RACE's Position
RACE's supplemental response reaffirms the arguments made in its petition. The only change to its earlier arguments is to substitute two citations to support its earlier reliance on Muzzy Ranch Company v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, which may no longer be cited because the Supreme Court of California granted review of that decision.11
As set forth in RACE's petition, RACE contends that CEQA applies to this entire proceeding because the Commission's actions constitute a "project" under CEQA. RACE asserts that this rulemaking is identical to the revisions to the sphere-of-influence guidelines which took place in City of Livermore v. Local Agency Formation Commission of Alameda County (1986) 184 Cal.App.3d 531.12 In that decision, the Court of Appeal held that the revised guidelines fit within CEQA's broad definition of a project because the revisions will have an ultimate impact on the environment. RACE points to Finding of Fact 25 and to Conclusions of Law 12 and 13 of D.04-09-022 to demonstrate that this rulemaking will ultimately have an impact on the environment because the decision "facilitates `access' to gas systems, sanctions the establishment of `receipt points,' and approves the designation of a `common receipt point.' " (Petition, p. 3.)
RACE contends that "despite the lack of a specific project and the lack of immediate adverse impacts, this proceeding should be subject to review under CEQA." (Petition, p. 4.) RACE asserts that CEQA and its guidelines focus on the ultimate impact of a project, and not on whether the project is tangible or intangible. RACE points out that the rulemaking will have an impact on energy conservation, and that the reliance on liquefied natural gas (LNG) will lead to construction and operations-related impacts from LNG regasification facilities, as well as increased marine traffic. RACE asserts that all of these activities will lead to substantial changes to the environment, and that a full CEQA review is required for this proceeding.
According to RACE, this proceeding constitutes a "discretionary project" under CEQA, which requires the exercise of judgment or deliberation of the public agency. RACE asserts that relying on other agencies to look at the environmental impacts of specific LNG projects does not relieve the Commission of its legal duty to consider the broader environmental impacts that will result from this proceeding.
In reply to Coral's response and to the joint response of the three utilities, RACE contends that both of the responses miss RACE's point "that the CPUC is taking action through this rulemaking proceeding that will either directly, indirectly, or cumulatively have an adverse impact on the environment." (RACE Supplemental Response, p. 2.) RACE asserts that the cases cited in the responses of Coral and the utilities to RACE's point are distinguishable and have no bearing on the point that RACE is making.
RACE contends that the utilities' response confirms that there are "proposed LNG facilities" and that "backbone transmission facilities" are anticipated. RACE contends that these proposed and anticipated facilities, as well as other foreseeable development, are the foreseeable impacts of this proceeding and CEQA should apply. RACE questions why this rulemaking was opened if the Commission did not foresee the construction of the LNG facilities and other infrastructure.
RACE cites the following passage from City of Livermore at page 538 to support its view that even though the "precise effects are difficult to assess at this stage," because the "impact is easily foreseen ... the revisions must be considered a project under CEQA."
RACE asserts that a tiered environmental impact report (EIR) should apply to this proceeding. RACE contends at page 4 of its reply that under the CEQA Guidelines, a tiered EIR is "especially appropriate when the lead agency is analyzing the impacts of a `policy statement' - which is precisely how the CPUC and other parties have characterized this rulemaking proceeding." RACE contends that a tiered EIR makes sense because only the Commission "is able to analyze the statewide impacts of California's reliance on LNG as a fuel source; such impacts would certainly be outside the purview and expertise of, say, the City of Long Beach in considering the environmental impacts of the LNG terminal proposed by Sound Energy Solutions for Long Beach Harbor." (RACE November 29, 2005 Reply to Supplemental Responses, pp. 4-5.)
11 RACE substitutes County Sanitation District No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544 (referred to herein as County Sanitation District), and Plastic Pipe & Fittings Association v. California Building Standards Commission (2004) 124 Cal.App.4th 1390 (referred to herein as Plastic Pipe & Fittings) for its citation to the Muzzy Ranch decision.
12 Referred to herein as City of Livermore.
