BILL ANALYSIS �
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 892
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: carter
VERSION: 5/10/11
Analysis by: Art Bauer FISCAL: yes
Hearing date: June 7, 2011
SUBJECT:
National Environmental Policy Act (NEPA) delegation to the
Department of Transportation (Caltrans)
DESCRIPTION:
This bill extends the sunset date from January 1, 2012 to
January 1, 2019 to waive the state's 11th amendment right to
sovereign immunity from lawsuits filed against Caltrans under
NEPA in order to allow Caltrans to continue its assumption of
NEPA responsibilities, requires Caltrans to prepare reports
analyzing the cost and benefits of the program and eliminates
the sunset date for the waiver of the state's 11th amendment
right to sovereign immunity lawsuits filed under NEPA.
ANALYSIS:
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 NEPA. The
Federal Highway Administration (FHWA), on behalf of the U.S.
Department of Transportation (USDOT), has responsibility for
reviewing and approving NEPA documents prepared for federal-aid
highway projects proposed for construction in the state. DOT
assumes liability for the project in the event lawsuits are
filed under NEPA.
The last federal transportation authorization act - the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) - established the Surface
Transportation Project Delivery Pilot Program (pilot program).
The pilot program designates California as one of five states
eligible to apply to participate in a multi-year program that
delegates to the state the responsibilities of USDOT and the
FHWA under NEPA. The responsibilities delegated to the state
AB 892 (CARTER) Page 2
are subject to the same procedural and substantive requirements
as if they were carried out by USDOT. The delegation to the
state makes Caltrans the lead agency for environmental reviews
of projects covered by NEPA. To participate in the program, the
state must accept the financial costs associated with this
delegated authority, as well as full liability for lawsuits
filed under NEPA in federal court, necessitating a limited
waiver of sovereign immunity.
In 2006, the Legislature passed AB 1039 (Nu�ez), Chapter 31, to
grant the necessary waiver until January 1, 2009. Following the
Legislature's action, Caltrans entered into a memorandum of
understanding with FHWA to participate in the program effective
July 1, 2007. AB 2650 (Carter) Chapter 248, Statutes of 2008
extended the pilot program as well as the 11th amendment waiver
to January 1, 2012.
This bill :
1. Extends the sunset date from January 1, 2009 to January
1, 2012, waiving the state's 11th amendment right to
sovereign immunity from lawsuits filed under NEPA.
2. Requires Caltrans to prepare reports analyzing the costs
and benefits of participating in the program and to submit
the reports by January 1, 2015 and January 1, 2019.
3. Eliminates the sunset date for the limited waiver of the
11th amendment right to sovereign immunity from lawsuits
filed under NEPA for the federal Categorical Exclusion (CE)
Assignment program authorized by SAFETEA-LU.
COMMENTS:
1.Purpose . This bill continues California's participation in
the five state pilot program authorized by SAFETEA-LU to
demonstrate that delegating the authority for NEPA can
expedite project delivery in states such as California, which
has some of the most complex and environmentally sensitive
highway projects in the country.
2.Categorical Exclusion Assignment program . By eliminating the
sunset date for CEs, the state permanently waives the 11th
amendment right to sovereign immunity for decisions of CE
projects. CE projects do not involve individual or
cumulatively significant impacts to the environment.
AB 892 (CARTER) Page 3
Typically, CE projects are within the existing right-of-way of
a highway and do not add roadway capacity. The actions
covered by the CE do not induce significant impacts to planned
growth or land use for the area affected by a project. In
addition, CEs do not require the relocation of people, do not
significantly impact any natural, cultural, recreational,
historic, or other resources. Further, CEs do not involve
significant air, noise, or water quality impacts, and do not
impact travel patterns. The cost of reviewing projects that
are candidates for the CE assignment program is small.
Lastly, litigation on CEs is very infrequent.
3.Impacts on Caltrans of managing pilot program . Caltrans
submitted a report on the impacts of the schedule for delivery
of highway projects last January, as required by AB 2650.
Caltrans reports:
The analyses conducted for this report indicate that
NEPA environmental approvals under the Pilot Program
have taken substantially less time than before the
Pilot Program. These time savings have been achieved
by eliminating one layer of government review formerly
conducted by FHWA and consolidating NEPA reviews with
Caltrans. The analysis also shows that the time that
it takes to delivery Caltrans' projects has also been
substantially shortened.
By assuming responsibility for NEPA reviews under the
pilot program, as well as continuing its responsibility
under CEQA, environmental reviews for projects are
consolidated under one agency which provides clarity in
decision-making for the public and enhances departmental
efficiency.
4.Double Referral . This bill is also referred to the
Environmental Quality Committee.
Assembly Votes:
Floor: 77-0
Appr: 17-0
Trans: 12-0
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
June 1, 2011)
AB 892 (CARTER) Page 4
SUPPORT: Caltrans (sponsor)
Automobile Club of Southern California
California State Association of Counties
California State Automobile Association
City of Fowler
City of Kingsburg
City of Merced
City of Selma
Fresno Council of Governments
Kern Council of Governments
League of California Cities
Monterey County Board of Supervisors
Orange County Transportation Authority
Professional Engineers in California Government
San Diego Association of Governments
Transportation Agency for Monterey County
Tulare County Association of Governments
Ventura County Transportation Commission
OPPOSED: None received.