BILL ANALYSIS SB 1622 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Byron D. Sher, Chairman 1999-2000 Regular Session BILL NO: SB 1622 AUTHOR: Senator Alarcon AMENDED: April 24, 2000 FISCAL: Yes HEARING DATE: April 24, 2000 URGENCY: No CONSULTANT: Randy Pestor SUBJECT : ENVIRONMENTAL JUSTICE SUMMARY : Existing law : 1) Under Environmental Justice Law, requires the California Environmental Protection Agency (Cal-EPA) to meet certain requirements relating to environmental justice, and to develop a model environmental justice mission statement for boards, departments, and offices within the agency. 2) Under the Warren-Alquist State Energy Resources Conservation and Development Act, establishes the State Energy Resources Conservation and Development Commission (CEC) with various energy responsibilities, including planning and forecasting, assistance, research and development, and power facility and site certification. 3) Requires the Governor's Office of Planning and Research (OPR) to be the coordinating agency in state government for environmental justice programs and requires the OPR director to carry out certain related responsibilities. This bill : 1) Under Environmental Justice Law, requires Cal-EPA, in consultation with the Resources Agency and CEC, to also develop a model environmental justice mission statement for the CEC. 2) Under the Warren-Alquist State Energy Resources Conservation and Development Act, requires the CEC on or SB 1622 Page 2 before January 1, 2002, to adopt regulations that will ensure the CEC is in conformance with applicable federal guidance relating to environmental justice when certifying sites and related facilities. COMMENTS : 1) Purpose of Bill . SB 115 (Solis) Chapter 690, Statutes of 1999, enacted the Environmental Justice Law and requires OPR to be the coordinating agency in state government for environmental justice programs (#1, 3 above). According to the author, "With applications for 42 new power plants currently pending or anticipated in the next few years, the California Energy Commission is a major state environmental permitting entity. However, because the Energy Commission is part of the Resources Agency instead of Cal-EPA, it is not covered by SB 115. Moreover, Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin in their programs or activities. To ensure that the Energy Commission fully complies with this federal mandate, it is necessary for the siting process to adequately identify and address environmental justice concerns." 2) Background. Environmental justice refers to the fair treatment of people of all races, cultures, and income with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. On February 11, 1994, President Clinton signed Executive Order 12898 regarding "federal actions to address environmental justice in minority populations and low-income populations." The executive order directs federal agencies to address human health and environmental issues in low-income communities and minority communities, and followed a 1992 Environmental Protection Agency (EPA) report 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." The President also directed each federal agency to address SB 1622 Page 3 effects of actions on these communities when analysis is required under the National Environmental Policy Act (NEPA). The Council on Environmental Quality (CEQ) has oversight of federal government compliance with the executive order and NEPA, and the CEQ has developed guidance to assist federal agencies with their NEPA procedures ( NOTE : Enacted in 1970, CEQA was modeled after NEPA which was enacted by Congress in 1969). EPA's Office of Civil Rights also processes complaints filed under Title VI of the Civil Rights Act of 1964, "alleging discriminatory intent or effect based on race, color, or national origin resulting from the issuance of pollution control permits by State or local governmental agencies that receive EPA funding." SB 115 (Solis), as approved by the committee, tracked requirements of federal environmental justice provisions by requiring each state agency to make environmental justice part of its mission, requiring OPR to develop an agencywide environmental justice strategy, and requiring changes to the CEQA guidelines so that environmental justice matters are considered in the CEQA process. SB 115 required OPR to identify communities and populations disproportionately affected by high and adverse environmental effects and to identify communities and populations where existing data or information is insufficient or incomplete and propose strategies for correcting those deficiencies. SB 115 also required OPR and the secretary to coordinate their efforts with the CEQ and U.S. Environmental Protection Agency. Because of concerns by the Governor and certain interest groups, SB 115 was subsequently amended to strike these provisions and add certain OPR and Cal-EPA requirements (see #1 and 3 above). 3) Examples of environmental justice matters. There are a number of factors to be considered in identifying an environmental justice issue. Factors that could be considered include, for example, a concentration of environmental hazards in an affected area because of the lack of public participation, a lack of adequate protection under health and environmental laws, or unusual vulnerability of a community to hazards. Examples of environmental justice problems could include inadequate SB 1622 Page 4 stormwater protection in a predominately minority populated section of a city compared to systems in other parts of the city, siting a landfill in a community with an overconcentration of other hazards such as Superfund sites, placement of a highway through a low-income and minority community, and unsafe stormwater discharges harming fish that are part of the subsistence diet of Native Americans. Environmental justice concerns, therefore, are not limited to the responsibilities of entities under Cal-EPA. 4) More clarification needed? Should the CEC, rather than Cal-EPA, develop the CEC environmental justice mission statement? Because OPR is the coordinating agency in state government for environmental justice matters, OPR should be consulted in developing a model environmental justice mission statement. Also, it may be more appropriate for the CEC rules and regulations to conform to that state environmental justice mission statement. 5) Related legislation. SB 89 (Escutia), currently at the Assembly Desk, revises the Environmental Justice Law to require the Cal-EPA Secretary to convene a Working Group with certain responsibilities, to convene a technical advisory group to assist the working group, and to prepare and submit a report to the Governor and the Legislature every three years regarding implementation of the law. SB 1408 (Alarcon), to be heard by the committee April 24, 2000, creates the Environmental Justice Technical Assistance Grant Demonstration Project. 6) Support and opposition highlights. Supporters of SB 1622 generally note the need to account for environmental justice considerations in the energy facility siting process, especially because power plants subject to the siting process are "inherently large projects, usually with significant environmental impacts." Opponents are generally concerned about the reference to conformity with federal environmental justice guidance when OPR and Cal-EPA are "embarking on a separate effort to develop environmental justice policies . . ." and also assert that the CEC is not "an environmental agency." SB 1622 Page 5 7) Technical considerations. Environmental Justice Law added Part 3 (commencing with Public Resources Code 72000) to Division 34 of the Public Resources Code. AB 703 (Lempert) Chapter 849, Statutes of 1999, enacted the Ballast Water Management for Control of Nonindigenous Species Law by adding Division 36 (commencing with 71200) to the Public Resources Code. To avoid confusion, Environmental Justice Law should therefore be renumbered to commence with 71100 of the Public Resource Code. SOURCE : Senator Alarcon SUPPORT : California League of Conservation Voters Center on Race, Poverty & the Environment Communities for a Better Environment Greenlining Institute Planning and Conservation League Sierra Club California Southeast Alliance for Environmental Justice OPPOSITION : California Chamber of Commerce California Council for Environmental and Economic Balance California Manufacturers & Technology Association Independent Energy Producers Western States Petroleum Association