Effective Immediately, California Energy Commission Jurisdiction Expands to Include Non-Thermal Projects Greater Than 50 MW

Stoel Rives - California Environmental Law

On June 30, 2022, California Governor Gavin Newsom signed Assembly Bill 205 (“AB 205”), which, among various other things, expands the siting jurisdiction of the California Energy Commission (“CEC”) to include non-thermal generating facilities, such as solar and wind projects, with a capacity of 50 megawatts (MW) or more.  The CEC’s siting jurisdiction was previously limited to thermal generating facilities like gas-fired and geothermal power plants with a capacity of 50 MW or more.  In addition, AB 205 allows the CEC to have siting jurisdiction over energy storage facilities with a capacity of 200 MW hours or more.

Below is a list of CEC siting-related changes set forth in AB 205:

  • The bill requires the CEC to “establish and implement the Long-Duration Energy Storage Program to provide financial incentives for projects that have power ratings of at least one megawatt and are capable of reaching a target of at least 8 hours of continuous discharge of electricity in order to deploy innovative energy storage systems to the electrical grid for purposes of providing critical capacity and grid services.”
  • The bill establishes a CEC siting certification process for solar photovoltaic (PV) and onshore wind facilities with a generating capacity of 50 MW or more and energy storage systems capable of storing 200 MW hours or more of electricity. The certification process would include transmission lines from those generating or storage facilities to the first point of interconnection.
  • This expanded CEC certification process also covers facilities manufacturing, producing, or assembling energy storage, wind, or solar PV systems or their components, or other specialized products, components, or systems that are integral to renewable energy or energy storage technologies, as long as there is a capital investment associated with the facility of at least $250 million over a period of five years.
  • The bill allows a person proposing to construct any of those facilities to file an application for certification (“AFC”) with the CEC on or before June 30, 2029.
    • The CEC is required to review the AFC and determine whether to issue the certification “no later than 270 days after the application is deemed complete, or as soon as practicable thereafter.”
    • The CEC must forward the AFC to the local government with land use jurisdiction over the proposed facility and site and requires local agencies to review and submit comments on the application.
    • The CEC would be the designated lead agency for purposes of CEQA analysis of the certification decision. Local governments could seek fees related to their review of and input on the AFC.

Upon receipt of an AFC that the CEC determines meets the criteria laid out in AB 205, the CEC would have the exclusive power to certify a site and related facility and the associated environmental impact report, whether the application proposes a new site and related facility or a change or addition to an existing facility.  AB 205 contains detailed information on the requirements that a project must meet to fall within the CEC’s jurisdiction.

Note that AB 205 does not modify the California Public Utilities Commission’s (“CPUC”) jurisdiction, including the issuance of a certificate of public convenience and necessity for a facility that is proposed by a utility regulated by the CPUC.  The bill also does not supersede the authority of the State Lands Commission to require leases and receive lease revenues, if applicable, or the authority of the California Coastal Commission, the San Francisco Bay Conservation and Development Commission, the State Water Resources Control Board, or regional water quality control boards.

Please see the text of AB 205 for more detailed information.  According to AB 205, the bill takes effect immediately.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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