BILL NUMBER: SCR 40 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY JULY 5, 2005
PASSED THE SENATE MAY 26, 2005
AMENDED IN SENATE MAY 19, 2005
INTRODUCED BY Senators Lowenthal and Vincent
(Coauthors: Senators Bowen, Kuehl, and Perata)
(Coauthors: Assembly Members Dymally, Goldberg, Karnette, Laird,
Oropeza, Pavley, and Ridley-Thomas)
APRIL 7, 2005
Relative to preservation of state authority over siting of
liquefied natural gas facilities.
LEGISLATIVE COUNSEL'S DIGEST
SCR 40, 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 liquefied natural gas facilities.
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 every gas corporation is required 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, It is in the public interest for the state to conduct an
orderly and comprehensive public assessment of the impacts of the
construction and operation of LNG facilities on the economy,
consumers, the environment, and the public health and safety; 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 each
commissioner has 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's opposition to meaningful state and local
involvement in LNG facility siting has led to a dispute with the
California Public Utilities Commission over the extent of FERC's
jurisdiction over onshore LNG facilities serving intrastate
pipelines, and the issue is currently before the United States Court
of Appeals for the Ninth Circuit for resolution; and
WHEREAS, Eighteen members of the Congress of the United States
have filed an amicus (friend of the court) brief on behalf of the
Public Utilities Commission in its 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, FERC's opposition to meaningful state and local
involvement in LNG facility siting has led it to also seek
legislation in Congress to grant FERC unambiguous control, including
the power of eminent domain, over the siting of LNG import terminals;
and
WHEREAS, There exists proposed federal legislation intended to
grant FERC exclusive jurisdiction over all LNG facilities and to
therefore preclude any state or local government from having any
decisionmaking authority with respect to the siting of LNG
facilities; and
WHEREAS, The proposed federal legislation, if enacted, would
prohibit state or local officials from independently conducting
safety inspections of LNG facilities and enforcing safety violations;
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 liquefied
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.