Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature. The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.
In amending Public Resources Code § 21080.20, which exempts bicycle transportation plans for urbanized areas – for restriping, bicycle parking and storage, improved intersection signal timing, and related signage – the bill extends the statutory exemption for nine (9) years, until January 1, 2030. It also repeals the former requirements for the lead agency to prepare a traffic and safety impact assessment and “to mitigate potential vehicular traffic impacts and bicycle and pedestrian safety impacts,” as conditions to using the exemption.
In adding Public Resources Code § 21080.25, the bill adds nine (9) exemptions, as well as an extensive list of definitions and conditions to a lead agency’s use of the exemptions. New exemptions include: (1) pedestrian and bicycle facilities projects (including, but not limited to, bicycle parking, bicycle sharing facilities, and bikeways, as defined); (2) projects to improve customer information and wayfinding for transit riders, bicyclists, or pedestrians; (3) transit prioritization projects (including, but not limited to, signal coordination and timing and phasing modifications, ramp meters, and dedicated transit and very high occupancy vehicle lanes); (4) projects to designate peak-hours or fulltime bus-only lanes on highways with existing or near-term planned public transit service; (5) projects to institute or increase new bus rapid transit, bus or light-rail service on existing public or highway rights-of-way; (6) transit agency projects to construct or maintain infrastructure to charge or refuel zero-emission transit buses, as specified; (7) maintenance, repair, relocation, replacement, or removal of any utility infrastructure associated with the exempt projects; (8) projects that are solely combinations of components of the exempt projects; and (9) city or county projects to reduce minimum parking requirements.
Section 21080.25’s exemptions apply for only a two-year period, sunsetting on January 1, 2023, and are subject to a number of qualifying conditions that apply to all the exemptions with the exception of city and county projects to reduce minimum parking requirements. These conditions include that a public agency must be the lead agency and be carrying out its own project; the project must be in an urbanized area; the project is located on or within an existing public right-of-way; the project must not add physical infrastructure increasing new automobile capacity (with minor exceptions) or adding auxiliary lanes; and the project must not require demolition of affordable housing units.
Additionally, for projects exceeding $100 million, the project must be incorporated in a regional transportation plan, sustainable communities strategy, general plan, or other plan that has undergone programmatic-level environmental review under CEQA within 10 years of project approval, the project’s construction impacts must be fully mitigated, and the lead agency must complete and consider project business case and racial equity analyses, as specified. Further, lead agencies will also be required to hold at least three (3) noticed public meetings on such projects, as specified.
Additionally, for all projects using § 21080.25’s new exemptions (except for minimum parking requirements reduction), the lead agency must first certify that the project will be completed by a skilled and trained workforce, through enforceable commitments as specified, or the project work must be performed under a project labor agreement (PLA) as specified.
Finally, filing of a notice of exemption (NOE) by the lead agency with OPR and the county clerk is mandatory under the new law; the law does not preclude the lead agency’s use of other statutory or categorical exemptions for which the project may qualify; and the law expressly does not authorize the bypassing or avoidance of other applicable safety, public health, environmental or labor requirements.
Does this new legislation constitute meaningful CEQA reform that will “jumpstart” sustainable transportation projects and thus achieve the ambitious economic and environmental goals touted by its author? Numerous categorical exemptions already exist that cover many of the same types of projects set forth in section 21080.25 (see, e.g., CEQA Guidelines §§ 15301(c), 15302, 15304(h), 15311), but statutory exemptions are superior in defensibility where they apply because they are absolute and not subject to the “unusual circumstances,” cumulative impacts, scenic resources, and other exceptions that render categorical exemptions more vulnerable to legal challenge. The removal of traffic and safety analysis and mitigation requirements in the amendments to section 21080.20 should alleviate some burdens of lead agencies in approving bicycle transportation plans. The provision in section 21080.25 exempting mega-projects reviewed in a programmatic EIR may provide some protection from subsequent environmental review requirements. The bill had overwhelming support from governmental and business stakeholders and little organized opposition, and passed by overwhelming margins in the Senate and Assembly.
On the other hand, the meat of the law is proposed to remain in effect only two years unless extended, its exemptions are subject to numerous qualifying conditions, and it is unclear whether its protections actually address a real and significant CEQA burden on sustainable transit-related projects in any event. Based on a Senate Rules Committee analysis of SB 288, and a survey of the 3,259 Department of Transportation projects reported between 2011 and 2016, almost 89% were approved under categorical exemptions; another 1.3% based on statutory exemptions; 8% based on negative declarations; and less than 2% required an EIR. Further, only 29 of the projects – less than 1% — was sued under CEQA.
While only time will tell, as with most recent CEQA reform efforts, SB 288 seems to be a positive, but modest and incremental, step. Perhaps its biggest “sleeper” is its exemption for “project[s] carried out by a city or county to reduce minimum parking requirements,” which are not subject to any of the statute’s otherwise applicable qualifying criteria for claiming its CEQA exemptions.
