BILL ANALYSIS Ó SENATE COMMITTEE ON TRANSPORTATION AND HOUSING Senator Jim Beall, Chair 2015 - 2016 Regular Bill No: SB 1277 Hearing Date: 4/12/2016 ----------------------------------------------------------------- |Author: |Hancock | |----------+------------------------------------------------------| |Version: |4/4/2016 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Erin Riches | |: | | ----------------------------------------------------------------- SUBJECT: California Environmental Quality Act: supplemental environmental impact report: City of Oakland: coal shipment DIGEST: This bill requires a public agency with discretionary authority over the Bulk and Oversized Terminal project, located in the former Oakland Army Base, to prepare or cause to be prepared a supplemental environmental impact report to consider and mitigate the shipment of coal through the terminal. ANALYSIS: AB 32 and Disadvantaged Communities AB 32 (Núñez and Pavley, Chapter 488, Statutes of 2006) requires the state Air Resources Board (ARB) to develop a plan to reduce emissions to 1990 levels by 2020. It also requires ARB to ensure that programs to reduce greenhouse gas (GHG) emissions are targeted, to the extent feasible, to the most disadvantaged communities (DACs) in the state. AB 32 authorizes ARB to deposit any fees paid by GHG emission sources into the Greenhouse Gas Reduction Fund (GGRF). SB 535 (De León, Chapter 830, Statutes of 2012) requires 25% of GGRF funds to be allocated to projects that provide benefits to DACs, and at least 10% to projects located within DACs. DACs have been identified by the California Environmental Protection Agency using census tract data based on geographic, socioeconomic, public health, and environmental hazard criteria. SB 1277 (Hancock) Page 2 of ? Proposition 1B and the Trade Corridor Improvement Fund (TCIF) Proposition 1B, the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006, was approved by California voters in November 2006. Proposition 1B authorized the issuance of $19.9 billion in general obligation bonds to fund a variety of transportation projects. Of this, $2 billion was allocated to the TCIF for infrastructure improvements along high-volume freight corridors. The TCIF program requires at least a 50% match from local, federal, or private sources. The project application must include a specific description of non-TCIF funding (source, amount, and availability) to be applied to the project. The California Transportation Commission (CTC) evaluates TCIF applications based on factors including increased speed of freight traffic; relief for freight system bottlenecks; and reduction of local and regional emissions of diesel particulate matter (PM), carbon dioxide (CO2), oxides of nitrogen (NOx), and other pollutants. The Oakland Army Base Redevelopment Project After the Oakland Army Base was closed in 1999, part of the property reverted to the City of Oakland, while another portion went to the Port of Oakland. The following year, the Oakland City Council designated the base and surrounding properties, an area totaling 1,800 acres, as a redevelopment project area. In 2009, the Port of Oakland secured TCIF funding for a project to develop warehouse space, logistics facilities, and a rail terminal on the site. By diverting freight from trucks to trains, the new rail terminal complex was expected to reduce diesel PM emissions while simultaneously increasing the efficiency of goods movement through the Port. Following the dissolution of the redevelopment agency in 2012, the area owned by the redevelopment agency was transferred to the City of Oakland. The Port and the City began working together on the site and significantly expanded the scope of the redevelopment, including the addition of a bulk terminal. The Port obtained a grant under the federal Transportation Investment Generating Economic Recovery (TIGER) program, as well as additional TCIF funds. The expansion of the project required an update to the environmental impact report (EIR) completed in 2002; an addendum was prepared in 2012. SB 1277 (Hancock) Page 3 of ? Meanwhile, the City of Oakland forged an agreement with two private entities, California Capital and Investment Group (CCIG) and Prologis, to develop the site. These two companies were tasked with finding additional investors and tenants for the project. Details of what commodities would be transported through the bulk terminal were largely contingent upon the contracts that would be executed, and therefore were not reviewed in the new environmental documents. To date, the Port and the City have secured about two-thirds of needed project funding. Of this, the majority comes from public funding sources; specifically, the state TCIF ($242 million); the federal TIGER program ($15 million); the Port of Oakland ($16 million); and the City of Oakland ($55 million). In addition, CCIG and Prologis have identified funding totaling approximately $172 million. In spring of 2015, stories surfaced in the media revealing that the state of Utah was in discussions with Port developers about shipping coal from Utah to China through the bulk terminal in Oakland. Utah currently exports about 1 million tons of coal each year, mainly through the ports of Richmond, Stockton, and Long Beach. As coal-fired power plants in the U.S. close or switch to natural gas, access to overseas markets is becoming increasingly important for coal-producing states. In February 2016, eight working days before the end of the Utah legislative session, a bill surfaced to authorize, and provide $53 million in funding for, the deal. The legislation passed by a wide margin and is currently on the desk of the state's Republican Governor, Gary Herbert, who is expected to sign it. As noted above, the City had tasked two companies, CCIG and Prologis, to come up with additional project funding. CCIG, in turn, executed a contract with Terminal Logistics Solutions, a company headed by Jerry Bridges, a former executive director of the Port of Oakland. It was this company that negotiated the deal with Utah. California Environmental Quality Act (CEQA) CEQA requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. Every development project that requires a discretionary government approval requires at least some environmental review pursuant to CEQA, SB 1277 (Hancock) Page 4 of ? unless an exemption applies. Specifically: 1)If the initial study shows there would not be a significant impact on the environment, the lead agency must prepare a negative declaration. 2)If the study shows potentially significant impacts but the applicant revises the project plan in a manner to avoid or mitigate those impacts, before the proposed negative declaration and initial study are released for public review, the lead agency must prepare a mitigated negative declaration. 3)If the initial study shows the project might have a significant effect on the environment, 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. CEQA also requires a lead agency or responsible agency to prepare a subsequent or supplemental EIR if one or more of the following occurs: 1)Substantial changes are proposed in the project that will require major revisions of the EIR. 2)Substantial changes occur in the circumstances under which the project is being undertaken that will require major revisions to the EIR. 3)New information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available. This bill: 1)Requires a public agency with discretionary authority over the Bulk and Oversized Terminal project, located in the former Oakland Army Base, to prepare or cause to be prepared a supplemental EIR to consider and mitigate the shipment of coal SB 1277 (Hancock) Page 5 of ? through the terminal. 2)States that coal shipment was not considered under the original EIR for this project as a commodity that would be shipped through the terminal. 3)States that the proposal to export coal from the terminal constitutes a change in the proposed project and is new information that was not known, and could not have been known, at the time the EIR was certified as complete. COMMENTS: 1)Purpose. The author states that coal transport spreads the damages caused by coal dust and contributes to the likelihood that residents in adjacent communities will suffer from illnesses linked to pollution, such as cancer, heart disease, and asthma. Coal dust is a source of PM that is dangerous to breathe and is responsible for most occupational lung disease. West Oakland is already heavily impacted by pollution: its residents are 2.5 times more likely to get cancer due to breathing air which contains three times the amount of diesel PM than air in other parts of the Bay Area. In addition, West Oakland residents are two times as likely to go to the emergency room with asthma as people in other parts of Alameda County. The author states that the initial redevelopment project proposal provided to the CTC in the TCIF application did not include the potential for the transport and export of coal, nor did the initial EIR examine the use of a coal export facility. Now, however, the project proposes to transport up to 9 million tons of coal each year from Utah, through the Port, to China and other countries. West Oakland, the location of the project, has already been designated by the state as a DAC due to its high asthma rates, cancer risks, and pollution levels. The author states that this proposal is not in accordance with Proposition 1B and contradicts California's efforts in reducing climate change. 2)Why didn't the TCIF application mention coal? The TCIF application, in reference to the bulk terminal portion of the project, stated that it would be "converted to a modern bulk cargo marine terminal for movement of commodities such as iron ore, corn, and other products brought in to the terminal by SB 1277 (Hancock) Page 6 of ? rail ? the terminal would also accommodate project cargo such as windmills, steel coils, and oversized goods." The TCIF application did not require the applicant to disclose, or commit to, exactly what commodity or commodities would be transported through the terminal. 3)Recent amendments. The prior version of this bill prohibited the transport of coal to or through the Bulk or Oversized Terminal located in the former Oakland Army Base. The author amended this bill on April 4 to instead require a public agency with discretionary authority over this project to prepare or cause to be prepared a supplemental EIR to consider and mitigate coal shipment through the terminal. Under the new version of this bill, when the next step of this project is reached, the agency with discretionary approval of that step (e.g., the local air district, the water board) will have to prepare or commission a supplemental EIR. 4)How would this bill impact the Oakland project? By requiring a supplemental EIR, this bill could potentially delay the project timeline. At the same time, however, a supplemental EIR will help ensure that any potential impacts from shipping coal through the port and community are addressed. 5)Opposition concerns. The American Planning Association, California Chapter, writing in opposition to the current version of this bill, states that "While APA supports the State's renewable energy portfolio; we do not support the idea of special CEQA treatment of an individual project by the Legislature." The California Railroad Industry, also writing in opposition to the current version of this bill, states that it "singles out coal-related projects at a specified bulk cargo terminal, treating coal shipments differently than every other commodity that moves through that facility." The Industry also states that the bill's provisions extend beyond the state's authority in areas such as interfering with federal rail operations, discriminating against common carriers, restricting the export of coal in conflict with multiple treaties to which the U.S. is a party, discriminating against interstate and foreign commerce, and imposing retroactive restrictions on a project that has already been approved. To help allay concerns about conflicts with federal regulations or treaties, the author amended this bill on March SB 1277 (Hancock) Page 7 of ? 31 to clarify that it will be implemented only to the extent it is consistent with federal law. 6)Double-referral. This bill has also been referred to the Environmental Quality Committee. Related Legislation: SB 1279 (Hancock) - prohibits the CTC from programming or allocating state funds for any port facility project in or adjacent to one or more DACs which exports or proposes to export coal from California. This bill is also being heard by this committee today. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No POSITIONS: (Communicated to the committee before noon on Wednesday, April 6, 2016.) SUPPORT: Alameda County Democratic Central Committee Berkeley Climate Action Coalition California Nurses Association City of Berkeley City of Emeryville City of Richmond East Bay Young Democrats Ecology Center El Cerrito Democratic Club Environment California Fossil Free California Friends Committee on Legislation inNative International Longshore and Warehouse Union, Northern California District Council No Coal in Oakland Oakland Unified School District Peace, Earthcare, and Social Witness Committee of Strawberry Creek Quaker Meeting SB 1277 (Hancock) Page 8 of ? Physicians for Social Responsibility Public Advocates San Francisco Baykeeper SEIU Local 1021 Sierra Club California West Oakland Environmental Indicators Project One individual OPPOSITION: American Planning Association, California Chapter California Building Industry Association California Railroad Industry California Teamsters Public Affairs Council -- END --