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CEQA Modernization Efforts and New Transportation Bill Provisions May Open the Door to NEPA Harmonization

Emily E. Kimball

Emily E. Kimball,

Washington, D.C.

Douglas Wheeler

08 March 2013
CEQA Modernization Efforts and New Transportation Bill Provisions May Open the Door to NEPA Harmonization

In his State of the State message on January 24, California Governor Jerry Brown’ urged reform of the forty-three-year-old California Environmental Quality Act, Cal. Pub. Res. Code § 21000 et seq., in order to make it “based more on consistent standards that provide greater certainty and cut needless delays.” Under this “standards-based” approach, CEQA would be made inapplicable to projects that are also subject to comparable federal, state or local laws. Environmental groups in the state have opposed the “standards-based” approach, instead favoring less comprehensive reforms like streamlining CEQA’s procedural requirements. The industry-sponsored CEQA Working Group supports the integration of environmental and planning laws as one of its “Four Principles to Modernize CEQA.”

Although he had earlier voiced support for the standards-based approach, State Sen. President Pro Tem Darrell Steinberg on February 22 introduced SB 731, which outlines principles of CEQA reform intended to “provide greater certainty for smart infill development, streamline the law for specified projects, and establish a threshold of significance for specified impacts.” At present, SB 731 is only a “spot bill,” meaning it contains only non-substantive language with the intent that it will be amended with more significant language. In its current inchoate form, the bill appears to fall short of the comprehensive CEQA reform that had been expected during the current legislative session. An advocate for strong reform, State Senator Michael Rubio, Chair of the Senate Environmental Quality Committee, had earlier resigned from the Legislature to accept a position in the private sector.

As the California legislature considers the fate of CEQA, reform of NEPA, 42 U.S.C. § 4321 et seq., its federal counterpart, is proceeding on a different track. While there is currently no parallel movement to completely “modernize” NEPA, the subject of integrated environmental compliance has been addressed in sector-specific legislation. For example, the recently enacted transportation bill, MAP-21 (P.L. 112-141), which became effective in October, includes new “categorical exemptions,” which altogether exempt certain classes of infrastructure projects from full-scale NEPA review. Thus, infrastructure projects located within an existing right-of-way; infrastructure projects receiving less than $5 million in federal funds or which cost less than $30 million in total; and certain projects to replace facilities damaged or destroyed in an officially declared emergency or disaster will all enjoy categorical exemptions from NEPA.

Equally important, MAP-21 also requires a study by the Comptroller General of state statutes, such as CEQA, which may provide justification for the elimination of redundant environmental reviews. In the study, which must be delivered to Congress by the fall of 2014, the Comptroller General is required to identify those States whose environmental laws might be certified as functionally equivalent to the requirements of NEPA. This study is the outgrowth of an earlier pilot project authorized under SAFETEA-LU (P.L. 109-59) in which CalTrans was given responsibility for implementation of NEPA, allowing the state agency to expedite environmental review of California projects which were subject to both CEQA and NEPA. Due to the success of the pilot program, MAP-21 authorizes expanded delegation of NEPA authority by making all states eligible to participate.

Although comprehensive NEPA reform is not currently a priority for Congressional leaders, CEQA modernization in California and sector-specific federal reforms may lead lawmakers to revisit the issue. Future action will likely be influenced by the Comptroller General’s 2014 report of its survey of state environmental laws. The Congress also may be encouraged to revisit NEPA itself by the outcome of the CEQA reform debate in California.

Emily E. Kimball

Emily E. Kimball,

Washington, D.C.

Douglas Wheeler

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