BILL ANALYSIS �
AB 1073
Page 1
CONCURRENCE IN SENATE AMENDMENTS
Date of Hearing: May 7, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wes Chesbro, Chair
AB 1073 (Fuentes) - As Amended: February 23, 2012
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|ASSEMBLY: | |(May 19, 2011) |SENATE: |28-2 |(March 26, |
| | | | | |2012) |
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(vote not relevant)
Original Committee Reference: U. & C.
SUBJECT : Energy: solar thermal powerplants: conversion to
solar photovoltaic technology
SUMMARY : Permits the proposed Calico solar project in San
Bernardino County, which was approved by the California Energy
Commission (CEC) in 2010 as a solar thermal project, to re-file
for approval by the CEC as a photovoltaic (non-thermal) project,
rather than following the ordinary permitting process for
photovoltaic powerplants under current law �i.e., local and/or
state agency review under the California Environmental Quality
Act (CEQA)].
EXISTING LAW :
1)Pursuant to the Warren-Alquist Act of 1974, grants the CEC
exclusive authority to license thermal powerplants 50
megawatts and larger (including related facilities such as
fuel supply lines, water pipelines and transmission lines that
tie the plant to the grid). The CEC must consult with
specified agencies, including the Department of Fish and Game
(DFG), but the CEC may override any contrary state or local
decision. The CEC process is a certified regulatory program
(determined by the Resources Secretary to be the functional
equivalent of CEQA), so the CEC is exempt from having to
prepare an environmental impact report. Its certified
program, however, does require environmental analysis of the
project, including an analysis of alternatives and mitigation
measures to minimize any significant adverse effect the
project may have on the environment. Judicial review of a CEC
power plant license decision is limited to the California
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Supreme Court. The Act specifically excludes photovoltaic
(PV) facilities of any size from CEC jurisdiction.
2)Pursuant to SB 226 (Simitian) of 2011:
a) Permits a solar thermal powerplant approved by the CEC
and the federal government between 2007 and 2011 to
petition the CEC not later than June 30, 2012 to review an
amendment to convert the facility, in whole or in part,
from solar thermal technology to PV technology, without the
need to file an entirely new application, provided that the
CEC prepares supplemental environmental review
documentation, provides for public notice and comment on
the supplemental environmental review, and holds at least
one public hearing.
b) Requires the CEC to incorporate all feasible mitigation
measures identified by DFG and the State Water Resources
Control Board.
c) Requires the CEC to process the application as a
post-certification amendment to the existing application,
rather than as a new application for certification.
d) Provides that these provisions do not apply to any
project that was timely challenged in the California
Supreme Court under the Warren-Alquist Act's judicial
review procedures (i.e., the Calico solar project).
3)Pursuant to SB1X 2 (Simitian) of 2011, requires investor-owned
utilities (IOUs), publicly-owned utilities (POUs) and certain
other retail sellers of electricity, in order to fulfill unmet
long-term resource needs, to procure eligible renewable energy
resources to meet the following portfolio targets:
a) 20 percent on average from January 1, 2011 to December
31, 2013.
b) 25 percent by December 31, 2016.
c) 33 percent by December 31, 2020 and each year
thereafter.
4)Pursuant to the California Endangered Species Act (CESA) of
1984, prohibits the take of any endangered or threatened
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species unless the take is authorized by DFG. DFG may issue
an incidental take permit authorizing the take of endangered
or threatened species if certain conditions are met, including
that the take is incidental to an otherwise lawful activity,
and the impacts of the authorized take are minimized and fully
mitigated. CESA requires applicants to ensure adequate
funding to implement mitigation measures, including for
monitoring.
5)Pursuant to the Natural Community Conservation Planning (NCCP)
Act of 1991, authorizes DFG to permit the taking of any
covered species whose conservation and management is provided
for in a NCCP approved by DFG.
6)Pursuant to SBX8 34 (Padilla) of 2010 and AB1X 13 (V. Manuel
Perez) of 2011, authorizes DFG, in consultation with the CEC,
to develop mitigation actions, including advance mitigation
and interim mitigation strategies, to fully mitigate the
impacts on endangered and threatened species of renewable
energy projects proposed for siting within the Desert
Renewable Energy Conservation Plan (DRECP) planning area.
Eligible project developers are authorized to meet their
mitigation obligations by voluntarily paying fees into a fund
to be used by DFG to complete the mitigation actions.
THIS BILL amends the section added by SB 226 to provide that a
project challenged in the California Supreme Court is eligible
if the challenge was subsequently dismissed, in effect removing
the exclusion of the Calico solar project.
FISCAL EFFECT : According to the Senate Appropriations
Committee, likely one-time costs of at least $150,000 for
additional project application review due to project design
changes, from the Energy Resources Programs Account, which can
be used for General Fund purposes
COMMENTS :
1)The DRECP is the template for addressing renewable
energy/species conflicts going forward. The DRECP, which
covers renewable resource lands in the Mojave and Colorado
deserts, is intended to serve as a NCCP for development of
renewable energy projects in the California desert region. As
such, lands designated for development and lands designated
for conservation purposes will be identified and dedicated to
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those purposes consistent with the terms of the NCCP Act and
other applicable provisions of law. The DRECP will also serve
as the basis for one or more habitat conservation plans (HCPs)
under the Federal Endangered Species Act.
SBX8 34 and ABX1 13 permit solar, wind and geotherrmal energy
project developers to pay in-lieu fees that will be used by
DFG to acquire and restore habitat lands for species affected
by projects within the DRECP. This provision is an
alternative to developers mitigating impacts on an individual,
per project basis. This approach also allows DFG to
coordinate the mitigation and to avoid piecemeal mitigation.
Under SBX8 34, DFG received a loan of $10 million for this
purpose and was required to develop an interim mitigation
strategy that would establish conservation benchmarks for the
DRECP and to identify high priority lands that should be
acquired.
To oversee the implementation of the DRECP, a Renewable Energy
Action Team (REAT) was formed consisting of the CEC, DFG,
Bureau of Land Management, and the U.S. Fish and Wildlife
Service. Other REAT participants include the Public Utilities
Commission, California Independent System Operator, National
Parks Service, U.S. Environmental Protection Agency and the
Department of Defense.
Four major products are being developed under the direction of
the REAT:
a) Best Management Practices and Guidance Manual for
Desert Renewable Energy Projects.
b) Draft Conservation Strategy that clearly identifies
and maps areas for renewable energy project development
and areas intended for long-term natural resource
conservation as a foundation for the DRECP.
c) The DRECP itself - a joint state and federal NCCP
and part of one or more HCPs.
d) DRECP Draft and Final joint state and federal
Environmental Impact Report/Environmental Impact
Statement.
The previous CEC review and approval of the Calico project
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predates the DRECP process.
2)Solar economics and federal funding deadlines led to SB 226's
PV conversion provision. Solar thermal generation uses
mirrors or lenses to concentrate sunlight, or solar thermal
energy, onto a small area. Electrical power is produced when
the concentrated light is converted to heat, which drives a
heat engine (usually a steam turbine) connected to an
electrical power generator. Since 2007 the CEC has received
project applications from developers of 16 solar thermal
plants collectively totaling over 5,700 MW of generation
primarily located in the Mojave and Colorado deserts.
However, as the siting process neared completion for some of
these projects, and in some instances after an application had
been certified by the CEC, market prices for solar PV dropped
so precipitously that some solar thermal project developers
desired to change technologies seeking a lower cost of power
generated from the plant.
The provision which is the subject of this bill (Public
Resources Code Section 25500.1) was added to SB 226 in
Assembly Appropriations Committee on September 8, 2011. The
justification offered at the time for this provision was that
it would allow several non-controversial solar projects to
convert to PV in time to meet federal funding deadlines. On
September 9, the last day of session, SB 226 passed the
Assembly and Senate, and was later signed by the Governor.
Section 25500.1 provides the CEC with limited jurisdiction
over PV projects which were filed after August 15, 2007 and
approved by the CEC and for projects on federal land where a
decision had been issued by the Bureau of Land Management
before September 1, 2011. The one caveat was that a project
would not qualify for the exception if the project had been
challenged in court.
On September 9, Senator Simitian submitted the following
letter to the Senate Journal:
Dear Mr. Schmidt:
I am submitting this letter to the Senate Journal to
provide clarity as to the intent of a provision in Senate
Bill 226 related to project challenges at the California
Energy Commission.
Senate Bill 226 adds Public Resources Code �25500.1,
relating to applications for certifications for projects at
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the California Energy Commission. It is not my intention
that subdivision (e) of this section be applicable to a
project whose certificate was challenged and subsequently
dismissed by the California Supreme Court.
Further, it is not my intent to abrogate any parties
rights to challenge a project's certificate pursuant to
�25531 or any other provision of law.
To the extent there is any ambiguity about the intent
of this provision, I will pursue clarity through additional
legislation at the earliest opportunity.
Sincerely,
S. JOSEPH SIMITIAN
Eleventh Senate District
According to the CEC, one eligible solar project has indicated
interest, but no project has petitioned the CEC to review a
PV-conversion amendment pursuant to SB 226.
3)A brief history of the Calico project. In December 2008,
Stirling Energy Systems applied to the CEC to construct and
operate the Solar One Project, a solar dish Stirling systems
project in San Bernardino County, California. In January
2010, the project formally changed its name to the Calico
Solar Project. The applicant was re-named Calico Solar, which
was then a subsidiary of Tessera Solar.
As originally proposed, the Calico project was to be a
850-megawatt (MW) Stirling engine project. The primary
equipment for the generating facility was to be approximately
30,000 25-kilowatt solar dish Stirling systems (referred to as
SunCatchers), their associated equipment and systems, and
their support infrastructure. The original project was
planned on an approximate 8,230-acre site located in San
Bernardino County, approximately 37 miles east of Barstow.
The Calico solar thermal project received its final approved
from CEC on December 1, 2010. The CEC approval identified
numerous significant environmental effects and included
mitigation measures which, among other things, reduced the
project footprint. During state and federal permitting,
Calico underwent successive rounds of project modifications in
response to agencies' and environmental groups' concerns. The
original project site of 8,230 acres was reduced to 4,613
acres in a series of reductions intended to (1) minimize use
of donated lands; (2) create desert tortoise movement corridor
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along north and east of site, avoid concentrations of
sensitive plants, and avoid cultural resources; and (3)
minimize impacts on desert tortoise. These area reductions
also reduced overall planned capacity from 850 MW to 663.5 MW.
The original solar thermal developer entered a power purchase
agreement with Southern California Edison in 2005. However,
Edison announced the cancelation of this contract on December
23, 2010, just three weeks after the project was approved by
the CEC. On December 28, K Road Power announced acquisition
of the project from Tessera and plans to convert to PV. And
on December 30, Sierra Club and California Unions for Reliable
Energy (CURE) filed separate lawsuits in the California
Supreme Court challenging the CEC's approval of the project.
On April 13, 2011, both petitions were denied by the Supreme
Court without a hearing. As noted above, CEC powerplant
licenses are reviewable only by the Supreme Court. The Court
has denied every petition for review.
In June 2011, Calico and CURE announced they had reached an
agreement resolving the environmental issues raised by CURE in
the CEC process. On August 5, 2011, CURE announced a
partnership with Calico, including a project labor agreement.
On March 26, 2012, Defenders of Wildlife, the Natural
Resources Defense Council and the Sierra Club filed a federal
lawsuit challenging BLM's approval of the Calico project. The
environmental plaintiffs seek to move the project to a
location without major environmental conflicts. This lawsuit
is pending, though it's so recent that the federal agencies
and other parties have not responded and no trial has been
set.
The Calico project currently does not have a power purchase
agreement, federal funding or a definitive construction date.
4)Impacts on threatened desert tortoise are chief among
environmental issues with desert solar projects in general,
and Calico project in particular. The desert tortoise is the
state reptile of California (designated in 1972) and a
threatened species under state and federal endangered species
acts. Ravens, gila monsters, Kit foxes, badgers, roadrunners,
coyotes and fire ants are all natural predators of the desert
tortoise. They prey on eggs, juveniles, which are 2-3 inches
long with a thin, delicate shell, or in some cases adults.
Ravens are hypothesized to cause significant levels of
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juvenile tortoise predation in some areas of the Mojave Desert
- frequently near urbanized areas. The most significant
threats to tortoises include urbanization, disease, habitat
destruction and fragmentation, illegal collection and
vandalism by humans, and habitat conversion from invasive
plant species. Desert tortoise populations in some areas have
declined by as much as 90% since the 1980s and the Mojave
population is listed as threatened. It is unlawful to touch,
harm, harass or collect wild desert tortoises.
5)Up or down. This bill was substantially amended in the Senate
on February 23 and the Assembly-approved provisions of this
bill were deleted. The bill has been referred to the Assembly
Natural Resources and Appropriations Committees to review the
Senate amendments, pursuant to Assembly Rule 77.2. As the
bill is on concurrence, it cannot be amended in the Assembly.
The committee may recommend concurrence or non-concurrence in
the Senate amendments or to hold the bill in committee (Joint
Rule 26.5). If the committee holds the bill, it is possible
to then withdraw the bill to the Senate for amendments or send
the bill to a conference committee to reconcile the Senate and
Assembly actions by joint action of the Assembly and Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chamber of Commerce
California State Association of Electrical Workers
K Road Calico Solar
Palm Desert Area Chamber of Commerce
Opposition
Audubon California
California Coastal Protection Network
California League of Conservation Voters
California Native Plant Society
Center for Biological Diversity
Defenders of Wildlife
Kern County Board of Supervisors
Natural Resources Defense Council
Planning and Conservation League
Sierra Club California
The Nature Conservancy
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The Wilderness Society
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092