Consistency With CEQA
A number of comments received in response to the ACR addressed the consistency with CEQA of the proposal contained in the ACR. Some parties, primarily the incumbent local exchange carriers AT&T and Verizon, recommended that local governments, such as cities and counties, would be more appropriate lead agencies for CEQA than the state, on the grounds that telecommunications projects are generally local in nature.
The determination of the proper lead agency for a project under CEQA is to be made on a project-specific basis. (CEQA Guideline 15051.) While our proposal to implement a new discretionary approval may have the result that the Commission acts as lead agency for more projects, that is not a requirement of the proposal. Many telecommunications projects may in fact be statewide, or extend across multiple local jurisdictions, in which case state-level CEQA review would be more appropriate than multiple, and potentially inconsistent, local CEQA processes.4 ClearLinx correctly observes that:
Shifting CEQA review to local jurisdictions will almost certainly lead to non-uniform results, as each local jurisdiction administers its own CEQA review process according to a different process, with different timelines, criteria and resources. Such multi-jurisdiction review would be especially problematic for projects that extend across jurisdictional boundaries, so that different portions of the same project would be subject to varying review. (Reply Comments of ClearLinx, pp. 1-2.)
For any particular project subject to the Commission's discretionary review, the Commission may be the lead agency or a responsible agency. (CEQA Guidelines 15050-15053.)5
The California Attorney General (AG) points out that the proposal contained in the ACR "could lead to piecemeal consideration of projects that should be reviewed together, as a whole." (Comments of the AG, p. 2.) This is a valid concern, and we modify our approach to require that a carrier identify in the ETP application reasonably foreseeable future phases, or other reasonably foreseeable consequences, of its proposed construction.6 In addition, we will adopt part of the AG's recommended modification, requiring a carrier to also identify all expansions to its network undertaken in the same geographic region within the past two years, where geographic region is defined as the county in which the proposed construction will occur and any adjacent counties. (Id. p. 4.)
Some parties, including Level 3, argue that the ETP process is inconsistent with CEQA by essentially requiring an "environmental review" for projects that are exempt from CEQA. According to Level 3, carriers would be required to provide more information than is necessary for Commission staff to make a determination whether a project qualifies for an exemption.
The Commission does in fact need to have enough information not only to determine whether a project is subject to an exemption, but also whether an exception to an exemption applies. Public Resources Code section 21084 and CEQA Guideline 15300.2 identify situations in which categorical exemptions may not be used, including particularly sensitive environments, significant cumulative impacts, significant environmental effects due to unusual circumstances, possible damage to scenic resources within state scenic highways, hazardous waste sites, and possible adverse changes in the significance of a historical resource. Merely finding that an exemption appears to be applicable is not enough; the Commission staff needs enough information to determine whether an exemption is appropriate for the specific project, and the ETP is designed to provide that information.
The ETP ensures that use of an exemption is appropriate, and that the applicability of an exemption is based upon adequate analysis. Given the intense competitive pressures that can be present in the telecommunications market, telecommunications providers may have an incentive to underestimate the environmental impacts (and the corresponding environmental review process) of their projects. Ultimately, the responsibility for compliance with CEQA rests with the Commission, not the applicant, and we take this responsibility seriously.7
The ETP functions by requiring some upfront analysis by applicants, allowing for a faster turnaround by staff. If applicants provided less information and analysis, then Commission staff would need to perform the analysis, slowing the approval process.
Several parties note that CEQA review is triggered by a discretionary decision by a public agency, and argue that the ETP creates a stand-alone environmental review that is inconsistent with CEQA. (See, e.g. Comments of SureWest Telephone, pp. 1-2.) This decision does not create a stand-alone environmental review. Instead, it creates a new discretionary decision in a limited set of circumstances, consisting of the determination whether to issue a permit to construct, analogous to our existing permit to construct for electric projects under General Order 131-D. 8
Any and all construction activity in the area of telecommunications is now subject to the requirement for a permit to construct, but we have also crafted exceptions to this requirement (discussed in more detail below) that should encompass the vast majority of all construction activity. In short, most construction activity will not require a permit to construct.
A number of carriers make varying arguments based upon the assumption that the new process will slow the deployment of telecommunications infrastructure. (See, e.g. Comments of SureWest, pp. 3-4.) For those carriers who currently perform no environmental review prior to construction, the ETP may result in a slight delay during which they would consider the environmental consequences of their actions in a manner consistent with California law. Other carriers, however, note that the current system imposes significant delays in construction for some carriers (particularly new entrants) based on the happenstance of the date or category of their CPCN. (Comments of AboveNet, pp. 1-2; Comments of ClearLinx, pp. 1-2.)
The proper approach is to look at telecommunications infrastructure as a whole, rather than by which individual carriers gain or lose in relation to the status quo, as any change will result in "winners" and "losers." For all carriers, our new approach will provide clarity, regulatory certainty, and fairness, and will reduce the risk of delay due to litigation.9 Finally, our modification of the ETP to provide for an "out" for certain construction, repair and maintenance activities (discussed below) addresses the main cause of potential delay, which was the over-inclusive nature of the ETP as proposed in the ACR. As modified, the ETP ensures that California's telecommunications infrastructure is built not only in a timely manner, but consistent with the law and without degradation of California's environment.
Some carriers advocate for continued or expanded use of the pre-1999 batch mitigated negative declaration process. (See, e.g., Comments of Time Warner Telecom.) That process was made unavailable to new entrants for the simple reason that it did not comply with CEQA. (See, D.99-12-050 and D.99-10-025.) Accordingly, it would be contrary to statute (and counterproductive) to attempt to reintroduce it now. Similarly, allowing companies holding CPCNs with batch MNDs to continue to build under those MNDs, while not allowing new entrants similar treatment, fails to address the competitive disparities this Rulemaking was intended to remedy.
4 In some cases the local government may be the lead agency. For example, if a city is performing an environmental review of a new development, it may be appropriate for that review to include construction of telecommunications facilities to serve that development. In such a case, the Commission would probably have the role of a responsible agency.
5 NextG Networks argues that telecommunications carriers have a legal right to install facilities in public rights-of-way, and that cities are barred from requiring discretionary permits for access to rights-of-way. (Comments of NextG, pp. 6-7, Reply Comments of NextG, p. 4.) If NextG is correct, then requiring local governments to act as lead agencies under CEQA, as proposed by AT&T and Verizon, would in fact result in no CEQA review.
6 We believe this approach more realistically reflects the nature of the telecommunications industry, as compared to the forward-looking part of the AG's recommended modification, which would require a carrier to identify in the ETP application "all expansions to its network undertaken in the same geographic region...anticipated to occur within the next two years." (Id., p. 4.)
7 In addition, we do not want any carrier to gain an unfair competitive advantage by falsely claiming to be exempt from CEQA.
8 The ACR requested party comments addressing the process for obtaining a permit to construct (p. 6), but few were received.
9 Particularly litigation alleging that the Commission's processes are inconsistent with CEQA.
