BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 240
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|Author: |Stone |
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|Version: |4/6/2015 |Hearing |4/29/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Joanne Roy |
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SUBJECT: California Environmental Quality Act: exemption:
renewable energy projects on disturbed land
ANALYSIS:
Existing law:
1. Under the California Environmental Quality Act (CEQA), requires
lead agencies with the principal responsibility for carrying
out or approving a proposed discretionary project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report (EIR) for this action, unless the
project is exempt from CEQA (CEQA includes various statutory
exemptions, as well as categorical exemptions in the CEQA
Guidelines). (Public Resources Code §21000 et seq.)
2. Creates the Local Government Renewable Energy Self-Generation
Program, which authorizes a local government entity to receive
a credit on their electric bill for power generated from a
renewable energy facility that generates more energy than is
needed to serve the electrical load of governmental entity
owned or controlled site where the facility is located.
(Public Utilities Code §2830 et seq.)
This bill:
1. Exempts from CEQA specified renewable energy projects of
limited duration on disturbed land, as defined, that meet
specified requirements.
2. Defines "disturbed land" as real property that is any of the
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following:
A. A brownfield;
B. Property with at least 25% of the area covered by
nonnative species;
C. Property that was formerly used for agricultural or
grazing purposes; or,
D. Property that was historically used for timber harvesting
or mining purposes.
3. Defines "limited durations" as not more than 25 years.
4. Defines a "renewable energy project" as a project with a
generation capacity of not more than 25 megawatts and that will
provide electrical service pursuant to the Local Government
Renewable Energy Self-Generation Program.
Background
1. CEQA: Environmental Review Process.
CEQA provides a process for evaluating the environmental effects
of a project, and includes statutory exemptions as well as
categorical exemptions in the CEQA guidelines. If a project is
not exempt from CEQA, an initial study is prepared to determine
whether a project may have a significant effect on the
environment. If the initial study shows that there would not
be a significant effect on the environment, the lead agency
must prepare a negative declaration (ND). If the initial study
shows that the project may have a significant effect on the
environment, then the lead agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed project,
identify and analyze each significant environmental impact
expected to result from the proposed project, identify
mitigation measures to reduce those impacts to the extent
feasible, and evaluate a range of reasonable alternatives to
the proposed project. Prior to approving any project that has
received an environmental review, an agency must make certain
findings. If mitigation measures are required or incorporated
into a project, the agency must adopt a reporting or monitoring
program to ensure compliance with those measures.
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If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure must be
discussed but in less detail than the significant effects of
the proposed project.
2. What is Analyzed in an Environmental Review?
Pursuant to CEQA, an environmental review analyzing the
significant direct and indirect environmental impacts of a
proposed project, may include water quality, surface and
subsurface hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse gas
emissions, terrestrial and aquatic biological resources,
aesthetics, geology and soils, recreation, public services and
utilities such as water supply and wastewater disposal,
cultural resources, and tribal cultural resources.
The analysis must also evaluate the cumulative impacts of any
past, present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources being
evaluated. A study area for a proposed project must not be
limited to the footprint of the project because many
environmental impacts of a development extend beyond the
identified project boundary. Also, CEQA stipulates that the
environmental impacts must be measured against existing
physical conditions within the project area, not future,
allowable conditions.
Comments
1. Purpose of Bill.
According to the author, "Throughout the state, we have programs
that seek to protect land for a variety of reasons (e.g.
endangered species protection, watershed value, sensitive
habitats, parks and recreation, open space, etc.). While
considerable effort and financial resources have been dedicated
to land acquisitions, often lacking are the funds to provide
management and restoration costs. Indeed, many of the acres
acquired are not perfectly pristine, and often contain areas of
significant degradation, invasive non-native species, soils
contamination, or other issues. Senator Stone proposes a
unique program to provide a new opportunity where a CEQA
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exemption could be used in order to facilitate renewable energy
projects. These projects can be temporarily installed on
degraded lands, and will contribute to the ultimate restoration
of the land and generate a net benefit to the region, while
also helping to meet the goals of our current and increasing
renewable portfolio standards in the state."
The author further states, "In partnership with San Diego State
University, a pilot project is proposed that meets the goals of
this project, provides cost savings to local governments on
their electric bills, restored nearly 22 acres of habitat that
is covered by eucalyptus forest (a highly invasive species and
significant fire risk), and supports a long-term research study
on how we can design renewable energy projects that integrate
the principles of habitat compatibility and watershed
management."
2. Maybe a Negative Declaration or Mitigated Negative Declaration
Applies.
The author states, "This bill seeks to create an efficient pathway
by which renewable energy projects can efficiently navigate
environmental review if (and only if) the underlying benefit is
restoration and/or remediation."
It may be noted that not all projects subject to CEQA are required
to do an EIR. In fact, based on the number of documents
submitted to the State Clearinghouse, data shows that most
projects do not trigger an EIR.
If the initial study shows that there would not be a significant
effect on the environment, then the lead agency must prepare a
ND. If the initial study shows potentially significant impacts
but the applicant revises the project plan, which would avoid
or mitigate those impacts, before the proposed ND and initial
study are released for public review, then the lead agency must
prepare a mitigated negative declaration (MND). These types of
environmental reviews tend to be less expensive and
time-consuming than an EIR. Perhaps, such a project as
described in SB 240 would qualify for an ND/MND.
However, if a project may have a significant impact, then an EIR
must be prepared; and if this is the case, then is it not to
the benefit of everyone concerned to make sure that the project
is as environmentally sound as it can be?
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3. What Is Lost With An Exemption From CEQA?
It is not unusual for some interests to assert that a particular
exemption will expedite construction of a particular type of
project and reduce costs. This, however, frequently overlooks
the benefits of adequate environmental review where lead and
responsible agencies are legally accountable for their actions:
to inform decisionmakers and the public about project impacts,
identify ways to avoid or significantly reduce environmental
damage, prevent environmental damage by requiring feasible
alternatives or mitigation measures, disclose to the public
reasons why an agency approved a project if significant
environmental effects are involved, involve public agencies in
the process, and increase public participation in the
environmental review and the planning processes.
If a project is exempt from CEQA, certain issues should be
addressed. For example:
How can decisionmakers and the public be aware of impacts,
mitigation measures, and alternatives of a project because of
the exemption?
Is it appropriate for the public to live with the
consequences when a project is exempt and impacts may not be
mitigated and alternatives may not be considered regarding
certain matters, such as air quality, water quality, and
noise impacts?
Because adverse project impacts do not disappear when they
are not identified and mitigated, does an exemption result in
a direct transfer of responsibility for mitigating impacts
from the applicant to the public (i.e., taxpayers) if impacts
are ultimately addressed after completion of the project?
If taxpayers, rather than the project applicant, are
ultimately responsible for mitigating certain impacts of such
a project after project completion, what assessments or taxes
will be increased to fund mitigation or pay for alternatives
at a later date?
It is also not unusual for certain interests to blame CEQA
lawsuits. However, according to a study on the issue, "Despite
criticisms that CEQA often results in litigation, CEQA-related
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litigation is relatively rare." The study noted that the
number of lawsuits to the number of CEQA reviews "yields an
estimate of one lawsuit per 354 CEQA reviews."
Those citing CEQA and CEQA litigation as a problem do not
indicate the result of that litigation. Were significant
impacts that were not evaluated in the initial document
ultimately addressed? What would have been the result if those
impacts had not been mitigated (e.g., flooding, exposure of
people to hazards, inadequate public services, congestion)?
Also, challenges to CEQA determinations must be commenced
within an unusually short 30 days of an agency's filing of a
notice of determination. In addition, no later than 20 days
from the date of service upon a public agency, the public
agency must file a notice with the court setting a time and
place for all parties to meet and attempt to settle the
litigation.
1. Is Ignoring Significant, and Possibly Permanent, Impacts by
Renewable Energy Projects Prudent?
Although increasing renewable energy usage is a laudable goal,
renewable energy generation can sometimes have a negative
impact on the environment. For example, wind turbines along
Altamont Pass have generated clean electricity for decades but
at the cost of killing thousands of birds, including American
kestrels, burrowing owls (considered a Bird Species of Special
Concern in California), golden eagles (listed as a fully
protected species in California), and red-tailed hawks.
Solar energy farms can threaten wildlife as well. In 2013, the
National Fish and Wildlife Forensics Laboratory recovered 233
birds from the site of three solar power plants as part of a
federal investigation and concluded that many of the birds had
been fatally singed, broken, or otherwise fatally crippled by
the facilities. ("Streamers" is a name given to birds as their
feathers ignite, mid-air, after flying through a concentrated
beam of sunlight.) One of the dead birds found was a Yuma
clapper rail - fewer than 1,000 of this species are thought to
still be alive. According to the investigation, much of the
problem appears to lie in the "lake effect," in which birds and
their insect prey can mistake a reflective solar facility for a
water body, or spot water ponds at the site, then hone in on
it. Because of the power of the lake effect, the federal
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report described such solar farms as "mega-traps."
Also, renewable energy projects can displace terrestrial animals
such as the threatened desert tortoise in the Mojave Desert
where the sun shines more than 300 days each year, which is
beneficial for producing solar energy.
The examples above are not simply about the impact on that one
type of animal, but rather entire ecosystems - analyzing and
mitigating for the one species helps preserve the ecosystem of
which it is a part. Under CEQA, a project's environmental
impacts, such as the ones mentioned above, would be analyzed in
order to avoid or mitigate the impacts.
2. "Renewable Energy".
This bill defines "renewable energy project" as "a project with a
generation capacity of not more than 25 megawatts and that will
provide electrical service pursuant to Section 2830 of the
Public Utilities Code." However, what is considered "renewable
energy"? Is it limited to solar and wind, or does it include
biomass and/or natural gas? The bill is unclear on the types
of renewable energy generation that would be subject to this
bill.
3. "Disturbed Land".
SB 240 provides that the exemption may apply to renewable energy
projects on "disturbed land," including, a brownfield, property
with at least 25% of the area covered by nonnative species,
property formerly used for agriculture or grazing, or property
that was historically used for timber harvesting or mining.
Such qualifications may be considered too broad. For example,
none of these properties have a limit to how expansive they may
be, such as a maximum number of acres. Although the renewable
energy project is limited to 25 megawatts, the project may sit
on a much more substantial piece of property with other
ancillary activities on it that may have an impact on the
environment, but would proceed without an environmental review.
Also, "brownfields" is a broad term. As defined in 42 USC §9601,
the term "brownfield site" means real property, the expansion,
redevelopment, or reuse of which may be complicated by the
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presence or potential presence of a hazardous substance,
pollutant, or contaminant" and includes a list of exclusions.
A brownfield can be almost any piece of property, such as a
residence with a septic tank, an agricultural field that has
pesticides and herbicides used on it, or a gas station.
In addition, if a property has 25% of the area covered by
nonnative species, but 50% of the property is critical habitat
for a state listed endangered species, then would it not be
prudent to do an environmental review and avoid/mitigate for
that significant environmental impact?
4. "Limited Duration".
This bill provides that the exemption proposed applies to a
"renewable energy project of limited duration" and defines
limited duration as no more than 25 years. Solar panels and
wind turbines typically last 20-25 years and can be replaced.
For example, the Altamont Pass wind farm, which was
commissioned in 1981, has been there for about 34 years, and is
replacing nearly half of the smaller turbines with the expected
completion date of sometime this year.
5. Immediate and Long-Term Benefits.
The bill provides that the project must be designed to provide
both "immediate benefit to ecosystem services, such as
watershed function or habitat restoration, for the disturbed
land during the first five years of the project and long-term
benefits for the disturbed land." However, a benefit does not
necessarily have to directly address a significant
environmental impact. There are no standards or requirements
placed on what is to be considered an "immediate benefit to
ecosystem services" or the more ambiguous "long-term benefits"
- the bill does not specify that the long-term benefits need to
be environmental; those benefits could be for a variety of
purposes such as financial, community, energy-related, or
solely for the benefit of the property owner.
Also, considering the bill does not specify what a "long-term
benefit" is, it seems possible that a "long-term benefit" could
include the continuance of a renewable energy project beyond
the 25-year duration.
SOURCE: Dr. Matt Rahn
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SUPPORT:
None on file
OPPOSITION:
Sierra Club California
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