STATE OF CALIFORNIA
Energy Resources Conservation
and Development Commission
In the Matter of: ) Docket No. 99-AFC-3 ) Application for Certification for the ) RULING re: CARE MOTION Metcalf Energy Center [Calpine ) Corporation and Bechtel Enterprises, Inc.] ) ___________________________________________)
On August 30, 2000, Intervenor Californians for Renewable Energy (CARE) filed a "Motion to Call Hearing on the Public Participation Process Pursuant to CEQA" (Motion). Intervenor essentially requests that we convene a hearing "to resolve ďan irreconcilable conflict' between [the California Environmental Quality Act; CEQA] and the Warren-Alquist Act in regards to the public participation process." (Motion, p. 1.) CARE recites various contentions it believes support its position, including its view that the scope of the present review process is "simply overwhelming to a citizens group that must rely on public donations to retain the experts to properly participate" (Id., p. 2), and a generalized allegation that the review process violates the "strong CEQA right of public participation." (Id., p. 5.) CARE requests that these perceived defects be rectified or, in the alternative, that we direct the preparation of "an ordinary [Environmental Impact Report] pursuant to CEQA." (Id., p. 6.)
CEQA generally requires all state agencies to prepare Environmental Impact Reports (EIR) on projects they propose to carry out or approve if the projects may cause a significant adverse environmental effect. [Pub. Resources Code, § 21100 (a).] CEQA also provides, however, that a state agency's permitting program may be exempted from the requirement to prepare an EIR if the Resources Agency Secretary certifies that the program meets the basic requirements of CEQA, including written analyses of environmental impacts, mitigation, and alternatives. [Pub. Resources Code, § 21080.5.] Certified regulatory programs remain subject to CEQA's substantive requirements, including the necessity to mitigate adverse environmental impacts where feasible and to deny approval of projects that cause significant unmitigable adverse environmental impacts unless the project has overriding benefits. (Cal. Code of Regs., title 14, § 15250.)
The Resources Secretary has certified the Commission's power facility licensing program as the "functional equivalent" of the traditional EIR process. [Cal. Code of Regs., § 15251 (k).] Basically, this means two things. First, the process used and the documents prepared by the Commission in its licensing review may differ from those used in a traditional EIR process. Second, even with these procedural differences, the Commission must nevertheless incorporate the substantive requirements of a traditional EIR review in its power plant certification program. Thus, the Commission's regulatory program does not conflict with the requirements of CEQA.
Insofar as process is concerned, we note that ours provides a greatly enhanced opportunity for public participation, review, and comment when compared to that of the traditional EIR. For example, all Commission events must be noticed and open to the public; individuals have an opportunity to express their views on relevant matters at every workshop, conference, or hearing, and to express their positions on the meaning and significance of the information presented. By contrast, while public events such as hearings are encouraged under the traditional EIR process, they are not required.*
CARE's request that we direct preparation of an EIR would thus not enhance the opportunity for public participation. Moreover, the Motion implicitly ignores Staff's role in the process as an independent party (Cal. Code of Regs., title 20, § 1712.5), charged with performing an unbiased evaluation of the proposed project. This analysis must examine all potential impacts within the purview of a traditional EIR analysis.
We will in the future conduct formal evidentiary hearings on substantive matters relevant to the proposed project. As an Intervenor, CARE has the right to present relevant evidence, or to question witnesses from other parties on areas of concern, subject to complying within reasonable restrictions such as filing dates. In addition, CARE may offer unsworn public comment. Based upon our own evaluation of the evidence received and the comments provided, we will then decide the merits of the various positions presented, in accordance with applicable law, and explain the reasons supporting our decision.
Intervenor CARE's Motion is DENIED.
Date On Line: September 14, 2000
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION
ROBERT A. LAURIE, Commissioner
Metcalf AFC Committee
WILLIAM J. KEESE, Chairman
Metcalf AFC Committee
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