BILL ANALYSIS �
AB 2075
Page 1
ASSEMBLY THIRD READING
AB 2075 (Fong)
As Amended March 29, 2012
Majority vote
NATURAL RESOURCES 9-0
-----------------------------------------------------------------
|Ayes:|Chesbro, Knight, Lara, | | |
| |Dickinson, Grove, | | |
| |Halderman, Huffman, | | |
| |Monning, Skinner | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
SUMMARY : Repeals Public Resources Code Section 25502.3, which
authorizes "facilities" (i.e., thermal powerplants) excluded
from California Energy Commission (CEC) jurisdiction when the
Warren-Alquist Act (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)Grants, pursuant to the Act, 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 the
California Environmental Quality Act (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 powerplant 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:
AB 2075
Page 2
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; and,
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,
and any facilities appurtenant thereto..."Thermal
powerplant" does not include any wind, hydroelectric, or
solar photovoltaic electrical generating facility (emphasis
added).
2)Permits, pursuant to SB 226 (Simitian), Chapter 469, Statutes
of 2011, 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 comments on the supplemental
environmental review, and holds at least one public hearing.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, 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 photovoltaic
(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
AB 2075
Page 3
CEC indeed already had jurisdiction over PV projects. This bill
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 Sections 25501 and 25501.5 were adopted in
1974. Since there are no longer any applications in the 38 year
old pipeline and Section 25501.5 was subsequently repealed, this
provision should be repealed as well, to clarify jurisdictional
responsibilities between the CEC and local governments.
It should be noted that 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.
Assembly Natural Resources 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.
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
FN: 0003554