BILL ANALYSIS �
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 need�ed] 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