A. Overview
The principal objective of the CEQA, Public Resources Code Sections 21000, et seq.,2 is to develop and maintain a high-quality environment in California in the present and in the future.3 CEQA requires public agencies,4 under certain conditions, to identify the significant environmental effects5 of their actions, and alternatives to these actions, and to either avoid or mitigate those significant environmental effects, where feasible.6 CEQA only applies to a government action if (1) it involves a discretionary decision of a public agency, (2) a public agency is approving an activity that may have a significant effect on the environment, and (3) it falls within the definition of a project.7 In determining whether an activity constitutes a project, a public agency must look at all of the parts, components, and phases of the activity.8
A "lead agency" determines whether a government action constitutes a project. A lead agency is the public agency that has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.9 A "responsible agency" is a "public agency, other than the lead agency, which has responsibility for carrying out or approving a project."10 In response to a consultation by a lead agency, a responsible agency must actively participate in the lead agency's CEQA process, review the lead agency's CEQA documents, and use that document when making a decision on the project.11
Once a lead agency has determined that an activity is a project under CEQA, the lead agency must decide whether an exemption applies. There are four types of exemptions: statutory exemptions, categorical exemptions, general rule exemptions (where it can be seen with certainty that there is no possibility that the activity may have a significant impact on the environment), and disapproved project exemptions.12
If an exemption does not apply to a project, then the lead agency must prepare an initial study to determine whether to prepare either a negative declaration13 or an environmental impact report (EIR).14 If the lead agency finds that there is no substantial evidence showing that the project will have a significant effect on the environment, it must prepare a negative declaration. In some cases, a public agency may find that certain measures can be incorporated in, or changes made, to the project description that would mitigate any significant environmental impacts, and that an EIR may not be necessary. In those cases, the public agency prepares a "mitigated negative declaration."15
If the lead agency determines that a government activity is a project, is not exempt from CEQA, and may cause significant effects on the environment that cannot be addressed by a mitigated negative declaration, then the lead agency must prepare an EIR. After reviewing a final EIR, a lead agency and responsible agencies may not approve a project that has a significant environmental impact unless the lead and responsible agencies eliminate or substantially lessen all significant effects on the environment where feasible and find that the benefit of the project outweighs any remaining significant environmental effects found to be unavoidable.16 If the lead and responsible agencies approve a project with significant environmental effects, then they must file a Statement of Overriding Considerations explaining why the agencies will accept and tolerate the significant environmental effects.17
B. Compliance with CEQA
Our objective is to ensure that the Commission is in compliance with the requirements of CEQA. We take our obligations in this arena seriously and we remain fully committed to the objectives of CEQA to ensure that the impacts of our policies on the environment are taken into account in our decision-making process.
Telecommunications carriers seeking to enter the intrastate telecommunications market must receive authority from the Commission by filing an application for a certificate of public convenience and necessity (CPCN), as required by Public Utilities Code Section 1001.18 The Commission, in issuing such authority, has determined that this is a discretionary decision and therefore, has applied CEQA when reviewing carriers' requests for CPCNs.19
In order to ensure compliance with CEQA, the Commission has required applicants seeking authority to undertake projects subject to CEQA to take steps to assure our ability to perform the required CEQA analysis. Furthermore, as required by CEQA, the Commission promulgated rules implementing CEQA procedures.20 The Commission's Rules of Practice and Procedure (Rules), as revised and effective September 13, 2006, state:
2.4. (Rule 2.4) CEQA Compliance
(a) Applications for authority to undertake any projects that are subject to the California Environmental Quality Act of 1970, Public Resources Code Sections 21000 et seq. (CEQA) and the guidelines for implementation of CEQA, California Administrative Code Sections 15000 et seq., shall be consistent with these codes and this rule.
(b) Any application for authority to undertake a project that is not statutorily or categorically exempt from CEQA requirements shall include a Proponent's Environmental Assessment (PEA). The PEA shall include all information and studies required under the Commission's Information and Criteria List adopted pursuant to Chapter 1200 of the Statutes of 1977 (Government Code Sections 65940 through 65942), which is published on the Commission's Internet website.
(c) Any application for authority to undertake a project that is statutorily or categorically exempt from CEQA requirements shall so state, with citation to the relevant authority.21
Some telecommunications providers have been authorized to build out their networks without further review from this Commission. We have previously held that the Commission does not need to make a discretionary decision that would require the application of the requirements under CEQA. Other carriers who received a mitigated negative declaration between 1995 and December of 1999, have been authorized to build statewide within existing utility rights-of-way, although there is some variation in the requirements imposed by the various negative declarations.22 The Commission stopped issuing batch negative declarations in late 1999.23 Other carriers, including many that obtained their CPCNs after late 1999, received project-specific authority to construct.
2 In addition to the provision of the Public Resources Code, the California Resources Agency has adopted regulations, as required by Public Resources Code Section 21083, which provide detailed procedures that public agencies must follow to apply CEQA. The CEQA Guidelines are codified at 14 California Code of Regulations Sections 15000, et seq.
3 Pub. Res. Code, §§ 21000, 21001.
4 "`Public agency' includes any state agency, board, or commission, any county, city and county, city, regional agency, public district, redevelopment agency, or other political subdivision." (Pub. Res. Code, § 21063.)
5 "`Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." (Pub. Res. Code, § 21068.)
6 "`Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors." (Pub. Res. Code, § 21061.1.)
7 "`Project' means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: "(a) An activity directly undertaken by any public agency. (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (Pub. Res. Code, § 21065.)
8 California courts have interpreted the statutory definition of the definition of "project" (particularly the phrase "whole of the action") as meaning that it is contrary to CEQA to break up a project into smaller components to avoid CEQA requirements. (See CEQA Guidelines, 14 Cal. Code Reg., § 15378(c); Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal. 3d 376, *394-*396.)
9 Pub. Res. Code, § 21067.
10 Id., § 21069.
11 Id., § 21069; see also CEQA Guidelines, 14 Cal. Code Reg. §§ 15096, 15381. There are also "Trustee Agencies," which are state agencies that have jurisdiction by law over natural resources affected by a project, that are held in trust for the people of the State of California. (Pub. Res. Code, § 21070.)
12 CEQA Guidelines, 14 Cal. Code Reg., § 15061(b).
13 "`Negative declaration' means a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report." (Pub. Res. Code, § 21064.)
14 An EIR is a detailed statement discussing any potential significant environmental impacts of a project. An EIR " . . . shall be considered by every public agency prior to its approval or disapproval of a project. The purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project . . ." (Pub. Res. Code, § 21061.)
15 "`Mitigated negative declaration' means a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." (Pub. Res. Code, § 21064.5.)
16 CEQA Guidelines, 14 Cal. Code Reg., §§ 15092, 15096(h).
17 Pub. Res. Code, § 21081; CEQA Guidelines, 14 Cal. Code Reg., § 15093.
18 Public Utilities Code Section 1001 provides, in relevant part: "No . . . telephone corporation . . . shall begin construction of a . . . line, plant, or system, or of any extension thereof, without having first obtained from the Commission a certificate that present or future public convenience and necessity require or will require such construction. This article shall not be construed to require any such corporation to secure such certificate for an extension within any city or city and county within which it has theretofore lawfully commenced operations . . ., or for an extension within or to territory already served by it, necessary in the ordinary course of business."
19 D.95-07-054, Opinion in Order Instituting Rulemaking on the Commission's Own Motion into Competition for Local Exchange Service; Order Instituting Investigation on the Commission's Own Motion into Competition for Local Exchange Service, 1995 Cal. PUC LEXIS 604, *33-*34, *85.
20 Pub. Res. Code, § 21082; CEQA Guidelines, 14 Cal. Code Reg., § 15022.
21 20 Cal. Code of Reg., § 2.4.
22 There is also some uncertainty as to the precise meaning of the term "right-of-way."
23 See D.99-12-050, Opinion in Order Instituting Rulemaking on the Commission's Own Motion into Competition for Local Exchange Service; Order Instituting Rulemaking on the Commission's Own Motion into Competition for Local Exchange Service, 1999 Cal. PUC LEXIS 787.