Streamlining environmental reviews of highway projects and fixing state highway issues faster with reduced costs, have all proven successful under the NEPA Assignment Program (Program) that California entered in 2007. In fact, California has led the way with this Program by being the only state that participated in the pilot program. The Program, 23 USC 327, allows a state to apply for and assume the responsibilities of the U.S. Secretary of Transportation and the Federal Highway Administration (FHWA) for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval highway projects in the State. States can also apply for the assignment of transit and rail projects.
Due to California’s proven success, Congress expanded the Program to allow all states to apply. Texas and Ohio now have NEPA Assignment responsibilities, and Florida, Utah and Alaska are soon to follow. The Caltrans website documents California’s successful Program results, including millions of dollars in cost savings to the California taxpayer and a huge improvement on project delivery dates.
So what’s the issue? Like a successful football play, you want to get across the goal line and California has certainly scored a victorious touchdown. Yet, the Golden State is about to fumble away a winning program. How could this be true? Well, the Program requires that a state waive its sovereign immunity, which means that the state can be sued in federal court regarding its NEPA document and findings. California waived sovereign immunity to enter the Program but cautiously established a requirement that the California Legislature must review the Program and renew the waiver every five years. The current waiver expires on January 1, 2017.
The requirement to return to the Legislature every five years to renew the waiver of immunity is not efficient and this process itself needed streamlining. Texas and Ohio waived immunity for the Program for as long as the State chooses to participate in the Program. In other words, the waiver will be in place the entire time the State is involved with NEPA Assignment. Very smart and Caltrans decided that it was time to improve its process and apply to have the waiver run with the Program just like Texas and Ohio (and Florida, which has waived immunity and is now waiting on final approval of its agreement with FHWA).
To accomplish this goal, two bills were introduced in the California Legislature: SB-902 and AB-2034. AB-2034 was unanimously passed by the Assembly on April 28, 2016 and advanced to the Senate. However, communication broke down along the way and somehow, by someone, it was decided that the waiver be put in the transportation funding bills (ABX1-26 and SBX1-1). At that point SB-902 and AB-2034, both of which focused solely on the NEPA Assignment program, died. Well, the funding bill has a lot of items identified and here lies the problem, the transportation funding bill did not pass… a catastrophic fumble on the 1 yard line.
Now what? The U.S. Department of Transportation and FHWA do not want the responsibilities back. In fact, Secretary Foxx has stated that the Administration wants more states to enter the Program. California did not have any intent of actually walking away from the extremely successful Program, as evidenced by the unanimous Assembly vote. A golden costs savings and streamlining program has been fumbled away, and the question is, what is California going to do to recover it quickly? There is a special session of the California Legislature scheduled for November. The smart play would be to utilize a single bill again, like AB-2034, to pass the waiver so that California can continue to reap the benefits, including cost savings and efficient project development, of the Program. Time is running out however, and it would be a serious mistake to allow the Program to slip through California’s hands.