The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would, for electrical infrastructure projects, as defined, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted. The bill would repeal these provisions on January 1, 2035.

(1)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would, until January 1, 2030, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, as defined, meeting certain requirements, including the requirement that the lead agency for the project is either the Public Utilities Commission or a state agency owning or managing the state-owned land.

(2)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would, for electrical infrastructure projects, as defined, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted. The bill would repeal these provisions on January 1, 2035.

(1)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would, until January 1, 2030, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, as defined, meeting certain requirements, including the requirement that the lead agency for the project is either the Public Utilities Commission or a state agency owning or managing the state-owned land.

(2)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

The bill would repeal these provisions on January 1, 2035.

(1)The Natural Community Conservation Planning Act authorizes the Department of Fish and Wildlife to enter into agreements with any person or public entity for the purpose of preparing a natural community conservation plan to provide comprehensive management and conservation of multiple wildlife species, including those species listed as endangered or threatened under the California Endangered Species Act (CESA). The CESA requires the department, before approving the plan, to make specific findings and requires an approved plan to include an implementation agreement that contains, among other things, provisions specifying procedures for the amendment of the plan and the implementation agreement.

This bill would require the department, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under CESA that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. The bill would also require the department, when considering the request, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the plan.

(2)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would, until January 1, 2035, 2030, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, as defined. By requiring a lead agency to determine the applicability of those exemptions to a project, the bill would impose a state-mandated local program. defined, meeting certain requirements, including the requirement that the lead agency for the project is either the Public Utilities Commission or a state agency owning or managing the state-owned land.

(3)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

The bill would repeal these provisions on January 1, 2035.

(1)The Natural Community Conservation Planning Act authorizes the Department of Fish and Wildlife to enter into agreements with any person or public entity for the purpose of preparing a natural community conservation plan to provide comprehensive management and conservation of multiple wildlife species, including those species listed as endangered or threatened under the CESA. California Endangered Species Act (CESA). The CESA requires the department, before approving the plan, to make specific findings and requires an approved plan to include an implementation agreement that contains, among other things, provisions specifying procedures for the amendment of the plan and the implementation agreement.

This bill would require the department, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under CESA that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. The bill would also require the department, when considering the request, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the plan.

(2)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would, until January 1, 2035, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, as defined. By requiring a lead agency to determine the applicability of those exemptions to a project, the bill would impose a state-mandated local program.

(3)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would vest the commission with the exclusive power to approve and site necessary electrical infrastructure projects, as defined. The bill would, except as provided, specify that the approval and siting by the commission of a necessary electrical infrastructure project is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities. The bill would include findings that these changes address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

The bill would repeal these provisions on January 1, 2035.

(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)The California Endangered Species Act (CESA), except as authorized by the Director of Fish and Wildlife, generally prohibits the take of a species determined to be an endangered, threatened, or candidate species under the act. The CESA provides that no further authorization or approval from the director is necessary for a person who obtained an incidental take statement or an incidental take permit under the federal Endangered Species Act if the person provides to the director a copy of the incidental take statement or incidental take permit and the director determines that the incidental take statement or incidental take permit is consistent with the requirements of the act.

This bill would, for an electrical infrastructure project, as defined, require the director to publish a determination authorizing the incidental take of a species under the same terms and condition provided under federal law if the public utility undertaking the project has obtained an incidental take statement or incidental take permit under the federal act.

(2)The Natural Community Conservation Planning Act authorizes the Department of Fish and Wildlife to enter into agreements with any person or public entity for the purpose of preparing a natural community conservation plan to provide comprehensive management and conservation of multiple wildlife species, including those species listed as endangered or threatened under the CESA. The CESA requires the department, before approving the plan, to make specific findings and requires an approved plan to include an implementation agreement that contains, among other things, provisions specifying procedures for the amendment of the plan and the implementation agreement.

This bill would require the department, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under CESA that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. The bill would also require the department, when considering the request, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the plan.

(3)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would exempt from the CEQA the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment.

This bill would specify that actions necessary to prevent or mitigate an emergency include actions by a public agency for the performance of wildfire mitigation measures by an electrical corporation performed under the electrical corporations approved wildfire mitigation plan to minimize the risk of overhead electrical transmission and distribution lines and equipment causing a wildfire. The bill also would would, until January 1, 2035, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure. infrastructure, as defined. By requiring a lead agency to determine the applicability of those exemptions to a project, the bill would impose a state-mandated local program.

(4)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would vest the commission with the exclusive power to approve and site necessary electrical infrastructure projects, as defined. The bill would, except as provided, specify that the approval and siting by the commission of a necessary electrical infrastructure project is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities. The bill would include findings that these changes address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

(5)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)The California Endangered Species Act (CESA), except as authorized by the Director of Fish and Wildlife, generally prohibits the take of a species determined to be an endangered, threatened, or candidate species under the act. The CESA provides that no further authorization or approval from the director is necessary for a person who obtained an incidental take statement or an incidental take permit under the federal Endangered Species Act if the person provides to the director a copy of the incidental take statement or incidental take permit and the director determines that the incidental take statement or incidental take permit is consistent with the requirements of the act.

This bill would, for an electrical infrastructure project, as defined, require the director to publish a determination authorizing the incidental take of a species under the same terms and condition provided under federal law if the public utility undertaking the project has obtained an incidental take statement or incidental take permit under the federal act.

(2)The Natural Community Conservation Planning Act authorizes the Department of Fish and Wildlife to enter into agreements with any person or public entity for the purpose of preparing a natural community conservation plan to provide comprehensive management and conservation of multiple wildlife species, including those species listed as endangered or threatened under the CESA. The CESA requires the department, before approving the plan, to make specific findings and requires an approved plan to include an implementation agreement that contains, among other things, provisions specifying procedures for the amendment of the plan and the implementation agreement.

This bill would require the department, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under CESA that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. The bill would also require the department, when considering the request, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the plan.

(3)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would exempt from the CEQA the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment.

This bill would specify that actions necessary to prevent or mitigate an emergency include actions by a public agency for the performance of wildfire mitigation measures by an electrical corporation performed under the electrical corporations approved wildfire mitigation plan to minimize the risk of overhead electrical transmission and distribution lines and equipment causing a wildfire. The bill also would exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure. By requiring a lead agency to determine the applicability of those exemptions to a project, the bill would impose a state-mandated local program.

(4)Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would vest the commission with the exclusive power to approve and site necessary electrical infrastructure projects, as defined. The bill would, except as provided, specify that the approval and siting by the commission of a necessary electrical infrastructure project is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities. The bill would include findings that these changes address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

(5)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 3238 (Garcia) - California Environmental Quality Act: electrical infrastructure projects

Bill Summary:

This bill would designate the California Public Utilities Commission (CPUC) as the lead agency under CEQA for electrical infrastructure projects and give them a shortened 270-day timeline to complete environmental review until January 1, 2035. It would also limit the alternatives that can be considered in the alternative analysis under CEQA.

Fiscal Impact:

• One-time costs in the millions (ratepayer funds) for the CPUC to contract with outside CEQA consultants to ensure it certifies CEQA documents, or determines a project is exempt from CEQA, within 270 days as required by this bill, which, the CPUC notes, is half the time it typically takes the CPUC to complete this work. Actual costs would depend on the volume of project applications the CPUC receives. In addition, the CPUC anticipates costs of approximately $300,000 annually to cover related travel and training.
• Unknown but potentially significant ongoing cost pressures (ratepayer funds), likely in the millions of dollars annually, for CPUC analytical, managerial and legal staff to manage what the CPUC assumes could be a significant increase in public comment and opposition to each CPUC proceeding involving an application related to electrical transmission facilities.

Background:

Electric transmission lines are generally high-voltage lines that move electricity from power plants to distribution lines in neighborhoods. Companies, usually electric investor-owned utilities (IOUs), proposing the construction of new transmission, are required to obtain a permit from the CPUC for construction of transmission projects. The CPUC reviews permit applications under two concurrent processes: (1) an environmental review pursuant to CEQA, and (2) the review of project needs and costs pursuant to Public Utilities Code Section 1001 and General Order (GO) 131-D (CPCN).

As the CPUC conducts the CEQA review, it also reviews the electric IOU’s application for either a CPCN or a Permit to Construct (PTC). Which application the CPUC pursues depends on the size of the project:

• Projects below 50 kV are considered distribution projects, rather than transmission projects, and in general, do not require CPUC approval.
• Projects between 50 kV and 200 kV require a PTC from the CPUC, which consists primarily of an environmental review pursuant to CEQA. The CPUC process generally does not require a detailed analysis of the need for or economics of these projects.
• Projects over 200 kV require a CPCN from the CPUC. The CPCN process analyzes the need for the project and the economics of the project, as well as, the environmental impacts of the project.
• The CPUC’s decision on the CPCN or PTC cannot be issued until the environmental review is complete.

According to the Senate Energy, Utilities, and Communications Committee, of the hundreds of major capital electric transmission projects completed in California each year, on average one or two per year may trigger a permit, and thus require CEQA. Most projects are reviewed through the CPUC’s advice letter approval process, which tends to be more simplified and expedient than a full application for a CPCN.

Speeding up environmental review of transmission deployment. California has strong urgency to develop transmission infrastructure to meet the energy needs of the state. CAISO’s first-ever 20 Year Outlook for transmission planning, written in partnership with the CPUC and CEC and released in 2022, estimates that more than $30 billion in new transmission capacity will be needed by 2040 to support the development of over 120 Gigawatts of new generating resources to meet the state’s goals. While CAISO’s 2020-2021 transmission plan was based on an addition of approximately 1,000 Megawatts of renewable energy capacity per year over the next decade, its 2021-2022 plan used an intermediate level of 2,700 MW of new resources per year in anticipation of its 2022-2023 draft plan (not yet finalized) projecting 4,000 MW of capacity added annually, with future transmission plans likely needing even more growth to meet state goals. Princeton’s “Net-Zero America” study finds that electricity transmission capacity in California would need to triple by 2050. This level of expansion would be the equivalent of roughly 150 new 100-mile-long transmission lines

As the state races to meet these infrastructure needs, it is also conducting environmental review to ensure that new transmission lines are not inadvertently harming the environment or communities. Environmental review necessarily takes time. According to a Clean Air Task Force review of 13 projects approved in CAISO’s Transmission Plans between 2012 and 2019, environmental reviews lasted between 16 months and four years. While this dataset is very limited, it does provide some insight into the time—and the variability in time—required for those few projects that trigger CEQA review. The CPUC estimates that CEQA and CPCN review add around 3-4 years for a project, with lawsuits potentially extending this timing further.

In recognition of the urgent need to deploy transmission and energy infrastructure to meet California’s energy demand and clean energy goals, the Legislature has enacted several measures in recent years to streamline environmental review and permitting for transmission projects.

In 2022, the Legislature passed AB 205 (Committee on Budget, Chapter 21, Statutes of 2022), which, among many other elements, authorized certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible. AB 205 also authorized the CEC to implement a new optional program (opt-in) that authorizes the CEC to accept applications seeking certification of certain non-fossil-fueled energy generating facilities, energy storage facilities, transmission facilities connected to these generation facilities, and other related facilities. The emergency regulations set forth the process for submitting opt-in applications, reviewing applications, performing outreach, and considering whether to issue or deny a certification.

CEQA streamlining for transmission projects. The Legislature has developed streamlining measures to speed CEQA lawsuits brought against specified projects through the courts. Judicial streamlining requires that a CEQA lawsuit be heard in 270 days, including all appeals, as feasible. Administrative streamlining requires projects to prepare the administrative record, the comprehensive document at the heart of a CEQA case, at the same time as the environmental review documents are prepared. Preparing these documents concurrently, instead of sequentially, saves time if there is a lawsuit. These streamlining measures shorten what is potentially the lengthiest portion of the CEQA process—litigation—while retaining the full environmental review and public engagement offered under CEQA.

In 2023, The Legislature expanded existing CEQA streamlining provisions for certain energy, transportation, and water infrastructure projects (SB 149, Caballero, Chapter 60, Statutes of 2023), including transmission projects for renewable or other environmental leadership projects.

Proposed Law:

This bill would designate the CPUC as the lead agency under CEQA for electrical infrastructure projects and give them a shortened 270-day timeline to complete environmental review until January 1, 2035. It would also limit the alternatives that can be considered in the alternative analysis under CEQA. Specifically, this bill would:

1. Until January 1, 2035, designate the CPUC as the lead CEQA permitting agency for an electrical infrastructure project, as defined, and:
   1. Direct the CPUC to prescribe procedures for preparation of the EIR, Negative Declaration (ND), or Mitigated Negative Declaration (MND).
   2. Authorize the CPUC to provide an applicant with appropriate guidance and assistance, and directs the CPUC to independently evaluate the appropriateness of the environmental document and take responsibility for the contents.
   3. Authorize an applicant to elect to prepare and submit to the CPUC an administrative draft of an EIR, ND or MND, or other related documents – instead of a more comprehensive and labor-intensive initial study – and obligates the CPUC to use the document the applicant submits in its independent determination as to whether a project is exempt from CEQA.
   4. Require the CPUC to determine, within 270 days of the CPUC’s determination that an application for an electrical infrastructure project is complete, and whether:
      1. To certify the EIR, ND, MND other CEQA document or;
      2. To determine whether the project is exempt from CEQA and approve the project, unless certain specified situations occur, which allow the 270-day time period to be extended.
2. Until January 1, 2035, regarding an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in a qualifying transmission plan:
   1. Declare that the statement of objectives sought by the project, including the underlying purpose and project benefits, required by CEQA shall be those identified by CAISO’s approved transmission plan.
   2. Authorize the CPUC to limit the range of reasonable alternatives considered to alternative routes or locations for the construction of the project approved in the relevant CAISO-approved transmission plan, in addition to consideration of a no-project alternative, per current law.
   3. Provide that the CPUC may include factual findings of the Independent System Operator regarding a project’s objectives and benefits in the commission’s statement of objectives and any statement of overriding considerations.

Related Legislation:

SB 1165 (Padilla, 2024) would have authorized an electrical corporation that applies CPUC to authorize construction of any electrical transmission facility or electrical transmission project to apply to the CEC for certification of the facility pursuant to CEQA, instead of having the CPUC conduct the CEQA review. It would indirectly designate the CEC to be the lead agency for CEQA compliance for transmission permitting and would require the CPUC to adopt the CEC’s CEQA analysis to support its decision. This bill was held on the Suspense File in this committee.

SB 149 (Caballero, Chapter 60, Statutes of 2023) makes a broad swath of energy, transportation, water, and semiconductor projects eligible for expedited judicial review under CEQA. Projects must meet certain environmental and labor criteria to be eligible for certification. The streamlining certification ends January 1, 2033.

SB 420 (Becker, 2023) would have exempted construction of certain low-voltage electrical lines and associated equipment from the need to receive a discretionary permit from the CPUC. The bill was vetoed.

AB 205 (Committee on Budget, Chapter 21, Statutes of 2022) allows certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible.

SB 619 (Padilla, 2022) would have authorized an electrical corporation that applies to the CPUC to authorize the construction of a high voltage electrical transmission line, rated at 138 kV or greater, to apply to the CEC for certification of the facility pursuant to the CEQA, instead of the CPUC conducting the CEQA review. This bill would have provided that the CEC certification authorizes the project to be eligible for the CEQA judicial streamlining afforded to ELDPs and the CEC’s “Opt-in” permitting process. The bill was vetoed.

SB 529 (Hertzberg, Chapter 357, Statutes of 2022) exempts an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its GO, by January 1, 2024, to instead use its permit to construct process for these approvals.

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

SUBJECT: California Environmental Quality Act: electrical infrastructure projects

DIGEST: This bill makes numerous changes to streamline and exempt environmental review, planning, and permitting for electrical infrastructure projects, including creating a California Environmental Quality Act (CEQA) exemption for right-of-way expansions that will be used for transmission projects.

ANALYSIS:

Existing law:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action unless the project is exempt from CEQA. CEQA includes several statutory exemptions, as well as categorical exemptions in the CEQA Guidelines. (Public Resources Code (PRC) §§ 21000 et seq.)
2. Defines “trustee agency” as a state agency that has legal jurisdiction over natural resources affected by a project that are held in trust for the people of California. (PRC § 21070)
3. Requires, under CEQA, a lead agency to consult with responsible and trustee agencies prior to determining whether or not a negative declaration or EIR is required for a proposed project. (PRC § 21080.3)
4. For projects subject to state agency review, requires the lead state agency to establish time limits that do not exceed one year for completing and certifying EIRs and 180 days for completing and adopting negative declarations. (PRC § 21100.2)
5. Establishes in the CEQA guidelines numerous categorical exemptions from CEQA including exemptions for:
   1. Repair and maintenance of existing public or private facilities, involving negligible or no expansion of use, including existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services. (California Code of Regulations tit. 14 (CEQA Guidelines) § 15301)
   2. Replacement or reconstruction of existing facilities on the same site with the same purpose and capacity, including existing utility systems and/or facilities involving negligible or no expansion of capacity. (Guidelines 15302)
   3. New construction or conversion of small structures, including electrical, gas, and other utility extensions of reasonable length to serve such construction. (CEQA Guidelines § 15303)
6. CEQA prohibits a public agency from approving or carrying out a project for which a certified EIR has identified one or more significant effects on the environment unless those effects are mitigated or specific economic, legal, social, technological, or other considerations make mitigation measures or alternatives identified in the EIR infeasible. In this situation, the public agency must author a “statement of overriding consideration” explaining why those specific considerations outweigh the significant effects on the environment. (CEQA Guidelines § 15090)
   1. Requires a statement of overriding considerations to be supported by substantial evidence in the record. If an agency makes a statement of overriding considerations, it should be included in the record of the project approval and should be mentioned in the notice of determination. (CEQA Guidelines § 15093)
7. Establishes CEQA streamlining, including 270-day expedited judicial review, as feasible, for certain environmental leadership development projects (ELDP), including transmission lines for renewable resources and ELDP energy facilities. (PRC § 21183)
8. Requires the Public Utilities Commission (PUC) to certify the “public convenience and necessity” require a transmission line over 200 kilovolts (kV) before an investor-owned utility (IOU) may begin construction (Certificate of Public Convenience and Necessity, or CPCN). The CPCN process includes CEQA review of the proposed project. A CPCN confers eminent domain authority for construction of the project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations. (Public Utilities Code (PUC) § 1001)
9. Requires an IOU to obtain a discretionary permit to construct (PTC) from the PUC for electrical power line projects between 50-200 kV. A PTC may be exempt from CEQA pursuant to PUC orders and existing provisions of CEQA. IOU electrical distribution line projects under 50 kV do not require a CPCN or PTC from the PUC, nor discretionary approval from local governments, and therefore are not subject to CEQA. (PUC General Order (GO) §131-D)
10. Requires the PUC, by January 1, 2024, to update GO 131-D to authorize IOUs to use the PTC process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights of way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV. (PUC § 564)
11. Grants the California Energy Commission (CEC) the exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric transmission lines that tie the plant to the bulk transmission 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 (i.e., the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. Defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system (PRC 25500 et seq.).
12. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to several energy-related projects including:
    1. An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system. (PRC§ 25545–25545.13)
13. Establishes the policy of the state that eligible renewable energy resources and zero-carbon resources supply 90% of all retail sales of electricity by December 31, 2035; 95% of all retail sales of electricity by December 31, 2040; 100% of all retail sales of electricity by December 31, 2045; and 100% of electricity procured to serve all state agencies by December 31, 2035 (PUC § 454.53).

This bill:

1. Until January 1, 2030, exempts from CEQA the expansion of an existing right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of an electrical infrastructure project, provided specified conditions are met.
2. Until January 1, 2035, designates the California Public Utilities Commission (CPUC) as the lead CEQA permitting agency for an electrical infrastructure project, as defined, and:
   1. Directs the CPUC to prescribe procedures for preparation of the EIR, Negative Declaration (ND), or Mitigated Negative Declaration (MND).
   2. Authorizes the CPUC to provide an applicant with appropriate guidance and assistance, and directs the CPUC to independently evaluate the appropriateness of the environmental document and take responsibility for the contents.
   3. Authorizes an applicant to elect to prepare and submit to the CPUC an administrative draft of an EIR, ND or MND, or other related documents – instead of a more comprehensive and labor-intensive initial study – and obligates the CPUC to use the document the applicant submits in its independent determination as to whether a project is exempt from CEQA.
   4. Requires the CPUC to determine, within 270 days of the CPUC’s determination that an application for an electrical infrastructure project is complete, and whether:
      1. To certify the EIR, ND, MND other CEQA document or;
      2. To determine whether the project is exempt from CEQA and approve the project, unless certain specified situations occur, which allow the 270-day time period to be extended.
3. Until January 1, 2035, regarding an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in a qualifying transmission plan:
   1. Declares that the statement of objectives sought by the project, including the underlying purpose and project benefits, required by CEQA shall be those identified by CAISO’s approved transmission plan.
   2. Authorizes the CPUC to limit the range of reasonable alternatives considered to alternative routes or locations for the construction of the project approved in the relevant CAISO-approved transmission plan, in addition to consideration of a no-project alternative, per current law.
   3. Establishes a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs a significant effect on the environment if the CPUC makes a finding required by CEQA and the project has been identified and approved by CAISO in a transmission plan.
      

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

Under CEQA, projects (unless they have a specific exemption) must undergo environmental analysis. This process starts with an initial study which determines what level of further environmental review is needed for a given project. If a project has no significant effects on the environment, or if those effects can be fully mitigated, the project can move forward with an ND or MND. If the initial study finds that the project has potential significant effects on the environment, then a full EIR is conducted. An EIR provides a thorough environmental review of a proposed project, analyzing the significant direct and indirect environmental impacts of a proposed project on water quality, transportation, air quality, and greenhouse gas emissions among other factors. The EIR also includes proposed mitigation measures for any significant effects that it identifies and considers alternatives to the proposed project.

EIRs must be completed and certified within a year, and NDs must be completed within 180 days.

1. Statement of overriding consideration. CEQA is designed to make public agencies “look before they leap” and consider the environmental impacts of new projects. When public agencies choose to move forward with a project that will have significant environmental impacts on the community (as identified in an EIR) they must first consider if there are any feasible ways to remove or mitigate those environmental impacts. Only if specific economic, legal, social, technological, or other considerations make mitigation measures or alternatives infeasible can the public agency move forward with the project. This finding is expressed in a statement of overriding considerations. The statement of overriding considerations evaluates the environmental impacts that were not mitigated and provides evidence that the benefits to be gained by moving the project forward outweigh those impacts. The justifications in the statement of overriding considerations can include a quantification of the benefits of the project, such as the number of jobs it will create.
2. Transmission projects and permitting. Electric transmission lines are generally high-voltage lines that move electricity from power plants to distribution lines in neighborhoods. Companies, usually electric investor-owned utilities (IOUs), proposing the construction of new transmission, are required to obtain a permit from the CPUC for construction of transmission projects. The CPUC reviews permit applications under two concurrent processes: (1) an environmental review pursuant to CEQA, and (2) the review of project needs and costs pursuant to Public Utilities Code Section 1001 and General Order (GO) 131-D (CPCN).

As the CPUC conducts the CEQA review, it also reviews the electric IOU’s application for either a CPCN or a Permit to Construct (PTC). Which application the CPUC pursues depends on the size of the project:

• Projects below 50 kV are considered distribution projects, rather than transmission projects, and in general, do not require CPUC approval.
• Projects between 50 kV and 200 kV require a PTC from the CPUC, which consists primarily of an environmental review pursuant to CEQA. The CPUC process generally does not require a detailed analysis of the need for or economics of these projects.
• Projects over 200 kV require a CPCN from the CPUC. The CPCN process analyzes the need for the project and the economics of the project, as well as, the environmental impacts of the project
• The CPUC’s decision on the CPCN or PTC cannot be issued until the environmental review is complete.

According to the Senate Energy, Utilities, and Communications, of the hundreds of major capital electric transmission projects completed in California each year, on average one or two per year may trigger a permit, and thus require CEQA. Most projects are reviewed through the CPUC’s advice letter approval process, which tends to be more simplified and expedient than a full application for a CPCN.

1. Speeding up environmental review of transmission deployment. California has strong urgency to develop transmission infrastructure to meet the energy needs of the state. CAISO’s first-ever 20 Year Outlook for transmission planning, written in partnership with the CPUC and CEC and released in 2022, estimates that more than $30 billion in new transmission capacity will be needed by 2040 to support the development of over 120 Gigawatts of new generating resources to meet the state’s goals. While CAISO’s 2020-2021 transmission plan was based on an addition of approximately 1,000 Megawatts of renewable energy capacity per year over the next decade, its 2021-2022 plan used an intermediate level of 2,700 MW of new resources per year in anticipation of its 2022-2023 draft plan (not yet finalized) projecting 4,000 MW of capacity added annually, with future transmission plans likely needing even more growth to meet state goals. Princeton’s “Net-Zero America” study finds that electricity transmission capacity in California would need to triple by 2050. This level of expansion would be the equivalent of roughly 150 new 100-mile-long transmission lines

As the state races to meet these infrastructure needs, it is also conducting environmental review to ensure that new transmission lines are not inadvertently harming the environment or communities. Environmental review necessarily takes time. According to a Clean Air Task Force review of 13 projects approved in CAISO’s Transmission Plans between 2012 and 2019, environmental reviews lasted between 16 months and four years. While this dataset is very limited, it does provide some insight into the time—and the variability in time—required for those few projects that trigger CEQA review. The CPUC estimates that CEQA and CPCN review add around 3-4 years for a project, with lawsuits potentially extending this timing further.

In recognition of the urgent need to deploy transmission and energy infrastructure to meet California’s energy demand and clean energy goals, the Legislature has enacted several measures in recent years to streamline environmental review and permitting for transmission projects.

In 2022, the Legislature passed AB 205 (Committee on Budget, Chapter 21, Statutes of 2022), which, among many other elements, authorized certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible. AB 205 also authorized the CEC to implement a new optional program (opt-in) that authorizes the CEC to accept applications seeking certification of certain non-fossil-fueled energy generating facilities, energy storage facilities, transmission facilities connected to these generation facilities, and other related facilities. The emergency regulations set forth the process for submitting opt-in applications, reviewing applications, performing outreach, and considering whether to issue or deny a certification.

1. CEQA streamlining for transmission projects. The Legislature has developed streamlining measures to speed CEQA lawsuits brought against specified projects through the courts. Judicial streamlining requires that a CEQA lawsuit be heard in 270 days, including all appeals, as feasible. Administrative streamlining requires projects to prepare the administrative record, the comprehensive document at the heart of a CEQA case, at the same time as the environmental review documents are prepared. Preparing these documents concurrently, instead of sequentially, saves time if there is a lawsuit. These streamlining measures shorten what is potentially the lengthiest portion of the CEQA process—litigation—while retaining the full environmental review and public engagement offered under CEQA.

In 2023, The Legislature expanded existing CEQA streamlining provisions for certain energy, transportation, and water infrastructure projects (SB 149, Caballero, Chapter 60, Statutes of 2023), including transmission projects for renewable or other environmental leadership projects.

Comments

1. Purpose of Bill. According to the author, “California is on the precipice of a clean energy transition that is poised to bring vast new clean energy projects, jobs, and economic development to the state. Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes – necessary steps in thoughtfully building electrical infrastructure – are inefficient and lead to unnecessary delays. We need to build a runway for electrical infrastructure projects to move efficiently through the permitting and environmental review processes so they can reach operation quickly and begin serving our citizens. AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals.”
   
2. Speeding up all transmission all of a sudden? As discussed in the background section, California is moving with urgency to deploy transmission needed to meet the energy demands of the state. To specifically promote “environmental leadership” transmission projects, the Legislature created CEQA streamlining for transmission projects that transmit renewably sourced energy or connect to certain environmental leadership energy facilities, and achieve high environmental and labor standards (SB 149 Caballero, Chapter 60, Statutes of 2023).

Expanding right of ways for transmission lines could be included as part of a project eligible for this CEQA streamlining. CEQA streamlining, unlike a CEQA exemption, maintains important environmental review and transparency, while capping the most potentially time-consuming portion of CEQA: lawsuits.

Since this legislation passed CEQA streamlining for environmental leadership transmission projects just last year, there has been insufficient time to determine if this policy has been effective at speeding up not only transmission deployment but steering towards more investment in transmission lines that advance the state’s other goals by meeting high environmental and labor criteria.

1. The right right-of-ways. Creating a CEQA exemption for expanding rights-of-way that support transmission projects would enable existing rights-of-way to be enlarged to support larger transmission towers. The typical right-of-way width for a 69kv tower using a single pole is 70-100 feet. A 500kv transmission tower, which can be double the height of a single pole and have a base footprint of 30-55 feet is 160-200 feet, which could accommodate an average-sized home.

Creating a CEQA exemption for expansion of rights-of-way does not include a CEQA exemption for the projects that would be located within those rights-of-way, which would still have to go through CEQA review. Proponents of the right-of-way CEQA exemption argue that having to do CEQA review for the right-of-way and then the project is redundant. It definitely is possible for there to be some redundancies in CEQA review for a given right-of-way and a project located in that same right-of-way given that both right-of-way and project exist in the same location.

However, it is worth considering if waiving environmental review is appropriate for the first step of a project, in this case expanding the right-of-way. The initial stage of a project may be the most important stage at which to discover the environmental sensitivities in a given area and consider project alternatives, instead of considering those impacts and alternatives later in the process. It is possible to consider an outcome where the right-of-way is expanded without CEQA review, and only after the right-of-way is complete is it discovered that sitting a project in the right-of-way is environmentally inviable.

In addition, there are numerous statutory exemptions, primarily for installing pipes, that require that projects be located in an existing right-of-way to be eligible for a CEQA exemption. AB 2503 (Lee, 2024) would also create a CEQA exemption for zero-emission rail and supplementary projects located in existing rights-of-way. In the scenario where a project is exempt from CEQA within a right of way, creating a CEQA exemption for that right of way may create an opportunity for a project to tier off this initial exemption and be exempt from CEQA, meaning that both right of way and project would proceed without environmental review.

To ensure that existing CEQA exemptions are not applied to projects in the right of ways that have themselves been exempt from CEQA, effectively removing environmental review for the whole build, the author and committee may wish to specify that the CEQA exemption for rights-of-way applies only to electrical utilities rights-of-way.

Planning for the future of projects and ensuring that exempting right of ways does not create a pathway for fully exempt projects may be especially important in environmentally sensitive areas or protected areas where right-of-ways, and the projects that will eventually be put on them, are most likely to have an impact on wildlife and other natural resources.

To protect natural spaces while speeding up deployment of important energy infrastructure, the author and committee may wish to limit the application of this CEQA exemption to exclude certain sensitive and protected areas, including:

• 1. Lands within the state park system, except for a state vehicular recreation area.
  2. The coastal zone, as defined in Division 20 (commencing line 2 with Section 30000) of the Public Resources Code.
  3. Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

1. Removing a speedbump or reducing transparency? Through the statement of overriding considerations, CEQA includes an important off-ramp for projects to proceed even if they have significant environmental impacts if the public agency can justify that the benefits of the project outweigh those environmental costs. A statement of overriding consideration requires the entity that adopts the statement to provide justification and reasoning to the public for this choice, providing evidence to the public on how the impacts on the environment or community are outweighed by the outstanding benefits.

AB 2346 would turn the assumption behind the statement of overriding considerations on its head for certain transmission projects by creating a rebuttable presumption that there is an overriding benefit of the project that outweighs environmental impacts. This presumption would remove the onus from the public agency to provide evidence and supporting documents to establish the justification of the statement of overriding considerations. This in turn would remove an important layer of transparency from the CEQA process.

The author and committee may wish to remove the provision that establishes a rebuttable presumption justifying environmental impacts of a transmission project.

1. Alternatives analysis in CEQA. One important portion of an EIR is a consideration of alternatives to the proposed project. The alternatives analysis asks if a different project could achieve the same goals as the proposed project while being less impactful on the environment. Allowing the commission to limit the range of reasonable alternatives considered for certain transmission projects may undercut the objective of the alternatives analysis in CEQA, which is to encourage public agencies to think outside the box of what a given project developer may consider.

In the context of transmission lines, alternative analysis may include consideration of “Non-wire alternatives.” These are technologies intended to reduce grid congestion and manage peak demand to offset the need for more transmission infrastructure. The technologies can include distributed energy resources, such as microgrids or batteries, and practices and programs that focus on optimizing load management, demand response, or energy efficiency instead of building new infrastructure.

To ensure that some important alternative solutions are considered, the author and committee may wish to specify that the commission cannot limit alternatives to preclude consideration of non-wire alternatives to transmission projects.

1. Committee amendments. Staff recommends the committee adopt the bolded amendments contained in comments 3, 4 and 5 above.

DOUBLE REFERRAL:

This measure was heard in Senate Energy Utilities and Communications Committee on June 24th, 2024, and passed out of committee with a vote of 13-0.

Related/Prior Legislation

SB 1165 (Padilla, 2024) would have authorized an electrical corporation that applies CPUC to authorize construction of any electrical transmission facility or electrical transmission project to apply to the CEC for certification of the facility pursuant to CEQA, instead of having the CPUC conduct the CEQA review. It would indirectly designate the CEC to be the lead agency for CEQA compliance for transmission permitting and would require the CPUC to adopt the CEC’s CEQA analysis to support its decision. This bill was held in the Senate Appropriations Committee.

SB 149 (Caballero, Chapter 60, Statutes of 2023) makes a broad swath of energy, transportation, water, and semiconductor projects eligible for expedited judicial review under CEQA. Projects must meet certain environmental and labor criteria to be eligible for certification. The streamlining certification ends January 1, 2033.

SB 420 (Becker, 2023) would have exempted construction of certain low-voltage electrical lines and associated equipment from the need to receive a discretionary permit from the CPUC. The bill was vetoed.

AB 205 (Committee on Budget, Chapter 21, Statutes of 2022) allows certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible.

SB 619 (Padilla, 2022) would have authorized an electrical corporation that applies to the CPUC to authorize the construction of a high voltage electrical transmission line, rated at 138 kV or greater, to apply to the CEC for certification of the facility pursuant to the CEQA, instead of the CPUC conducting the CEQA review. This bill would have provided that the CEC certification authorizes the project to be eligible for the CEQA judicial streamlining afforded to ELDPs and the CEC’s “Opt-in” permitting process. The bill was vetoed.

SB 529 (Hertzberg, Chapter 357, Statutes of 2022) exempts an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its GO, by January 1, 2024, to instead use its permit to construct process for these approvals.

SUPPORT:

Advanced Energy United
California Community Choice Association
Clean Power Campaign
Latino Caucus of California Counties
Pacific Gas and Electric Company and Its Affiliated Entities
San Diego Community Power
San Diego Gas and Electric Company
Silicon Valley Leadership Group

OPPOSITION:

7 Paws Press
American Legion Post 853

Anza-borrego Foundation
Borrego Spice & Olive Oil Company
Borrego Sponsor Group
Borrego Springs Chamber of Commerce
Borrego Springs Community Resource Center

Borrego Springs Mall
Borrego Springs Youth and Seniors Center, INC.
Borrego Village Association
Brookingham
Business Service Contractors & Consulting
California Coastal Protection Network
California Native Plant Society
California Overland Desert Excursions
California State Parks Foundation

Center for Biological Diversity
Cleanearth4kids.org
Defenders of Wildlife
Eco San Diego
Endangered Habitats League
Environmental Defense Fund

Environmental Protection Information Center
Friends of Hellhole Canyon
Functionally Fit for Life
Monahan & Roth, LLC
Nrdc
Planning and Conservation League
Rainy Day Advocacy, LLC
San Diego Audubon Society
Seabreeze Coastal Properties
Sequoia Sentinels Corporation
Sierra Club California
Steele/burnand Anza-borrego Desert Research Center
The Protect Our Communities Foundation
Tubb Canyon Desert Conservancy

37 Individuals

Argument in Support: San Diego Gas & Electric Company (SDG&E) writes in support of AB 3238: “California has ambitious clean energy goals, but these are only half of the equation. Without action from the legislature to accelerate the buildout of transmission infrastructure, we risk falling short of these objectives, potentially leading to catastrophic consequences for our environment and future generations. AB 3238 contains provisions consistent with the multi-party settlement agreement proposed at the California Public Utilities Commission (CPUC) to streamline and modernize the CPUC’s permitting rules for electrical infrastructure1 as well as other beneficial measures that would remove duplicative environmental review for projects going through the CEQA process at the CPUC.

“California has set aggressive goals—including interim milestones—to achieve economy-wide carbon neutrality by 2045. To meet this goal, the state must decarbonize 4.5 times faster than it has over the past decade, and that generation capacity must increase by approximately four times the capacity that existed in 2020 to reliably meet this demand. As California reduces its dependence on fossil fuels, we are entering an era where unprecedented load growth will become the norm. Grid capacity must expand rapidly to connect electrical load with new resources interconnecting to the transmission system, and this reality has been reflected in recent state forecasting and planning activities. In 2022, the California Independent System Operator (CAISO) estimated that over $30B in new transmission would be needed by 2040. In 2023, the CAISO approved a bundle of transmission projects totaling approximately $7.3B.4 Unfortunately, today’s permitting and environmental review processes cause needless delays, historically resulting in transmission project timelines of a decade or more.

“Perhaps the most important step the legislature can take to bring online transmission infrastructure faster is to shorten the complex and lengthy permitting and environmental review processes. AB 3238 makes logical and beneficial changes to the CPUC’s permitting and environmental review processes, which beyond the recent updates necessary to comply with SB 529, have not been significantly revised since 1995. In addition, the bill includes other beneficial measures to prudently expedite the California Environmental Quality Act (CEQA) and agency review processes. This bill would remove redundant processes and ambiguity, thereby empowering state agencies to further support the clean energy transition. By tackling these pressing inefficiencies, AB 3238 would help shepherd transmission projects through these processes and secure the necessary approvals in a timely manner.”

Arguments in Opposition: The Defenders of Wildlife and a number of other environmental groups write in opposition: “The bill proponents claim that CEQA analysis of a right of way expansion is ”duplicative” because there will be later CEQA analysis for the project when it is proposed to be constructed. However, the bill proponents fail to appreciate that analyzing the environmental impacts of expanding a right of way is important to the decision of whether it is a wise decision to invest in developing a project on state lands without understanding the impacts of that development. CEQA analysis of the right of expansion could inform whether it is wise to site a project on the right-of-way land or whether the project should be moved or revised to address issues identified during the right-of-way CEQA review.

“AB 3238 promotes a “head in the sand” approach to transmission planning in which the project developer may be unaware of significant conflicts with the area on state lands slated for transmission because the right-of-way expansion would not be analyzed under CEQA. This approach is likely to create more conflicts and more delays instead of speeding up transmission development.”

“AB 3238 puts in place “a rebuttal presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs a significant effect on the environment . . ..” This provision NEGATES any requirement to provide substantial evidence in the record that overriding benefits outweigh significant effects on the environment. This change means that ANY transmission project is presumed to have overriding benefits regardless of whatever the impacts to the environment might be and the project developer does not have to provide ANY evidence that the project does provide those claimed benefits.”

Positions reflect letters received by noon one week prior to the hearing.

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

SUBJECT: California Environmental Quality Act: electrical infrastructure projects

DIGEST: This bill makes numerous changes to streamline and exempt environmental review, planning, and permitting for electrical infrastructure projects, including creating a California Environmental Quality Act (CEQA) exemption for right-of-way expansions that will be used for transmission projects.

ANALYSIS:

Existing law:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action unless the project is exempt from CEQA. CEQA includes several statutory exemptions, as well as categorical exemptions in the CEQA Guidelines. (Public Resources Code (PRC) §§ 21000 et seq.)
2. Defines “trustee agency” as a state agency that has legal jurisdiction over natural resources affected by a project that are held in trust for the people of California. (PRC § 21070)
3. Requires, under CEQA, a lead agency to consult with responsible and trustee agencies prior to determining whether or not a negative declaration or EIR is required for a proposed project. (PRC § 21080.3)
4. For projects subject to state agency review, requires the lead state agency to establish time limits that do not exceed one year for completing and certifying EIRs and 180 days for completing and adopting negative declarations. (PRC § 21100.2)
5. Establishes in the CEQA guidelines numerous categorical exemptions from CEQA including exemptions for:
   1. Repair and maintenance of existing public or private facilities, involving negligible or no expansion of use, including existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services. (California Code of Regulations tit. 14 (CEQA Guidelines) § 15301)
   2. Replacement or reconstruction of existing facilities on the same site with the same purpose and capacity, including existing utility systems and/or facilities involving negligible or no expansion of capacity. (Guidelines 15302)
   3. New construction or conversion of small structures, including electrical, gas, and other utility extensions of reasonable length to serve such construction. (CEQA Guidelines § 15303)
6. CEQA prohibits a public agency from approving or carrying out a project for which a certified EIR has identified one or more significant effects on the environment unless those effects are mitigated or specific economic, legal, social, technological, or other considerations make mitigation measures or alternatives identified in the EIR infeasible. In this situation, the public agency must author a “statement of overriding consideration” explaining why those specific considerations outweigh the significant effects on the environment. (CEQA Guidelines § 15090)
   1. Requires a statement of overriding considerations to be supported by substantial evidence in the record. If an agency makes a statement of overriding considerations, it should be included in the record of the project approval and should be mentioned in the notice of determination. (CEQA Guidelines § 15093)
7. Establishes CEQA streamlining, including 270-day expedited judicial review, as feasible, for certain environmental leadership development projects (ELDP), including transmission lines for renewable resources and ELDP energy facilities. (PRC § 21183)
8. Requires the Public Utilities Commission (PUC) to certify the “public convenience and necessity” require a transmission line over 200 kilovolts (kV) before an investor-owned utility (IOU) may begin construction (Certificate of Public Convenience and Necessity, or CPCN). The CPCN process includes CEQA review of the proposed project. A CPCN confers eminent domain authority for construction of the project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations. (Public Utilities Code (PUC) § 1001)
9. Requires an IOU to obtain a discretionary permit to construct (PTC) from the PUC for electrical power line projects between 50-200 kV. A PTC may be exempt from CEQA pursuant to PUC orders and existing provisions of CEQA. IOU electrical distribution line projects under 50 kV do not require a CPCN or PTC from the PUC, nor discretionary approval from local governments, and therefore are not subject to CEQA. (PUC General Order (GO) §131-D)
10. Requires the PUC, by January 1, 2024, to update GO 131-D to authorize IOUs to use the PTC process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights of way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV. (PUC § 564)
11. Grants the California Energy Commission (CEC) the exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric transmission lines that tie the plant to the bulk transmission 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 (i.e., the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. Defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system (PRC 25500 et seq.).
12. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to several energy-related projects including:
    1. An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system. (PRC§ 25545–25545.13)
13. Establishes the policy of the state that eligible renewable energy resources and zero-carbon resources supply 90% of all retail sales of electricity by December 31, 2035; 95% of all retail sales of electricity by December 31, 2040; 100% of all retail sales of electricity by December 31, 2045; and 100% of electricity procured to serve all state agencies by December 31, 2035 (PUC § 454.53).

This bill:

1. Until January 1, 2030, exempts from CEQA the expansion of an existing right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of an electrical infrastructure project, provided specified conditions are met.
2. Until January 1, 2035, designates the California Public Utilities Commission (CPUC) as the lead CEQA permitting agency for an electrical infrastructure project, as defined, and:
   1. Directs the CPUC to prescribe procedures for preparation of the EIR, Negative Declaration (ND), or Mitigated Negative Declaration (MND).
   2. Authorizes the CPUC to provide an applicant with appropriate guidance and assistance, and directs the CPUC to independently evaluate the appropriateness of the environmental document and take responsibility for the contents.
   3. Authorizes an applicant to elect to prepare and submit to the CPUC an administrative draft of an EIR, ND or MND, or other related documents – instead of a more comprehensive and labor-intensive initial study – and obligates the CPUC to use the document the applicant submits in its independent determination as to whether a project is exempt from CEQA.
   4. Requires the CPUC to determine, within 270 days of the CPUC’s determination that an application for an electrical infrastructure project is complete, and whether:
      1. To certify the EIR, ND, MND other CEQA document or;
      2. To determine whether the project is exempt from CEQA and approve the project, unless certain specified situations occur, which allow the 270-day time period to be extended.
3. Until January 1, 2035, regarding an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in a qualifying transmission plan:
   1. Declares that the statement of objectives sought by the project, including the underlying purpose and project benefits, required by CEQA shall be those identified by CAISO’s approved transmission plan.
   2. Authorizes the CPUC to limit the range of reasonable alternatives considered to alternative routes or locations for the construction of the project approved in the relevant CAISO-approved transmission plan, in addition to consideration of a no-project alternative, per current law.
   3. Establishes a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs a significant effect on the environment if the CPUC makes a finding required by CEQA and the project has been identified and approved by CAISO in a transmission plan.
      

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

Under CEQA, projects (unless they have a specific exemption) must undergo environmental analysis. This process starts with an initial study which determines what level of further environmental review is needed for a given project. If a project has no significant effects on the environment, or if those effects can be fully mitigated, the project can move forward with an ND or MND. If the initial study finds that the project has potential significant effects on the environment, then a full EIR is conducted. An EIR provides a thorough environmental review of a proposed project, analyzing the significant direct and indirect environmental impacts of a proposed project on water quality, transportation, air quality, and greenhouse gas emissions among other factors. The EIR also includes proposed mitigation measures for any significant effects that it identifies and considers alternatives to the proposed project.

EIRs must be completed and certified within a year, and NDs must be completed within 180 days.

1. Statement of overriding consideration. CEQA is designed to make public agencies “look before they leap” and consider the environmental impacts of new projects. When public agencies choose to move forward with a project that will have significant environmental impacts on the community (as identified in an EIR) they must first consider if there are any feasible ways to remove or mitigate those environmental impacts. Only if specific economic, legal, social, technological, or other considerations make mitigation measures or alternatives infeasible can the public agency move forward with the project. This finding is expressed in a statement of overriding considerations. The statement of overriding considerations evaluates the environmental impacts that were not mitigated and provides evidence that the benefits to be gained by moving the project forward outweigh those impacts. The justifications in the statement of overriding considerations can include a quantification of the benefits of the project, such as the number of jobs it will create.
2. Transmission projects and permitting. Electric transmission lines are generally high-voltage lines that move electricity from power plants to distribution lines in neighborhoods. Companies, usually electric investor-owned utilities (IOUs), proposing the construction of new transmission, are required to obtain a permit from the CPUC for construction of transmission projects. The CPUC reviews permit applications under two concurrent processes: (1) an environmental review pursuant to CEQA, and (2) the review of project needs and costs pursuant to Public Utilities Code Section 1001 and General Order (GO) 131-D (CPCN).

As the CPUC conducts the CEQA review, it also reviews the electric IOU’s application for either a CPCN or a Permit to Construct (PTC). Which application the CPUC pursues depends on the size of the project:

• Projects below 50 kV are considered distribution projects, rather than transmission projects, and in general, do not require CPUC approval.
• Projects between 50 kV and 200 kV require a PTC from the CPUC, which consists primarily of an environmental review pursuant to CEQA. The CPUC process generally does not require a detailed analysis of the need for or economics of these projects.
• Projects over 200 kV require a CPCN from the CPUC. The CPCN process analyzes the need for the project and the economics of the project, as well as, the environmental impacts of the project
• The CPUC’s decision on the CPCN or PTC cannot be issued until the environmental review is complete.

According to the Senate Energy, Utilities, and Communications, of the hundreds of major capital electric transmission projects completed in California each year, on average one or two per year may trigger a permit, and thus require CEQA. Most projects are reviewed through the CPUC’s advice letter approval process, which tends to be more simplified and expedient than a full application for a CPCN.

1. Speeding up environmental review of transmission deployment. California has strong urgency to develop transmission infrastructure to meet the energy needs of the state. CAISO’s first-ever 20 Year Outlook for transmission planning, written in partnership with the CPUC and CEC and released in 2022, estimates that more than $30 billion in new transmission capacity will be needed by 2040 to support the development of over 120 Gigawatts of new generating resources to meet the state’s goals. While CAISO’s 2020-2021 transmission plan was based on an addition of approximately 1,000 Megawatts of renewable energy capacity per year over the next decade, its 2021-2022 plan used an intermediate level of 2,700 MW of new resources per year in anticipation of its 2022-2023 draft plan (not yet finalized) projecting 4,000 MW of capacity added annually, with future transmission plans likely needing even more growth to meet state goals. Princeton’s “Net-Zero America” study finds that electricity transmission capacity in California would need to triple by 2050. This level of expansion would be the equivalent of roughly 150 new 100-mile-long transmission lines

As the state races to meet these infrastructure needs, it is also conducting environmental review to ensure that new transmission lines are not inadvertently harming the environment or communities. Environmental review necessarily takes time. According to a Clean Air Task Force review of 13 projects approved in CAISO’s Transmission Plans between 2012 and 2019, environmental reviews lasted between 16 months and four years. While this dataset is very limited, it does provide some insight into the time—and the variability in time—required for those few projects that trigger CEQA review. The CPUC estimates that CEQA and CPCN review add around 3-4 years for a project, with lawsuits potentially extending this timing further.

In recognition of the urgent need to deploy transmission and energy infrastructure to meet California’s energy demand and clean energy goals, the Legislature has enacted several measures in recent years to streamline environmental review and permitting for transmission projects.

In 2022, the Legislature passed AB 205 (Committee on Budget, Chapter 21, Statutes of 2022), which, among many other elements, authorized certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible. AB 205 also authorized the CEC to implement a new optional program (opt-in) that authorizes the CEC to accept applications seeking certification of certain non-fossil-fueled energy generating facilities, energy storage facilities, transmission facilities connected to these generation facilities, and other related facilities. The emergency regulations set forth the process for submitting opt-in applications, reviewing applications, performing outreach, and considering whether to issue or deny a certification.

1. CEQA streamlining for transmission projects. The Legislature has developed streamlining measures to speed CEQA lawsuits brought against specified projects through the courts. Judicial streamlining requires that a CEQA lawsuit be heard in 270 days, including all appeals, as feasible. Administrative streamlining requires projects to prepare the administrative record, the comprehensive document at the heart of a CEQA case, at the same time as the environmental review documents are prepared. Preparing these documents concurrently, instead of sequentially, saves time if there is a lawsuit. These streamlining measures shorten what is potentially the lengthiest portion of the CEQA process—litigation—while retaining the full environmental review and public engagement offered under CEQA.

In 2023, The Legislature expanded existing CEQA streamlining provisions for certain energy, transportation, and water infrastructure projects (SB 149, Caballero, Chapter 60, Statutes of 2023), including transmission projects for renewable or other environmental leadership projects.

Comments

1. Purpose of Bill. According to the author, “California is on the precipice of a clean energy transition that is poised to bring vast new clean energy projects, jobs, and economic development to the state. Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes – necessary steps in thoughtfully building electrical infrastructure – are inefficient and lead to unnecessary delays. We need to build a runway for electrical infrastructure projects to move efficiently through the permitting and environmental review processes so they can reach operation quickly and begin serving our citizens. AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals.”
   
2. Speeding up all transmission all of a sudden? As discussed in the background section, California is moving with urgency to deploy transmission needed to meet the energy demands of the state. To specifically promote “environmental leadership” transmission projects, the Legislature created CEQA streamlining for transmission projects that transmit renewably sourced energy or connect to certain environmental leadership energy facilities, and achieve high environmental and labor standards (SB 149 Caballero, Chapter 60, Statutes of 2023).

Expanding right of ways for transmission lines could be included as part of a project eligible for this CEQA streamlining. CEQA streamlining, unlike a CEQA exemption, maintains important environmental review and transparency, while capping the most potentially time-consuming portion of CEQA: lawsuits.

Since this legislation passed CEQA streamlining for environmental leadership transmission projects just last year, there has been insufficient time to determine if this policy has been effective at speeding up not only transmission deployment but steering towards more investment in transmission lines that advance the state’s other goals by meeting high environmental and labor criteria.

1. The right right-of-ways. Creating a CEQA exemption for expanding rights-of-way that support transmission projects would enable existing rights-of-way to be enlarged to support larger transmission towers. The typical right-of-way width for a 69kv tower using a single pole is 70-100 feet. A 500kv transmission tower, which can be double the height of a single pole and have a base footprint of 30-55 feet is 160-200 feet, which could accommodate an average-sized home.

Creating a CEQA exemption for expansion of rights-of-way does not include a CEQA exemption for the projects that would be located within those rights-of-way, which would still have to go through CEQA review. Proponents of the right-of-way CEQA exemption argue that having to do CEQA review for the right-of-way and then the project is redundant. It definitely is possible for there to be some redundancies in CEQA review for a given right-of-way and a project located in that same right-of-way given that both right-of-way and project exist in the same location.

However, it is worth considering if waiving environmental review is appropriate for the first step of a project, in this case expanding the right-of-way. The initial stage of a project may be the most important stage at which to discover the environmental sensitivities in a given area and consider project alternatives, instead of considering those impacts and alternatives later in the process. It is possible to consider an outcome where the right-of-way is expanded without CEQA review, and only after the right-of-way is complete is it discovered that sitting a project in the right-of-way is environmentally inviable.

In addition, there are numerous statutory exemptions, primarily for installing pipes, that require that projects be located in an existing right-of-way to be eligible for a CEQA exemption. AB 2503 (Lee, 2024) would also create a CEQA exemption for zero-emission rail and supplementary projects located in existing rights-of-way. In the scenario where a project is exempt from CEQA within a right of way, creating a CEQA exemption for that right of way may create an opportunity for a project to tier off this initial exemption and be exempt from CEQA, meaning that both right of way and project would proceed without environmental review.

To ensure that existing CEQA exemptions are not applied to projects in the right of ways that have themselves been exempt from CEQA, effectively removing environmental review for the whole build, the author and committee may wish to specify that the CEQA exemption for rights-of-way applies only to electrical utilities rights-of-way.

Planning for the future of projects and ensuring that exempting right of ways does not create a pathway for fully exempt projects may be especially important in environmentally sensitive areas or protected areas where right-of-ways, and the projects that will eventually be put on them, are most likely to have an impact on wildlife and other natural resources.

To protect natural spaces while speeding up deployment of important energy infrastructure, the author and committee may wish to limit the application of this CEQA exemption to exclude certain sensitive and protected areas, including:

• 1. Lands within the state park system, except for a state vehicular recreation area.
  2. The coastal zone, as defined in Division 20 (commencing line 2 with Section 30000) of the Public Resources Code.
  3. Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

1. Removing a speedbump or reducing transparency? Through the statement of overriding considerations, CEQA includes an important off-ramp for projects to proceed even if they have significant environmental impacts if the public agency can justify that the benefits of the project outweigh those environmental costs. A statement of overriding consideration requires the entity that adopts the statement to provide justification and reasoning to the public for this choice, providing evidence to the public on how the impacts on the environment or community are outweighed by the outstanding benefits.

AB 2346 would turn the assumption behind the statement of overriding considerations on its head for certain transmission projects by creating a rebuttable presumption that there is an overriding benefit of the project that outweighs environmental impacts. This presumption would remove the onus from the public agency to provide evidence and supporting documents to establish the justification of the statement of overriding considerations. This in turn would remove an important layer of transparency from the CEQA process.

The author and committee may wish to remove the provision that establishes a rebuttable presumption justifying environmental impacts of a transmission project.

1. Alternatives analysis in CEQA. One important portion of an EIR is a consideration of alternatives to the proposed project. The alternatives analysis asks if a different project could achieve the same goals as the proposed project while being less impactful on the environment. Allowing the commission to limit the range of reasonable alternatives considered for certain transmission projects may undercut the objective of the alternatives analysis in CEQA, which is to encourage public agencies to think outside the box of what a given project developer may consider.

In the context of transmission lines, alternative analysis may include consideration of “Non-wire alternatives.” These are technologies intended to reduce grid congestion and manage peak demand to offset the need for more transmission infrastructure. The technologies can include distributed energy resources, such as microgrids or batteries, and practices and programs that focus on optimizing load management, demand response, or energy efficiency instead of building new infrastructure.

To ensure that some important alternative solutions are considered, the author and committee may wish to specify that the commission cannot limit alternatives to preclude consideration of non-wire alternatives to transmission projects.

1. Committee amendments. Staff recommends the committee adopt the bolded amendments contained in comments 3, 4 and 5 above.

DOUBLE REFERRAL:

This measure was heard in Senate Energy Utilities and Communications Committee on June 24th, 2024, and passed out of committee with a vote of 13-5.

Related/Prior Legislation

SB 1165 (Padilla, 2024) would have authorized an electrical corporation that applies CPUC to authorize construction of any electrical transmission facility or electrical transmission project to apply to the CEC for certification of the facility pursuant to CEQA, instead of having the CPUC conduct the CEQA review. It would indirectly designate the CEC to be the lead agency for CEQA compliance for transmission permitting and would require the CPUC to adopt the CEC’s CEQA analysis to support its decision. This bill was held in the Senate Appropriations Committee.

SB 149 (Caballero, Chapter 60, Statutes of 2023) makes a broad swath of energy, transportation, water, and semiconductor projects eligible for expedited judicial review under CEQA. Projects must meet certain environmental and labor criteria to be eligible for certification. The streamlining certification ends January 1, 2033.

SB 420 (Becker, 2023) would have exempted construction of certain low-voltage electrical lines and associated equipment from the need to receive a discretionary permit from the CPUC. The bill was vetoed.

AB 205 (Committee on Budget, Chapter 21, Statutes of 2022) allows certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolves within 270 days to the extent feasible.

SB 619 (Padilla, 2022) would have authorized an electrical corporation that applies to the CPUC to authorize the construction of a high voltage electrical transmission line, rated at 138 kV or greater, to apply to the CEC for certification of the facility pursuant to the CEQA, instead of the CPUC conducting the CEQA review. This bill would have provided that the CEC certification authorizes the project to be eligible for the CEQA judicial streamlining afforded to ELDPs and the CEC’s “Opt-in” permitting process. The bill was vetoed.

SB 529 (Hertzberg, Chapter 357, Statutes of 2022) exempts an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its GO, by January 1, 2024, to instead use its permit to construct process for these approvals.

Arugment in Support: San Diego Gas & Electric Company (SDG&E) write in support of AB 3238: “California has ambitious clean energy goals, but these are only half of the equation. Without action from the legislature to accelerate the buildout of transmission infrastructure, we risk falling short of these objectives, potentially leading to catastrophic consequences for our environment and future generations. AB 3238 contains provisions consistent with the multi-party settlement agreement proposed at the California Public Utilities Commission (CPUC) to streamline and modernize the CPUC’s permitting rules for electrical infrastructure1 as well as other beneficial measures that would remove duplicative environmental review for projects going through the CEQA process at the CPUC.

“California has set aggressive goals—including interim milestones—to achieve economy-wide carbon neutrality by 2045. To meet this goal, the state must decarbonize 4.5 times faster than it has over the past decade, and that generation capacity must increase by approximately four times the capacity that existed in 2020 to reliably meet this demand.2 As California reduces its dependence on fossil fuels, we are entering an era where unprecedented load growth will become the norm. Grid capacity must expand rapidly to connect electrical load with new resources interconnecting to the transmission system, and this reality has been reflected in recent state forecasting and planning activities. In 2022, the California Independent System Operator (CAISO) estimated that over $30B in new transmission would be needed by 2040.3 In 2023, the CAISO approved a bundle of transmission projects totaling approximately $7.3B.4 Unfortunately, today’s permitting and environmental review processes cause needless delays, historically resulting in transmission project timelines of a decade or more.

“Perhaps the most important step the legislature can take to bring online transmission infrastructure faster is to shorten the complex and lengthy permitting and environmental review processes. AB 3238 makes logical and beneficial changes to the CPUC’s permitting and environmental review processes, which beyond the recent updates necessary to comply with SB 529, have not been significantly revised since 1995. In addition, the bill includes other beneficial measures to prudently expedite the California Environmental Quality Act (CEQA) and agency review processes. This bill would remove redundant processes and ambiguity, thereby empowering state agencies to further support the clean energy transition. By tackling these pressing inefficiencies, AB 3238 would help shepherd transmission projects through these processes and secure the necessary approvals in a timely manner.”

Arguments in Opposition : Defendersof wildlife and a coaltion of environmental groups writes in opposiution to AB 3238 “AB 3238 would allow project developers, who receive a permit to incidentally take species listed under both the state and federal endangered species acts, to avoid compliance with the California Endangered Species Act (CESA) if they receive a permit under the federal Endangered Species Act (ESA). This broad exemption from CESA is unnecessary, unprecedented, and significantly weakens existing protections for imperiled species at a time when our state is experiencing a disturbing decline in biodiversity.

“AB 3238 gives the CPUC “in lieu” permitting authority for a broad range of energy and transmission projects that inexplicably “sort of” duplicates the current “in lieu” permit process recently created at the California Energy Commission (CEC) for renewable energy projects and gen-ties under AB 205. While the CEC’s AB 205 process does not include transmission lines that are not gen-ties, it does include a wide array of renewable energy projects. Therefore, it is perplexing why AB 3238 includes more than transmission projects in this proposed program since the CEC already has its permitting program under AB 205.

“What is even worse is that AB 3238’s proposed “in lieu” permitting process includes NONE of the details found in AB 205 to ensure that the CPUC’s grant of an “in lieu” permit will meet the standards of approval in state statutes such as the Coastal Act, Endangered Species Act, Porter-Cologne Act, CEQA or any other state law protection public trust and cultural resources. AB 3238’s “in lieu” permit program also fails to include any details regarding public participation, particularly for disadvantaged communities; tribal consultation; and timelines for processing applications. Finally, this bill eliminates oversight by DFW and the Coastal Commission by exempting these projects from the Fish and Game Code and Coastal Act. For all these reasons, we strongly oppose AB 3238 and urge a “No” Vote.”

SUPPORT:

Advanced Energy United
California Community Choice Association
Clean Power Campaign
Latino Caucus of California Counties
Pacific Gas and Electric Company and Its Affiliated Entities
San Diego Community Power
San Diego Gas and Electric Company
Silicon Valley Leadership Group

OPPOSITION:

7 Paws Press
American Legion Post 853

Anza-borrego Foundation
Borrego Spice & Olive Oil Company
Borrego Sponsor Group
Borrego Springs Chamber of Commerce
Borrego Springs Community Resource Center

Borrego Springs Mall
Borrego Springs Youth and Seniors Center, INC.
Borrego Village Association
Brookingham
Business Service Contractors & Consulting
California Coastal Protection Network
California Native Plant Society
California Overland Desert Excursions
California State Parks Foundation

Center for Biological Diversity
Cleanearth4kids.org
Defenders of Wildlife
Eco San Diego
Endangered Habitats League
Environmental Defense Fund

Environmental Protection Information Center
Friends of Hellhole Canyon
Functionally Fit for Life
Monahan & Roth, LLC
Nrdc
Planning and Conservation League
Rainy Day Advocacy, LLC
San Diego Audubon Society
Seabreeze Coastal Properties
Sequoia Sentinels Corporation
Sierra Club California
Steele/burnand Anza-borrego Desert Research Center
The Protect Our Communities Foundation
Tubb Canyon Desert Conservancy

37 Individuals

Positions reflect letters received by noon one week prior to the hearing.

-- END --

SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS

Senator Steven Bradford, Chair

2023 - 2024 Regular

Bill No: Hearing Date: 6/24/2024

SUBJECT:

DIGEST: This bill would, by January 1, 2030, exempt from the California Environmental Quality Act (CEQA) projects for the expansion of an existing public right-of-way across state owned land to accommodate the for specified electrical infrastructure projects. Exempts projects that expand existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure from CEQA until January 1, 2035. This bill would also designate the California Public Utilities Commission (CPUC) as the lead agency for purposes of CEQA for electrical infrastructure projects.

ANALYSIS:

Existing law:

1. Requires, pursuant to the CEQA, lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. CEQA includes several statutory exemptions, as well as categorical exemptions in the CEQA Guidelines. (Public Resources Code §21000 et seq.)
2. Defines “project” as an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, including an activity that involves the issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (Public Resources Code §21065)
3. Defines “responsible agency” as a public agency, other than the lead agency, which has responsibility for carrying out or approving a project by, for example, issuing a permit necessary for a project. (Public Resources Code §21069)
4. Defines “trustee agency” as a state agency that has legal jurisdiction over natural resources affected by a project that are held in trust for the people of California. (Public Resources Code §21070)
5. Requires, under CEQA, a lead agency to consult with responsible and trust agencies prior to determining whether or not a negative declaration or EIR is required for a proposed project. (Public Resources Code §21080.3)
6. Requires the lead state agency, for projects subject to state agency review, to establish time limits that do not exceed one year for completing and certifying EIRs and 180 days for completing and adopting negative declarations. Requires these time limits to be measured from the date on which an application is received and accepted as complete by the state agency. (Public Resources Code §21100.2)
7. Requires the CEQA Guidelines to include a list of classes of projects that have been determined by the Secretary of the Natural Resources Agency to not to have a significant effect on the environment and that shall be exempt from CEQA. (Public Resources Code §21084)

The list of “categorical exemptions” includes:

• 1. Repair and maintenance of existing public or private facilities, involving negligible or no expansion of use, including existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services. (Guidelines 15301)
  2. Replacement or reconstruction of existing facilities on the same site with the same purpose and capacity, including existing utility systems and/or facilities involving negligible or no expansion of capacity. (Guidelines 15302)
  3. New construction or conversion of small structures, including electrical, gas, and other utility extensions of reasonable length to serve such construction. (Guidelines 15303)

1. Requires the CPUC to certify the public convenience and necessity require a transmission line over 200 kilovolts (kV) before an electric investor-owned utility (IOU) may begin construction (Certificate of Public Convenience and Necessity (CPCN). The CPCN process includes CEQA review of the proposed project. A CPCN confers eminent domain authority for construction of the project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations. (Public Utilities Code §1001)
2. Requires an electric IOU to obtain a discretionary permit to construct (PTC) from the CPUC for electrical power line projects between 50-200 kV. A PTC may be exempt from CEQA pursuant to CPUC orders and existing provisions of CEQA. Electric IOU electrical distribution line projects under 50 kV do not require a CPCN or PTC from the CPUC, nor discretionary approval from local governments, and therefore are not subject to CEQA. (CPUC General Order (GO) 131-D)
3. Requires the CPUC, by January 1, 2024, to update GO 131-D to authorize electric IOUs to use the PTC process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights of way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV. (Public Utilities Code §564)
4. Authorizes the California Energy Commission (CEC) to designate electric transmission corridor zones (TCZs) in order to identify and reserve land that is suitable for high-voltage transmission lines. Specifies the CEC may designate a TCZ on its own motion or in response to an application from a person seeking a TCZ designation based on its future plans to construct a high-voltage electric transmission line. (Public Resources Code §§25330-25341)
5. Grants the CEC the exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric transmission lines that tie the plant to the bulk transmission 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 (i.e., the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. Defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system. (Public Resources Code §25500 et seq.)
6. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to the following energy-related projects:
   1. A solar photovoltaic or terrestrial wind electrical generating powerplant with a generating capacity of 50 MW or more and any facilities appurtenant thereto;
   2. An energy storage system capable of storing 200 MW hours or more of electrical energy;
   3. A stationary electrical generating powerplant using any source of thermal energy, with a generating capacity of 50 MW or more, excluding any powerplant that burns, uses, or relies on fossil or nuclear fuels;
   4. A project for the manufacture, production, or assembly of an energy storage, wind, or photovoltaic system or component, or specialized products, components, or systems that are integral to renewable energy or energy storage technologies, for which the applicant has certified that a capital investment of at least $250 million will be made over a period of five years; and
   5. An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system.

(Public Resources Code §§25545–25545.13)

1. Establishes the policy of the state that eligible renewable energy resources and zero-carbon resources supply 90 percent of all retail sales of electricity by December 31, 2035; 95 percent of all retail sales of electricity by December 31, 2040; 100 percent of all retail sales of electricity by December 31, 2045; and 100 percent of electricity procured to serve all state agencies by December 31, 2035. (Public Utilities Code §454.53)

This bill:

1. Exempts, until January 1, 2030, from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, meeting certain requirements, including:
   1. The project is limited to the acquisition of a right-of-way and any future project would be reviewed under CEQA before any approval that would authorize physical changes to the land.
   2. There is an existing right-of-way, such as electrical transmission lines, and associated facilities, where the use is consistent with the proposed electrical infrastructure use.
   3. The proposed expanded right-of-way is compatible with existing uses and management plans on the affected property.
   4. The total width of right-of-way does not exceed 200 feet.
   5. The lead agency for the project is either the CPUC or a state agency owning or managing the state-owned land.
   6. Repeals this section on January 1, 2030.
2. Defines “electrical infrastructure project” as a project for the construction and operation of an electrical transmission line and associated infrastructure for purposes of this bill.
3. Exempts projects that expand existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure from CEQA until January 1, 2035. Designates the CPUC as the lead agency under CEQA for an electrical infrastructure project. Provides the following regarding the CPUC’s environmental review of an electrical infrastructure project pursuant to CEQA:
   1. The CPUC shall prescribe procedures for an applicant’s preparation, under CPUC supervision, of the following environmental documents: an EIR, negative declaration, mitigation negative declaration, addendum, or analysis of applicability of a CEQA exemption;
   2. The CPUC may provide guidance for, and assist in, preparation of environmental documents;
   3. The CPUC shall independently evaluate environmental documents and take responsibility for their contents;
   4. Applicant may submit with its application an administrative draft of an EIR, mitigated negative declaration, negative declaration, addendum, or draft analysis of applicability of a CEQA exemption in lieu of an initial study or proponent’s environmental assessment; and
   5. The CPUC shall use environmental documents submitted by an applicant when exercising its independent judgment to determine whether a project is exempt from CEQA or necessitates preparation of an EIR.
4. Defines “resource agency” as the State Lands Commission, the San Francisco Bay Conservation and Development Commission, Department of Fish and Wildlife, the California Coastal Commission, State Water Resources Control Board, or an applicable regional water quality control board.
5. Requires a resource agency to only consider an environmental effect of an electrical infrastructure project that occurs within the resources agency’s jurisdiction and is subject to the resource agency’s discretionary approval related to the project.
6. Requires an application for an electrical infrastructure project to be in a form prescribed by the CPUC and accompanied by information required by the CPUC to support the preparation of necessary environmental documents.
7. Requires the CPUC to certify necessary environmental documents for, and to approve, an electrical infrastructure project within 270 days of receiving a complete application, except under specified circumstances.
8. Exempts projects that would require a CPCN and any other electrical infrastructure projects from existing requirements to compare prospective projects with cost-effective alternatives such as energy efficiency, distributed generation, and demand response resources.
9. Provides that the following apply to an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in its transmission plan:
   1. The statement of objectives sought by the project applicant, including the underlying purpose and project benefits, required by CEQA, shall be those identified by the CAISO’s approved transmission plan;
   2. The range of reasonable alternatives analyzed under CEQA shall be alternative routes or locations for the construction of the project approved in the relevant CAISO’s approved transmission plan;
   3. Any statement of overriding considerations shall be those identified by the CAISO’s approved transmission plan; and
   4. There shall be a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs the significant effect on the environment if the project has been identified by the CAISO in a transmission plan.
10. Defines “necessary electrical infrastructure project” for purposes of this bill as either of the following:
    1. A project approved by the CAISO in a transmission plan prepared by the CAISO; or
    2. The project is necessary to serve an actual or forecasted electrical demand increase associated with transportation or building electrification or is a distributed energy project, energy storage project, or renewable generation source where the electrical line facilities or substation would support the interconnection of the project or source to the electrical grid.
11. Provides that the CPUC has the exclusive power to approve and site a “necessary electrical infrastructure project.”
12. Establishes an in lieu permit process at the CPUC whereby the approval and siting of a “necessary electrical infrastructure project” pursuant to this bill is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities.
13. Includes a declaration that provisions of this bill relative to the approval of “necessary electrical infrastructure projects” address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
14. Sunsets the CPUC permit and CEQA streamlining provisions of this bill on January 1, 2035.

Background

Transmission projects. Electric transmission lines are generally high voltage lines that move electricity from generation resources (power plants) to distribution lines in neighborhoods. Companies, usually electric IOUs, proposing the construction of new transmission, are required to obtain a permit from the CPUC for construction of certain specified infrastructure listed under Public Utilities Code §1001, including transmission projects. The CPUC reviews permit applications under two concurrent processes: (1) an environmental review pursuant to CEQA, and (2) the review of project need and costs pursuant to Public Utilities Code §1001 and GO 131-D (CPCN).

Need for expanded transmission capacity. In order for the state to meet its clean energy goals, including achieving 100 percent clean energy by 2045, electric transmission capacity will likely need to grow significantly. The CAISO conducts its transmission planning process (TPP) to identify potential transmission system limitations as well as opportunities for system reinforcements that improve reliability and efficiency. The annual transmission plan fulfills the CAISO’s core responsibility to identify and plan the development of solutions, transmission or otherwise, to meet the future needs of the electricity grid. The CAISO identifies projects that address grid reliability requirements, identify upgrades needed to successfully meet California’s policy goals, and explore projects that can bring economic benefits to consumers. In 2021, the CAISO created a 20-Year Transmission Outlook for the electric grid, in collaboration with the CPUC and the CEC, with the goal of exploring the longer-term grid requirements and options for meeting the state’s SB 100 clean energy objectives reliably and cost-effectively. The 20-Year Transmission Outlook estimates a significant amount, and expense, to construct and expand transmission facilities, including an estimated $10.74 billion in upgrades to existing facilities.

The Transmission Permitting Process. Usually, utilities proposing the construction of new transmission are required to obtain a permit from the CPUC for construction of certain specified infrastructure listed under Public Utilities Code §1001, including transmission projects. The CPUC reviews permit applications under two concurrent processes:

1. An environmental review of applicable projects pursuant to CEQA and CPUC environmental rules. To prepare for the environmental review, the utility first conducts and submits a Proponents Environmental Assessment (PEA). The PEA is a preliminary assessment of the project’s potential environmental impacts and alternatives. Some projects may trigger a federal National Environmental Policy Act (NEPA) review if they cross federal land or use federal funds.
2. The review of project needs and costs according to Public Utilities Code §1001 and GO 131-D, also known as a Certificate of Public Convenience and Necessity (CPCN), or—depending on project size—a Permit to Construct (PTC).

Permit/Certificate Review. Parallel to environmental review under CEQA, the CPUC reviews the utility’s application for a CPCN or a PTC, depending on the size of the project. The CPUC’s decision on the CPCN or PTC cannot be issued until the environmental review is complete, if one is required. But most transmission projects are categorically exempt from CEQA. Most of the CPCN/PTC process is outlined in GO 131-D.

CPUC’s GO 131-D. GO 131-D was first adopted in 1970 and before a recent update late in 2023, it had not been updated since 1995. It establishes the criteria to be followed to trigger the need for a PTC or renovate electrical facilities, including transmission lines and substations, and also sets out public notice requirements for proposed transmission projects. The level of analysis performed by the CPUC pursuant to GO 131-D varies with the size (measured in voltage) of the transmission project.

• Projects below 50 kV are considered distribution line projects and in general, do not require CPUC approval.
• Projects between 50 kV and 200 kV generally require a PTC, which includes an environmental review pursuant to CEQA, if applicable. The CPUC process generally does not require a detailed analysis of the need for or economics of these projects. An application for a PTC must be filed at least nine months before a decision is required.
• Projects over 200 kV generally require a CPCN and are subject to CEQA review, as applicable.

The CPCN process analyzes the need for the project and the economics of the project, as well as, the environmental impacts of the project if CEQA applies. An application for a CPCN must be filed at least 12 months before a decision is required.

GO 131-D Reforms. SB 529 (Hertzberg, Chapter 357, Statutes of 2022) required the CPUC to revise the permitting process for specified transmission projects. The bill directed the CPUC to revise GO 131-D to authorize a utility to use the PTC process or claim an exemption to seek approval to construct an extension, expansion, upgrade, or other modification to its existing transmission facilities regardless of the voltage level by January 1, 2024. However, CEQA still applies. In May 2023, the CPUC opened a rulemaking to solicit comments that would revise the GO 131-D rules. Based on the feedback, the assigned commissioner determined the issues to be considered in the proceeding should be separated into two phases. Phase 1 includes consideration of changes to GO 131-D necessary to conform it to the requirements of SB 529 and updates to outdated references. Phase 1 decision was approved on December 14, 2023.

AB 1373 (Garcia, Chapter 367, Statutes of 2023). Among the many provisions adopted in AB 1373 is a provision that requires the CPUC to establish a rebuttable presumption with regard to need for the proposed transmission project in favor of a CAISO governing board-approved need evaluation if the project meets specified criteria. This requirement is among those under development within the SB 529 Rulemaking.

AB 205 (Committee on Budget, Chapter 61, Statutes of 2022) established a new opt-in environmental review certification program at the CEC, including for solar photovoltaic, terrestrial wind, geothermal, and other non-fossil, non-nuclear power plants with a generating capacity of 50 MW or more, for energy storage systems capable of storing 200-megawatt hours or more of electricity, and for transmission lines from those facilities to a point of connection with an electrical transmission system. Before AB 205, the CEC’s siting authority was limited to thermal power plants with capacities of 50 MW or more.

Comments

Need for this bill. As shared by the sponsors, San Diego Gas & Electric:

AB 3238 contains provisions consistent with the multi-party settlement agreement proposed at the CPUC to streamline and modernize the CPUC’s permitting rules for electrical infrastructure as well as other beneficial measures. The bill would help to ensure that electrical infrastructure is online where and when we need it. As California reduces its dependence on fossil fuels, we are entering an era where unprecedented load growth will become the norm. Grid capacity must expand rapidly to connect electrical load with new resources interconnecting to the transmission system, and this reality has been reflected in recent state forecasting and planning activities. Unfortunately, today’s permitting and environmental review processes causes needless delays, historically resulting in transmission project timelines of a decade or more.

Electric transmission line projects are eligible for a number of CEQA exemptions pursuant to the CEQA Guidelines and GO 131-D. Only larger, high-voltage projects over 200 kV, which also require a CPCN, are consistently subject to complete CEQA review, including an EIR. According to CPUC data, from 2012 to 2023, 608 projects have been exempted from CEQA, 29 projects have been approved via negative declaration, and 27 have required an EIR.

Settlement Agreement. As part of the GO 131-D Rulemaking, in September 2023, Southern California Edison (SCE), Pacific Gas & Electric (PG&E), and San Diego Gas & Electric (SDG&E) filed a proposed settlement agreement on behalf of several stakeholders that proposes numerous reforms to GO 131-D. It is important to note that the changes submitted to CPUC by this bill’s sponsor and others are proposed and not yet final. CPUC is expected to complete Phase 2 of the process mandated by SB 529 later this year. This bill incorporates some of the changes to GO 131-D contained in the proposed settlement agreement, but also proposes changes that go well beyond those in the proposed settlement.

In September 2023, SCE, PG&E, and SDG& E filed a proposed settlement agreement includes:

• Implement the rebuttable presumption for CAISO-approved transmission projects during CPCN review by the CPUC, thereby eliminating duplicate analyses of a project’s purpose and need. This requirement is derived from AB 1373 (Garcia, 2023), which established a rebuttable presumption for the expected need for a transmission project within the CPUC’s CPCN licensing review if that project is deemed necessary during the CAISO’s Transmission Planning Process (“TPP”).
• Eliminate the requirement that applicants draft a Proponent’s Environmental Assessment (PEA) in addition to the CPUC drafting an EIR under CEQA. The stakeholders argue this revision would obviate duplicative and often time-consuming and expensive process whereby CPUC staff and retained consultants preparing CEQA documents essentially re-write the entire environmental analysis already contained in the PEA.
• Allow CAISO’s findings in the TPP to support the CPUC’s CEQA process rather than having CPUC start over with new “project objectives”, “reasonable range of alternatives”, and “overriding considerations”—all of which drive the scope, timeframe, and cost of CEQA review.
• Apply a 270-day time limit for the CPUC’s CEQA process – the same that AB 205 applied to the CEC.

Phase 2 Staff Proposal. Currently, the CPUC is in Phase 2 of the rulemaking proceeding to make changes to GO 131-D, which includes consideration of changes not addressed in the Phase 1. A month ago, the CPUC issued a Phase 2 Staff Proposal with recommendations for various approaches to the changes sought in GO 131-D, including consideration of comments and the settlement agreement submitted in the rulemaking. While still a proposal, not official policy adopted by the CPUC, it’s important to note that the rulemaking is actively considering many related issues to this bill, including the application of the CPUC review of alternatives, the time limitations for CEQA review, the rebuttable presumption adopted in AB 1373, and many others. With regards to the time limitation, the Staff Proposal is not recommending a 270-day time limit, stating it would be inconsistent with CEQA Guidelines. The proponents of this bill contend the CPUC Staff Proposal is a business as usual approach that does little to address the delays in transmission build-out. They contend those delays are primarily driven by CEQA review.

Amendments needed. The author and committee may wish to amend this bill to:

• The rights-of-way are strictly electrical corporation rights-of-way.
• Make clear this bill does not affect those projects subject to SB 286 (McGuire, 2023) for which the State Lands Commission is serving as the lead agency.

Dual referral. Should this bill be approved by this committee, it will be re-referred to the Senate Committee on Environmental Quality.

Prior/Related Legislation

AB 551 (Bennett, 2023) authorizes the CPUC to adopt guidelines at a publicly noticed meeting to carry out its review of applications for the construction of electrical transmission facilities, and makes other changes to help reduce delays in processing these requests. The bill is pending in this committee.

AB 2292 (Petrie-Norris, 2024) repeals the requirement that the CPUC consider alternatives to prospective transmission projects before issuing a CPCN approval. The bill is pending in this committee.

AB 3246 (Garcia, 2024) requires the CPUC, on or before January 1, 2026, to update a general order to provide specified exemption from the permit to construct process for advanced reconductoring transmission projects. The bill is pending in this committee.

SB 1006 (Padilla, 2024) requires electrical transmission utilities, by January 1, 2026, to study grid-enhancing technologies to cost-effectively increase transmission capacity and to identify which of its transmission and distribution lines can be reconductored with advanced reconductors. The bill is pending in the Assembly.

SB 420 (Becker, 2023) would have removed the requirement on new electrical transmission facility projects less than 138 kV proposed by the state’s six largest IOUs from a determination of need from the CPUC before construction. These new projects must either be located on previously disturbed land, located in an urbanized area or be part of a project that has undergone a CEQA review. Excludes from eligibility projects that are located in wetlands, any un-remediated hazardous waste site, or critical habit, as specified. The bill was vetoed by the Governor.

SB 619 (Padilla, 2023) would have authorized an electrical corporation, at the time it files an application with the CPUC for a CPCN or PTC for new construction of any electrical transmission facility 138 kV or greater to, at the same time, submit an application for that facility to the CEC. Prohibits the CEC from considering the necessity for the electrical transmission facility. The bill was vetoed by the Governor.

AB 1373 (Garcia, Chapter 367, Statutes of 2023) among its provisions, required the CPUC, in a proceeding when evaluating the issuance of a CPCN for a proposed transmission project, to establish a rebuttable presumption with regard to the need for the proposed transmission project in favor of a CAISO governing board-approved need evaluation if specified requirements are met.

AB 205 (Committee on Budget, Chapter 61, Statutes of 2022) allowed certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an EIR need to be resolved within 270 days to the extent feasible.

SB 529 (Hertzberg, Chapter 357, Statutes of 2022) exempted an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its general orders, by January 1, 2024, to instead use its PTC process for these approvals.

SB 887 (Becker, Chapter 358, Statutes of 2022) among other provisions, directed the CPUC, on or before January 15, 2023, to request CAISO to identify the highest priority anticipated transmission facilities that are needed to deliver renewable energy resources or zero-carbon resources.

SB 7 (Atkins, Chapter 19, Statutes of 2021) extended the Jobs and Economic Improvement Through Environmental Leadership Act, specifically providing the Governor until January 1, 2024, to certify a project and the Act will be repealed by its own provisions on January 1, 2026.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT:

San Diego Gas and Electric Company, Sponsor
Advanced Energy United
California Community Choice Association
Clean Power Campaign
Independent Energy Producers Association
Latino Caucus of California Counties
Pacific Gas and Electric Company
San Diego Community Power
Silicon Valley Leadership Group

OPPOSITION:

7 Paws Press
American Legion Post 853

Anza-Borrego Foundation
BASIC

Borrego Spice & Olive Oil Company
Borrego Sponsor Group
Borrego Springs Chamber of Commerce
Borrego Springs Community Resource Center

Borrego Springs Mall
Borrego Springs Youth and Seniors Center, Inc.
Borrego Village Association
Brookingham
Business Service Contractors & Consulting
California Coastal Protection Network
California Native Plant Society

California Native Plant Society, San Diego Chapter
California Overland Desert Excursions
Center for Biological Diversity
CleanEarth4kids.org
Defenders of Wildlife
Endangered Habitats League
Environmental Center of San Diego

Environmental Protection Information Center
Friends of Goodan Ranch and Sycamore Canyon Open

Friends of Hedionda Creek

Friends of Hellhole Canyon
Friends of Rose Creek

Functionally Fit for Life
Monahan & Roth, LLC
Natural Resources Defense Council
Ones Word Language School

Planning and Conservation League
Rainy Day Advocacy, LLC
San Diego Audubon Society
Seabreeze Coastal Properties
Sequoia Sentinels

Sierra Club California
Steele/Burnand Anza-Borrego Desert Research Center
Tubb Canyon Desert Conservancy

37 Individuals

ARGUMENTS IN SUPPORT: According to the sponsors,

We have significant work ahead of us to build the infrastructure needed to support state goals, and AB 3238 recognizes that innovative solutions are needed to move these transmission projects forward. Perhaps the most important step we can take is to shorten the complex and lengthy permitting and environmental review processes. AB 3238 makes logical and beneficial changes to the CPUC’s permitting and environmental review processes, which beyond the recent updates necessary to comply with SB 529, have not been significantly revised since 1995. In addition, the bill includes other beneficial measures to prudently expedite the California Environmental Quality Act (CEQA) and agency review processes. This bill would remove redundant processes and ambiguity, thereby empowering state agencies to further support the clean energy transition. By tackling these pressing inefficiencies, AB 3238 would help shepherd transmission projects through these processes and secure the necessary approvals in a timely manner.

ARGUMENTS IN OPPOSITION: The organizations opposed to this bill express concerns about the impacts to state lands by the exemptions and streamlining afforded to electrical infrastructure projects by this bill. The coalition of environmental and conservation organizations state: AB 3238 promotes a “head in the sand” approach to transmission planning in which the project developer may be unaware of significant conflicts with the area on state lands slated for transmission because the right of way expansion would not be analyzed under CEQA. This approach is likely to create more conflicts and more delays instead of speeding up transmission development. …By constraining the alternatives analysis, AB 3238 would impede the CPUC’s ability to comply with CEQA; would be inconsistent with the robust alternatives analysis required by the National Environmental Policy Act (NEPA) for projects with federal involvement; and would constrain the CPUC’s ability to evaluate non-wires alternatives to proposed transmission projects.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 3238

Author:(Garcia)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Provides exemptions from, and streamlining of, planning, environmental review, and environmental permitting processes for the development of electrical infrastructure projects.

Major Provisions

1. Until January 1, 2030, exempts from review under the California Environmental Quality Act (CEQA) the expansion of an existing right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of an electrical infrastructure project, provided specified conditions are met.
2. Until January 1, 2035, designates the California Public Utilities Commission (CPUC) as the lead CEQA permitting agency for an electrical infrastructure project, as defined, and:

a) Directs the CPUC to prescribe procedures for preparation of the environmental impact report (EIR), negative declaration (NegDec) or mitigated negative declaration.

b) Authorizes the CPUC to provide an applicant with appropriate guidance and assistance, and directs the CPUC to independently evaluate the appropriateness of the environmental document and take responsibility for the contents.

c) Authorizes an applicant to elect to prepare and submit to the CPUC an administrative draft of an EIR, NegDec or mitigated negative declaration or other related documents – instead of a more comprehensive and labor-intensive initial study – and obligates the CPUC to use the document the applicant submits in its independent determination as to whether a project is exempt from CEQA.

d) Requires the CPUC to determine, within 270 days of the CPUC’s determination that an application for an electrical infrastructure project is complete, whether (i) to certify the EIR, NegDec, mitigated negative declaration or other CEQA document or (ii) determine the project is exempt from CEQA and approve the project, unless certain specified situations occur, which allow the 270-day time period to be extended.

1. Until January 1, 2035, regarding an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in a qualifying transmission plan:

a) Declares that the statement of objectives sought by the project, including the underlying purpose and project benefits, required by California Environmental Quality Act (CEQA), shall be those identified by CAISO’s approved transmission plan.

b) Authorizes the California Public Utilities Commission (CPUC) to limit the range of reasonable alternatives considered to alternative routes or locations for the construction of the project approved in the relevant CAISO-approved transmission plan, in addition to consideration of a no-project alternative, per current law.

c) Establishes a rebuttable presumption that there is an overriding economic, legal, social, technological or other benefit of the project that outweighs a significant effect on the environment if the CPUC makes a finding required by CEQA and the project has been identified and approved by CAISO in a transmission plan.

COMMENTS

Transmission Planning and CPUC Permitting. The state's energy infrastructure planning and permitting processes are complex and spread across multiple parties and state agencies:

1. The Air Resources Board's Scoping Plan establishes a target range for the electricity sector's greenhouse gas (GHG) emission reductions.
2. The Energy Commission's Integrated Energy Policy Report (IEPR) provides a demand forecast to anticipate statewide load in the next decade or longer.
3. The CPUC's integrated resource plan (IRP) forecasts system generation resource needs to meet the IEPR’s 10-year forecast of customer demand.
4. CAISO's transmission planning process (TPP) identifies the transmission needs to interconnect and balance a) the system supply described by the IRP with b) the customer demand, as projected by the IEPR. To do so, CAISO receives the IRP results from the CPUC and inputs them into its TPP. The CAISO also considers recommendations from the Energy Commission's IEPR. CAISO updates the TPP annually, and the process culminates in a CAISO Board of Governors-approved transmission plan that identifies the needed transmission solutions and authorizes cost recovery through CAISO transmission rates, subject to federal regulatory approval.

Following the CAISO Board's approval of a TPP, new projects that are identified as necessary go through a competitive solicitation process at the CPUC. If the CPUC selects a transmission project, it then undergoes two application processes: a CEQA review, for which the CPUC serves as the lead agency, and a Certificate of Public Convenience and Necessity (CPCN) review.

CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, the lead agency prepares an initial study to determine whether the project may have a significant effect on the environment. If the initial study shows the project would not have a significant effect on the environment, the lead agency must prepare a NegDec. If the initial study shows the project may have a significant effect, the lead agency must prepare an EIR.

Permitting Process Revisions. In 2022, the Legislature approved revisions to the CPUC's permitting processes. Specifically, SB 529 (Hertzberg), Chapter 357, Statutes of 2022, directed the CPUC, by January 1, 2024, to revise its rules so as to authorize a utility to use the Permit to Construct (PTC) process or to claim an exemption from the CPUC permitting for a project to construct an extension, expansion, upgrade or other modification to its existing transmission facilities. Notably, SB 529 did not exempt a transmission project from CEQA review. The CPUC is working to implement the requirements of SB 529.

The CPUC's CPCN process considers the economic need of a proposed project. For the CPUC to issue a CPCN, it must find that the present or future public convenience and necessity requires or will require construction of the proposed project. This requirement notwithstanding, statute provides a transmission project applicant does not need a CPCN for the extension, expansion, upgrade or other modification of an existing electrical transmission facility, including transmission lines and substations. Statute and CPUC rules exempt some electrical transmission projects from the need to receive a CPCN, or they require some projects to receive from the CPUC another type of permit, known as a permit to construct (PTC). The CPUC’s process to approve a PTC is generally less rigorous than the process to approve a CPCN.

Proposed Settlement Agreement. In September 2023, the state's three largest private electric utilities – Pacific Gas and Electric (PG&E), Southern California Edison (SCE) and San Diego Gas and Electric (SDG&E) – filed with the CPUC a proposed settlement agreement on behalf of a large number of other stakeholders that calls for certain changes to the CPUC’s electric transmission facility permitting rules. This bill includes proposals included in the settlement agreement. The CPUC is yet to take action on the settlement agreement.

According to the Author

According to the author, "California is on the precipice of a clean energy transition that is poised to bring vast new clean energy projects, jobs, and economic development to the state. Achieving the state's ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes – necessary steps in thoughtfully building electrical infrastructure – are inefficient and lead to unnecessary delays. We need to build a runway for electrical infrastructure projects to move efficiently through the permitting and environmental review processes so they can reach operation quickly and begin serving our citizens. AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals."

Arguments in Support

This bill is supported by SDG&E, among other industry associations, which assert, "AB 3238 makes logical and beneficial changes to several key areas—including the CPUC's permitting and environmental review processes, which beyond the recent updates necessary to comply with SB 529, have not been significantly revised since 1995. This bill would remove redundant processes and ambiguity, thereby empowering state agencies to further support the clean energy transition."

Arguments in Opposition

The legislation is opposed by several environmental advocacy organizations, which argue, "This bill includes an array of various sweeping exemptions, weakened standards, and limitations on state authorities, which, if enacted would undermine environmental and public health protections and severely limit the public’s ability to participate in local and state land use and energy decision-making."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill anticipates two categories of costs: direct and speculative.

1. The CPUC expects costs between $2 million and $8 million, onetime, for outside contract with CEQA consultants to prepare all documents within the 270-day timeframe, with the actual costs depending on the volume of project applications the CPUC receives. The CPUC also anticipates costs of approximately $300,000 annually to cover related travel and training.
2. Regarding speculative costs, the CPUC anticipates needing new staff – costing about $1.6 million annually – to manage what the CPUC assumes will be a significant increase in public comment and opposition to each CPUC proceeding involving an application related to electrical transmission facilities.

All CPUC costs would come from the Public Utilities Commission Utilities Reimbursement Account.

VOTES

ASM UTILITIES AND ENERGY: 13-1-2

YES: Petrie-Norris, Jim Patterson, Calderon, Chen, Holden, Joe Patterson, Reyes, Santiago, Schiavo, Ting, Wallis, Wood, Zbur

NO: Bauer-Kahan

ABS, ABST OR NV: Connolly, Friedman

ASM WATER, PARKS, AND WILDLIFE: 13-0-2

YES: Papan, Alanis, Alvarez, Bennett, Bonta, Gallagher, Davies, Garcia, Ta, Luz Rivas, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Addis, Hart

ASM NATURAL RESOURCES: 10-0-1

YES: Bryan, Flora, Friedman, Hoover, Kalra, Joe Patterson, Muratsuchi, Pellerin, Wicks, Wood

ABS, ABST OR NV: Bauer-Kahan

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: May 16, 2024

CONSULTANT: Lina V. Malova / U. & E. / (916) 319-2083 FN: 0003315

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3238

Author:(Garcia) – As Amended Ver:April 25, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill broadly restricts review of requests to amend an approved natural community conservation plan (NCCP) and limits environmental review of an electrical infrastructure project, such as the construction and operation of an electrical transmission line.

Specifically, this bill, among other things:

1. Regarding a request to amend an NCCP:
   1. Limits review by the Department of Fish and Wildlife (DFW) to only the following: (a) any new species listed under the California Endangered Species Act (CESA) that were not previously considered in the approved NCCP and (b) any new activities that would result in new or more substantial impacts to species covered by the approved NCCP than previously identified in the approved NCCP.
   2. Requires DFW to establish a rebuttable presumption that the mitigation and conservation measures provided in the approved NCCP have been or are being successfully implemented, and allows DFW to impose only those new mitigation and conservation measures that are necessary to address potential impacts to species described above.
2. Until January 1, 2030, exempts from review under the California Environmental Quality Act (CEQA) the expansion of an existing right-of-way across a state-owned land to accommodate the construction, expansion, modification, or update of an electrical infrastructure project, provided specified conditions are met.
3. Until January 1, 2035, designates the California Public Utilities Commission (CPUC) as the lead CEQA permitting agency for an electrical infrastructure project, as defined, and:
   1. Directs CPUC to prescribe procedures for preparation of the environmental impact report (EIR), negative declaration (NegDec) or mitigated negative declaration.
   2. Authorizes CPU to provide an applicant with appropriate guidance and assistance, and directs the CPUC to independently evaluate the appropriateness of the environmental document and take responsibility for the contents.
   3. Authorizes an applicant to elect to prepare and submit to CPUC an administrative draft of an EIR, NegDec or mitigated negative declaration or other related documents—instead of a more comprehensive and labor-intensive initial study—and obligates the CPUC to use the document the applicant submits in its independent determination as to whether a project is exempt from CEQA.
   4. Requires the CPUC to determine, within 270 days of the CPUC’s determination that an application for an electrical infrastructure project is complete, whether (i) to certify the EIR, NegDec, mitigated negative declaration or other CEQA document or (ii) determine the project is exempt from CEQA and approve the project, unless certain specified situations occur, which allow the 270-day time period to be extended.
4. Until January 1, 2035, regarding an electrical infrastructure project that has been approved by the California Independent System Operator (CAISO) in a qualifying transmission plan:
   1. Declares that the statement of objectives sought by the project, including the underlying purpose and project benefits, required by CEQA, shall be those identified by CAISO’s approved transmission plan.
   2. Authorizes the CPUC to limit the range of reasonable alternatives considered to alternative routes or locations for the construction of the project approved in the relevant CAISO-approved transmission plan, in addition to consideration of a no-project alternative, per current law.
   3. Establishes a rebuttable presumption that there is an overriding economic, legal, social, technological or other benefit of the project that outweighs a significant effect on the environment if the CPUC makes a finding required by CEQA and the project has been identified and approved by CAISO in a transmission plan.

FISCAL EFFECT:

1. The bill may result in a reduction in environmental filing fee revenue to DFW, as more projects are exempt from the need to file. However, DFW anticipates only minor reductions in annual environmental filing fee revenue as a result of the bill’s exemption; this is because the proposed exemption will likely apply to few projects.
2. The CPUC anticipates two categories of costs as a result of this bill: direct and speculative.

Regarding direct costs, the CPUC expects to contract with outside CEQA consultants to ensure it certifies CEQA documents, or determines a project is exempt from CEQA, within 270 days as required by this bill, which, the CPUC notes, is half the time it typically takes the CPUC to complete this work. The CPUC predicts it will need between $2 million and $8 million, onetime, for outside contract with CEQA consultants to prepare all documents within the 270-day timeframe, with the actual costs depending on the volume of project applications the CPUC receives. In addition, the CPUC anticipates costs of approximately $300,000 annually to cover related travel and training.

Regarding speculative costs, the CPUC anticipates needing new resources—for analytical, managerial and legal staff, mainly—costing about $1.6 million annually to manage what the CPUC assumes will be a significant increase in public comment and opposition to each CPUC proceeding involving an application related to electrical transmission facilities. Of course, the bill does not directly call for either an increase in public comment or opposition to transmission projects. But the CPUC’s assumption is not unreasonable, and its projection of related costs is worth noting.

All CPUC costs would come from the Public Utilities Commission Utilities Reimbursement Account.

COMMENTS:

1. Purpose. According to the author:

Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes—necessary steps in thoughtfully building electrical infrastructure—are inefficient and lead to unnecessary delays…AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals.

1. Background. To achieve the state’s clean energy goals, California will need considerable amounts of new electric transmission lines to be developed, quickly. This bill exempts projects from certain aspects of environmental review, or prescribes timelines for some environmental review, with the goal of expediting development of electricity transmission projects.

Natural Community Conservation Planning. State law provides for the development of natural community conservation planning, which is to provide for those measures necessary to conserve and manage natural biological diversity while allowing compatible and appropriate economic development, growth and other human uses. State law authorizes person, or any local, state or federal agency, independently, or in cooperation with other persons, to undertake natural community conservation planning. The result of such planning may be an NCCP—a document that provides for comprehensive management and conservation of multiple wildlife species, including species that either state or federal law classifies as endangered.

The law allows DFW to enter into a legally binding agreement with any person or public entity for the purpose of preparing an NCCP, but allows DFW to approve the NCCP for implementation only if DFW makes certain findings, such as, but not only, that he plan provides for the protection of habitat, natural communities and species diversity on a landscape or ecosystem level through the creation and long-term management of habitat reserves or other measures that provide equivalent conservation of covered species appropriate for land, aquatic, and marine habitats within the plan area, and the NCCP contains provisions that ensure adequate funding to carry out the conservation actions identified in the NCCP.

This bill curtails DFW’s review of a proposed amendment to an existing NCCP in several ways, as summarized above. As noted, the author describes this bill as aiming to increase the efficiency and speed with which electric transmission projects are met; however, the bill makes broad changes to existing law regarding DFW review of proposed amendments to an existing NCCP, in that it proscribes DFW’s review of any proposed amendment to an NCCP, not just an amendment related to an electric transmission project.

Transmission Planning and CPUC Permitting. The state’s energy infrastructure planning and permitting processes are complex and involve inter-related activities among multiple parties and state agencies:

• The Air Resources Board’s Scoping Plan establishes a target range for the electricity sector’s greenhouse gas (GHG) emission reductions.
• The Energy Commission’s Integrated Energy Policy Report (IEPR) provides a demand forecast to anticipate statewide load in the next decade or longer.
• The CPUC’s integrated resource plan (IRP) forecasts system generation resource needs to meet the IEPR’s 10-year forecast of customer demand.
• The CPUC’s resources adequacy (RA) process identifies resources retail suppliers of electricity under the CPUC’s jurisdiction must procure in order to meet customer demand and ensure near-term reliability.
• CAISO’s transmission planning process (TPP) identifies the transmission needs to interconnect and balance (a) the system supply described by the IRP with (b) the customer demand, as projected by the IEPR. To do so, CAISO receives the IRP results from the CPUC and inputs them into its TPP. The CAISO also considers recommendations from the Energy Commission’s IEPR. CAISO updates the TPP annually, and the process culminates in a CAISO Board of Governors-approved transmission plan that identifies the needed transmission solutions and authorizes cost recovery through CAISO transmission rates, subject to federal regulatory approval.

Following the CAISO Board’s approval of a TPP, new projects that are identified as necessary go through a competitive solicitation process at the CPUC. If CPUC selects a transmission project, it then undergoes two application processes at the CPUC: a CEQA review, for which the CPUC serves as the lead agency, and a Certificate of Public Convenience and Necessity (CPCN) review.

CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, the lead agency prepares an initial study to determine whether the project may have a significant effect on the environment. If the initial study shows the project would not have a significant effect on the environment, the lead agency must prepare a NegDec. If the initial study shows the project may have a significant effect, the lead agency must prepare an EIR.

The CPUC’s CPCN process considers the economic need of a proposed project. For the CPUC to issue a CPCN, it must find that the present or future public convenience and necessity requires or will require construction of the proposed project. This requirement notwithstanding, statute provides a transmission project applicant does not need a CPCN for the extension, expansion, upgrade or other modification of an existing electrical transmission facility, including transmission lines and substations. Statute and CPUC rules exempt some electrical transmission projects form the need to receive a CPCN, or they require some projects to receive from CPUC another type of permit, known as a permit to construct (PTC). The CPUC’s process to approve a PTC is generally less rigorous that its process to approve a CPCN.

In 2022, the Legislature approved revisions to the CPUC’s permitting processes. Specifically, SB 529 (Hertzberg), Chapter 357, Statutes of 2022, directed the CPUC, by January 1, 2024, to revise its rules so as to authorize a utility to use the PTC process or to claim an exemption from CPUC permitting for a project to construct an extension, expansion, upgrade or other modification to its existing transmission facilities. Notably, SB 529 did not exempt a transmission project from CEQA review. The CPUC is working to implement the requirements of SB 529.

Proposed Settlement Agreement. In September 2023, the state’s three largest private electric utilities—Pacific Gas and Electric, Southern California Edison and San Diego Gas and Electric (SDG&E)—filed with the CPUC a proposed settlement agreement on behalf of a large number of other stakeholders that calls for certain changes to the CPUC’s electric transmission facility permitting rules. This bill includes many of the proposals included in the settlement agreement. The CPUC has taken no action on the settlement agreement.

1. Support and Opposition. This bill is supported by two industry associations and SDG&E, the last of which writes:

We have significant work ahead of us to build the infrastructure needed to support state goals, and AB 3238 recognizes that innovative solutions are needed to move these transmission projects forward. Perhaps the most important step we can take is to shorten the complex and lengthy permitting and environmental review processes. AB 3238 makes logical and beneficial changes to several key areas—including the CPUC’s permitting and environmental review processes, which beyond the recent updates necessary to comply with SB 529, have not been significantly revised since 1995. In addition, the bill proposes changes to conservation planning and species take, and tailored exemptions from the California Environmental Quality Act (CEQA). This bill would remove redundant processes and ambiguity, thereby empowering state agencies to further support the clean energy transition.

The bill is opposed by several environmental advocacy organizations, including the Natural Resources Defense Council and the Planning and Conservation League, who write:

This bill includes an array of various sweeping exemptions, weakened standards, and limitations on state authorities, which, if enacted would undermine environmental and public health protections and severely limit the public’s ability to participate in local and state land use and energy decision-making. Finally…this bill is duplicative of a current ongoing rulemaking process at the California Public Utilities Commission (CPUC), which was required by the Legislature when it enacted Senate Bill 529 at the end of 2022…AB 3238 would exempt projects that “incidentally take” threatened and endangered species from the California Endangered Species Act...would undermine the Natural Community Conservation Planning Act (NCCP)—a law long regarded as the gold-standard for conservation and land use planning…exempts major amendments to NCCPs from CEQA… exempt the expansion of existing rights of way onto state lands from CEQA…create exemptions from local and state laws for energy projects and runs counter to what was intended in SB 529…limits the CPUC’s CEQA review, including limiting public trust resources from analyzing impacts on public trust and cultural resources…grants broad “in lieu” permitting authority to the CPUC for a wide range of energy and transmission projects with no protections for natural and cultural resources, no public review, and no transparency.

Analysis Prepared by: Jay Dickenson / APPR. / (916) 319-2081

Date of Hearing: April 22, 2024

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Isaac G. Bryan, Chair

ABPCA Bill Id:AB 3238 (

Author:Garcia) – As Amended Ver:April 17, 2024

SUBJECT: Electrical infrastructure projects: endangered species: natural community conservation plans

SUMMARY: Establishes several limitations on environmental review intended to facilitate development of electrical transmission lines and associated infrastructure.

EXISTING LAW:

1. Requires, pursuant to the California Environmental Quality Act (CEQA), lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. CEQA includes several statutory exemptions, as well as categorical exemptions in the CEQA Guidelines. (Public Resources Code (PRC) 21000 et seq.)
2. Defines “project” as an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, including an activity that involves the issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (PRC 21065)
3. Defines “responsible agency” as a public agency, other than the lead agency, which has responsibility for carrying out or approving a project by, for example, issuing a permit necessary for a project. (PRC 21069)
4. Defines “trustee agency” as a state agency that has legal jurisdiction over natural resources affected by a project that are held in trust for the people of California. (PRC 21070)
5. Requires, under CEQA, a lead agency to consult with responsible and trust agencies prior to determining whether or not a negative declaration or EIR is required for a proposed project. (PRC 21080.3)
6. For projects subject to state agency review, requires the lead state agency to establish time limits that do not exceed one year for completing and certifying EIRs and 180 days for completing and adopting negative declarations. Requires these time limits to be measured from the date on which an application is received and accepted as complete by the state agency. (PRC 21100.2)
7. Requires the CEQA Guidelines to include a list of classes of projects that have been determined by the Secretary of the Natural Resources Agency to not to have a significant effect on the environment and that shall be exempt from CEQA. (PRC 21084)

The list of “categorical exemptions” includes:

• 1. Repair and maintenance of existing public or private facilities, involving negligible or no expansion of use, including existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services. (Guidelines 15301)
  2. Replacement or reconstruction of existing facilities on the same site with the same purpose and capacity, including existing utility systems and/or facilities involving negligible or no expansion of capacity. (Guidelines 15302)
  3. New construction or conversion of small structures, including electrical, gas, and other utility extensions of reasonable length to serve such construction. (Guidelines 15303)

1. Requires the Public Utilities Commission (PUC) to certify the “public convenience and necessity” require a transmission line over 200 kilovolts (kV) before an investor-owned utility (IOU) may begin construction (Certificate of Public Convenience and Necessity, or CPCN). The CPCN process includes CEQA review of the proposed project. A CPCN confers eminent domain authority for construction of the project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations. (Public Utilities Code (PUC) 1001)
2. Requires an IOU to obtain a discretionary permit to construct (PTC) from the PUC for electrical power line projects between 50-200 kV. A PTC may be exempt from CEQA pursuant to PUC orders and existing provisions of CEQA. IOU electrical distribution line projects under 50 kV do not require a CPCN or PTC from the PUC, nor discretionary approval from local governments, and therefore are not subject to CEQA. (PUC General Order (GO) 131-D)
3. Requires the PUC, by January 1, 2024, to update GO 131-D to authorize IOUs to use the PTC process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights of way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV. (PUC 564)
4. States that any person, or any local, state, or federal agency, independently, or in cooperation with other persons, may undertake a Natural Communities Conservation Plan (NCCP) (FGC 2809)
5. Defines “conserve,” “conserving,” and “conservation” to mean to use, and the use of, methods and procedures within the NCCP plan area that are necessary to bring any covered species to the point at which the measures provided pursuant to the California Endangered Species Act (CESA) are not necessary, and for covered species that are not listed pursuant to CESA, to maintain or enhance the condition of a species so that listing pursuant to CESA will not become necessary. (FGC 2805)
6. Provides the scope of findings that the Department of Fish and Wildlife (DFW) must make to approve an NCCP and requires that an NCCP include an implementation agreement that contains provisions specifying procedures for amendments to the NCCP and the implementation agreement. (FGC 2820)
7. Grants CEC the exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric transmission lines that tie the plant to the bulk transmission 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 (i.e., the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. Defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system (PRC 25500 et seq.).
8. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to the following energy-related projects:
   1. A solar photovoltaic or terrestrial wind electrical generating powerplant with a generating capacity of 50 MW or more and any facilities appurtenant thereto;
   2. An energy storage system capable of storing 200 MW hours or more of electrical energy;
   3. A stationary electrical generating powerplant using any source of thermal energy, with a generating capacity of 50 MW or more, excluding any powerplant that burns, uses, or relies on fossil or nuclear fuels;
   4. A project for the manufacture, production, or assembly of an energy storage, wind, or photovoltaic system or component, or specialized products, components, or systems that are integral to renewable energy or energy storage technologies, for which the applicant has certified that a capital investment of at least $250 million will be made over a period of five years; and
   5. An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system.

(PRC 25545–25545.13)

1. Establishes the policy of the state that eligible renewable energy resources and zero-carbon resources supply 90% of all retail sales of electricity by December 31, 2035; 95% of all retail sales of electricity by December 31, 2040; 100% of all retail sales of electricity by December 31, 2045; and 100% of electricity procured to serve all state agencies by December 31, 2035 (Public Utilities Code § 454.53).

THIS BILL:

1. Defines “electrical infrastructure project” as a project for the construction and operation of an electrical transmission line and associated infrastructure for purposes of this bill.
2. Requires DFW, when reviewing a request to amend an approved NCCP, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been, or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the approved plan.
3. Exempts projects that expand existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure from CEQA until January 1, 2035.
4. Designates the PUC as the lead agency under CEQA for an electrical infrastructure project. Provides the following regarding the PUC’s environmental review of an electrical infrastructure project pursuant to CEQA:
   1. The PUC shall prescribe procedures for an applicant’s preparation, under PUC supervision, of the following environmental documents: an EIR, negative declaration, mitigation negative declaration, addendum, or analysis of applicability of a CEQA exemption;
   2. The PUC may provide guidance for, and assist in, preparation of environmental documents;
   3. The PUC shall independently evaluate environmental documents and take responsibility for their contents;
   4. Applicant may submit with its application an administrative draft of an EIR, mitigated negative declaration, negative declaration, addendum, or draft analysis of applicability of a CEQA exemption in lieu of an initial study or proponent’s environmental assessment; and
   5. The PUC shall use environmental documents submitted by an applicant when exercising its independent judgment to determine whether a project is exempt from CEQA or necessitates preparation of an EIR.
5. Defines “resource agency” as the State Lands Commission, the San Francisco Bay Conservation and Development Commission (BCDC), DFW, the California Coastal Commission, State Water Resources Control Board (State Water Board), or an applicable regional water quality control board.
6. Requires a resource agency to only consider an environmental effect of an electrical infrastructure project that occurs within the resources agency’s jurisdiction and is subject to the resource agency’s discretionary approval related to the project.
7. Requires an application for an electrical infrastructure project to be in a form prescribed by the PUC and accompanied by information required by the PUC to support the preparation of necessary environmental documents.
8. Requires the PUC to consult with BCDC for an electrical infrastructure project located in the geographic jurisdiction of BCDC for purposes of coordinating the processing and sequencing of the applications to expedite the permitting process.
9. Requires BCDC to assume permitting authority for processing and issuing marsh development permits using the local protection programs as guidance in the Suisun Marsh Secondary Management Area and the portions of the Primary Management Area with a local protection program.
10. Requires BCDC, the State Water Board, or the applicable regional water quality control board to take final action on the electrical infrastructure project within 90 days of the PUC’s approval if the applicant has filed a complete application for a permit or waste discharge requirement with those agencies before the approval by the PUC.
11. Requires the PUC to certify necessary environmental documents for, and to approve, an electrical infrastructure project within 270 days of receiving a complete application, except under specified circumstances.
12. Exempts projects that would require a CPCN and any other electrical infrastructure projects from existing requirements to compare prospective projects with cost-effective alternatives such as energy efficiency, distributed generation, and demand response resources.
13. Provides that the following apply to an electrical infrastructure project that has been approved by the Independent System Operator (ISO) in its transmission plan:
    1. The statement of objectives sought by the project applicant, including the underlying purpose and project benefits, required by CEQA, shall be those identified by the ISO’s approved transmission plan;
    2. The range of reasonable alternatives analyzed under CEQA shall be alternative routes or locations for the construction of the project approved in the relevant ISO’s approved transmission plan;
    3. Any statement of overriding considerations shall be those identified by the ISO’s approved transmission plan; and
    4. There shall be a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs the significant effect on the environment if the project has been identified by the ISO in a transmission plan.
14. Defines “necessary electrical infrastructure project” for purposes of this bill as either of the following:
    1. A project approved by the ISO in a transmission plan prepared by the ISO; or
    2. The project is necessary to serve an actual or forecasted electrical demand increase associated with transportation or building electrification or is a distributed energy project, energy storage project, or renewable generation source where the electrical line facilities or substation would support the interconnection of the project or source to the electrical grid.
15. Provides that the PUC has the exclusive power to approve and site a “necessary electrical infrastructure project.”
16. Establishes an in lieu permit process at the PUC whereby the approval and siting of a “necessary electrical infrastructure project” pursuant to this bill is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities.
17. Provides that the in lieu permit process shall not apply to the authority of the State Lands Commission to require leases and receive lease revenue, or BCDC, the State Water Board, or regional water quality control boards.
18. Includes a declaration that provisions of this bill relative to the approval of “necessary electrical infrastructure projects” address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
19. Sunsets the PUC permit and CEQA streamlining provisions of this bill on January 1, 2035.

FISCAL EFFECT: Unknown

COMMENTS:

1. Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the 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 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.

CEQA requires state and local lead agencies to establish time limits of one year for completing and certifying EIRs and 180 days for completing and adopting negative declarations. These limits are measured from the date on which an application is received and accepted as complete by the lead agency. Agencies may provide for a reasonable extension in the event that compelling circumstances justify additional time and the project applicant consents.

As noted above, electrical transmission line projects are eligible for a number of CEQA exemptions pursuant to the CEQA Guidelines and GO 131-D. Only larger, high-voltage projects over 200 kV, which also require a CPCN, are consistently subject to complete CEQA review, including an EIR. According to PUC data, from 2012 to 2023, 608 projects have been exempted from CEQA, 29 projects have been approved via negative declaration, and 27 have required an EIR.

GO 131-D specifically addresses the procedures to be followed in applications for siting of electric transmission infrastructure. GO 131-D establishes the distinction in the levels of review based on the voltage level of the project (under 50 kV, 50 to 200 kV, and above 200 kV) as described above. The PUC reviews permit applications under two concurrent processes: (1) an environmental review pursuant to CEQA, and (2) the review of project need and costs pursuant to PUC 1001 et seq. and GO 131-D.

Prior to the re-adoption of GO 131-D in 1994, the construction of projects below 200 kV did not require utilities to obtain a permit. In GO 131-D, the PUC lowered that threshold to 50 kV, requiring most projects rated between 50-200 kV to obtain a permit to construct.

SB 529 (Hertzberg), Chapter 357, Statutes of 2022, directed the PUC to revise GO 131-D to authorize a utility to use the PTC process or claim an exemption to seek approval to construct an extension, expansion, upgrade, or other modification to its existing transmission facilities regardless of the voltage level by January 1, 2024. In May 2023, the PUC opened a rulemaking to solicit comments that would revise the GO 131-D rules. Based on the feedback, the assigned commissioner determined the issues to be considered in the proceeding should be separated into two phases.

Phase 1 includes consideration of changes to GO 131-D necessary to conform it to the requirements of SB 529 and updates to outdated references. Phase 2 includes consideration of all other changes to GO 131-D that may be proposed by PUC staff or other stakeholders during the course of this proceeding. Phase 1 was completed on December 14, 2023.

In September 2023, Southern California Edison, Pacific Gas & Electric, and San Diego Gas & Electric filed a proposed settlement agreement on behalf of several stakeholders that proposes numerous reforms to GO-131 D. It is important to note that the changes submitted to PUC by this bill’s sponsor and others are proposed and not yet final. PUC is expected to complete Phase 2 of the process mandated by SB 529 later this year. This bill incorporates some of the changes to GO 131-D contained in the proposed settlement agreement, but also proposes changes that go well beyond those in the proposed settlement.

For additional background related the PUC provisions of the bill, see the prior analysis prepared by the Utilities and Energy Committee. For additional background related to DFW, NCCP, and CESA, see the prior analysis prepared by the Water, Parks and Wildlife Committee.

1. Author’s statement:

California is on the precipice of a clean energy transition that is poised to bring vast new clean energy projects, jobs, and economic development to the state. Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes – necessary steps in thoughtfully building electrical infrastructure – are inefficient and lead to unnecessary delays. We need to build a runway for electrical infrastructure projects to move efficiently through the permitting and environmental review processes so they can reach operation quickly and begin serving our citizens. AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals.

1. Suggested amendments. In order to focus this bill more precisely on the purpose of supporting development of environmentally benign or beneficial transmission projects, and related facilities, needed to support delivery of renewable and zero-carbon electricity, the author and the committee may wish to consider the following amendments:
   1. Limit scope of CEQA exemption for right-of-way expansion as follows:
      1. The project is limited to acquisition of right-of-way, and any future project will be reviewed pursuant to CEQA before any approval that would authorize physical changes to land covered by the right-of-way.
      2. The existing right-of-way is held by the applicant for a purpose consistent with the potential future development, such as electrical transmission lines and associated facilities.
      3. The proposed expanded right-of-way is not dedicated to conservation purposes that may be incompatible with potential future development within the right-of-way.
      4. The total width of right-of-way does not exceed 200 feet.
      5. The lead agency is the PUC or a state agency owning or managing the property, including the State Lands Commission, the Department of Parks and Recreation, DFW, the Department of Transportation, Department of Water Resources, and the Department of General Services.
      6. The lead agency files a notice of exemption with the Office of Planning and Research.
      7. Sunset January 1, 2030.
   2. Limit eligible projects to PUC-jurisdictional projects, i.e., those that that require discretionary approval by the PUC pursuant to PUC 1001 or GO 131-D (or an order succeeding GO 131-D).
   3. Clarify that limitations on state agency CEQA review applies to responsible agency (those with a discretionary approval) and does not limit the authority of trustee agencies to participate in CEQA review.
   4. Provide that limitations on consideration of project alternative, and the rebuttable presumption in favor of overriding mitigation of significant environmental impacts, requires approval by a public agency (i.e., the PUC).
   5. Strike out Article 3 (Sections 2846 and 2846.1).
2. Triple referral. This bill was approved by the Utilities and Energy Committee, with amendments, by a vote of 13-1 on April 3, and by the Water, Parks and Wildlife Committee, with amendments, by a vote of 13-0 on April 16.

REGISTERED SUPPORT / OPPOSITION:

Support

Advanced Energy United
San Diego Gas and Electric Company

Silicon Valley Leadership Group

Opposition

California Coastal Protection Network
California Farm Bureau Federation (unless amended)
California Native Plant Society
Center for Biological Diversity
CleanEarth4Kids.org
Defenders of Wildlife
Endangered Habitats League
Environmental Center of San Diego
Environmental Defense Fund (unless amended)

Environmental Protection Information Center
Friends of Hedionda Creek
Friends of Hellhole Canyon
Friends of Rose Creek
Natural Resources Defense Council
Planning and Conservation League
San Diego Audubon Society
Sierra Club California

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. /

Date of Hearing: April 16, 2024

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Diane Papan, Chair

ABPCA Bill Id:AB 3238 (

Author:Garcia) – As Amended Ver:April 8, 2024

SUBJECT: Electrical infrastructure projects: endangered species: natural community conservation plans

SUMMARY: Provides exemptions from, and streamlining of, planning, environmental review, and environmental permitting processes for the development of electrical infrastructure projects. Specifically, this bill:

1. Requires the director of the Department of Fish and Wildlife (DFW) to publish a consistency determination authorizing the incidental take of a species that is listed under both the California Endangered Species Act (CESA) and the federal Endangered Species Act (ESA) if the Director receives a notice from a public utility undertaking an electrical infrastructure project that has already been issued a permit under ESA. The take authorization shall be under the same terms and conditions provided under the federal permit and the director shall publish the consistency determination within 30 days of receiving notice from a public utility.
2. Defines “electrical infrastructure project” as a project for the construction and operation of an electrical transmission line and associated infrastructure for purposes of this bill.
3. Limits DFW’s review of a request to amend an existing Natural Community Conservation Plan (NCCP) to the following:
   1. Any new species listed under CESA that were not previously considered in the approved NCCP; and
   2. Any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved NCCP.
4. Requires DFW, when reviewing a request to amend an approved NCCP, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been, or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the approved plan.
5. Exempts the approval of an amendment to an NCCP that adds additional conservation measures and amended permits or authorizations from the California Environmental Quality Act (CEQA).  Defines “additional conservation measures” as any provisions, actions, operational protocols, or requirements that enhance or supplement the conservation measures in the existing NCCP.
6. Exempts projects that expand existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure from CEQA until January 1, 2035.
7. Designates the California Public Utilities Commission (CPUC) as the lead agency under CEQA for an electrical infrastructure project.  Provides the following regarding CPUC’s environmental review of an electrical infrastructure project pursuant to CEQA:
   1. CPUC shall prescribe procedures for an applicant’s preparation, under CPUC supervision, of the following environmental documents: an environmental impact report (EIR), negative declaration, mitigation negative declaration, addendum, or analysis of applicability of a CEQA exemption;
   2. CPUC may provide guidance for, and assist in, preparation of environmental documents;
   3. CPUC shall independently evaluate environmental documents and take responsibility for their contents;
   4. Applicant may submit with its application an administrative draft of an EIR, mitigated negative declaration, negative declaration, addendum, or draft analysis of applicability of a CEQA exemption in lieu of an initial study or proponent’s environmental assessment; and
   5. CPUC shall use environmental documents submitted by an applicant when exercising its independent judgment to determine whether a project is exempt from CEQA or necessitates preparation of an EIR.
8. Defines “resource agency” as the State Lands Commission, the San Francisco Bay Conservation and Development Commission (BCDC), DFW, the California Coastal Commission, State Water Resources Control Board (State Water Board), or an applicable regional water quality control board.
9. Requires a resource agency to only consider an environmental effect of an electrical infrastructure project that occurs within the resources agency’s jurisdiction and is subject to the resource agency’s discretionary approval related to the project.
10. Requires an application for an electrical infrastructure project to be in a form prescribed by CPUC and accompanied by information required by CPUC to support the preparation of necessary environmental documents.
11. Requires the CPUC to consult with BCDC for an electrical infrastructure project located in the geographic jurisdiction of BCDC for purposes of coordinating the processing and sequencing of the applications to expedite the permitting process.
12. Requires BCDC to assume permitting authority for processing and issuing marsh development permits using the local protection programs as guidance in the Suisun Marsh Secondary Management Area and the portions of the Primary Management Area with a local protection program.
13. Requires BCDC, the State Water Board, or the applicable regional water quality control board to take final action on the electrical infrastructure project within 90 days of CPUC’s approval if the applicant has filed a complete application for a permit or waste discharge requirement with those agencies before the approval by CPUC.
14. Requires CPUC to certify necessary environmental documents for, and to approve, an electrical infrastructure project within 270 days of receiving a complete application, except under specified circumstances.
15. Exempts projects that would require a certificate of public necessity and convenience (CPCN) from CPUC and any other electrical infrastructure projects from existing requirements to compare prospective projects with cost-effective alternatives such as energy efficiency, distributed generation, and demand response resources.
16. Provides that the following apply to an electrical infrastructure project that has been approved by the Independent System Operator (ISO) in a transmission plan prepared pursuant to the ISO’s Federal Energy Regulatory Commission tariff:
    1. The statement of objectives sought by the project applicant, including the underlying purpose and project benefits, required by CEQA, shall be those identified by the ISO’s approved transmission plan;
    2. The range of reasonable alternatives analyzed under CEQA shall be alternative routes or locations for the construction of the project approved in the relevant ISO’s approved transmission plan;
    3. Any statement of overriding considerations shall be those identified by the ISO’s approved transmission plan prepared pursuant to ISO’s Federal Energy Regulatory Commission tariff; and
    4. There shall be a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs the significant effect on the environment if the project has been identified by the ISO in a transmission plan.
17. Defines “necessary electrical infrastructure project” for purposes of this bill as either of the following:
    1. A project approved by the ISO in a transmission plan prepared pursuant to the ISO’s Federal Energy Regulatory Commission tariff; or
    2. The project is necessary to serve an actual or forecasted electrical demand increase associated with transportation or building electrification or is a distributed energy project, energy storage project, or renewable generation source where the electrical line facilities or substation would support the interconnection of the project or source to the electrical grid.
18. Provides that CPUC has the exclusive power to approve and site a “necessary electrical infrastructure project.”
19. Establishes an in lieu permit process at CPUC whereby the approval and siting of a “necessary electrical infrastructure project” pursuant to this bill is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities.
20. Provides that the in lieu permit process described in #19, above, shall not apply to the authority of the State Lands Commission to require leases and receive lease revenue, or BCDC, the State Water Board, or regional water quality control boards.
21. Includes a declaration that provisions of this bill relative to the approval of “necessary electrical infrastructure projects” address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
22. Sunsets the CPUC permit and CEQA streamlining provisions of this bill (#7 through #21, above) on January 1, 2035.
23. Provides that no state reimbursement is required by this bill because local agencies affected by this bill have the authority to levy service charges, fees, or assessments sufficient to pay for the mandates contained therein.

EXISTING LAW:

1. Provides that fish and wildlife resources are held in trust for the people of California by and through DFW [Fish and Game Code (FGC) § 711.7].
2. Provides, under CESA and federal ESA, for the listing and protection of species determined through biological scientific analysis to be endangered or threatened with extinction [FGC § 2070–2079.1; U.S. Code (U.S.C.) Title 16 § 1533].
3. Prohibits the taking of an endangered species, threatened species, or candidate species listed pursuant to CESA unless DFW authorizes the taking of the listed species under an ITP and if the taking is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species (FGC § 2081; 2084).
4. States that any person, or any local, state, or federal agency, independently, or in cooperation with other persons, may undertake an NCCP (FGC § 2809).
5. Defines “conserve,” “conserving,” and “conservation” to mean to use, and the use of, methods and procedures within the NCCP plan area that are necessary to bring any covered species to the point at which the measures provided pursuant to CESA are not necessary, and for covered species that are not listed pursuant to CESA, to maintain or enhance the condition of a species so that listing pursuant to CESA will not become necessary (FGC § 2805).
6. Provides the scope of findings that DFW must make to approve an NCCP and requires that an NCCP include an implementation agreement that contains provisions specifying procedures for amendments to the NCCP and the implementation agreement (FGC § 2820).
7. Clarifies that a project proposed in an NCCP planning area is not exempt from CEQA (FGC § 2826).
8. Requires, pursuant to CEQA, lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or EIR for this action, unless the project is exempt from CEQA [Public Resources Code (PRC) § 21000 et seq.].
9. Defines “project” as an activity that may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, including an activity that involves the issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies (PRC § 21065].
10. Defines, under CEQA, “responsible agency” as a public agency, other than the lead agency, which has responsibility for carrying out or approving a project by, for example, issuing a permit necessary for a project (PRC § 21069).
11. Defines, under CEQA, “trustee agency” as a state agency that has legal jurisdiction over natural resources affected by a project, that are held in trust for the people of California (PRC § 21070).
12. Requires, under CEQA, a lead agency to consult with responsible and trust agencies prior to determining whether or not negative declaration or EIR is required for a proposed project (PRC § 21080.3).
13. Requires CPUC to certify the “public convenience and necessity” (CPCN) for a transmission line over 200 kilovolts (kV) before an electrical corporation may begin construction. The CPCN process includes CEQA review of the proposed project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations (Public Utilities Code § 1001).
14. Requires the CPUC, by January 1, 2024, to update General Order (GO) 131-D to authorize investor-owned utilities to use the permit-to-construct (PTC) process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights-of-way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV (Public Utilities Code § 564).
15. Requires the California Energy Commission (CEC) to adopt a strategic plan for the state’s electric transmission grid, which recommends actions required to implement investments needed to ensure reliability, relieve congestion, and meet future growth in load and generation (PRC § 25324).
16. Authorizes the CEC to designate electric transmission corridor zones (TCZs) in order to identify and reserve land that is suitable for high-voltage transmission lines. Specifies the CEC may designate a TCZ on its own motion or in response to an application from a person seeking a TCZ designation based on its future plans to construct a high-voltage electric transmission line. Makes the CEC the lead agency, for purposes of CEQA, for the designation of any TCZ (PRC §§ 25330–25341).
17. Grants CEC the exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric 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 (i.e., the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. Defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system (PRC § 25500 et seq.).
18. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to the following energy-related projects:
    1. A solar photovoltaic or terrestrial wind electrical generating powerplant with a generating capacity of 50 MW or more and any facilities appurtenant thereto;
    2. An energy storage system capable of storing 200 MW hours or more of electrical energy;
    3. A stationary electrical generating powerplant using any source of thermal energy, with a generating capacity of 50 MW or more, excluding any powerplant that burns, uses, or relies on fossil or nuclear fuels;
    4. A project for the manufacture, production, or assembly of an energy storage, wind, or photovoltaic system or component, or specialized products, components, or systems that are integral to renewable energy or energy storage technologies, for which the applicant has certified that a capital investment of at least $250 million will be made over a period of five years; and
    5. An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system (PRC §§ 25545–25545.13).
19. Provides CEC the exclusive power to certify the site and related facilities described in #18, above, and provides that CEC’s approval preempts state, local, or regional authorities, except for the authority of the State Lands Commission to require leases and receive lease revenues, if applicable, or the authority of the California Coastal Commission, BCDC, the State Water Board, or the applicable regional water quality control boards, and, for manufacturing facilities, the authority of local air quality management districts or the Department of Toxic Substances Control. Requires the CEC to determine whether to certify the EIR and to issue a certificate for the site and related facilities no later than 270 days after the application is deemed complete, or as soon as practicable thereafter. Applies to these facilities the procedures and requirements applicable to Environmental Leadership Development Projects including mitigation of greenhouse gas emissions, requiring applicants to pay the costs of expedited administrative and judicial review, and requiring the courts to resolve lawsuits within 270 days, to the extent feasible (PRC § 25545 et seq.).
20. Establishes the policy of the state that eligible renewable energy resources and zero-carbon resources supply 90% of all retail sales of electricity by December 31, 2035; 95% of all retail sales of electricity by December 31, 2040; 100% of all retail sales of electricity by December 31, 2045; and 100% of electricity procured to serve all state agencies by December 31, 2035 (Public Utilities Code § 454.53).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. This bill provides several process exemptions across CESA, NCCPs, and CEQA for electrical infrastructure projects. According to the author, “Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. To accomplish this, changes are needed. The total package of measures in [this bill] modifies existing processes to streamline and accelerate electrical infrastructure development. Specifically, [this bill] includes measures that modernize existing [CPUC] permitting and expedite [CEQA] procedures, consistent with the 18-party Joint Motion for Adoption of Phase 1 Settlement Agreement (Settlement) filed in a recent CPUC rulemaking related to permit streamlining and compliance with SB 529 (2022) and AB 1373 (2023)…. [This bill] will remove duplication and ensure that the processes used by the CPUC and other agencies can handle the volume of electrical infrastructure projects necessary to support state goals.”
2. Background. The federal ESA and CESA were enacted to prevent the extinction of fish, wildlife, plant, and invertebrate species. Both acts rely on scientific analysis to determine which species face extinction and impose protections for those species that are in peril. Although there are differences between the federal and state acts, the overarching intent of both is to regulate and impose mitigation on activities that could contribute to the extinction of species. Species are referred to as “listed” if they have been designated as “threatened” or “endangered” by either ESA or CESA.

ESA and CESA prohibit “take” of a listed species. For purposes of CESA, “take” means to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. The U.S. Fish and Wildlife Service (USFWS) and DFW may issue permits under ESA and CESA, respectively, to allow the “take” that is incidental to an otherwise legitimate activity. CESA prohibits the take of any listed species while ESA prohibits the take of listed fish and wildlife species (the take of listed plant species is not prohibited under ESA). In California, species that are being considered for listing under CESA (i.e., candidate species) are afforded the same protections as listed species until the scientific evaluation is complete and the Fish and Game Commission make a final decision regarding if the species should be listed or not.

According to federal regulations, alterations of a listed species’ habitat is unlawful if it “actually kills or injures wildlife by significantly impairing essential behaviors including breeding, feeding, or sheltering.”^[1] Federal court decisions have upheld the principle that habitat modification could be considered prohibited taking, even if no death or injury to individual members of the species could be proven. It would be enough to show that the modification harmed the species as a whole.^[2] Unlike federal law, CESA does not include “harm” or “harass” in the definition of take, but DFW also interprets the take prohibition to include destruction or modification of habitat essential to species’ survival.

Incidental Take Permits. ITPs are granted as exceptions under CESA and ESA to enable prohibited take for otherwise lawful activity. Examples of “lawful activities” for which an ITP may be issued include infrastructure development, housing development, and scientific research. DFW may not approve an ITP for a species listed under CESA if the activity for which the permit is sought would jeopardize the continued existence of the species. Impacts to species must be minimized and fully mitigated and mitigation measures must be roughly proportional in extent to the impact of the take of the species.

Consistency Determinations. There are 60 animal and 117 plant species listed under both ESA and CESA. If an applicant has obtained a federal ITS or ITP for a species listed under both ESA and CESA, the applicant may submit copies of the federal documents, along with an application fee, to the Director of DFW for evaluation of if those documents are consistent with CESA. If, in DFW’s estimation, those federal documents are consistent, a consistency determination is issued and no further state authorization or approval is needed under CESA. The Director is required to make a consistency determination within 30 days.

The differences between CESA and ESA may prevent the Director from issuing a consistency determination. For example, ESA does not prohibit the take of listed plants, but CESA does. Additionally, CESA has higher mitigation standards than ESA, so documents prepared for a federal ITS/ITP may not exhibit adequate funding to achieve this higher standard or describe the mitigation in enough detail to meet CESA standards. See Table 1 for more information about the differences between the state and federal definitions and standards.

Because of these differences and the inability to for DFW to add any conditions to the federal ITS/ITP, receiving a consistency determination generally requires an applicant to initiate early collaboration between the USFWS and DFW to generate a federal ITS/ITP that meets California standards. This early collaboration makes the consistency determination process relatively easy thereby saving the applicant time by eliminating the need to pursue a duplicative state ITP. Species listed under CESA but not ESA are not eligible for a consistency determination and require an ITP issued under CESA. This bill eliminates the Director’s discretion when evaluating a request for a consistency determination for an electrical infrastructure project and requires the Director to issue a consistency determination regardless of whether the federal permit provides equivalent protections as CESA (see #1 under Summary, above).

Natural Community Conservation Planning. The NCCP program was created in 1991 as a way to increase the effectiveness of both CESA and ESA. Both programs had been considered costly and ineffective because they were enforced one developmental project at a time and then focused on conservation efforts one species at a time. Project-by-project application of CESA and ESA was leading to costly delays, red tape, and uncertainty for project applicants, and resulting mitigation measures were considered impromptu and patchy. Conservation is made more effective with large areas habitat that enable wide variety of natural plant and animal interaction. In February 2002, Governor Davis signed into law the current NCCP Act, replacing the previous sections of the FGC (§ 2800 et seq.).

The NCCP Act is a voluntary, regional, ecosystem-based conservation. The necessary components of an NCCP are a planning agreements, a public participation process, an independent scientific review, a NCCP document, an implementation agreement, a DFW determination, and CEQA compliance. The benefit of an NCCP is that it enables participants to list any species (also called “covered” species”) in their NCCP. Including non-listed species provides assurance to participants that they would not have to develop new conservation requirements in the event the non-listed species were to become listed in the future.

Under the NCCP Act, DFW may provide certain assurances to plan participants [FGC § 2820 (f)] with the level of these assurances tied to the degree of knowledge and data available to DFW when the plan was submitted and the scope and duration of the NCCP. The NCCP Act also authorizes a “no surprises” assurance with respect to unforeseen circumstances indicating that “… additional land, water, or financial compensation or addition restriction on the use of land, water, or other natural resources shall not be required without the consent of plan participants….”

When compared to permits for small individual projects, regional plans are general lest costly per acre of development and per acre of conserved resource, because of their economy of scale and reduced constraints they present to land use planning. Once approved, NCCPs typically enable faster projects approvals, greater certainty in permitting, and increased confidence in the quality of conservation. All in all, the NCCP Act represents a delicate balance and agreement between environmental protection and planning needs of the state. The NCCP Act has not been amended since its inception except for technical clarifications.

There are currently 17 approved NCCPs and six NCCPs in various stages of planning, which together cover more than eight million acres and will provide habitat for nearly 400 listed species.^[3]

Habitat Conservation Plan (HCP). An HCP is a planning document required to obtain an ITP under the federal ESA. An HCP range in scale; they can cover a single species or be a more comprehensive, regional plan that covers multiple parties and multiple species. The regional multi-species HCPs are similar to an NCCP and allow the permittee to address a broad range of activities and to bring them under the coverage of the ITP’s legal protection. Multi-species HCPs, like NCCPs, allow for an analysis of a wider range of factors affecting listed species and ease ESA compliance by replacing individual project review with a comprehensive and regional review.

Table 1 – Comparison of Federal ESA and CESA

The San Diego Gas & Electric (SDG&E) NCCP/HCP (SDG&E Plan). In 1995, SDG&E developed a dual NCCP/HCP that is set to expire in 2050. The SDG&E Plan extends from southern Orange County south to the Mexican border and was the first plan approved in San Diego County. The SDG&E Plan covers (authorizes the take of) 110 plant and animal species^[4] over 2,245,800 acres that consist of 36 different habitat types.^[5]  Creating an HCP/NCCP enables SDG&E to avoid, minimize, and mitigate impacts to these species and their habitats while allowing SDG&E to install, maintain, operate, and repair its existing gas and electric system and undertake anticipated expansion of that system. When the SDG&E Plan was created 29 of those species were listed as endangered, threatened, or rare in California (see Table 2).

Table 2 – Species that listed under CESA or both CESA and ESA in the 1995 management authorization for the SDG&E Plan. Dual-listed species are in bold.^[6] Note: status in parentheses represents state status in 1991.

Two broad categories of activities covered in the Plan: operations and maintenance (O&M) and new construction. O&M pertains to existing facilities and generally does not require permits. According to the SDG&E Plan, O&M impact is minimized then mitigated for, therefore CEQA is not required. New construction projects, however, are subject to CEQA pursuant to GO 131-D. Both the current NCCP Act and the NCCP Act of 1991 clarify that these projects are not exempt from CEQA.

Previous plan amendments.  An NCCP cannot account for every future need, so amendments are allowed. Guidelines for the amendment process are a required portion of plans prepared pursuant to the current NCCP Act, but was not a required component of plans finalized under the NCCP Act of 1991. Amendments are generally classified as major or minor amendments. Major amendments are significant enough to trigger the need for the amendment to undergo CEQA review. SDG&E Plan clarifies that “each new SDG&E project will be subject to CEQA.” 

The SDG&E Plan has undergone two minor amendments since its inception. The first was to clarify management of vernal pools in 2004 and the second was to provide an additional 20 new impact acres in 2022. In 1995, the SDG&E Plan anticipated permanently impacting 124 acres over its first 25 years, but, to prepare for unforeseen circumstances, allowed for 400 impact acres before requiring an amendment. By 2022, SDG&E indicated that it nearly exhausted its impact acres with less than 10 acres left, but still needed to undergo wildfire safety activities.^[7] DFW approved a minor amendment to hold SDG&E over while a major amendment was being pursued. This minor amendment granted SDG&E an additional 20 impact acres for wildfire safety activities (e.g., equipment repair and replacement, tree trimming, underground facilities, vegetation control). This minor amendment was exempt from CEQA under a statutory exemption for the prevention or mitigation of an emergency. 

Plan major amendment.  In pursuit of a major amendment, SDG&E divorced its HCP/NCCP in 2021 “to allow each agency (USFWS and DFW) latitude to conduct its required environmental review on its own, independent timeline.” The HCP amendment expands the plan area by 25% to encompass all of SDG&E’s service area. For the expansion and to implement new activities, SDG&E requested the amendment to cover 41 species (i.e., 25 animals and 16 plants), of which 31 are currently listed as threatened or endangered under the ESA. Implementation of the HCP amendment allows for an additional 400 impact acres, 210 acres of temporary impacts, and 210 acres of wildfire fuels management impacts to habitat supporting covered species.^[8]

The HCP amendment covers all SDG&E O&M, new construction, and wildfire fuels management that may result in take of covered species in the HCP plan area. New construction activities include installing or replacing structures to upgrade facilities or to extend service to new customers. New construction, when in preserves or proposed preserves, is limited to 1.75 acres per project. Impacts greater than 1.75 acres from new construction in preserves or proposed preserves would require a minor amendment approved by the USFWS as described in the HCP amendment. Construction activities are expected to be minor as “[SDG&E’s] infrastructure is largely in place, so future impacts will principally be limited to those involved in fire hardening and other operation and maintenance of [SDG&E’s] existing system.”

The USFWS approved the HCP major amendment in 2023. According to the SDG&E, this process took six years. To date, DFW has not received an amendment to the NCCP, but SDG&E says it has been working toward the NCCP amendment for seven years. According to SDG&E, the NCCP amendment will differ from the HCP amendment and not expand the footprint of the plan, but it is unclear to the Committee if the same activities and species will be impacted. This bill requires DFW to limit its analysis of amendments to NCCPs to only certain species and new activities and further exempts these amendments from thorough environmental analysis through CEQA. This effectively degrades the NCCP standard.

CEQA. This bill proposes a number of CEQA exemptions for electrical infrastructure projects. CEQA was enacted in 1970 in an effort to disclose and mitigate the potential environmental damage that certain development projects (e.g., housing developments) might cause. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies.

CEQA is within the jurisdiction of the Assembly Natural Resources Committee and this bill’s provisions related to CEQA will be more thoroughly vetted should this bill advance to that committee; however, two of the CEQA exemptions pertain to departments within this Committee’s jurisdiction: 1) Section 4 of this bill exempts an NCCP amendment from CEQA review; and 2) Section 5 of this bill exempts the expansion of an existing right-of-way across state-owned land (e.g., a state park or state wildlife area) from CEQA. In addition, this bill [proposed Public Utility Code § 2845.10(d)] limits the ability of DFW to serve its role as a “trustee agency” under CEQA (discussed below).

DFW’s role under CEQA. DFW serves as both a “trustee agency” and a “responsible agency” under CEQA. In its role as a “trustee agency,” DFW consults and works with other public agencies to inform decision-makers and the general public about the potential environmental impacts of proposed projects (e.g., through the review of environmental documents) and to reduce those environmental impacts to the extent feasible (e.g., by recommending mitigation measures). In its role as a “responsible agency,” DFW is involved in the CEQA process for a particular project because the project needs to obtain a permit from DFW in order to proceed. This bill provides that DFW can only engage in the CEQA process for an electrical infrastructure project if DFW has to issue a permit for a given electrical infrastructure project to proceed [Notably, this bill also appears to try to remove DFW’s permitting authority for “necessary electrical infrastructure projects” in proposed Public Utility Code § 2846.1(a)(1)(B)]. The limitation on DFW’s engagement in the CEQA process would force DFW to abdicate its mandate to protect the public trust and manage fish and wildlife for the benefit of all Californians (see #1 under Existing Law, above).

GO 131-D. Section 6 of this bill aims to streamline approvals for electrical infrastructure projects by CPUC. These provisions effectively codify changes to GO 131-D which establishes the process for permitting and siting electric transmission infrastructure in California. GO 131-D was first adopted in 1970 and last updated in 1995. The level of analysis performed by the CPUC pursuant to GO 131-D varies with the size (measured in voltage) of the transmission project.

GO 131-D Reforms. Since the last update of GO 131-D in 1995, the energy landscape and infrastructure planning process have evolved significantly. In the last decade, there has been the energy crisis, energy deregulation, formation of ISO, and significant increase in new renewable energy generation. SB 529 (Hertzberg), Chapter 357, Statutes of 2022, sought to revise the permitting process at the CPUC. SB 529 directed the CPUC to revise GO 131-D to authorize a utility to use the PTC process or claim an exemption to seek approval to construct an extension, expansion, upgrade, or other modification to its existing transmission facilities regardless of the voltage level by January 1, 2024. In May 2023, the CPUC opened a rulemaking to solicit comments that would revise the GO 131-D rules.^[9] Based on the feedback, the assigned commissioner determined the issues to be considered in the proceeding should be separated into two phases.

Phase 1 includes consideration of changes to GO 131-D necessary to conform it to the requirements of SB 529 and updates to outdated references. Phase 2 includes consideration of all other changes to GO 131-D that may be proposed by CPUC staff or other stakeholders during the course of this proceeding. Phase 1 was completed on December 14, 2023.

Proposed settlement agreement for changes to GO 131-D. In September 2023, Southern California Edison (SCE), Pacific Gas and Electric (PG&E), and SDG&E filed a proposed settlement agreement on behalf of several stakeholders^[10] that proposes numerous reforms to GO-131 D. It is important to note that the changes submitted to CPUC by this bill’s sponsor and others are proposed and not yet final. CPUC is expected to complete Phase 2 of the process mandated by SB 529 later this year.

This bill incorporates some of the changes to GO 131-D contained in the proposed settlement agreement, but also proposes changes that go well beyond those in the proposed settlement. Most relevant to this Committee’s jurisdiction, Sections 1 through 4 of this bill make changes to CESA and NCCP processes and permitting; these changes are not contained in the proposed settlement agreement submitted to CPUC by the sponsor and others. For a more detailed discussion of GO 131-D and the SB 529 process to update it, please refer to the analysis of this bill by the Assembly Utilities and Energy Committee.

1. Policy considerations. This bill raises a number of substantial policy issues that fall within this Committee’s jurisdiction:

• Automatic consistency determination. This bill eliminates DFW’s discretion when it receives a consistency determination for an electrical infrastructure project that has received an ITP under ESA for a species that is listed under both ESA and CESA. DFW would be unable to ensure the protections for a dual-listed species are adequate. It is not clear why this is advisable under any circumstance, let alone when faced with the prospect of a change in federal administration in the near future.
• Limitations on DFW review of an NCCP amendment. This bill limits the review of an NCCP amendment to only the new covered actions or covered species that are proposed to be added to an existing NCCP in an amendment. In practice this will be difficult to achieve as the point of an NCCP is to take a comprehensive view of a landscape and the activities occurring within it. This holistic view is lost when only taking into account a piece of the overall puzzle. Finally, this change would apply not only to SDG&E’s NCCP but to the remaining 16 approved NCCPs as well.
• CEQA exception for NCCP amendments. This exemption is problematic, especially when combined with the limitations this bill places on DFW’s review of an NCCP amendment. In effect, this bill will result in no environmental review of the activities or impacts to listed species at any point. The new activities and impacts will not have been analyzed in the original environmental document (i.e., such activities and impacts are additions or new to the NCCP) and this bill eliminates environmental review at the time of amendment. It is difficult to see how appropriate mitigation for new activities and impacts to listed species will be determined without environmental review.

1. Proposed committee amendments. In order to address some of the concerns outlined under Policy Considerations, above, the Committee may wish to ask the author to accept the following amendments:

Amendment 1 – Delete the automatic consistency determination provisions of this bill:

Strike Section 1 of this bill.

Amendment 2 – Retain existing requirement that CEQA apply to NCCPs:

SEC. 3. Section 2826 of the Fish and Game Code is repealed.

SEC. 4. Section 2826 is added to the Fish and Game Code, to read:

2826. (a) For purposes of this section, “additional conservation measures” shall mean any provisions, actions, operational protocols, or requirements that enhance or supplement the existing conservation measures specified in a natural community conservation plan that is being amended.

(b) Division 13 (commencing with Section 21000) of the Public Resources Code does not apply to the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment.

1. Arguments in support. Supporters write that this bill will expedite critical electrical infrastructure needed to support the state’s ambitious climate and energy goals. These groups also indicate that this bill contains provisions consistent with the Settlement proposed at the CPUC to modernize CPUC permitting rules for electrical infrastructure. The sponsors observe that decarbonization must happen at an increasing rate to achieve these goals, but “today’s permitting and environmental review processes cause needless delays, historically resulting in transmission project timelines of a decade or more.” Concerning elements of this bill under this Committees jurisdiction, the sponsors write that this bill “proposes changes to conservation planning and species take, and tailored exemptions from CEQA.”
2. Arguments in opposition. A number of environmental organizations write in opposition of the exemptions found in this bill indicating that these would benefit not just clean energy projects, but also “dirty” energy and that this bill is duplicative of ongoing rulemaking at the CPUC. Regarding impacts to species, the groups write that this bill would “gut protections for species listed under CESA as well as the NCCP Act – a law long regarded as the gold-standard for conservation and land use planning.” These organizations also express concern that the language in this bill ineffectively mimic’s CEC’s AB 205 process as it does not provide any of the protective details of AB 205 and would “exempt [projects] from the Coastal Act, CESA, and local permitting.”

Oppose unless amended. The Environmental Defense Fund (EDF), a signatory to the Settlement, had previously indicated a Support if Amended position on this bill. “Upon further review, EDF has concluded that this bill should not move forward unless all provisions except [current Section 6—the provisions in the Public Utilities Code] are removed.” EDF indicates that the Public Utilities Code sections would likely save over 1,000 days of CPUC permitting process, but “the other aspects of the bill compromise environmental integrity too much…. [which is] too big of a price to pay.” EDF observes that this bill avoids compliance with CESA, prohibits DFW from analyzing the full impacts of an NCCP amendment, and “creates a rebuttable presumption that all mitigation was successfully carried out by the permit holder even if they did not complete mitigation.”

1. Triple referral. This bill has also been referred to the Assembly Utilities and Energy Committee and Assembly Natural Resources Committee. This bill passed the Assembly Utilities and Energy Committee 13–1 on April 4, 2024 and will go to the Assembly Natural Resources Committee next should it pass this Committee.
2. Related legislation. SB 420 (Becker) of 2023 would have removed the requirement on new electrical transmission facility projects less than 138 kV proposed by the state’s six largest investor-owned utilities from a determination of need from the California CPUC before construction. SB 420 was vetoed by the Governor on October 7, 2023.
   
   SB 619 (Padilla) of 2023 would have authorized an electrical corporation, at the time it files an application with the CPUC for a CPCN or PTC for new construction of any electrical transmission facility 138 kV or greater to, at the same time, submit an application for that facility to the CEC. Prohibits the CEC from considering the necessity for the electrical transmission facility. SB 619 was vetoed by the Governor on October 7, 2023.
   
   AB 1373 (Garcia), Chapter 367, Statutes of 2023, among other things, requires the CPUC, in a proceeding when evaluating the issuance of a certificate of public convenience and necessity for a proposed transmission project, to establish a rebuttable presumption with regard to the need for the proposed transmission project in favor of an ISO governing board-approved need evaluation if specified requirements are met.
   
   AB 205 (Committee on Budget), Chapter 61, Statutes of 2022, allows certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible.
   
   SB 529 (Hertzberg), Chapter 357, Statutes of 2022, exempts an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its general orders, by January 1, 2024, to instead use its PTC process for these approvals.
   
   SB 887 (Becker), Chapter 358, Statutes of 2022, directs, among other provisions, the CPUC, on or before January 15, 2023, to request CAISO to identify the highest priority anticipated transmission facilities that are needed to deliver renewable energy resources or zero-carbon resources.

SB 107 (Sher), Chapter 4, Statutes of 2002, established the current NCCP Act and repealed the NCCP Act of 1991.

REGISTERED SUPPORT / OPPOSITION:

Support

San Diego Gas and Electric Company (sponsor)

Large Scale Solar Association
Silicon Valley Leadership Group

Opposition

California Coastal Protection Network
Center for Biological Diversity
Defenders of Wildlife
Endangered Habitats League
Planning and Conservation League
Sierra Club California

Oppose Unless Amended

Environmental Defense Fund

Analysis Prepared by: Pablo Garza & Stephanie Mitchell / W., P., & W. / (916) 319-2096

1. 15 Code of Federal Regulations § 17.3. The U.S. Supreme Court upheld this regulation in Babbitt v. Sweet Home, endorsing the idea that “harm” could reasonably be construed to encompass indirect effects of habitat modification on individuals of the listed species. ↑

2. Palila v. Hawaii Department of Land & Natural Resouces (1979). Upheld in Palila v. Hawaii Department of Land & Natural Resouces (1986) ↑

3. Summary of NCCPs ↑

4. SDG&E NCCP covered species list ↑

5. SDG&E NCCP land cover types ↑

6. SDG&E NCCP Management Authorization ↑

7. Wildfire safety amendment (2022) ↑

8. HCP major amendment ↑

9. CPUC, “CPUC To Update Transmission Siting Regulations To Address Electricity Reliability and Climate Goals”; https://www.cpuc.ca.gov/news-and-updates/all-news/cpuc-to-update-transmission-siting-regulations-2023 ↑

10. The settling parties are SCE, PG&E, SDG&E, BearValley Electric Service, Inc., Liberty Utilities (CalPeco Electric) LLC, PacifiCorp, American Clean Power, Independent Energy Producers Association, Center for Energy Efficiency and Renewable Technologies, Environmental Defense Fund, LS Power Grid California LLC, REV Renewables, LLC, Large-Scale Solar Association, California Energy Storage Alliance (CESA), Horizon West Transmission, LLC, Trans Bay Cable LLC, GridLiance West LLC, and the City of Long Beach, California, a municipal corporation acting by and through its Board of Harbor Commissioners. ↑

Date of Hearing: April 3, 2024

ASSEMBLY COMMITTEE ON UTILITIES AND ENERGY

Cottie Petrie-Norris, Chair

ABPCA Bill Id:AB 3238 (

Author:Garcia) – As Introduced Ver:February 16, 2024

SUBJECT: Electrical infrastructure projects: endangered species: natural community conservation plans

SUMMARY: Modifies existing transmission planning and permitting review processes in order to accelerate transmission infrastructure development in California.

Specifically, this bill:

1. Requires the director of the Department of Fish and Wildlife (DFW) to publish a determination authorizing the incidental take of a species under the same terms and conditions provided under federal law if the public utility undertaking the project has obtained an incidental take statement or incidental take permit under the federal act.
2. Requires the DFW, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under the California Endangered Species Act (CESA) that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. 
3. Requires the DFW, when considering the request to amend an approved natural community conservation plan, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the approved plan.
4. Exempts the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment from the California Environmental Quality Act (CEQA) review process.
5. Exempts actions by a public agency for the performance of wildfire mitigation measures by an electrical corporation performed under the electrical corporation’s approved wildfire mitigation plan from the CEQA review process.
6. Exempts projects that expand existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure from the CEQA review process.
7. Exempts projects that would require a certificate of public necessity and convenience (CPCN) from the California Public Utilities Commission (CPUC) and any other electrical infrastructure projects, as defined, from existing requirements to compare prospective projects with cost-effective alternatives such as energy efficiency, distributed generation, and demand response resources.
8. Specifies that the approval and siting by the CPUC of a necessary electrical infrastructure project is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities.
9. Provides a time limit for the CPUC’s CEQA and permitting review of an electrical infrastructure project of up to 270 days after an application is deemed complete, except under specified circumstances.
10. Requires that in place of a proponent environmental assessment (PEA), an applicant may instead prepare and submit a draft environmental impact report, mitigated negative declaration, negative declaration, addendum, or draft analysis of the applicability of an exemption from CEQA.
11. Designates the CPUC as the lead agency for the purposes of administering the CEQA review process for the electrical infrastructure projects defined by this bill.
12. Requires a resource agency to only consider an environmental effect of the project that occurs within the resources agency’s jurisdiction and is subject to the resources agency’s discretionary approval related to the project.
13. Requires the San Francisco Bay Conservation and Development Commission to assume permitting authority for processing and issuing marsh development permits using the local protection programs as guidance in the Suisin Marsh Secondary Management Area and the portions of the Primary Management Area with a local protection program.
14. Requires the CPUC to consult with the San Francisco Bay Conservation and Development Commission for an electrical infrastructure project located in the geographic jurisdiction of the San Francisco Bay Conservation and Development Commission for purposes of coordinating the processing and sequencing of the applications to expedite the permitting process.
15. Requires the San Francisco Bay Conservation and Development Commission, the State Water Resources Control Board, or the applicable regional water quality control board to take final action on the electrical infrastructure project within 90 days of the commission’s approval of the electrical infrastructure project if the applicant has filed a complete application for a permit or waste discharge requirement with those agencies before the approval by the commission.
16. Necessitates that the statement of objectives sought by the project applicant, including the underlying purpose and project benefits, required by CEQA, shall be those identified by the Independent System Operator’s approved transmission plan.
17. Requires the DFW to amend an approved natural community conservation plan when considering a request for specified species and new activities.
18. Requires the DFW when ordering a request as above, to establish a rebuttable presumption that the mitigation and conservation measures provided in the approved plan have been or are being successfully implemented, and shall only impose new mitigation and conservation measures that are necessary to address potential impacts to identified or any new or more substantial impacts to specified covered species.
19. Adds alternative routes or locations for the construction of the project approved in the Independent System Operator’s (CAISO) approved transmission plan to the list of alternatives considered as required by Section 21081 of the Public Resources Code and Section 15124 of Title 14 of the California Code of Regulations.
20. Applies a rebuttable presumption during environmental review under CEQA that there is an overriding benefit, outweighing significant effects on the environment, of a project approved in a CAISO Transmission Plan.
21. Includes findings that specify that changes to this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

EXISTING LAW:

1. Designates certain species as fully protected, and prohibits the taking of these species, with exceptions for necessary scientific research and, for fully protected bird species, the protection of livestock. (Fish and Game Code (FGC)§§ 3511, 4700, 5050, 5515)
2. Allows for the take of fully protected species for any fully protected species conserved and managed as a covered species under an approved Natural Community Conservation Plan (FGC § 2835)
3. Authorizes DFW to permit the take of certain fully protected species in specific cases, with restrictions (FGC §§ 2081.4, 2081.5, 2081.6, 2081.7, 2081.9, 2081.10, 2081.11, 2081.12)
4. Prohibits the taking of an endangered species, threatened species, or candidate species, except in certain situations, including through the issuance of a permit commonly known as an incidental take permit, if all of the following conditions are met:

a) The take is incidental to an otherwise lawful activity;

b) The impacts of the authorized take are minimized and fully mitigated. The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species. Where various measures are available to meet this obligation, the measures required shall maintain the applicant’s objectives to the greatest extent possible. All required measures shall be capable of successful implementation. For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking; and;

c) The applicant ensures adequate funding to implement the measures required by paragraph and for monitoring compliance with, and effectiveness of, those measures [FGC § 2081 (b)].

1. Prohibits the issuance of a permit if issuance of the permit would jeopardize the continued existence of the species. Requires DFW to make this determination based on the best scientific and other information that is reasonably available, and includes consideration of the species’ capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of (1) known population trends; (2) known threats to the species; and (3) reasonably foreseeable impacts on the species from other related projects and activities.[FGC § 2081 (c)]

6) Specifies the permit application fees applicable to incidental take permits.

(FGC § 2081.2)

1. Defines “conserve,” “conserving,” and “conservation” to mean to use, and the use of, methods and procedures within the plan area that are necessary to bring any covered species to the point at which the measures provided pursuant to the California Endangered Species Act (CESA) are not necessary, and for covered species that are not listed pursuant to CESA, to maintain or enhance the condition of a species so that listing pursuant to CESA will not become necessary. (FGC § 2805)
2. States that any person, or any local, state, or federal agency, independently, or in cooperation with other persons, may undertake natural community conservation planning (NCCP) (FGC 2809).
3. Provides the scope of findings that CDFW must make to approve an NCCP.( FGC 2820)
4. Requires, pursuant to CEQA, lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. (Public Resources Code §§ 21000, et seq.)
5. Defines “project” as an activity that may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, including an activity that involves the issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (Public Resources Code § 21065)
6. Requires the CPUC to certify the “public convenience and necessity” for a transmission line over 200 kilovolts (kV) before an electrical corporation may begin construction (This process is known as a CPCN). The CPCN process includes CEQA review of the proposed project. The CPCN confers eminent domain authority for construction of the project. A CPCN is not required for the extension, expansion, upgrade, or other modification of an existing electrical transmission facility, including transmission lines and substations. (Public Utilities Code § 1001)
7. Requires an electrical corporation to obtain a discretionary PTC from the CPUC for electrical power line projects between 50-200 kV. A PTC may be exempt from CEQA pursuant to CPUC orders and existing provisions of CEQA. Electrical distribution line projects under 50 kV do not require a CPCN or PTC from the CPUC, nor discretionary approval from local governments, and therefore are not subject to CEQA. (CPUC General Order (GO) 131-D)
8. Requires the CPUC, by January 1, 2024, to update GO 131-D to authorize IOUs to use the PTC process or claim an exemption under GO 131-D Section III(B) to seek approval to construct an extension, expansion, upgrade, or other modification to its existing electrical transmission facilities, including electric transmission lines and substations within existing transmission easements, rights of way, or franchise agreements, irrespective of whether the electrical transmission facility is above 200 kV. (Public Utilities Code § 564)
9. Requires the California Energy Commission (CEC) to adopt a strategic plan for the state’s electric transmission grid, which recommends actions required to implement investments needed to ensure reliability, relieve congestion, and meet future growth in load and generation. (Public Resources Code § 25324)
10. Authorizes the CEC to designate electric transmission corridor zones (TCZs) in order to identify and reserve land that is suitable for high-voltage transmission lines. Specifies the CEC may designate a TCZ on its own motion or in response to an application from a person seeking a TCZ designation based on its future plans to construct a high-voltage electric transmission line. Makes the CEC the lead agency, for purposes of CEQA, for the designation of any TCZ. (Public Resources Code §§ 25330-25341)
11. Pursuant to the Warren-Alquist Act of 1974, grants the CEC exclusive authority to license thermal powerplants 50 megawatts (MW) and larger (including related facilities such as fuel supply lines, water pipelines, and electric 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 Secretary of the Natural Resources Agency to be the functional equivalent of CEQA), so the CEC is exempt from having to prepare an EIR. The 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. The Warren-Alquist Act originally limited judicial review of a CEC powerplant license decision to the California Supreme Court, based on the procedures for CPUC judicial review at the time. However, original jurisdiction by the Supreme Court was overturned by a 2021 decision (Communities for a Better Environment v. Energy Resources Conservation and Development Commission (S266386)), so CEC powerplant license decisions are now subject to writ review by the superior courts. The Warren-Alquist Act defines “electric transmission line” as any electric powerline carrying electric power from a thermal powerplant located within the state to a point of junction with any interconnected transmission system. (Public Resources Code §§ 25500, et seq.)
12. Authorizes additional facilities not subject to the CEC’s thermal powerplant licensing process to “opt-in” to a CEC process for CEQA review until June 30, 2029, in lieu of review by the appropriate local lead agency. These opt-in permitting procedures apply to the following energy-related projects:

a) A solar photovoltaic or terrestrial wind electrical generating powerplant with a generating capacity of 50 MW or more and any facilities appurtenant thereto.

b) An energy storage system capable of storing 200 megawatt-hours or more of electrical energy.

c) A stationary electrical generating powerplant using any source of thermal energy, with a generating capacity of 50 MW or more, excluding any powerplant that burns, uses, or relies on fossil or nuclear fuels.

d) A project for the manufacture, production, or assembly of an energy storage, wind, or photovoltaic system or component, or specialized products, components, or systems that are integral to renewable energy or energy storage technologies, for which the applicant has certified that a capital investment of at least $250 million will be made over a period of five years.

e) An electric transmission line carrying electric power from an eligible solar, wind, thermal, or energy storage facility to a point of junction with any interconnected electrical transmission system. (Public Resources Code §§ 25545-25545.13)

1. Provides the CEC exclusive power to certify the site and related facility, and provides that the CEC’s approval preempts state, local, or regional authorities, except for the authority of the State Lands Commission (SLC) to require leases and receive lease revenues, if applicable, or the authority of the California Coastal Commission (CCC), the San Francisco Bay Conservation and Development Commission (SFBCDC), the State Water Resources Control Board (SWRCB), or the applicable regional water quality control boards, and, for manufacturing facilities, the authority of local air quality management districts or the Department of Toxic Substances Control (DTSC). Requires the CEC to determine whether to certify the EIR and to issue a certificate for the site and related facilities no later than 270 days after the application is deemed complete, or as soon as practicable thereafter. Applies to these facilities the procedures and requirements applicable to Environmental Leadership Development Projects (ELDPs, Public Resources Code §§ 21178, et seq.), including mitigation of greenhouse gas (GHG) emissions, requiring applicants to pay the costs of expedited administrative and judicial review, and requiring the courts to resolve lawsuits within 270 days, to the extent feasible. (Public Resources Code §§ 25545, et. seq.)
2. Establishes the policy (100% Clean Energy Policy, or SB 100 Policy) of the state that eligible renewable energy resources and zero-carbon resources supply 90% of all retail sales of electricity to California end-use customers by December 31, 2035, 95% of all retail sales of electricity to California end-use customers by December 31, 2040, 100% of all retail sales of electricity to California end-use customers by December 31, 2045, and 100% of electricity procured to serve all state agencies by December 31, 2035. (Public Utilities Code § 454.53)
3. Designates CARB, via the California Global Warming Solutions Act of 2006, as the state agency responsible for monitoring and regulating sources emitting greenhouse gases (GHGs). Requires CARB to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions and to update the scoping plan at least once every five years. Requires CARB to conduct a series of public workshops to give interested parties an opportunity to comment on the plan and requires a portion of those workshops to be conducted in regions of the state that have the most significant exposure to air pollutants, including communities with minority populations, communities with low-income populations, or both. (Health and Safety Code § 38561)

FISCAL EFFECT: Unknown. This bill is keyed fiscal and will be referred to the Committee on Appropriations for its review.

BACKGROUND:

California’s Ambitious Goals. SB 100 (De León, Chapter 312, Statutes of 2018) established the state policy that renewable and zero-carbon resources supply 100% of retail sales and electricity procured to serve all state agencies by 2045.^[1] This policy was recently updated under SB 1020 (Laird, Chapter 361, Statutes of 2022) by accelerating the requirement on state agencies to 100% by 2035, and establishing interim targets to meet the sector-wide 100% goal. The updated 2022 Scoping Plan^[2] released by the California Air Resources Board (CARB) in December 2022 calls for targets of 38 million metric tons of carbon dioxide equivalent (MMTCO2e) in 2030 and 30 MMTCO2e in 2035 in the electricity sector.^[3] These sector-wide targets establish the planning goal that informs all subsequent electricity procurement and transmission planning. While California has made some strides towards a clean energy future, meeting these ambitious goals would require focused, strategic, and bold actions.

Recent Integrated Resource Planning (IRP) framework. To achieve procurement targets for SB 100, the California Public Utilities Commission, adopted an Integrated Resource Plan (IRP)^[4] planning process that runs on a two-year cycle. In February 2024, the CPUC adopted a decision in its integrated resource planning that meets a statewide 25 million metric ton (MMT) greenhouse gas (GHG) target for the electric sector by 2035.^[5] The decision represents the most aggressive end of the range identified by CARB, and has identified 56,000 megawatts of clean new resources are needed by 2035. The CPUC also recommended to the California Independent System Operator (CAISO) that the resource portfolio achieving the 25 MMT GHG goal be the foundation for planning transmission investments – utilized as both the reliability base case and the policy-driven base case for study in its 2024-2025 Transmission Planning Process (TPP).

California’s Transmission Development Process. Transmission lines are connected to substations that "step-down" the power to a lower-voltage so that it can be delivered to customers through distribution lines, although some large industrial customers receive their electricity at transmission or sub-transmission voltage. A recent study by the Clean Air Task Force and the Environmental Defense Fund concluded a doubling—at a minimum—of transmission capacity is needed to interconnect new renewables by 2045.^[6] Unfortunately, the current transmission development process is lengthy and complex and can take over a decade from conception to completion. Without modifying the current planning process for transmission, it is unlikely that California will meet its clean energy and climate goals.

CAISO 20-year Transmission Outlook. In January 2022, CAISO in collaboration with the CPUC and the CEC created a 20-Year Transmission Outlook to examine longer-term grid requirements and options for meeting the State’s clean energy and climate goals reliably and cost-effectively.^[7] Given the lead times needed for these facilities primarily due to right-of-way acquisition and environmental permitting requirements, the CAISO has found that the “longer-term blueprint is essential to chart the transmission planning horizon beyond the conventional 10-year timeframe,”^[8] as used in the annual transmission plans. The resulting plan estimated over $30 billion in cost would be needed to meet our 2045 clean energy goals including:^[9]

• $10.7 billion for upgrades to existing infrastructure,
• $8.1 billion for offshore wind integration, and;
• $11.6 billion for out-of-state wind integration.

The CAISO noted the 20-Year Outlook would provide a baseline to guide long-term planning, but cautioned that resource planning and procurement will likely differ over the years relative to the assumptions made in the report.

CAISO’s 2022-2023 Transmission Plan. The CAISO’s TPP released in May 2023, calls for 40,000 megawatts of new resources in the next decade. The plan is centered on the following projections:

• 45 transmission projects with a total cost of $7.3 billion, ranging in individual cost from $4 million to $2.3 billion. These needed projects were weighed against a large variety of alternatives and found to be needed to meet reliability, policy, and economic requirements, particularly reflecting the potential of increased electrification occurring notably in the building and transportation sectors.^[10]
• Pursuant to CAISO’s FERC tariff, only 3 of these projects were eligible for competitive solicitation.
• The reliability and policy projects included 12 that specifically serve to reduce natural gas generation in locally-constrained portions of the grid.

The Transmission Permitting Process. Usually, utilities proposing the construction of new transmission are required to obtain a permit from the CPUC for construction of certain specified infrastructure listed under Public Utilities Code §1001, including transmission projects. The CPUC reviews permit applications under two concurrent processes:

1. An environmental review of applicable projects pursuant to CEQA and CPUC environmental rules. To prepare for the environmental review, the utility first conducts and submits a Proponents Environmental Assessment (PEA). The PEA is a preliminary assessment of the project’s potential environmental impacts and alternatives. Some projects may trigger a federal National Environmental Policy Act (NEPA) review if they cross federal land or use federal funds.
2. The review of project needs and costs according to Public Utilities Code §1001 and General Order (GO) 131-D, also known as a Certificate of Public Convenience and Necessity (CPCN), or—depending on project size—a Permit to Construct (PTC).

California Environmental Quality Act (CEQA) Review Process. CEQA was enacted in 1970 and requires public agencies^[11] to evaluate the environmental impacts of development projects before approving plans, policies, or development projects. CEQA generally requires state and local government agencies to inform decision-makers and the public about the potential environmental impacts of proposed projects, ways to reduce those environmental impacts to the extent feasible and to indicate alternatives to the project.

A proposal will only trigger CEQA review if it involves the exercise of discretionary powers by the CPUC and results in a direct, or reasonably foreseeable indirect, physical impact in the environment.^[12] There are three general buckets of CEQA-eligible projects:

• Exempted from CEQA – projects that either have a categorical exemption (projects that belong to a category that have been found by the Secretary of Natural Resources to not have a significant impact on the environment are exempt from CEQA) or a statutory exemption (projects that have been granted exemptions by the Legislature). The public agency may file a notice of exemption, and no further actions are required.^[13]
• Subject to a Negative Declaration (ND) or Mitigated Negative Declaration (MND) – If a project does not qualify for an exemption, it must undergo an initial review to determine if it may have a “significant” environmental impact, based on 21 environmental factors. If the agency finds that the project would not have a significant impact on the environment or that revisions to the project will mitigate potential impacts, the lead agency may file a negative declaration (ND) or mitigated negative declaration (MND).^[14]
• Subject to an Environmental Impact Report (EIR) – a detailed statement describing and analyzing the significant environmental effects of a project and discussing ways to mitigate or avoid the effects. Of the projects for which an EIR was prepared, many may also be subject to the National Environmental Policy Act (NEPA), the federal equivalent of CEQA. For projects that are subject to both CEQA and NEPA, the lead agency may file a joint document that covers both. The EIR process involves the lead agency producing a draft document outlining the environmental impacts of a project, any available mitigation measures, and a consideration of less environmentally impactful alternatives. The draft document must then be released for public comment. The lead agency must revise the EIR or submit a response to the comments prior to certifying the final EIR.^[15]

CEQA directs public agencies to complete and certify an EIR within one year of the project application and 180 days for completing and adopting negative declarations. The failure to properly consider a project’s impacts is what typically results in litigation. These limits are measured from the date on which an application is received and accepted as complete by the lead agency. Agencies may provide for a reasonable extension in the event that compelling circumstances justify additional time and the project applicant consents. In the event a lead agency fails to properly conduct an EIR, they may be subject to litigation challenging the validity of the document and the overarching approval of the project. Most CEQA lawsuits must be brought within 30 days of the approval of the final EIR^[16] As with most court proceedings questioning government decision-making and actions, CEQA litigation is heavily reliant on official government records as well as communications between stakeholders and government officials.

Permit/Certificate Review. Parallel to environmental review (CEQA), the CPUC reviews the utility’s application for a CPCN or a PTC, depending on the size of the project. The CPUC’s decision on the CPCN or PTC cannot be issued until the environmental review is complete. Most of the CPCN/PTC process is outlined in General Order (GO) 131-D.

CPUC CEQA Report. According to CPUC data shown in Table 1 below, from 2012 to 2023, of a total of 664 projects that required CPUC review: 608 projects were exempt from CEQA, 29 projects were approved via ND/MND, and 27 required an EIR. This represents that over 90% of Investor-owned utility (IOU) projects over the last decade were exempt from CEQA, not even counting the thousands of projects < 50 kV that do not require any review from the CPUC. Of the projects that had to go through a full EIR, over half of them were subject to NEPA; meaning, even if a specific project received a statutory exemption from CEQA, a federal NEPA review would still be required. Most projects are reviewed through the CPUC’s advice letter approval process, which tends to be more simplified and expedient than a full application for a CPCN.

Table 1: CPUC CEQA Report^[17]

CPUC’s GO 131-D. GO 131-D was first adopted in 1970 and last updated in 1995. It establishes the criteria to be followed to trigger the need for a permit to construct (PTC) or renovate electrical facilities, including transmission lines and substations, and also sets out public notice requirements for proposed transmission projects.^[19] The level of analysis performed by the CPUC pursuant to GO 131-D varies with the size (measured in voltage) of the transmission project.

• Projects below 50 kV are considered distribution projects, rather than transmission projects, and in general, do not require CPUC approval.
• Projects between 50 kV and 200 kV require a PTC, which consists primarily of an environmental review pursuant to CEQA. The CPUC process generally does not require a detailed analysis of the need for or economics of these projects.
• Projects over 200 kV require a CPCN and are consistently subject to complete CEQA review, including an EIR. The CPCN process analyzes the need for the project and the economics of the project, as well as, the environmental impacts of the project.

GO 131-D Reforms. Since the last update of GO131-D in 1995, the energy landscape and infrastructure planning process have evolved significantly. In the last decade, there has been the energy crisis, energy deregulation, formation of CAISO, and significant increase in new renewable energy generation. SB 529 (Hertzberg, Chapter 357, Statutes of 2022)^[20] sought to revise the permitting process at the CPUC. The bill directed the CPUC to revise GO 131-D to authorize a utility to use the PTC process or claim an exemption to seek approval to construct an extension, expansion, upgrade, or other modification to its existing transmission facilities regardless of the voltage level by January 1, 2024. However, CEQA still applies. In May 2023, the CPUC opened a rulemaking to solicit comments that would revise the GO 131-D rules to accommodate this legislation.^[21] Based on the feedback, the assigned commissioner determined the issues to be considered in the proceeding should be separated into two phases.

Phase 1 includes consideration of changes to GO 131-D necessary to conform it to the requirements of SB 529 and updates to outdated references. Phase 2 includes consideration of all other changes to GO 131-D that may be proposed by Commission staff or other stakeholders during the course of this proceeding. Phase 1 was to be considered on an expedited basis to ensure compliance with the SB 529 deadline. As such, phase 1 decision was approved on December 14, 2023.

Settlement Agreement. According to the CPUC, a settlement agreement is a compromise of disputed claims with the goal of minimizing time, expense, and uncertainty of any further enforcement proceedings, and/or any subsequent appeals. In September 2023, SCE, PG&E, and

SDG& E filed a proposed settlement agreement on behalf of several stakeholders^[22] that necessitates additional reforms to GO-131 D. These stakeholder-driven reforms include:

• Implement the rebuttable presumption for CAISO-approved transmission projects during CPCN review by the CPUC, thereby eliminating duplicate analyses of a project’s purpose and need. This requirement is derived from AB 1373 (Garcia, Chapter 367, Statutes of 2023), which established a rebuttable presumption for the expected need for a transmission project within the CPUC’s CPCN licensing review if that project is deemed necessary during the CAISO’s Transmission Planning Process (“TPP”).
• Eliminate the requirement that applicants draft a Proponent’s Environmental Assessment (PEA) in addition to the CPUC drafting an Environmental Impact Report (EIR) under CEQA. The stakeholders argue this revision would obviate duplicative and often time-consuming and expensive process whereby CPUC staff and retained consultants preparing CEQA documents essentially re-write the entire environmental analysis already contained in the PEA.
• Allow CAISO’s findings in the Transmission Planning Process to support the CPUC’s CEQA process rather than having CPUC start over with new “project objectives”, “reasonable range of alternatives”, and “overriding considerations”—all of which drive the scope, timeframe, and cost of CEQA review.
• Apply a 270-day time limit for the CPUC’s CEQA process – the same that AB 205 applied to the CEC.

AB 205 (Committee on Budget, Chapter 61, Statutes of 2022) established a new opt-in environmental review certification program at the CEC, including for solar photovoltaic, terrestrial wind, geothermal, and other non-fossil, non-nuclear power plants with a generating capacity of 50 MW or more, for energy storage systems capable of storing 200-megawatt hours or more of electricity, and for transmission lines from those facilities to a point of connection with an electrical transmission system. Before AB 205, the CEC’s siting authority was limited to thermal power plants with capacities of 50 megawatts (MW) or more.

COMMENTS:

1. Author’s Statement. According to the author, “California is on the precipice of a clean energy transition that is poised to bring vast new clean energy projects, jobs, and economic development to the state. Achieving the state’s ambitious climate goals will require unprecedented construction of electrical infrastructure to provide reliable renewable energy to electrify homes, commercial buildings, and transportation. Unfortunately, our existing permitting and environmental review processes—necessary steps in thoughtfully building electrical infrastructure—are inefficient and lead to unnecessary delays. We need to build a runway for electrical infrastructure projects to move efficiently through the permitting and environmental review processes so they can reach operation quickly and begin serving our citizens. AB 3238 removes unnecessary red tape and provides clear direction to the agencies working hard to help the state reach its climate goals.”
2. What’s the Right Timeline? As eluded earlier, the CEC’s recently-created opt-in siting authority allows those proposing to construct certain types of facilities (including transmission lines from certain generation or storage facilities but only to a point of junction with the electrical grid) to file an application for certification (AFC) with the CEC. The CEC is required to review and make a determination on the AFC within 270 days, but can extend that period under specified circumstances. This bill would establish a similar timeline for the CPUC’s environmental review of an electrical infrastructure project, as defined, of no later than 270 days after an application is deemed complete, except under specified circumstances. While this time period largely duplicates the approach taken in the CEC opt-in siting process, it is unclear if that is prudent given the differences in the underlying projects being sited.

For example, all new power plant projects must go through environmental review, typically at the local level or through the new opt-in process at the state level. But as noted above, over 90% of investor owned utility transmission projects are already exempt from CEQA, leaving largely the most complicated and biggest as the few still subject to environmental review by the CPUC. As of yet, while four generation and storage projects have filed to use the CEC opt-in siting process, none have yet been certified through that process. For the first project to file to use this process in early 2023, the CEC has had to extend the review period due to substantial changes, consistent with existing law.^[23] Given that the opt-in siting process is relatively new, and the CPUC will have numerous responsibilities as provided by the bill, it is unclear whether duplicating this 270-day timeline is practical for the CPUC in this case.

1. Many Challenges. Many Solutions. There is broad consensus that the transmission development process is generally marked by complexities and delays, and may increasingly become difficult for California to connect new generations to the electrical grid. This has been reflected in discussions in multiple oversight hearings held by this Committee in recent years. Uncertainty remains on how best to solve the present challenges of accelerating the permitting and siting process while ensuring the protection of human and environmental health. Many reforms are underway, either through better coordination amongst the energy entities to streamline planning, or through efforts to expedite permitting. As such, it is worthwhile for decision-makers to carefully consider solutions that foster transparency, multilateral communication, and collaboration between numerous stakeholders such as local, state, and federal governments, tribal governments, community members, community organizations, developers, and environmental advocacy organizations.
2. CEQA Exemptions - Wildfire Mitigation Plans (WMPs). The 2016 -2017 wildfire season was one of the most destructive in state record as it saw multiple fires burning across the state. As a result, the California Legislature passed several bills increasing oversight of Load Serving Entities’ (LSEs) efforts to reduce utility-related wildfires. Chief among them was SB 901 (Dodd, Chapter 626, Statutes of 2018) which requires LSE’s to prepare and submit Wildfire Mitigation Plans (WMPs), which are now sent to the Office of Energy Infrastructure Safety (Energy Safety) for review and approval per AB 1054 (Holden, Chapter 79, Statutes of 2019). WMPs are required to describe how a LSE is constructing, maintaining, and operating its electrical lines and equipment in a manner that will minimize the risk of catastrophic wildfire.

As discussed in the background, if a public agency determines that a proposed activity is a project under CEQA, it will usually take the following three steps:

(i) Determine whether the project falls under a statutory or categorical exemption from CEQA;

(ii) If the project is not exempt, prepare an initial study to determine whether the project might result in significant environmental effects;

(iii) Prepare a negative declaration, mitigated negative declaration, or EIR, depending on the initial study.

There are two types of CEQA exemptions: (1) statutory exemptions and (2) categorical exemptions. There are 15 statutory exemptions to CEQA in PRC 21080 (among other stand-alone statutory exemptions), including for “specific actions necessary to prevent or mitigate an emergency.”^[24]

Wildfire mitigation plans are considered part of wildfire mitigation measures. However, this bill proposes to re-write the existing categorical CEQA exemption to prevent or mitigate emergencies in reference to actions performed under the umbrella of the wildfire mitigation plan. However, this Committee understands that work to prevent or mitigate wildfires, as an emergency, would be included in the existing categorical CEQA exemption. As such, the committee may wish to strike the unnecessary reference to wildfire mitigation plans in the categorical exemption to CEQA for work to prevent or mitigate emergencies.

1. Licensing Process Exemptions. This bill includes an exemption for projects requiring a CPCN or for any electrical infrastructure project, as defined in this bill, from several requirements in existing law in separate sections of the Public Utilities Code. These provisions currently require a comparison of prospective projects against cost-effective alternatives, such as energy efficiency, distributed generation, and demand response resources. For example, the CPUC must include this comparison in their consideration of a request for a project license. This is separate from environmental review under CEQA by the CPUC. This provision casts an expansive net, given the manner in which necessary electrical infrastructure is defined in this bill to include both projects approved by the third-party, CAISO transmission planning process and any project that serves an increase in demand or any storage or generation project.
2. CEQA Exemptions – New Electrical Infrastructure. This bill seeks to codify a settlement agreement filed on September 29, 2023, by a group of parties in the CPUC proceeding who seek to have GO 131-D further updated. However, it includes issues beyond the scope of that settlement agreement, including changes to the Fish & Game Code discussed below. Currently, the CPUC is in Phase 2 of this proceeding, which includes consideration of changes to GO 131-D not addressed in the Phase 1 decision issued late last year in that proceeding. As discussed, the current transmission development process in California is complex and, as some have argued, “[w]ithout revisions to current planning and permitting processes, it will be tremendously difficult for California to authorize new transmission capacity, to connect new clean generation to the grid, and meet its clean energy and climate goals.”^[25] Currently, to prepare for CEQA review, the transmission applicant conducts and submits a Proponents Environmental Assessment (PEA) to the CPUC. The PEA is a preliminary assessment of the project’s potential environmental impacts. If the project is anticipated to have a significant impact on the environment, the CPUC will issue an Environmental Impact Report (EIR). The CPUC proceeds to create iterations of an EIR by incorporating findings from the PEA, feedback from other agencies, and public comments. The timeline of this phase varies greatly based on the quality of the application and PEA, project location, cost, strength of public opposition, and coordination required with federal agencies.^[26]

The author considers the process of submitting a PEA and CPUC creating iterations of an EIR by incorporating findings from the PEA as duplicative. This bill eliminates this two-step review process and only allows the submittal of a preliminary EIR for CPUC review. As noted earlier in the background, CEQA generally requires public agencies to inform decision-makers and the public about the potential environmental impacts of proposed projects, ways to reduce those environmental impacts to the extent feasible, and to indicate alternatives to the project. This legislation calls for numerous CEQA exemptions and the author might want to tread carefully so that the outcome of this bill does not compromise the public trust responsibilities given to public agencies and the Legislature. As such, the committee may wish to include a sunset provision that will make this section be operative beginning January 1, 2025, until January 1, 2035, to enable legislative review by appropriate committees of the Legislature in the future.

1. Fish & Game Code Provisions. This bill includes various substantive changes in the Fish & Game Code, including provisions modifying or limiting actions by the California Department of Fish & Wildlife over electrical infrastructure, as defined. These provisions are primarily within the jurisdiction of the Assembly Committee on Water, Parks & Wildlife, to which this bill has been double-referred. The analysis in this Committee does not focus on those issues.
2. Prior Legislation

SB 420 (Becker, 2023) Removes the requirement on new electrical transmission facility projects less than 138 kilovolts (kV) proposed by the state’s six largest investor-owned utilities (IOUs)1 from a determination of need from the California Public Utilities Commission (CPUC) before construction. These new projects must either be located on previously disturbed land, located in an urbanized area or be part of a project that has undergone a California Environmental Quality Act (CEQA) review. Excludes from eligibility projects that are located in wetlands, any un-remediated hazardous waste site, or critical habit, as specified. Status: Vetoed By Governor

SB 619 (Padilla, 2023) Authorizes an electrical corporation, at the time it files an application with the CPUC for a Certificate of Public Convenience and Necessity (CPCN) or Permit to Construct (PTC) for new construction of any electrical transmission facility 138 kilovolts (kV) or greater to, at the same time, submit an application for that facility to the CEC. Prohibits the CEC from considering the necessity for the electrical transmission facility. Status: Vetoed By Governor

AB 1373 (Garcia) among other things, requires the CPUC, in a proceeding when evaluating the issuance of a certificate of public convenience and necessity for a proposed transmission project, to establish a rebuttable presumption with regard to the need for the proposed transmission project in favor of an Independent System Operator governing board-approved need evaluation if specified requirements are met. Status: Chapter 367, Statutes of 2023.

AB 205 (Committee on Budget) allowed certain energy projects, including electric transmission lines between certain non-fossil fuel energy generation facilities, to become certified leadership projects under the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 through a certification process through the CEC. With this certification, actions or proceedings related to the certification of an environmental impact report need to be resolved within 270 days to the extent feasible. Status: Chapter 61, Statutes of 2022

SB 529 (Hertzberg) exempted an extension, expansion, upgrade, or other modification of an existing transmission line or substations from the requirement of a CPCN and directs the CPUC to revise its general orders, by January 1, 2024, to instead use its PTC process for these approvals. Status: Chapter 357, Statutes of 2022.

SB 887 (Becker) directed, among other provisions, the CPUC, on or before January 15, 2023, to request CAISO to identify the highest priority anticipated transmission facilities that are needed to deliver renewable energy resources or zero-carbon resources. Status: Chapter 358, Statutes of 2022.

SB 7 (Atkins) extended the Jobs and Economic Improvement Through Environmental Leadership Act, specifically providing the Governor until January 1, 2024, to certify a project and the Act will be repealed by its own provisions on January 1, 2026. Status: Chapter 19, Statutes of 2021.

1. Double Referral. This bill is double-referred; upon passage in this Committee, this bill will be referred to the Assembly Committee on Water, Parks, and Wildlife.

REGISTERED SUPPORT / OPPOSITION:

Support

Environmental Defense Fund
Large Scale Solar Association
San Diego Gas and Electric Company
Silicon Valley Leadership Group

Opposition

California Coastal Protection Network

Center for Biological Diversity

Defenders of Wildlife

Endangered Habitats League

Planning and Conservation League

Sierra Club California

Analysis Prepared by: Lina V. Malova / U. & E. / (916) 319-2083

1. Public Utilities Code §454.53 ↑

2. In its previous draft plan, CARB set the electric sector targets at 38 million metric tons of carbon dioxide equivalent (MMTCO2e) in 2030 and 30 MMTCO2e in 2045. ↑

3. Pg.75, CARB, “DRAFT 2022 Scoping Plan Update,” May 10, 2022 ↑

4. IRP provides the umbrella process by which the CPUC oversees long-term procurement for its regulated load-serving entities (electrical corporations, community choice aggregators, and electric service providers), which serve approximately 75% of the state. The intent of this process is to ensure system needs are being met by the sum actions of the many LSEs in that system. The IRP looks a decade or more into the future. ↑

5. Proposed Decision issued 2/15/2021 in IRP Proceeding, Rulemaking 20-05-003 ↑

6. Lucid Catalyst, Clean Air Task Force, and the Environmental Defense Fund, “California’s Clean Energy Transition: Understanding Today’s Challenges to Reach Tomorrow’s Goals,” presentation January 18, 2022. ↑

7. CAISO 20-Year Transmission Outlook, January 31, 2022; http://www.caiso.com/InitiativeDocuments/Draft20-YearTransmissionOutlook.pdf ↑

8. Pg. 1, Ibid ↑

9. Pg. 3, Ibid ↑

10. Pg. 2, CAISO; “2022-2023 Transmission Plan,” May 2023. ↑

11. Public Resources Code, § 21063 defines Public agency as any state agency, board, or commission, any county, city and county, city, regional agency, public district, redevelopment agency, or other political subdivision. ↑

12. 14 CCR Section 15060 (c) ↑

13. 14 CCR Section 15062 ↑

14. Gentry v. City of Murrieta (1995) 36 Cal.App. 4th 1359 ↑

15. 14 CCR Section 15088 ↑

16. Public Utilities Code § 451,701,702,761, 762,768,770, and 1001 ↑

17. From a data request to the CPUC by this committee on March 29, 2023 ↑

18. According to the CPUC, this column represents categories for projects where the applicant utility filed at the CPUC via Advice Letter to note they were taking an exemption to a CEQA document requirement process. There are a variety of exemptions claimed, including categorical exemptions. They CPUC does not track the type of exemptions claimed per Advice Letter. ↑

19. Public Utilities Code § 451,701,702,761, 762,768,770, and 1001 ↑

20. Public Utilities Code §564 ↑

21. CPUC, “CPUC To Update Transmission Siting Regulations To Address Electricity Reliability and Climate Goals”; https://www.cpuc.ca.gov/news-and-updates/all-news/cpuc-to-update-transmission-siting-regulations-2023 ↑

22. The settling parties are SCE, PG&E, SDG&E, San Diego Gas & Electric Company (SDG&E),

    Pacific Gas and Electric Company (PG&E), Southern California Edison Company (SCE), Bear

    Valley Electric Service, Inc., Liberty Utilities (CalPeco Electric) LLC, PacifiCorp, American Clean

    Power, Independent Energy Producers Association, Center for Energy Efficiency and Renewable

    Technologies, Environmental Defense Fund, LS Power Grid California LLC, REV Renewables, LLC,

    Large-Scale Solar Association, California Energy Storage Alliance (CESA), Horizon West

    Transmission, LLC, Trans Bay Cable LLC, GridLiance West LLC, and the City of Long Beach,

    California, a municipal corporation acting by and through its Board of Harbor Commissioners. ↑

23. CEC, Letter on Applicability of Public Resources Code Section 25545.4(e)(2) and Schedule Change for the Fountain Wind Project, CEC Docket No. 23-OPT-01, dated March 28, 2024. ↑

24. Public Resources Code § 21080(b)(4). ↑

25. Pg. 2, “Clean Air Task Force, “Transmission Development in California – What’s the Slowdown?”; January 2023 ↑

26. California Public Utilities Commission (CPUC), “Electric Transmission Siting at the California Public Utilities Commission”, January 2009. https://www.cpuc.ca.gov/-/media/cpuc-website/files/legacyfiles/t/5073-transmission-siting-flow-chart.pdf ↑