BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 97|
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UNFINISHED BUSINESS
Bill No: SB 97
Author: Dutton (D)
Amended: 8/21/07
Vote: 21
WITHOUT REFERENCE TO FILE
SENATE FLOOR : Not relevant
ASSEMBLY FLOOR : 60-13, 8/21/07 - See last page for vote
SUBJECT : CEQA: greenhouse gas emissions
SOURCE : Author
DIGEST : This bill (1) requires the Office of Planning
and Research, on or before July 1, 2009, to prepare,
develop, and transmit to the Resources Agency amendments to
the CEQA guidelines to assist public agencies in the
mitigation of greenhouse gas (GHG) emissions or the effects
of GHG's as required under CEQA, including the effects
associated with transportation and energy consumption, (2)
requires the Resources agency to certify and adopt those
guidelines by January 1, 2010, (3) provides that the
failure to adequately analyze the effects of GHG's in
documents required under CEQA is not a cause of action, and
(4) sunsets on January 1, 2010.
ANALYSIS :
CONTINUED
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Existing Law
Under the California Environmental Quality Act (CEQA)
(Division 13 commencing with Section 21000 of the Public
Resources Code):
1.Requires lead agencies with the principal responsibility
for carrying out or approving a discretionary project to
prepare a negative declaration, mitigated 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).
2.Requires the Office of Planning and Research (OPR) to
prepare and develop proposed guidelines for implementing
CEQA, and to transmit the guidelines to the Secretary of
Resources for certification and adoption pursuant to the
Administrative Procedure Act. (Public Resources Code
21083).
Under the California Global Warming Solutions Act of 2006
(Division 25.5 commencing with Section 38500 of the Health
and Safety Code):
1.Requires the State Air Resources Board (ARB) to determine
the 1990 statewide greenhouse gas (GHG) emissions level
and approve a statewide GHG emissions limit that is the
equivalent to that level, to be achieved by 2020.
2.Requires the ARB to adopt rules and regulations to
achieve the maximum technologically feasible and
cost-effective GHG emission reductions from sources or
categories of sources of GHG emissions in furtherance of
the GHG emissions limit.
This bill:
1.On or before July 1, 2009, requires OPR to prepare,
develop, and transmit to the Resources Agency amendments
to the CEQA guidelines to assist public agencies in the
mitigation of GHG's or the effects of GHG's as required
under CEQA, including the effects associated with
transportation and energy consumption, and requires the
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Resources Agency to certify and adopt those guidelines by
January 1, 2010.
2.Provides that the failure to analyze adequately the
effects of GHG's in documents required under CEQA is not
a cause of action under that Act if both of the following
conditions are met:
A. The emissions are required to be reduced pursuant
to regulations adopted by the ARB under the
California Global Warming Solutions Act of 2006.
B. The documents are for a transportation
infrastructure project approved for funding under the
Highway Safety, Traffic Reduction, Air Quality, and
Port Security Act of 2006 (Chapter 12.49 commencing
with Section 8879.20) of Division 1 of Title 2 of the
Government Code-commonly known as "Proposition 1-B")
or a flood control project funded under the Disaster
Preparedness and Flood Prevention Bond Act of 2006
(Chapter 1.699 commencing with Section 5096.800 of
Division 5 of the Public Resources Code - commonly
known as "Proposition 1E").
3.Provides that nothing in this section shall be construed
as a limitation to comply with any other requirement of
CEQA, or of any other provision of law.
4.Provides that the section shall apply retroactively to
documents required under CEQA that have not become final.
5.Sunsets the section on January 1, 2010.
Comments
Brief background on CEQA . 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. If the initial
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study shows that the project may 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. Prior to
approving any project that has received 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.
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.
Analyzing Greenhouse Gas Emissions Under NEPA and CEQA Not
a New Issue . The analysis of GHG impacts under laws like
CEQA, and its federal counterpart NEPA, is not new, nor did
it commence with the passage of the California Global
Warming Solutions Act of 2006.
Guidance for addressing GHG issues under the National
Environmental Policy Act (NEPA) for federal environmental
documents was provided October 8, 1997 - almost a decade
ago. According to the Chairman of the Council on
Environmental Quality in 1997, "Because of the potentially
substantial health and environmental impacts associated
with climate change, the Council of Environmental Quality
is issuing this guidance today calling on federal agencies
to consider, in the context of the NEPA process, both how
major federal actions could influence the emissions and
sinks of greenhouse gases and how climate change could
potentially influence such actions."
In 2003, in Border Power Plant Working Group v. U.S.
Department of Energy (S.D. Cal 2003) 20 F.Supp2d 997,
1028-1029, a federal district court found that NEPA
requires consideration of potential environmental impacts
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from a proposed natural gas turbine's generation of carbon
dioxide, a greenhouse gas, and rejected the argument that
consideration of this impact is not required.
Attorney General Bill Lockyer also commented on the lack of
analysis of GHG issues in environmental documents prior to
enactment of the CGWSA (note, for example, the March 30,
2006, letter regarding the Orange County Transportation
Authority 2006 Long-Range Transportation Plan Draft
Environmental Impact Report).
Interaction of AB 32 and CEQA Described. As noted above,
CEQA generally requires lead agencies to analyze the
significant environmental effects of projects prior to
their approval, and to mitigate, or address, those effects
where feasible. In contrast, AB 32 requires the ARB to
adopt rules and regulations to achieve the maximum feasible
and cost-effective reductions in GHG emissions from GHG
emission sources and categories of sources. Under AB 32,
the Air Board has some discretion over WHEN those
regulations may be adopted (though they must be adopted no
later than 1/1/2012). This measure appears to have two
substantive effects: first, it enacts a new requirement
for the adoption of CEQA guidelines to assist public
agencies in the mitigation of greenhouse gas emissions as
required under CEQA, thereby confirming that GHG emissions
are a significant adverse effect under the Act and
secondly, it provides that where the ARB adopts regulations
requiring the reduction of GHG's from Proposition 1-B
transportation projects, the failure to analyze those
emissions required to be reduced under those regulations is
not a cause of action under CEQA.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Arambula, Bass, Beall,
Benoit, Berryhill, Blakeslee, Charles Calderon, Carter,
Cook, Coto, Davis, De La Torre, De Leon, DeVore, Duvall,
Emmerson, Fuller, Gaines, Galgiani, Garcia, Garrick,
Hayashi, Horton, Houston, Huff, Jeffries, Jones,
Karnette, Keene, La Malfa, Laird, Levine, Lieu, Ma, Maze,
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Mendoza, Mullin, Nakanishi, Niello, Parra, Plescia,
Price, Sharon Runner, Salas, Saldana, Silva, Smyth,
Solorio, Soto, Spitzer, Strickland, Torrico, Tran,
Villines, Walters, Wolk, Nunez
NOES: Brownley, DeSaulnier, Dymally, Evans, Feuer,
Hancock, Huffman, Krekorian, Leno, Lieber, Portantino,
Ruskin, Swanson
NO VOTE RECORDED: Berg, Caballero, Eng, Fuentes,
Hernandez, Nava, Richardson
DLW:cm 8/22/07 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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