BILL ANALYSIS 1
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SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
DEBRA BOWEN, CHAIRWOMAN
SB 1622 - Alarcon Hearing
Date: April 11, 2000 S
As Introduced: February 22, 2000 FISCAL B
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DESCRIPTION
Current law requires the California Energy Commission (CEC)
to, when reviewing an application to site a power plant,
hold a public hearing and issue a written decision that
discusses how a plant will be designed, sited, and operated
in order to protect environmental quality and assure public
health and safety.
Current law as established by SB 115 (Solis), (Chapter 690,
Statutes of 1999) establishes the Governor's Office of
Planning & Research (OPR) as the state's lead agency for
implementing environmental justice programs and requires it
to consult with the Secretaries of the California
Environmental Protection Agency (Cal-EPA), the Resources
Agency, the Trade & Commerce Agency (TCA), the Business,
Transportation and Housing Agency (BTH), and any other
appropriate agency in developing those programs.
Current law , also as established by SB 115 (Solis) requires
Cal-EPA to develop a model environmental justice mission
statement for boards, departments, and offices within its
agency by January 1, 2001.
Current law permits the CEC to use a certified regulatory
program in lieu of the California Environmental Quality Act
(CEQA) in its power plant siting process.
Current law as established by SB 110 (Peace) (Chapter 581,
Statutes of 1999) requires the Secretary of the Resources
Agency to review the CEC's facility certification program
by January 1, 2001, to determine whether it meets specified
criteria for state regulatory programs under CEQA. If the
Secretary determines the regulatory program meets those
criteria, he or she is required to continue the
certification of the program.
This bill requires the CEC to incorporate environmental
justice concepts into its overall mission and as part of
its power plant siting process.
This bill requires the CEC to consider two or more
facilities that are close in geographic location, function,
timing, or cumulative impact to be considered together in a
"master" environmental impact report (EIR).
KEY QUESTIONS
1.Is this bill premature in light of the reporting and
program requirements established under SB 110 (Peace) and
SB 115 (Solis)?
2.Should a separate "environmental justice" statute be
created for the CEC or should the programs developed by
OPR in conjunction with the Secretary of Resources -
which has jurisdiction over the CEC - simply be applied
to the CEC? Or should the CEC be required to use the
"environmental justice" programs being developed by
Cal-EPA?
BACKGROUND
"Environmental justice" is a concept that has been around
for a number of years and was defined by SB 115 (Solis) to
mean:
"The fair treatment of people of all races, cultures,
and incomes with respect to the development, adoption,
implementation, and enforcement of environmental laws,
regulations, and policies."
As the author notes, only OPR and Cal-EPA are required to
develop environmental justice programs based on this
definition for other boards, departments, and offices
within their purview. The CEC, which is located in the
Resources Agency, isn't specifically required by current
law to apply "environmental justice" concepts as a part of
its decision making process.
At the federal level, Executive Order 12898 of 1994
required the U.S. Environmental Protection Agency and all
other federal agencies to develop environmental justice
strategies. The Executive Order requires:
(a) The enforcement of all health and environmental
statutes in areas with minority and low-income
populations;
(b) Actions that promote greater public participation
in decision-making; and,
(c) Improved research and data collection relating to
quality of the health and environment of minority and
low-income populations.
The Executive Order followed a 1992 report by the U.S.
Environmental Protection Agency indicating that
"communities of color and low-income populations experience
higher than average exposures to selected air pollutants,
hazardous waste facilities and other forms of environmental
pollution."
SB 1622 seeks to dovetail with that approach by requiring
that the CEC take into account environmental and health
impacts to all races, cultures and income groups in its
overall dealings with the public. The author believes that
with applications for 42 new power plants either pending or
expected to come before the CEC in the coming years, it's
imperative that the CEC begin employing "environmental
justice" concepts in its decision-making process as soon as
possible.
The master EIR component of the bill is designed to create
a more efficient process and a more strategic way of
dealing with regional environmental impacts. The author's
goal is to ensure the CEC isn't making power plant siting
decisions in a vacuum, but rather that it's approving or
denying projects in the context of the other projects that
it has before it or can reasonably assume will come before
it within one year.
COMMENTS
1. The Same, Yet Different . Section 1 of the bill requires
the CEC to take specific actions as it operates as an
agency. This language is duplicated from Public Resources
Code Section 72000, created by SB 115 (Solis), which is
designed to provide Cal-EPA with direction as it develops
its programs, policies, and standards for the boards and
departments under agency authority.
As an agency, Cal-EPA can tap the expertise of the boards
and departments - the Air Resources Board, Office of
Environmental Health Hazard Assessment, the Integrated
Waste Management Board, the Department of Pesticide
Regulation, the Department of Toxic Substances Control, and
the State Water Resources Control Board - under its control
to craft those policies and standards.
The CEC, by contrast, is merely a commission within the
Resources Agency. By itself, it may not have the expertise
needed to comply with Section 1 of the bill, and because
it's not an agency with authority over the departments that
do have this information and expertise, it may have a
difficult time getting assistance from other departments.
The author and Committee may wish to consider whether the
author's goal of ensuring the CEC addresses environmental
justice issues would be more readily achieved if it simply
relied on the programs that Cal-EPA is required to
establish by January 1, 2001.
Or the author and Committee may wish to consider whether
the programs being developed by OPR in conjunction with the
Secretary of Resources - which has jurisdiction over the
CEC - should imply be applied to the CEC.
2. Guidance For Federal Agencies, Mandate For CEC . Section
2 of the bill is based on the language found in federal
Executive Order 12898. The same basic concerns relative to
the CEC's expertise and ability to comply with Section 1 of
the bill can be applied here as well. That's not to say
that the CEC couldn't or shouldn't be forced to develop or
obtain such expertise, but as the CEC is constructed today,
it doesn't have this type of expertise.
3. Does The CEC's Certified Regulatory Program Cover This?
When deciding whether or not to approve power plant siting
proposals, the CEC doesn't have to comply with CEQA.
Rather, it uses a certified regulatory program - found in
Title 20 of the California Code of Regulations - that it
describes as "functionally-equivalent" to CEQA.
It's arguable that the CEC's certified regulatory program
already addresses the issue of "environmental justice" in a
bigger picture fashion, but the author believes the CEC
should be required to address the issues more directly.
The practical effect of this bill would be to guarantee
that "environmental justice" issues are included in the
list of criteria considered in the CEC's review process by
causing factors which are currently implicitly considered
in a project proposal analysis to be explicitly considered.
4. Yes Master EIR, Yes . Section 3 of the bill requires the
CEC to evaluate projects that are closely related to
pending projects or "reasonably anticipated projects"
together in a master EIR.
The specific language here is taken from Title 40, Part
1500 of the Code of Federal Regulations, which is used by
the Council on Environmental Quality in reviewing and
evaluating environmental impact statements (EIS). An EIS
is similar to, but not as stringent as, the EIRs required
by California law under CEQA.
While the CEC's certified regulatory program is
CEQA-equivalent, it specifically does not require an EIR to
be prepared. In fact, in its March 2000 report regarding
potential improvements to its energy facility licensing
process, the CEC notes that it has eliminated the
requirement that an EIR be done in conjunction with a power
plant permit application in its effort to shrink the permit
application and review process from 36 months to 12 months.
So, while the CEC process may be "CEQA-equivalent," by not
requiring an EIR to be prepared, the CEC process clearly
chooses - in an effort to expedite project review - not to
use one of the main "big picture" planning tools that other
agencies going through the actual CEQA process are required
to use.
5. The Benefit of Looking Beyond The Length Of Your Nose .
Cumulative impacts analyses have become part of CEQA's
requirements for an EIR via case law and the regulatory
vehicle of the CEQA Guidelines. A draft EIR must discuss
cumulative impacts when they are significant, and offer
some explanation when it's determined such impacts aren't
significant.
Cumulative impacts are defined as two or more individual
effects which, when considered together, are considerable
or which compound or increase other environmental impacts.
Several court decisions have emphasized the importance of
the analysis of cumulative impacts in an effort to avoid a
situation where projects are approved as if no others
existed or were going to exist, leading to piecemeal
development that overwhelms the environment and defeats
CEQA's purpose of examining the real effect of a project on
the environment.
Under CEQA, a "reasonably anticipated" future project is
currently understood to be not only one under construction
but also an unapproved project under environmental review.
This bill applies CEQA's notion of "reasonably anticipated"
impacts to the power plant citing process, but limits CEC
to only reviewing projects that are "reasonably anticipated
within one year."
The downside to expanding the CEC's scope of review on
power plant siting proposals is that it may, in some cases,
slow down the siting process and make it more difficult for
the CEC to complete its review process within the 12-month
window that it's established for itself.
6. Will The Cart Run Over The Horse? As noted in the
"Descriptions" section, SB 110 (Peace) of 1999 requires the
Secretary of the Resources Agency to review the CEC's
facility certification program by January 1, 2001, to
determine whether it meets specified criteria for state
regulatory programs under the California Environmental
Quality Act (CEQA). If the Secretary determines the
regulatory program meets those criteria, SB 110 requires
the Secretary to continue the certification of the program.
That raises the question of whether this bill, specifically
Section 3, will send the CEC in a different direction which
may conflict with what the Secretary of Resources may find
or determine. In other words, if the Secretary determines
the CEC's siting program is CEQA-equivalent and the
Secretary is required to continue certifying the CEC
program, how will that mesh with the master EIR requirement
envisioned by this bill?
The author and Committee may wish to consider how this
section of the bill should be harmonized with the current
law created by SB 110 (Peace).
7. Related Legislation . SB 89 (Escutia) was approved by
the Senate in January on a 24-13 vote and is currently
being held at the Assembly desk. This bill requires the
Cal-EPA Secretary to convene a Working Group on
Environmental Justice by January 1, 2001 to develop and
implement environmental justice strategies related to
Cal-EPA's mission.
POSITIONS
Sponsor:
Author
Support:
California League of Conservation Voters
Communities for a Better Environment
Planning & Conservation League
Sierra Club California
Oppose:
California Chamber of Commerce
California Council for Environmental and Economic Balance
California Manufacturers & Technology Association
Independent Energy Producers Association
Western States Petroleum Association
Anna Ferrera
SB 1622 Analysis
Hearing Date: April 11, 2000