides the
results of this reporting on its Internet Web site so all the
documentation with regard to the program continues to be
accessible, making the need for ongoing reporting to the
Legislature unnecessary.
Previous legislation: SB 892 (Carter), Chapter 482, Statutes of
2011, provided for an extension of Caltrans' NEPA delegation
authority by extending a waiver of sovereign immunity.
AB 2650 (Carter), Chapter 248, Statutes of 2008, extended the
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state's existing limited waiver of its 11th Amendment sovereign
immunity from citizens' lawsuits, thereby enabling Caltrans to
continue its assumption of NEPA responsibilities under an
ongoing pilot program.
AB 1039 (Núñez), 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 that
contained other environmental streamlining provisions and
allowed Caltrans to waive the state's 11th Amendment sovereign
immunity from lawsuits as a prerequisite for taking on the
federal responsibilities.
REGISTERED SUPPORT / OPPOSITION:
Support
Automobile Club of Southern California
California Transportation Commission
Opposition
None on file
AB 2034
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Analysis Prepared by:Victoria Alvarez / TRANS. / (916) 319-2093