The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA, until January 1, 2018, exempts from its requirements bicycle transportation plans for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles under certain conditions. CEQA, until January 1, 2018, also exempts from its requirements projects consisting of restriping of streets and highways for bicycle lanes in an urbanized area that are consistent with a bicycle transportation plan under certain conditions.

This bill would extend those 2 exemptions until January 1, 2021.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA, until January 1, 2018, exempts from its requirements bicycle transportation plans for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles under certain conditions. CEQA, until January 1, 2018, also exempts from its requirements projects consisting of restriping of streets and highways for bicycle lanes in an urbanized area that are consistent with a bicycle transportation plan under certain conditions.

This bill would extend those 2 exemptions until January 1, 2021.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA, until January 1, 2018, exempts from its requirements bicycle transportation plans for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles under certain conditions. CEQA, until January 1, 2018, also exempts from its requirements projects consisting of restriping of streets and highways for bicycle lanes in an urbanized area that are consistent with a bicycle transportation plan under certain conditions.

This bill would extend indefinitely those 2 exemptions. exemptions until January 1, 2021.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA, until January 1, 2018, exempts from its requirements bicycle transportation plans for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles under certain conditions. CEQA, until January 1, 2018, also exempts from its requirements projects consisting of restriping of streets and highways for bicycle lanes in an urbanized area that are consistent with a bicycle transportation plan under certain conditions.

This bill would extend indefinitely those 2 exemptions.

 CONSENT  

Bill No: AB 1218

Author:

:

Vote:

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 6-0, 6/21/17

AYES: Wieckowski, Stone, Hill, Lara, Skinner, Stern

NO VOTE RECORDED: Gaines

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 70-1, 5/1/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill extends the sunset from January 1, 2018 to January 1, 2021 for exemptions to CEQA related to a bicycle transportation plan and a project that consists of the restriping of streets and highways for bicycle lanes in an urbanized area.

ANALYSIS:

Existing law:

1. Requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from the California Environmental Quality Act (CEQA) (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines). (Public Resources Code §21000 et seq.).
   
2. Exempts from CEQA, a bicycle transportation plan prepared pursuant to Streets and Highways Code §891.2 for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles. (PRC §21080.20).
   
   1. Prior to determining that a project is exempt pursuant to this section, requires the lead agency to do the following:
      
      1. Hold public hearings in affected areas; and,
         
      2. Prepare an assessment of any traffic and safety impacts of the project and include measures in the bicycle transportation plan to mitigate potential vehicular, and bicycle and pedestrian safety impacts.
         
   2. Requires a local agency, which determines that a project is exempt pursuant to this section and determines to approve the project, to file notice of the determination with the Office of Planning and Research and with the county in which the project is located.
      
   3. Sunsets the exemption for a bicycle transportation plan on January 1, 2018.
      
3. Exempts from CEQA, a project that consists of the restriping of streets and highways for bicycle lanes in an urbanized area. (PRC §21080.20.5).
   
   1. Provides that the lead agency is not required to prepare an assessment of any traffic or safety impacts of the project if either of the following conditions are met:
      
      1. Mitigation measures are identified in the CEQA environmental review document for the bicycle transportation plan that is certified or approved within the past five years and those measures are incorporated into the project; or,
         
      2. An assessment was prepared pursuant to #3(b) within the past five years, mitigation measures are included in the plan, and those measures are incorporated into the project.
         
   2. Sunsets the exemption for bicycle lanes restriping on January 1, 2018.
      
4. Contains other exemptions relating to bicycle facilities that include, for example:
   
   1. Operation, repair, maintenance, or minor alteration of existing 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)).
      
   2. 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)).
      
   3. Restriping of streets or highways to relieve traffic congestion. (PRC §21080.19).
      
5. Authorizes, under the California Bicycle Transportation Act, a city or county to prepare a bicycle transportation plan, which 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).
   

This bill:

1. Extends the sunset from January 1, 2018 to January 1, 2021 for the CEQA exemption for a bicycle transportation plan prepared pursuant to Streets and Highways Code §891.2 for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles.
   
2. Extends the sunset from January 1, 2018 to January 1, 2021 for the CEQA exemption for a project that consists of the restriping of streets and highways for bicycle lanes in an urbanized area.

Background

Overview of CEQA Process. 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 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.

Comments

1. Purpose of Bill. According to the author, “CEQA often prevents projects from moving forward or causes unnecessary and costly delays. Projects for restriping bicycle lanes can get held up in CEQA litigation, sometimes leading to the project being cancelled. Since the start of 2013, there have been 17 bike projects in the state. Three of these projects utilized the 21080.20 or the 21080.25 exemptions, which were established by AB 417 and AB 2245 respectively. These three projects took place in the Los Angeles Metropolitan area.”
2. San Francisco bicycle plan litigation. The San Francisco Board of Supervisors adopted the 2005 Bicycle Plan on June 7, 2005, and determined that the plan was exempt from CEQA because there was no possibility that it would have significant impacts on the environment. The San Francisco County Transportation Authority Commission (composed exclusively of members of the board of supervisors) adopted the bicycle plan’s “Network Improvement Document,” a five-year plan for funding and implementing the Bicycle Plan on June 21, 2005.
   
   Petitioners challenged the adoption of the 2005 Bicycle Plan and Network Improvement Document under CEQA and the Court granted the petitioner’s petition finding the Plan and Document should have been reviewed pursuant to CEQA together as one project – and that considered as a whole could have a significant impact on the environment. The court issued a Preemptory Writ of Mandate on June 18, 2007, requiring San Francisco to conduct adequate environmental review of the Plan and Document, and enjoined the city from implementing any individual improvement projects until the review was completed.
   
   San Francisco planning department published a draft EIR on November 26, 2008. According to the court, “The bulk of the Draft EIR’s analysis concerned impacts on transportation, particularly impacts from the 60 near-term improvements on 63 different intersections located throughout San Francisco, as well as impacts on 12 ‘transit corridors,’ 10 transit ‘spot studies,’ and 13 parking and loading corridors.” The court also noted that the EIR identified mitigation measures to minimize or eliminate many of the significant environmental impacts identified in the EIR, including measures such as adding or modifying traffic signals at intersections (lengthening green light time or adding a green arrow), modifying roadway striping (changing shared lanes to exclusive turn lanes, narrowing traffic lanes, or eliminating or restricting on-street parking).
   
   The Planning Commission certified the EIR on June 25, 2009; the MTA board of directors adopted the 2009 Bicycle Plan and approved the traffic changes necessary to implement 45 of the 60 improvements, and made the required CEQA findings. The petitioners appealed the Planning Commissioner’s certification of the EIR to the Board of Supervisors on July 15, 2009; and the Board of Supervisors heard the appeals on August 4, 2009, and denied the appeals. The city filed a Notice of Determination on August 14, 2009, and filed a return to the Writ of Mandate on September 18, 2009, to which the petitioners objected. The court found that the city complied with CEQA and the court’s order to conduct environmental review of the Bicycle Plan, including its policies and goals and individual improvement projects on August 6, 2010. The main criticism heard about the San Francisco case is that one petitioner had the power to delay something good from happening for several years.
   
   However, it should be noted that if San Francisco had simply performed a proper environmental review in the first place, which the Court found that it should have done, there would not have been as long of a delay. In addition, because of the CEQA review, many improvements were made that would not have been done otherwise.
   
3. To sunset or not to sunset? A sunset clause provides that the statute subject to the sunset will cease to exist after a specified date unless further legislative action is taken to extend the law. A statute subject to a sunset provides the Legislature the opportunity to assess the effectiveness and utility of that statute.
   
   1. CEQA exemption for bicycle transportation plans. The San Francisco case is the impetus of AB 417 (Frazier, Chapter 613, Statutes of 2013), which exempts the approval of a bicycle transportation plan for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing, and related signage. This exemption sunsets January 1, 2018.
      
      Projects considered environmentally beneficial, such as improving bicycle transportation in urbanized areas, may also have significant impacts on the environment. To disregard that possibility and fail to at least assess and mitigate those impacts could potentially be harmful to the community in which the project is located as well as counterproductive to the overall goal of improving the environment.
      
      As of April, 2017, the Office of Planning and Research (OPR) had no record of the exemption for the approval of a bicycle transportation plan being used.
      
   2. CEQA exemption for bicycle lane restriping. AB 2245 (Smyth, Chapter 680, Statutes of 2012) exempts from CEQA a project that consists of restriping of streets and highways for bicycle lanes in an urbanized area that is consistent with a city or county bicycle transportation plan.
      
      However, as noted above in “Existing law” section of this analysis, these same types of projects appear to be covered by categorical exemptions, CEQA Guidelines §15301(c) and §15304(h), as well as a statutory exemption for restriping streets and highways to relieve congestion.
      
      According to OPR, the PRC §21080.20.5 exemption was used three times in 2013 by the City of Los Angeles.
      

Also, it should be noted that not all roads lead to an EIR under CEQA. In fact, a significant majority of projects are not subject to an EIR. When a project is not exempt from CEQA, an initial study is conducted. If the initial study shows that the project would not result in a significant impact on the environment, the lead agency prepares a negative declaration, not an EIR.

Considering the relatively minimal use of these bicycle-related exemptions according to data from OPR, and that other exemptions exist in current law that may cover the same actions, a question arises as to whether these exemptions should sunset.

Related/Prior Legislation

AB 417 (Frazier, Chapter 613, Statutes of 2013) exempted from CEQA bicycle transportation plans for urbanized areas.

SB 1380 (Rubio, 2012) exempted from CEQA bicycle transportation plans developed for urbanized areas. SB 1380 was approved by the Senate Environmental Quality Committee April 30, 2012 (6-0) but died on the Assembly Floor inactive file.

AB 2245 (Smyth, Chapter 680, Statutes of 2012) exempted from CEQA a project that consists of restriping of streets and highways for bicycle lanes in an urbanized area that is consistent with a city or county bicycle transportation plan.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/10/17)

Bay Area Air Quality Management District

California Association of Bicycling Organizations

California Transportation Commission

Civil Justice Association of California

Rural County Representatives of California

Transportation Agency for Monterey County

Ventura County Transportation Commission

OPPOSITION: (Verified 7/10/17)

None received

ASSEMBLY FLOOR: 70-1, 5/1/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Eggman, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Thurmond, Voepel, Waldron, Weber, Wood, Rendon

NOES: Mark Stone

NO VOTE RECORDED: Brough, Dahle, Flora, Fong, Gonzalez Fletcher, Gray, Patterson, Ridley-Thomas, Ting

Prepared by:

7/13/17 8:28:48

**** END ****

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 1218

SUBJECT: California Environmental Quality Act: exemption: bicycle transportation plans.

ANALYSIS:

Existing law:

1. Requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from the California Environmental Quality Act (CEQA) (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines). (Public Resources Code §21000 et seq.).
   
2. Exempts from CEQA, a bicycle transportation plan prepared pursuant to Streets and Highways Code §891.2 for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles. (PRC §21080.20).
   
   1. Prior to determining that a project is exempt pursuant to this section, requires the lead agency to do the following:
      
      1. Hold public hearings in affected areas; and,
         
      2. Prepare an assessment of any traffic and safety impacts of the project and include measures in the bicycle transportation plan to mitigate potential vehicular, and bicycle and pedestrian safety impacts.
         
   2. Requires a local agency, which determines that a project is exempt pursuant to this section and determines to approve the project, to file notice of the determination with the Office of Planning and Research and with the county in which the project is located.
      
   3. Sunsets the exemption for a bicycle transportation plan on January 1, 2018.
      
3. Exempts from CEQA, a project that consists of the restriping of streets and highways for bicycle lanes in an urbanized area. (PRC §21080.20.5).
   
   1. Provides that the lead agency is not required to prepare an assessment of any traffic or safety impacts of the project if either of the following conditions are met:
      
      1. Mitigation measures are identified in the CEQA environmental review document for the bicycle transportation plan that is certified or approved within the past five years and those measures are incorporated into the project; or,
         
      2. An assessment was prepared pursuant to #3(b) within the past five years, mitigation measures are included in the plan, and those measures are incorporated into the project.
         
   2. Sunsets the exemption for bicycle lanes restriping on January 1, 2018.
      
4. Contains other exemptions relating to bicycle facilities that include, for example:
   
   1. Operation, repair, maintenance, or minor alteration of existing 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)).
      
   2. 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)).
      
   3. Restriping of streets or highways to relieve traffic congestion. (PRC §21080.19).
      
5. Under the California Bicycle Transportation Act, authorizes a city or county to prepare a bicycle transportation plan, which 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).
   

This bill:

1. Extends the sunset from January 1, 2018 to January 1, 2021 for the CEQA exemption for a bicycle transportation plan prepared pursuant to Streets and Highways Code §891.2 for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and related signage for bicycles, pedestrians, and vehicles.
   
2. Extends the sunset from January 1, 2018 to January 1, 2021 for the CEQA exemption for a project that consists of the restriping of streets and highways for bicycle lanes in an urbanized area.
   

Background

1. Overview of CEQA Process. 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 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.
   
2. What is analyzed in an environmental review? Pursuant to CEQA, an environmental review analyzing the significant direct and indirect environmental impacts of a proposed project may include water quality, surface and subsurface hydrology, land use and agricultural resources, transportation and circulation, air quality and greenhouse gas emissions, terrestrial and aquatic biological resources, aesthetics, geology and soils, recreation, public services and utilities such as water supply and wastewater disposal, and cultural resources. The analysis must also evaluate the cumulative impacts of any past, present, and reasonably foreseeable projects/activities within study areas that are applicable to the resources being evaluated. A study area for a proposed project must not be limited to the footprint of the project because many environmental impacts of a development extend beyond the identified project boundary. Also, CEQA stipulates that the environmental impacts must be measured against existing physical conditions within the project area, not future, allowable conditions.
   
3. CEQA provides hub for multi-disciplinary regulatory process. A CEQA exemption does not alleviate a project proponent from its obligation to obtain mandatory permits or adhere to specified regulatory programs. CEQA assists in moving a project through the multi-disciplinary, regulatory process because responsible agencies rely on the lead agency’s environmental documentation in acting on the aspect of the project that requires its approval and must prepare its own findings regarding the project. A variety of issues, many of which involve permitting and/or regulatory program requirements, should be coordinated and analyzed together as a whole. CEQA provides a comprehensive analysis of a project’s impacts in those subject areas.

Comments

1. Purpose of Bill. According to the author, “CEQA often prevents projects from moving forward or causes unnecessary and costly delays. Projects for restriping bicycle lanes can get held up in CEQA litigation, sometimes leading to the project being cancelled. Since the start of 2013, there have been 17 bike projects in the state. Three of these projects utilized the 21080.20 or the 21080.25 exemptions, which were established by AB 417 and AB 2245 respectively. These three projects took place in the Los Angeles Metropolitan area.”
2. San Francisco bicycle plan litigation. The San Francisco Board of Supervisors adopted the 2005 Bicycle Plan on June 7, 2005, and determined that the plan was exempt from CEQA because there was no possibility that it would have significant impacts on the environment. The San Francisco County Transportation Authority Commission (composed exclusively of members of the board of supervisors) adopted the bicycle plan’s “Network Improvement Document,” a five-year plan for funding and implementing the Bicycle Plan on June 21, 2005.
   
   Petitioners challenged the adoption of the 2005 Bicycle Plan and Network Improvement Document under CEQA and the Court granted the petitioner’s petition finding the Plan and Document should have been reviewed pursuant to CEQA together as one project – and that considered as a whole could have a significant impact on the environment. The court issued a Preemptory Writ of Mandate on June 18, 2007, requiring San Francisco to conduct adequate environmental review of the Plan and Document, and enjoined the city from implementing any individual improvement projects until the review was completed.
   
   San Francisco planning department published a draft EIR on November 26, 2008. According to the court, “The bulk of the Draft EIR’s analysis concerned impacts on transportation, particularly impacts from the 60 near-term improvements on 63 different intersections located throughout San Francisco, as well as impacts on 12 ‘transit corridors,’ 10 transit ‘spot studies,’ and 13 parking and loading corridors.” The court also noted that the EIR identified mitigation measures to minimize or eliminate many of the significant environmental impacts identified in the EIR, including measures such as adding or modifying traffic signals at intersections (lengthening green light time or adding a green arrow), modifying roadway striping (changing shared lanes to exclusive turn lanes, narrowing traffic lanes, or eliminating or restricting on-street parking).
   
   The Planning Commission certified the EIR on June 25, 2009; the MTA board of directors adopted the 2009 Bicycle Plan and approved the traffic changes necessary to implement 45 of the 60 improvements, and made the required CEQA findings. The petitioners appealed the Planning Commissioner’s certification of the EIR to the Board of Supervisors on July 15, 2009; and the Board of Supervisors heard the appeals on August 4, 2009, and denied the appeals. The city filed a Notice of Determination on August 14, 2009, and filed a return to the Writ of Mandate on September 18, 2009, to which the petitioners objected. The court found that the city complied with CEQA and the court’s order to conduct environmental review of the Bicycle Plan, including its policies and goals and individual improvement projects on August 6, 2010. The main criticism heard about the San Francisco case is that one petitioner had the power to delay something good from happening for several years.
   
   However, it should be noted that if San Francisco had simply performed a proper environmental review in the first place, which the Court found that it should have done, there would not have been as long of a delay. In addition, because of the CEQA review, many improvements were made that would not have been done otherwise.
   
3. What do we lose with a CEQA exemption? It is not unusual for certain interests to assert that CEQA impedes on a project coming to fruition or that a particular exemption will expedite construction of a particular type of project and reduce costs. This, however, frequently overlooks the benefits of environmental review: 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 may not get addressed. For example:
   

• How can decisionmakers and the public be aware of impacts, mitigation measures, and alternatives of an exempt action?
  
• Is it appropriate for the public to live with the consequences of exempt projects where impacts are not mitigated and alternatives are not considered regarding certain matters, such as air quality, water quality, noise, cumulative impacts, and growth inducing impacts?
  
• Because adverse project impacts do not disappear when they are not identified and mitigated with an exemption, does the exemption result in a direct transfer of responsibility for mitigating impacts from the project applicant/developer to the public (i.e., taxpayers) if impacts are ultimately addressed after completion of the project?
  
• If taxpayers, rather than a developer, are ultimately responsible for mitigating impacts of an exempt project after project completion, what assessments or taxes will be increased to fund mitigation or pay for alternatives at a later date?

CEQA specifically provides for that informed and responsible decisionmaking. Does bypassing CEQA potentially create more of a liability for those decisionmakers who should have known about potential impacts, but chose not to? Also, does the short-term benefit of expediency justify potentially long-term, permanent consequences/damages to the community?

1. CEQA litigation. It is not unusual for certain interests to blame CEQA lawsuits for causing problems to a project. However, it should be noted that the only tool for enforcing CEQA is civil litigation. So, eliminating the possibility of litigation means taking away the ability for anyone to enforce the law.
   
   Those citing CEQA litigation as a problem do not indicate the result of that litigation. For example, 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. exposure of people to hazards, congestion, or inadequate public services)?
   
   Also, how prevalent is CEQA litigation? According to the report, CEQA in the 21^st Century (commissioned by the Rose Foundation and prepared by BAE Urban Economics, August 2016), the number of lawsuits filed under CEQA has averaged 195 per year since 2002. Fewer than 1 out of every 100 projects reviewed under CEQA (that were not considered exempt) were subject to litigation. The estimated rate of litigation for all CEQA projects undergoing environmental review (excluding exemptions) was 0.7% for the past few years.
   
   To help put this in perspective, the total number of CEQA cases filed make up approximately 0.02% of 1,100,000 civil cases filed annually in California.
   
   Furthermore, the California Attorney General’s office conducted a case study of CEQA challenges in the City and County of San Francisco from July 2011 through December 2011 and found that 18 lawsuits were filed out of 5,203 projects considered under CEQA.
   
   According to the Natural Resources Defense Council, a review of CEQA challenges in the City of Los Angeles from January 2011 through July 20, 2012, shows that of 1,182 projects reviewed under CEQA, 18 were challenged, which is a litigation rate of 1.5%.
   
   Although certain interests believe CEQA litigation to be a swathing impediment to some projects, the numbers above indicate otherwise. The volume of CEQA litigation is low considering the thousands of projects subject to CEQA each year as well as the volume of civil litigation in general statewide. And if a project is the subject of litigation, perhaps the cause of action has merit and ensures compliance with the law.
   
2. To sunset or not to sunset? A sunset clause provides that the statute subject to the sunset will cease to exist after a specified date unless further legislative action is taken to extend the law. A statute subject to a sunset provides the Legislature the opportunity to assess the effectiveness and utility of that statute.
   
   1. CEQA exemption for bicycle transportation plans. The San Francisco case is the impetus of AB 417 (Frazier, Chapter 613, Statutes of 2013), which exempts the approval of a bicycle transportation plan for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing, and related signage. This exemption sunsets January 1, 2018.
      
      Projects considered environmentally beneficial, such as improving bicycle transportation in urbanized areas, may also have significant impacts on the environment. To disregard that possibility and fail to at least assess and mitigate those impacts could potentially be harmful to the community in which the project is located as well as counterproductive to the overall goal of improving the environment.
      
      As of April, 2017, the Office of Planning and Research (OPR) had no record of the exemption for the approval of a bicycle transportation plan being used.
      
   2. CEQA exemption for bicycle lane restriping. AB 2245 (Smyth, Chapter 680, Statutes of 2012) exempts from CEQA a project that consists of restriping of streets and highways for bicycle lanes in an urbanized area that is consistent with a city or county bicycle transportation plan.
      
      However, as noted above in “Existing law” section of this analysis, these same types of projects appear to be covered by categorical exemptions, CEQA Guidelines §15301(c) and §15304(h), as well as a statutory exemption for restriping streets and highways to relieve congestion.
      
      According to OPR, the PRC §21080.20.5 exemption was used three times in 2013 by the City of Los Angeles.
      

Also, it should be noted that not all roads lead to an EIR under CEQA. In fact, a significant majority of projects are not subject to an EIR. When a project is not exempt from CEQA, an initial study is conducted. If the initial study shows that the project would not result in a significant impact on the environment, the lead agency prepares a negative declaration, not an EIR.

Considering the relatively minimal use of these bicycle-related exemptions according to data from OPR, and that other exemptions exist in current law that may cover the same actions, a question arises as to whether these exemptions should sunset.

Related/Prior Legislation

AB 417 (Frazier, Chapter 613, Statutes of 2013) exempted from CEQA bicycle transportation plans for urbanized areas.

SB 1380 (Rubio, 2012) exempted from CEQA bicycle transportation plans developed for urbanized areas. SB 1380 was approved by the Senate Environmental Quality Committee April 30, 2012 (6-0) but died on the Assembly Floor inactive file.

AB 2245 (Smyth, Chapter 680, Statutes of 2012) exempted from CEQA a project that consists of restriping of streets and highways for bicycle lanes in an urbanized area that is consistent with a city or county bicycle transportation plan.

SOURCE:

Author

SUPPORT:

Bay Area Air Quality Management District

California Transportation Commission

Civil Justice Association of California (CJAC)

Rural County Representatives of California

Transportation Agency for Monterey County

Ventura County Transportation Commission

OPPOSITION:

None received

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1218

Author:(Obernolte)

As Amended Ver:April 18, 2017

Majority vote

SUMMARY: Extends the sunsets on existing California Environmental Quality Act (CEQA) exemptions for bicycle transportation plans and bicycle lanes, from 2018 to 2021.

EXISTING LAW:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative 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).
2. Exempts the approval of a bicycle transportation plan for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing, and related signage. (AB 417 (Frazier), Chapter 613, Statutes of 2013)
3. Exempts a bicycle lane project in an urbanized area that is consistent with a local bicycle transportation plan. (AB 2245 (Smyth), Chapter 680, Statutes of 2012)
4. Both bicycle exemptions:
   1. Require the lead agency, prior to claiming the exemption, to hold noticed public hearings, assess any traffic and safety impacts, and include measures to mitigate those impacts.
   2. Require the lead agency to file a notice of exemption with the Office of Planning and Research and the county clerk in the county in which the project is located.
   3. Sunset January 1, 2018.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no additional state costs.

COMMENTS: CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the 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 program to ensure compliance with those measures.

In June 2005, San Francisco adopted its 2005 Bicycle Plan, determining that the plan was exempt from CEQA based upon their finding that there was no possibility that the bicycle plan would have significant impacts on the environment. San Francisco also adopted the bicycle plan's Network Improvement Document, a five-year plan for funding and implementing the bicycle plan. Petitioners challenged adoption of the 2005 Bicycle Plan and Network Improvement Document under CEQA and the court granted the petition, finding that the plan and document should have been reviewed under CEQA together as one project, and that the two actions could have a significant impact on the environment. The court issued a Preemptory Writ of Mandate in 2007, requiring San Francisco to conduct adequate environmental review of the plan and document, and enjoined the city from implementing any individual improvement projects until the review was completed.

After reviewing the revised plan, the court indicated that "(t)he bulk of the draft EIR's analysis concerned impacts on transportation, particularly impacts from the 60 near-term improvements on 63 different intersections located throughout San Francisco, as well as impacts on 12 transit corridors, 10 transit spot studies, and 13 parking and loading corridors." The court also noted that the EIR identified mitigation measures to minimize or eliminate many of the significant environmental impacts identified in the EIR, including measures such as adding or modifying traffic signals at intersections (lengthening green light time or adding a green arrow), or modifying roadway striping (changing shared lanes to exclusive turn lanes, narrowing travel lanes, or eliminating or restricting on-street parking). Subsequent to ruling against another appeal by the plaintiffs, the court determined in 2010 that the report met the requirements of CEQA.

This unique controversy led to AB 417, even though it had been resolved by the time AB 417 was enacted. Office of Planning and Research (OPR) has no record of the exemption established by AB 417 being used.

AB 2245 established a CEQA exemption for bike lanes undertaken by a city or county within an existing road right-of-way, even though these projects appear to be covered by established and frequently used categorical exemptions. In addition, there is a statutory exemption for restriping of streets and highways to relieve congestion (Public Resources Code Section 21080.19).

CEQA Guidelines provide two possible categorical exemptions: (1) work on existing facilities where there is negligible expansion of an existing use, specifically including "(e)xisting highways and streets, sidewalks, gutters, bicycle and pedestrian trails (emphasis added), and similar facilities" (Section 15301(c), CEQA Guidelines); and (2) minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees, except for forestry or agricultural purposes, specifically including the creation of bicycle lanes on existing rights-of-way. (emphasis added) (Section 15304 (h), CEQA Guidelines).

Finally, if the project is not exempt from CEQA, but the initial study shows that it would not result in a significant effect on the environment, the lead agency must prepare a negative declaration, and no EIR is required.

According to OPR, the exemption established by AB 2245 was used three times in 2013 by the City of Los Angeles, the bill's original proponent.

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. / (916) 319-2092 FN: 0000192

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1218

Author:(Obernolte) – As Amended Ver:April 18, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill extends from 2018 to 2021 the sunset date on California Environmental Quality Act (CEQA) exemptions for bicycle transportation plans and bicycle lanes. Specifically, this bill extends the following exemptions for three years:

1. The approval of a bicycle transportation plan for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing, and related signage. [AB 417 (Frazier), Chapter 613, Statutes of 2013]
2. A bicycle lane project in an urbanized area that is consistent with a local bicycle transportation plan. [AB 2245 (Smyth), Chapter 680, Statutes of 2012]

FISCAL EFFECT:

No additional state costs.

COMMENTS:

1. Purpose. According to the author, since the start of 2013, there have been 17 bike projects which have used the existing CEQA exemptions. Three of these projects took place in the Los Angeles Metropolitan area. This bill extends the CEQA exemptions for another three years.
2. Background. CEQA provides a process for evaluating the environmental effects of applicable projects approved or undertaken by public agencies. For projects that are not exempt from CEQA, an initial study is prepared to determine if the projects may have a significant impact on the environment. If the initial study shows no significant impacts, a negative declaration is issued. If the project may significantly impact the environment, a full Environmental Impact Report (EIR) must be prepared, including the identification of environmental impacts and required mitigation, compliance and reporting measures intended to reduce the environmental impacts to the extent feasible. CEQA also provides for public process and legal challenges.
3. SF 2005 Bicycle Plan. The City and County of San Francisco adopted a bicycle plan and determined the plan was exempt from CEQA because, in the city's view, the activities associated with the plan did not trigger CEQA review. The City concurrently adopted the Network Improvement Plan, a five-year plan for funding and implementing the bicycle plan.

Petitioners challenged both the Bicycle Plan and The Network Improvement Plan successfully under CEQA. The court found that the both plans should have been reviewed together as one project, as the two actions together could have a significant impact on the environment. The city was ordered to prepare an EIR. The court ultimately determined that the EIR met the requirements of CEQA.

As a result, San Francisco's bicycle plan was delayed and the city spent more public funds than they had originally anticipated.

This unique controversy led to AB 417 (Frazier), Chapter 613, Statutes of 2013, even though it had been resolved by the time AB 417 was enacted. The Office of Planning and Research (OPR) has no record of the exemption established by AB 417 being used.

1. Class II Bikeways. AB 2245 (Smyth) Chapter 680, Statutes of 2012, established a CEQA exemption until January 1, 2018, for specific bike lanes undertaken by state or local government in existing road rights-of way. This exemption requires the lead Agency to file notice of determination with the OPR but does not include the additional requirements to track all the actions and outcomes of noncompliance claims and proceedings.

According to OPR, the exemption established by AB 2245 was used three times in 2013 by the City of Los Angeles, the bill's original proponent.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 3, 2017

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Cristina Garcia, Chair

ABPCA Bill Id:AB 1218 (

Author:Obernolte) – As Introduced Ver:February 17, 2017

SUBJECT: California Environmental Quality Act: exemption: bicycle transportation plans

SUMMARY: Repeals the 2018 sunsets on California Environmental Quality Act (CEQA) exemptions for bicycle transportation plans and bicycle lanes.

EXISTING LAW:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative 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).
2. Exempts the approval of a bicycle transportation plan for an urbanized area for restriping of streets and highways, bicycle parking and storage, signal timing, and related signage. [AB 417 (Frazier), Chapter 613, Statutes of 2013]
3. Exempts a bicycle lane project in an urbanized area that is consistent with a local bicycle transportation plan. [AB 2245 (Smyth), Chapter 680, Statutes of 2012]
4. Both bicycle exemptions:
   1. Require the lead agency, prior to claiming the exemption, to hold noticed public hearings, assess any traffic and safety impacts, and include measures to mitigate those impacts.
   2. Require the lead agency to file a notice of exemption with the Office of Planning and Research and the county clerk in the county in which the project is located.
   3. Sunset January 1, 2018.

THIS BILL repeals the 2018 sunset for both exemptions.

FISCAL EFFECT: Unknown

COMMENTS:

1. Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the 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 program to ensure compliance with those measures.

1. CEQA and bicycle plans. In June 2005, San Francisco adopted its 2005 Bicycle Plan, determining that the plan was exempt from CEQA based upon their finding that there was no possibility that the bicycle plan would have significant impacts on the environment. San Francisco also adopted the bicycle plan's Network Improvement Document, a five-year plan for funding and implementing the bicycle plan. Petitioners challenged adoption of the 2005 Bicycle Plan and Network Improvement Document under CEQA and the court granted the petition, finding that the plan and document should have been reviewed under CEQA together as one project, and that the two actions could have a significant impact on the environment. The court issued a Preemptory Writ of Mandate in 2007, requiring San Francisco to conduct adequate environmental review of the plan and document, and enjoined the city from implementing any individual improvement projects until the review was completed.

After reviewing the revised plan, the court indicated that "(t)he bulk of the draft EIR's analysis concerned impacts on transportation, particularly impacts from the 60 near-term improvements on 63 different intersections located throughout San Francisco, as well as impacts on 12 transit corridors, 10 transit spot studies, and 13 parking and loading corridors." The court also noted that the EIR identified mitigation measures to minimize or eliminate many of the significant environmental impacts identified in the EIR, including measures such as adding or modifying traffic signals at intersections (lengthening green light time or adding a green arrow), or modifying roadway striping (changing shared lanes to exclusive turn lanes, narrowing travel lanes, or eliminating or restricting on-street parking). Subsequent to ruling against another appeal by the plaintiffs, the court determined in 2010 that the report met the requirements of CEQA.

This unique controversy led to AB 417, even though it had been resolved by the time AB 417 was enacted. Office of Planning and Research (OPR) has no record of the exemption established by AB 417 being used.

1. CEQA and bicycle lanes. AB 2245 established a CEQA exemption for bike lanes undertaken by a city or county within an existing road right-of-way, even though these projects appear to be covered by established and frequently used categorical exemptions. In addition, there is a statutory exemption for restriping of streets and highways to relieve congestion (Section 21080.19).

CEQA Guidelines provide two possible categorical exemptions: (1) work on existing facilities where there is negligible expansion of an existing use, specifically including "(e)xisting highways and streets, sidewalks, gutters, bicycle and pedestrian trails (emphasis added), and similar facilities" (Section 15301(c), CEQA Guidelines); and (2) minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees, except for forestry or agricultural purposes, specifically including the creation of bicycle lanes on existing rights-of-way. (emphasis added) (Section 15304 (h), CEQA Guidelines).

Finally, if the project is not exempt from CEQA, but the initial study shows that it would not result in a significant effect on the environment, the lead agency must prepare a negative declaration, and no EIR is required.

According to OPR, the exemption established by AB 2245 was used three times in 2013 by the City of Los Angeles, the bill's original proponent.

1. Author's statement:

CEQA often prevents projects from moving forward or causes unnecessary and costly delays. Projects for restriping bicycle lanes can get held up in CEQA litigation, sometimes leading to the project being cancelled. Since the start of 2013, there have been 17 bike projects which have used the aforementioned exemptions. These projects utilized the 21080.20 or the 21080.25 exemptions, which were established by AB 417 and AB 2245 respectively. Three of these projects took place in the Los Angeles Metropolitan area.

1. Suggested amendments. The author and the committee may wish to consider extending the sunsets, rather than repealing them, so the Legislature can review the application of these exemptions again in a few years.

REGISTERED SUPPORT / OPPOSITION:

Support

Civil Justice Association of California

Rural County Representatives of California

Opposition

None on file

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. /