BILL ANALYSIS �
AB 2075
Page 1
Date of Hearing: May 7, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2075 (Fong) - As Amended: March 29, 2012
SUBJECT : Energy: powerplant certification
SUMMARY : Repeals Section 25502.3 of the Public Resources Code,
which authorizes "facilities" (i.e. thermal powerplants)
excluded from California Energy Commission (CEC) jurisdiction
when the Warren-Alquist Act was enacted in 1974 to submit to CEC
jurisdiction. The CEC has proposed to rely on Section 25502.3
to permit photovoltaic and other non-thermal powerplants to
submit to its jurisdiction.
EXISTING LAW :
1)Pursuant to the Warren-Alquist Act, 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, 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
Supreme Court. The Act specifically excludes photovoltaic
facilities of any size from CEC jurisdiction. The Act
includes the following relevant definitions:
a) "Facility" means any electric transmission line or
thermal powerplant (emphasis added), or both electric
transmission line and thermal powerplant, regulated
according to the provisions of (the Act).
b) "Thermal powerplant" means any stationary or floating
electrical generating facility using any source of thermal
energy, with a generating capacity of 50 megawatts or more,
AB 2075
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and any facilities appurtenant thereto..."Thermal
powerplant" does not include any wind, hydroelectric, or
solar photovoltaic electrical generating facility (emphasis
added).
2)Pursuant to SB 226 (Simitian) of 2011, 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
photovoltaic 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.
AB 2075
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FISCAL EFFECT : Non-fiscal
COMMENTS :
1)Author's statement :
The CEC has issued a proposed decision in the Ridgecrest
project in which the Commission asserts that it actually
does have jurisdiction over all energy projects above 50
megawatts, including PV projects.
Indeed, the CEC states in its proposed decision that
"�e]ven assuming that the Legislature did not initially
envision the Energy Commission's role in implementing
statewide siting policy as encompassing non-thermal
powerplants, the Legislature's October 2011 passage of
Senate Bill (SB 226) makes it plain that the Legislature
now has such a vision." Further, "nothing in the language
in SB 226 indicates a Legislative assumption or
determination that the Commission would have no
jurisdiction over photovoltaic electrical generating
projects but for Section 25500.1."
The CEC's self-serving reinterpretation of the
Legislature's intent behind SB 226 and SB 226's plain
language runs counter to either logic or common sense as
the bill would have been entirely unnecessary if the CEC
indeed already had jurisdiction over PV projects.
AB 2075 would repeal an outdated provision of the law that
allows a person proposing to construct a facility excluded
from the CEC's jurisdiction to waive the exclusion and
submit a notice of intent to file an application for
certification. This is the provision the Ridgecrest
developer relied on in the CEC hearing.
The original intent of this provision was to provide a
"grandfather" option for applications in the pipeline when
Public Resources Code �� 25501 and 25501.5 were adopted in
1974. Since there are no longer any applications in the 38
year old pipeline and � 25501.5 was subsequently repealed,
this provision should be repealed as well, to clarify
jurisdictional responsibilities between the CEC and local
governments.
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2)Disproportionate response? The controversial "Ridgecrest"
proposed decision cited by the author has not been adopted by
the CEC. It was published and set for hearing in December
2011, has since been delayed several times and is currently
not set for hearing. Committee staff believes that the
statutory interpretation in the proposed decision is incorrect
and observes that the weight of parties' opinions is against
the proposed decision. The current status of the proposed
decision and whether it will ever be voted on, much less
adopted, by the CEC is unclear. While repealing Section
25502.3 may be unnecessary as a response to Ridgecrest, the
section may not have any continuing value, so repealing it may
be appropriate as a general matter of policy.
REGISTERED SUPPORT / OPPOSITION :
Support
California Farm Bureau Federation
County of Inyo
Defenders of Wildlife
Kern County Board of Supervisors
Riverside County Board of Supervisors
Sierra Club California
Urban Counties Caucus
Opposition
Large-Scale Solar Association
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092