Opening Comments Deadline Extended to July 15; Replies Extended to August 1
After a pause of more than a year, the CPUC has revived its effort to determine whether and how it will conduct environmental review of certain telecommunications projects under the California Environmental Quality Act (CEQA), and whether and how it will share authority over CEQA reviews of those projects with local jurisdictions. The upcoming CPUC rulemaking proceeding will affect whether localities may continue to regulate the placement of wireless facilities (including Distributed Antenna Systems or DAS) in the rights of way. Local agencies need to respond quickly to counter what will surely be a strong push by industry for rules that preempt local authority. Following an extension, opening comments are due on July 15 and reply comments due by August 1.
In a joint ruling released last week to re-launch the rulemaking, CPUC Commissioner Sandoval and Administrative Law Judge Hymes reiterated the CPUC’s position taken in late 2011 that it has authority to preempt the discretionary review and permitting powers of all local land use jurisdictions. The rules ultimately adopted in this rulemaking proceeding to regulate the CEQA process for these telecommunications projects will preempt such local authority.
Among other questions to be addressed in the rulemaking, the CPUC seeks comments on the viability and legality of three alternative approaches to CEQA review of certain telecommunications projects:
Centralized Approach – this is the approach the CPUC initially adopted in this proceeding, in General Order 170, and then later vacated after strong opposition from local interests. General Order 170 included a controversial exemption of Distributed Antenna Systems from CEQA review.
For more background on the decision vacating General Order 170, see: CPUC Rulemaking Could Limit Local Land Use Authority and CEQA Mitigation for Telecommunications Projects
Decentralized Approach – this approach is modeled on the CPUC’s General Order 159-A, adopted in 1996, which generally deferred to local jurisdictions concerning land use and CEQA review of wireless installations such as cell towers.
Two Stage or Hybrid Approach – this approach would give primary authority to local jurisdictions, subject to CPUC standards or guidelines and CPUC review of disputes. These guidelines could have the effect of exempting a wide range of projects, particularly if they are modeled on recent state and federal efforts to limit local authority over the collocation of wireless facilities. These efforts include Federal Communications Commission guidance implementing 47 USC §1455, California Bill AB 162 (action deferred to next year after receiving significant local agency opposition), and environmental legislation awaiting signature in Washington state.
For background on these preemption efforts, see:
For questions about the upcoming CPUC rulemaking proceeding or to find out how to participate, please contact Environmental attorney Charity B. Schiller, Telecommunications attorney Gail A. Karish, or your BB&K attorney.