II. Background
In 1991 the Commission opened an investigation (I.91-01-012) in response to concerns raised by members of the public and the California State Legislature related to the possible health effects of electromagnetic fields (EMFs) emanating from existing and planned utility facilities. The concerns were prompted by inconclusive international research results, some of which suggested a significant statistical relationship between EMF exposure and various illnesses and others which failed to establish a causal link between EMF exposure and disease.
In 1993, in Decision (D.) 93-11-013, the Commission found that while the evidence of direct harm from EMF was not conclusive, there was sufficient evidence that an EMF health hazard existed. (D.93-11-013 p.3.) The Commission adopted several EMF policies and programs to address the public concern and scientific uncertainty. The Commission required the utilities to undertake no-cost EMF mitigation measures and implement low-cost mitigation measures to the extent approved as part of a project's certification process. "Low-cost" was defined to be within the range of 4% of the total project cost but the Commission specified that this 4% benchmark is not an absolute cap. (D.93-11-013 p.13.) The Commission found that for a mitigation measure to be implemented, it should achieve some noticeable reduction in EMF, but declined to adopt a specific goal for EMF reduction, pending further scientific evidence. (D.93-11-013 p.15.) Workshops were held and utilities developed EMF design guidelines for new transmission facilities. The Commission also adopted several EMF measurement, education, and research programs and chose the California Department of Health Services (DHS) to manage the education and research programs. The Commission declined to establish a measurement of EMF exposure that would be harmful to public health until there was a firm scientific basis for adopting any particular standard. (D.93-11-013 p.11.)
While direct causation has not yet been proven, several studies since the last Commission decision in 1993 have found correlations that prompt additional public concern. In 2002, pursuant to I.91-01-012, DHS released its final report reviewing scientific studies on the health effects of EMF. The panel of DHS scientists found that EMF exposure can cause some degree of increased risk of childhood leukemia, adult brain cancer, Lou Gehrig's Disease, and miscarriage. The findings are controversial, and there is no consensus on their implications. Even the three scientists of the DHS panel differed in their opinions concerning the connection of EMFs with other diseases. One scientist was "prone to believe" and two were "close to the dividing line between believing and not believing" that EMFs cause some degree of increased risk for adult leukemia. All three were undecided about the role of EMFs and the risk of suicide. All were inclined to believe that EMF exposure does not cause an increased risk of breast cancer, heart disease, Alzheimer's Disease, or depression. They strongly believed that EMFs do not increase the risk of birth defects or lower birth weight, and that EMFs are not universal carcinogens.
Many of those concerned about EMF exposure pursued their concerns in the courts during the time the Commission was waiting for the conclusion of the DHS study. In one instance, where residents sought damages from the San Diego Gas & Electric Company (SDG&E) for EMF exposure from an existing transmission line, SDG&E took the issue of EMF jurisdiction to the California Supreme Court. That court issued a decision in SDG&E v. Covalt, 13 Cal 4th 893, (1996), ruling that by issuing D.93-11-013 and establishing interim EMF policies, the Commission has claimed exclusive jurisdiction over issues related to EMF exposure while its investigation into the health effects of EMFs continued. The Supreme Court held that, "the Commission has broad authority to determine whether the service or equipment of any public utility poses any danger to the health or safety of the public, and if so, to prescribe corrective measures and order them into effect." (13 Cal 4th 893, 923 (1996)).
In denying relief to the plaintiffs in this case, the Supreme Court prescribed the limits of judicial authority over the issue of EMF. After considering Cal. Pub. Util. Code § 1759, which limits court review of Commission decisions to the Supreme Court; and the decision in Waters v. Pacific Telephone Co., 14 Cal. Rptr. 753 (1974), barring an award for damages that would hinder or frustrate the Commission's regulatory policies; the Supreme Court decided that any action it took regarding EMFs would impermissibly interfere with the pending actions by the Commission on EMF. The Court found that the Commission has broad authority to determine whether the service or equipment of any public utility poses any danger to the health and safety of the public and to prescribe and order corrective measures. (13 Cal 4th 893, 924 (1996)). The Court's interpretation of the Commission's authority to require every public utility to construct, maintain and operate its facilities and equipment in a manner that safeguards the health and safety of its employees, customers, and the public, includes the Commission's duty to regulate EMFs. (13 Cal 4th 893, 923 (1996)). The Court also points to the Legislative directive (Stats. 1988, ch. 1551, §2 subd. (d)) for the Commission and DHS to investigate the health risks associated with EMF and report the results. (13 Cal 4th 893, 926 (1996)).
Similarly in Orloff v. Pacific Bell, 31 Cal. 4th 1132, (2003), the court has deferred to Commission regulatory authority. The Supreme Court ruled that when civil litigation is pending against public utilities if disclosure in the civil suit would impede an investigation being conducted by the PUC, "the district attorneys are required to await disclosure pending further action by the PUC." (31 Cal. 4th 1132, 1151 (2003)). This deference did not in itself bar civil actions generally. The court found that such actions actually complement PUC efforts since the PUC is limited to violations of the Public Utilities Code and the remedies available under that code. (31 Cal. 4th 1132, 1153 (2003)).
Public concern about EMFs and the activities utilities should undertake in response to those concerns, continues unabated. In numerous transmission siting proceedings, for instance, such as the recent matter involving the Jefferson-Martin project (A.02-09-043) and the Mission-Miguel project (A.02-07-022) some parties expressed great concern regarding potential health effects from EMF exposure. Intervenors often contest the adequacy of a draft Environmental Impact Report that fails to consider EMFs and propose routes that reduce or eliminate new exposures in populated areas. Participants express special concerns about exposures to schools, day care centers, and residences. Intervenors also often object to the way that the utility applies the 4% rule in establishing its EMF exposure mitigation strategy. Without a common framework of guidelines which would be the result of more up-to-date EMF rules, this pattern is repeated in each proceeding, adding delay and expense to each individual application to build a new transmission project.
