BILL ANALYSIS �
AB 892
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 892
AUTHOR: Carter
AMENDED: May 10, 2011
FISCAL: Yes HEARING DATE: July 6, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law :
1) Under the federal National Environmental Policy Act (NEPA),
requires a federal lead agency to prepare a finding of no
significant impact (FONSI) or an environmental impact
statement (EIS) under certain conditions, and provides for
categorical exclusions. (42 U.S.C. �4321 et seq.).
2) 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.). If a project requires an
EIR and EIS, the lead agency must, whenever possible, use
the EIS as an EIR, and comply with other specified
requirements (�21083.7).
3) Provides authority to the Department of Transportation
(Caltrans) to have responsibility for NEPA compliance for
certain transportation projects (Streets and Highways Code
�820.1) by:
a) Consenting to the jurisdiction of federal courts with
regard to compliance and enforcement responsibilities
assumed by Caltrans under federal law authorizing the
state to assume environmental review responsibilities
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under NEPA.
b) Providing that no immunity from suit may be asserted
by Caltrans pursuant to the Eleventh Amendment of the
U.S. Constitution.
c) Requiring Caltrans to submit a report to the
Legislature by January 1, 2009, and January 1, 2011,
regarding certain matters.
d) Provides that this authority does not affect the
obligation of Caltrans to comply with state and federal
law.
e) Sunsets the above provisions January 1, 2012.
This bill :
1) Requires Caltrans NEPA compliance reports to be submitted
January 1, 2015, and January 1, 2018.
2) Extends the program sunset from January 1, 2012, to January
1, 2019, for NEPA environmental document responsibilities
other than categorical exclusions; eliminates the sunset
for categorical exclusion responsibilities; and provides
that the categorical exclusion responsibility is operative
as long as an authorized memorandum of understanding is
effective.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 892 extends
the expiration date for the State's existing limited waiver
of its 11thAmendment sovereign immunity from citizens'
suits, enabling the California Department of Transportation
(Caltrans) to continue its assumption of National
Environmental Policy Act (NEPA) responsibilities under the
'Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users' (SAFETEA-LU)."
2) Background . Transportation projects in California
requiring a federal permit, using federal funds, proposed
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on federal lands, or undertaken by a federal agency are
subject to NEPA. The Federal Highway Administration
(FHWA), on behalf of the U.S. Department of Transportation
(USDOT), is responsible for reviewing and approving NEPA
documents prepared for federal aid highway projects
proposed in California, and USDOT assumes liability for the
project.
The federal Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
established a Surface Transportation Project Delivery Pilot
Program, and designated California as one of five states
eligible to participate in the program that delegates to
states responsibilities of USDOT under NEPA. California
must accept financial costs associated with the delegated
authority and consent to liability for litigation under
NEPA in federal court, along with a limited waiver of
sovereign immunity.
AB 1039 (Nunez) Chapter 31, Statutes of 2006, provided the
needed authority and waiver for Caltrans to enter into a
MOU with FHWA to participate in the program; required a
January 1, 2008, report to the Legislature; and sunset
January 1, 2009.
AB 2650 (Carter) Chapter 248, Statutes of 2008, required
January 1, 2009, and January 1, 2011, reports; revised the
reporting requirements; and extended the sunset from
January 1, 2009, to January 1, 2012.
AB 892 requires January 1, 2015, and January 1, 2018, reports;
extends the sunset for NEPA non-categorical exclusion
environmental documents to January 1, 2019; provides no
sunset for categorical exclusion environmental documents;
provides that such authority is operative as long as
authorized by a MOU; and strikes a provision requiring the
state to be liable for decisions made and responsibilities
assumed prior to the sunset.
3) Costs and benefits . According to the "Third Report to the
California Legislature Pursuant to Section 820.1 of the
California Streets and Highways Code, January 1, 2011,"
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annualized costs under the pilot program have decreased
from $1.9 million in fiscal year (FY) 2007-08 to $1.8
million in FY 2008-09, and $1.5 million in FY 2009-10 - and
"the approval of final environmental documents took a
median of 17.9 months less under the Pilot Program."
According to Caltrans, 4,277 environmental documents were
prepared under the program with most also being joint
CEQA/NEPA documents. According to the report, "Two
lawsuits have been initiated against Caltrans over the past
three years under the Pilot Program." One of these cases
involved a categorical exclusion which Caltrans
subsequently withdrew and the case was dismissed.
4) Amendments needed . Extending a sunset for the NEPA program
to 2019 does not provide sufficient legislative oversight,
especially considering the federal pilot program is set to
sunset August 10, 2012, and the categorical exemption MOU
expires June 7, 2013 (which is then subject to renewal for
a three-year period). A January 1, 2017, sunset for the
program with a January 1, 2015, report would be more
suitable for needed legislative oversight. Amendments are
also needed to retain the requirement for the state to be
liable for decisions made and responsibilities assumed
prior to the sunset, and to address local agency sponsored
projects in the report.
SOURCE : California Department of Transportation
SUPPORT : Alameda Corridor-East Construction Authority,
Associated General Contractors, California
State Automobile Association, Lake Forest,
Lakewood, League of California Cities, Orange
County Transportation Authority, Professional
Engineers in California Government,
OPPOSITION : None on file
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