BILL NUMBER: SCR 40 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Lowenthal and Vincent
(Coauthors: Assembly Members Dymally, Karnette, and Oropeza)
APRIL 7, 2005
Relative to preservation of state authority over siting of
liquified natural gas facilities.
LEGISLATIVE COUNSEL'S DIGEST
SCR 40, as introduced, Lowenthal. Liquefied natural gas
facilities.
This measure would memorialize the President and Congress to take
necessary action to preserve state and local authority over the
siting of liquified natural gas facilities.
Fiscal committee: no.
WHEREAS, The California Constitution establishes the Public
Utilities Commission, with jurisdiction over all public utilities;
and
WHEREAS, The California Constitution grants the commission certain
general powers over all public utilities subject to its
jurisdiction, including the ability to establish rules, subject to
control by the Legislature; and
WHEREAS, The California Constitution provides that all private
corporations and persons that own, operate, control, or manage a
line, plant, or system for the production, generation, transmission,
or furnishing of heat, light, or power directly or indirectly to or
for the public are public utilities subject to control by the
Legislature; and
WHEREAS, Under the Public Utilities Act, a gas corporation is a
public utility subject to the jurisdiction of the commission, and
includes every corporation or person owning, controlling, operating,
or managing any gas plant for compensation within the state, with
certain exceptions; and
WHEREAS, Under the Public Utilities Act, a gas plant includes all
real estate, fixtures, and personal property, owned, controlled,
operated, or managed in connection with, or to facilitate the
production, generation, transmission, delivery, underground storage,
or furnishing of, gas, natural or manufactured, except propane; and
WHEREAS, Under the Public Utilities Act, the commission is
authorized, after a hearing, to require every public utility to
construct, maintain, and operate utility facilities in a manner so as
to promote and safeguard the health and safety of its employees,
customers, and the public and requires every gas corporation to
obtain a certificate of public convenience and necessity before
constructing any gas plant, line, or extension; and
WHEREAS, California natural gas consumers may receive substantial
benefit from a liquefied natural gas (LNG) facility in California and
those consumers have a direct interest in the siting of an LNG
facility; and
WHEREAS, The Federal Energy Regulatory Commission (FERC) is
composed of five commissioners appointed by the President with the
advice and consent of the Senate, for five-year terms, and have an
equal vote on regulatory matters; and
WHEREAS, Section 7 of the Natural Gas Act (15 U.S.C. Sec. 717f)
authorizes FERC certification of onshore LNG facilities involving
interstate pipelines; and
WHEREAS, FERC is embroiled in a dispute with California over the
jurisdiction for the approval of LNG terminals and the issue is
currently before the United States Court of Appeals for the Ninth
Circuit for resolution; and
WHEREAS, Eighteen members of congress have filed an amicus (friend
of the court) brief on behalf of the Public Utilities Commission's
dispute with FERC; and
WHEREAS, In the amicus brief, Congressman Ed Markey writes: "...
While my 1979 LNG siting bill clearly envisioned a federal role in
the siting of new LNG facilities, it also directed that such
facilities be remotely located. Unfortunately, the Transportation
Department and FERC have failed to follow that directive. At the same
time, my bill never preempted State public safety and emergency
response authorities, reflecting Congress' view that State
Governments needed to be able to take action to protect their
populations from hazards represented by proposals to site new LNG
facilities in densely populated urban areas. The amicus brief that we'
ve filed reflects Congressional support for retention of such
authorities by the States."; and
WHEREAS, Because resolution of the dispute through the courts
could take years, FERC is supporting legislation currently before
Congress to grant FERC exclusive jurisdiction over the siting of LNG
import terminals and to therefore preclude any state or local
government from having any decision making authority with respect to
the siting of LNG import terminals; and
WHEREAS, FERC is supporting legislation currently before Congress
that would arguably grant FERC the right to dictate the schedule for
state administrative proceedings that involve intrastate natural gas
pipeline transportation of LNG-converted natural gas from LNG import
terminals; and
WHEREAS, At a January 24, 2005, conference with the Senate Energy
and Natural Resources Committee, FERC indicated that it wants
Congress to grant FERC unambiguous control, including the power of
eminent domain, over the siting of LNG import terminals; and
WHEREAS, There is currently pending a proposal to construct and
operate a LNG terminal at the Port of Long Beach, to be located on
state tidelands operated by the City of Long Beach through the Port
of Long Beach, as a public trust granted by the state; and
WHEREAS, If there were an accidental release or catastrophic
event, such as a terrorist attack, upon a LNG terminal at the Port of
Long Beach, it could have disastrous consequences; and
WHEREAS, States should be regulating the safety and siting of LNG
facilities in their states, which do not involve interstate
pipelines, because the states regulate the intrastate pipelines that
interconnect with the LNG facilities; and
WHEREAS, States have a much better understanding than the FERC of
the natural physical aspects of a location, such as the effects from
a major earthquake on a proposed LNG facility; and
WHEREAS, To grant FERC exclusive control over the siting of LNG
import terminals would be inconsistent with numerous federal
regulatory systems in which Congress has respected the rights of
states to protect their coastlines, to protect their environment, and
to protect the safety of their citizens, including the Coastal Zone
Management Act, the Natural Gas Pipeline Safety Act, the Clean Water
Act, and the Clean Air Act; and
WHEREAS, To deprive citizens of a state forum within which to
resolve concerns over safety and injury to the environment is
contrary to the public interest; now, therefore, be it
Resolved by the Senate of the State of California, the Assembly
thereof concurring, That the Legislature of the State of California
memorializes the President and Congress to take necessary action to
preserve state and local authority over the siting of liquified
natural gas facilities; and be it further
Resolved, That the Secretary of the Senate transmit copies of this
resolution to the President of the United States, to all Members of
the Congress of the United States, and to the Federal Energy
Regulatory Commission.