3. Standard of Review and
Governing Law
3.1. Burden of Proof
As the applicant, SCE must demonstrate a need for the Commission to grant the relief requested.3 The utility "has the burden of affirmatively establishing the reasonableness of all aspects of its application. Intervenors do not have the burden of proving the unreasonableness of [the utility's] showing." (D.06-05-016 at 7.) Evidence Code § 115 defines burden of proof as follows:
Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact .... The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing evidence, or by proof beyond a reasonable doubt.
Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence. The preponderance of the evidence is generally the default standard in civil and administrative law cases.4 We apply that standard in this decision.
3.2. California Environmental Quality Act
The primary vehicle for consideration of the authority sought by this Application is established by the California Environmental Quality Act (CEQA), Public Resources Code §§ 21000, et. seq. CEQA requires the lead agency, the Commission in this case, to conduct a review to identify environmental impacts of the project and ways to avoid or reduce environmental damage. CEQA precludes the lead agency from approving a proposed project unless it requires the project proponent to eliminate or substantially lessen all significant effects on the environment where feasible, and determines that any unavoidable remaining significant effects are acceptable due to overriding considerations. CEQA requires that, prior to approving the project or a project alternative, the lead agency certify that the environmental review was conducted in compliance with CEQA, that it reviewed and considered the EIR prior to approving the project or a project alternative, and that the EIR reflects its independent judgment. (Pub. Res. Code § 21082.1(c)(3); CEQA Guidelines § 15090.)
3.3. Permit to Construct
The Commission has adopted General Order (GO) 131-D as part of its review process under CEQA. GO 131-D, Sec. III.B requires utilities to first obtain Commission authorization in the form of a PTC before beginning construction of an electric "power line." GO 131-D, Sec. I defines an electric "power line" as one designed to operate between 50 kV and 200 kV. In contrast to applications seeking certificates of public convenience and necessity, GO 131-D does not require PTC applications for electric power lines to include an analysis of purpose and necessity, an estimate of cost and an economic analysis, a schedule or an in-depth description of construction methods beyond that required for CEQA compliance. (GO 131-D, Sec. IX.B.1.f.) However, GO 131-D requires PTC applications to provide the following:
1. A description of the proposed facilities, a map, reasons why the proposed route was selected over potential alternative routes, positions of the government agencies having undertaken review of the project, and a PEA. (GO 131-D, Sec. IX.B.1.)
2. Compliance with the provisions of CEQA related to the proposed project, including the requirement to meet various public notice provisions. (GO 131-D, Sec. IX.B.2-5.)
3. Measures to be taken or proposed by the utility to reduce the potential for exposure to electric and magnetic fields (EMF) generated by the proposed project in compliance with the Commission's policies governing the mitigation of electromagnetic field effects using low-cost and no-cost measures. (GO 131-D, Sec. X.A.)
The following discussion includes an analysis of this Application under the CEQA and GO 131-D.
3 Investigation into Methodology for Economic Assessment of Transmission Projects, Decision (D.) 06-11-018 at 22 ["The Commission has long held that the applicant carries the burden of proof in a certification proceeding, and we reiterate those determinations today."]
4 CA Admin. Hearing Practice, 2d Ed. (2005), at 365.
