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CEQA and Green Chemistry: Expansion in a Time of CEQA Scrutiny?

The California Environmental Protection Act (CEQA) is viewed by many as the cornerstone of the State of California's environmental protection program. Like its federal counterpart, the National Environmental Policy Act (NEPA), CEQA serves as a cautionary note to state agencies to consider the environmental consequences of any significant action an agency intends to undertake or of any private development infrastructure project a state agency is required to approve. The level of environmental review varies depending on the magnitude and scope of a given action.

Not surprisingly, CEQA is also considered by many developers and even local governments as the bane of their existence, given its often time-consuming and costly implications. In light of the fiscal crises the State of California has found itself in over the past several years and the growing unemployment levels in California, CEQA has come under even harsher scrutiny in recent years as a potentially potent jobs/development project killer. Even its supports recognize the collision course CEQA may be on with renewable/green energy projects being considered in California.

Largely in response to bi-partisan efforts to "streamline" CEQA, Governor Brown signed into law on October 4, 2011, new legislation intended to address a few issues identified as jeopardizing environmentally sensible projects that were otherwise thwarted by provisions of CEQA. The bills, Senate Bill 292, Assembly Bill 900, and Senate Bill 226, address targeted provisions of CEQA that were deemed in need of tweaking to facilitate development believed necessary and appropriate. Collectively, these measures take small steps to "correct" certain CEQA issues. Most agree, however, the new legislation falls far short of the "CEQA reform" measures many in the State had hoped to enact. The momentum to accelerate projects, create jobs, and foster development of clean/renewable energy projects will no doubt continue in 2012.

Of much less fanfare but significant interest to the nano and "green chemistry" community is an amendment to AB 913 the California Department of Toxic Substances Control (DTSC) reportedly supported. The amendment to AB 913 would have required application of CEQA to regulatory responses made pursuant to Health and Safety Code 25253(b), the alternatives assessment process under the Green Chemistry Initiative (GCI). Some speculate this this would routinely invite the selection of the most stringent alternative in an effort to avoid a legal challenge under CEQA. While this is by no means clear, the bill raises questions about the application of CEQA to products (not just projects) and the application of CEQA in general to the GCI.

The amendment was not part of the slate of CEQA revisions that were passed by the legislature in September and signed by the Governor in October. This does not mean, however, the measure is dead. On the contrary. If DTSC supports the amendment and the California Attorney General believes compliance with CEQA is a necessary component of the GCI alternatives assessment process (as is rumored), then the issue is likely to be revisited when the legislature reconvenes. Stakeholders are urged to monitor this issue and weigh in as needed.

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