1. Newly Submitted Documents Re: Gas Pipeline Lateral

The rehearing applications' main CEQA claim is based on documents provided by CBD and WWP that were not submitted during the CEQA phase of this proceeding or made part of the record of A.09-05-027. These documents appear to have been prepared by the Kern River Gas Transportation Company ("Kern River"). They support an application Kern River filed in December 2010 with the Federal Energy Regulatory Commission ("FERC") for approval of the Mountain Pass Lateral (MPL). The MPL is described by the parties as an, 8.6-mile, 8-inch diameter natural gas pipeline lateral that would extend from Kern River's existing, 900-mile and 36-inch diameter transcontinental pipeline to a mine in the vicinity of the EITP. (E.g., SCE Response at
p. 13.) CBD claims the EIR must be revised and recirculated so its cumulative impacts analysis can discuss the MPL. (CBD Rehrg. App., p. 3.)

We are extremely reluctant to consider a claim of error that is based on evidentiary material submitted for the first time in a documentary attachment to a rehearing application.⁴¹ The attached documents are relevant to the CEQA review, and CEQA requires project opponents to submit information in their comments on the EIR, or, at the latest, before the hearing stage of a proceeding has ended and the Notice of Determination is issued. (Pub. Resources Code, § 21177, subd. (a).) The NOD was received by the State Clearinghouse on December 23, 2010, over one month before CBD and WWP attempted to submit this information. The hearings in our proceedings to consider the application for the EITP concluded in August 2010, and the subsequent briefing and comment phase was not designed to allow for the introduction of further evidence. (Cal. Code Regs., tit. 20, § 13.14.)

Moreover, CBD and WWP's documents were submitted without any supporting motion, or indeed any formal request or justification explaining why we may consider them, or any attempt to comply with our rules and due process. We have established clear regulations governing the conduct of our proceedings in our Rules of Practice and Procedure. (Cal. Code Regs., tit. 20, §§ 1- 18.1) Rule 13.14 provides that a proceeding is submitted based on the record established at the end of hearings, unless a party formally moves to re-open the record, and permission to do so is granted. (Cal. Code Regs., tit. 20, § 13.14.) There are good reasons for this requirement. Other parties, and the Commission itself, do not, at the rehearing stage, have the opportunity to conduct further discovery or take other steps to verify new information, or to discover or introduce additional relevant material into the record. When no motion or pleading is filed justifying the credibility and relevance of new material (and allowing other parties to have a say on such issues), new material cannot be relied upon.

SCE has taken the proper approach in its response to the rehearing applications. SCE formally requests that we take official notice of FERC's Notice of Application, which CBD and WWP submitted, for the purpose of resolving the rehearing applications. (SCE Response at p. 14, fn. 7.) Our rule on official notice, Rule 13.9, is designed to avoid the legal problems summarized above by specifying that only certain inherently reliable materials may be officially noticed. (Cal. Code Regs., tit. 20, § 13.9; see Evid. Code, §§ 451, 452.) To be noticeable, parties must also have been provided with an opportunity "to meet" the request for official notice. (Cf., Evid. Code, § 453.) In addition, matters officially noticed cannot be relied upon to prove the truth of the matter-for example, to make direct findings about how the MLP will be built, or when Kern River sought approval for this lateral. (E.g., Application of SCE for Approval of Results, etc. [D.07-04-049] (2007) __ Cal.P.U.C.3d __, 2007 Cal. PUC LEXIS 300, at LEXIS *21, fn. 7.)

The requirements of Rule 13.9 are met here for FERC's Notice of Application. CBD, WWP, and SCE all refer us to this document. BrightSource and First Solar appear to have been aware of this document and amenable to our relying on it. (E.g., BrightSource and First Solar Response at pp. 13-14; see People v. Hardy (1992)
2 Cal.4th 86, 134.) SCE's request that we take official notice of FERC's Notice of Application for Docket No. CP11-46-000 (Dec. 21 2010) is granted. We will refer to WWP's and CBD's attempt to submit additional information only in order to resolve their applications for rehearing, but the law does not allow this additional material to be considered part of the record on which either the Decision or the EIR were based.

In addition, the rehearing applications fail to show that the EIR's cumulative impacts analysis was in any way lacking. In compliance with CEQA,⁴² the EIR contained a cumulative impacts analysis of over 100 pages in length. (EIR at pp. 5-1 to 5-106.) This analysis disclosed the total environmental effects that would be produced when the EITP's impacts were combined with the impacts produced by other activities that: had occurred, were occurring, or potentially could occur in the area near the EITP. The EIR discussed cumulative projects "if information on the project was available in the BLM's database or identified during agency scoping or in another published cumulative analysis as of July 30, 2010." (EIR at p. 5-1.)

The use of the July 30, 2010 "cut-off date" properly allowed those preparing the EIR to establish a definitive cumulative project setting before preparing the cumulative impacts analysis that would be included in the final EIR. (See generally Guidelines, §§ 15125, 15130; D.10-12-052, p. 12.) Without a cut-off date, the EIR could have been subject to on-going revision as new projects were continually identified.⁴³ (See, e.g., San Franciscans for Reasonable Growth v. City and County of San Francisco ("San Franciscans for Reasonable Growth") (1984) 151 Cal.App.3d 61, 74, fn. 14.) Gray v. County of Madera (2008) 167 Cal.App.4th 1099 determined it was proper for an agency to exercise its discretion by using the date of the application for a project "as the cut-off date for determining which announced projects should be included in a cumulative impacts analysis." (Id. at p. 1128.)

CBD and WWP nevertheless attempt to infer from statements made by Kern River that the MPL "was known to the BLM" in April 2010.⁴⁴ (CBD Rehrg. App., p. 3; WWP Rehrg. App., p. 4.) As discussed above, the additional materials are not part of the record and cannot be relied upon to draw the inferences that WWP and CBD seek to draw. Moreover, CBD and WWP do not explain why their materials support an inference about BLM's institutional knowledge of this project, or why the factual inference they draw supports their ultimate legal conclusion: that the MPL met CEQA's standards for the inclusion of a project a cumulative impacts analysis. The allegation that "contact" was made, without more, does not establish the MPL as a "reasonably foreseeable probable future project" properly studied as a cumulative impact.⁴⁵ (Guidelines, § 15355(b).) CBD and WWP do not explain how they reached this conclusion, or state any reason why alleged "contact" relating to a survey demonstrates that a project has advanced to a stage in its development that it must be considered to be a reasonably foreseeable future project. An agency's mere awareness of an early-stage proposal is also insufficient to demonstrate that the proposal is a probable future project. (E.g., Gray v. County of Madera, supra at p. 167.) Because the development of projects involves many different components (e.g., financing, property acquisition), agencies may wait for proposals to become firm (as evidenced by the filing of an application) before they are included in a cumulative impacts analysis. (See San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, at p. 74.)

CBD alleges, again based on its newly submitted materials, that a right of way application was filed with BLM on October 29, 2010, one week before the EIR was released on November 5, 2010. CBD provides no analysis to support its claim that publication of the EIR should have been delayed by this event, other than claiming, without reference to authority, that any application "filed before the Final EIR/EIS was issued ... should have been included in that document as well." (CBD Rehrg. App., p. 3; cf., Pub. Util. Code, § 1732.) Further, neither CBD nor WWP claim that the Commission-the agency preparing the CEQA document-was aware that the MPL was

being studied by Kern River. The information CBD and WWP rely on describes contact between BLM and Kern River, and this is not a case where information about the MPL "could easily have been ascertained by the Commission from its own records...." (Cf., San Franciscans for Reasonable Growth, supra, at p. 74.)

SCE, and BrightSource and First Solar, claim that the rehearing applications do not demonstrate error for a second reason: the EIR's cumulative impacts analysis would not likely be altered by considering the MPL. The EIR studied a large number of projects and identified significant cumulative impacts that would be caused by increasing capacity on the EITP in conjunction with those projects. The EIR considered the main Kern River pipeline and the mine the MPL proposes to serve. As well, the EIR discussed other pipelines in its "study area" such as Molycorp's 13-mile wastewater pipeline and Calnev's more significant 233-mile, 16-inch-diameter Expansion Project. (EIR at pp. 5-1 to 5-3, 5-17, 5-20 to 5-21.) As a result of this analysis, the EIR found that effects on the desert tortoise would be cumulatively considerable. (EIR at pp. ES-29 to ES-34.) SCE points out that the additional 88 acres of desert tortoise habitat that WWP states will be disturbed by the MPL is so minor compared to the 112,000 acres of disturbance already studied by the cumulative impacts analysis that consideration of the MPL would not alter the EIR's conclusions. (SCE Response at pp. 16-17.)

CBD makes a speculative claim that additional cumulative impacts will occur as a result of the MPL. According to CBD, the MPL's location "may" disturb areas that could be used to relocate tortoises that will be moved as a result of the overall EITP project. (CBD Rehrg. App., p. 2.) This claim is not supported by any citation to the EIR, to the record, or to the additional materials submitted by CBD with its rehearing application. BrightSource and First Solar dispute this claim as a factual matter. Those parties assert that any relocation taking place pursuant to SCE's proposed measures would involve habitat over a mile away from the MPL.⁴⁶ In addition, as discussed below, the EIR requires that SCE accept the conditions imposed by the United States Fish and Wildlife Service, California Department of Fish and Game and its Nevada equivalent regarding treatment of the desert tortoise. (EIR at p. 3.4-107.) Review of the EIR further shows that the relocation of tortoises resulting from the ISEGS, which is part of the overall EITP project, will take place pursuant to a plan that follows federal guidelines. (E.g., 50 C.F.R. § 401.1-402.16.) This plan must be approved by and "must include all revisions deemed necessary by" BLM, the California Energy Commission, the California Department of Fish and Game, and the. (EIR at p. 3.4-123.) To assume that plans developed pursuant to applicable federal and state requirements will place tortoises in the path of a known pipeline construction project is speculative, and does not demonstrate error. Similarly, WWP asserts, without explanation or citation to the record, that the MPL "will also impact many of the other biological resources that will be impacted by the EITP including rare plants, gila monster, bighorn sheep, and other sensitive wildlife[.]" (WWP Application at p. 4; cf., Pub. Util. Code, § 1732.) This claim, too, is unsubstantiated, and the rehearing application fails to show that the MPL's affect on these species would significantly alter the EIR's conclusions.

If an EIR, "read as a whole, adequately deals with the question of cumulative impacts, it will suffice." (Concerned Citizens of South Central L.A.
v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 838.) Here, the EIR reviewed many past, present and reasonably foreseeable possible future projects and identified cumulatively considerable impacts in many different areas, including but not limited to: biological resources, air quality, visual resources, water quality, recreation, and traffic and transportation. (E.g., EIR at pp. ES-27 to ES-49 (Table ES-5).) Not only do CBD and WWP base their claims of error on factual material that cannot, legally, be made part of the record, the conclusions they draw from this material merely speculate that the MPL, theoretically, might affect certain habitat or species. Such unsubstantiated, speculative, claims, based on extra-record material, do not demonstrate error.

⁴¹ It is also important to note that the claims derived from this material are vague and speculative.
(Cf., Rule 16.1, subd. (c).) For example, the assertion that one of the agencies preparing the EIR "was aware" of the MLP in April 2010 is derived from a statement by Kern River in one of the documents CBD and WWP seek to introduce. (See CBD Rehrg. App., p. 2.) Kern River stated that the BLM's Needles District was contacted regarding access authorization for a survey, and CBD and WWP infer that this contact made BLM "aware" of the MPL. As explained in detail in section I.D.2.a. below, an application for rehearing must specifically set forth a party's claims. (Pub. Util. Code, § 1732.) This requirement is met when a party gives an analysis of relevant authority and then explains how this authority applies to the relevant facts, accompanied by citations to the record and the law. (See Cal. Code Regs., tit. 20, § 16.1, subd. (c).) Here, however, CBD and WWP simply assume that one mention of "contact" regarding the MPL in an extra-record document establishes that the MPL had, in April 2010, developed to the point where CEQA and the Guidelines required it to be discussed as a cumulative impact. The rehearing applications contain no legal analysis to support this claim. Similarly these parties speculate about impacts the MPL, hypothetically, could cause, without referring to the law or the record. This approach fails to meet the section 1732's statutory requirements.

⁴² An EIR studies cumulative impacts to identify and disclose the combined effects of many different activities that can be "greater than the sum of [their] parts." (Environmental Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 625.) Agencies are given a discretion in developing a cumulative impacts analysis, and should be "guided by standards of practicality and reasonableness[.]" (Guidelines, § 15130, subd. (b).)

⁴³ The footprint of the EITP will be 35 miles long. (See D.10-12-052, pp. 4-5.) Over this length, the EITP will cross areas designated for these uses: commercial, private, recreation, energy/utilities, industrial, mining, transportation, residential, open space/wilderness, and conservation/preserve. (EIR at p. 3.9-1.) Aviation facilities, grazing allotments, areas subject to mining claims, agricultural uses, and potential hazardous materials sites also occur near the route of the EITP. (EIR at pp. 3.7-1, 3.7-6, 3.9-5, 3.9-14.) In any of these areas, new activities could be proposed that would be relevant to a cumulative impacts analysis, and federal policy favors certain types of development on public lands in this area. (EIR at p. 1-13.) If each new activity that was proposed along the route of the EITP were to be added to the EIR as it became know, the EIR might not have been completed in a timely fashion. SCE claims, more dramatically, that allowing consideration of activities that become know late in the process would establish "a dangerous precedent ... allowing project opponents to use a speculative new project ... to delay approval of the unwanted project." (SCE Response at p. 16.)

⁴⁴ CBD claims that documents prepared by Kern River state that "BLM Needles District was originally contacted regarding access authorization for environmental surveys in April 2010." (CBD Rehrg. App., p. 3.) WWP incorrectly claims these documents also suggest that the California Department of Fish and Game was involved in a conference call that time, but the document only states that BLM Needles District was "contacted." (Compare WWP Rehrg. App., p. 4 with WPP Exhibit A at p. 36.)

⁴⁵ Although CDB and WWP draw the inference that the MPL was a firm proposal from the extra-record evidence they rely upon, it is just as easy to reach the opposite conclusion. The surveys referred to in the rehearing applications were allegedly conducted in or after April 2010-before any formal application was filed. This indicates that, had the surveys revealed negative information, the proposal might have been abandoned. It also suggests that in April 2010 the backers of the MPL themselves had no knowledge of the characteristics of the route their proposed lateral pipeline would take, or how its
design would take into account those characteristics. Even now, only basic information is publicly available about Kern River's proposal. FERC has not completed an Environmental Assessment or a determination of whether an Environmental Impact Statement is necessary. (FERC Notice of Application (Dec. 21, 2010).) This lack of clarity is illustrated by the fact that the parties here have a basic disagreement about the route of the MPL in relation to the EITP. SCE, and BrightSource and First Solar, dispute WWP's description of the MPL's route, claiming it does not cross the EITP. (Cf., WWP Rehrg. App., p. 3.)

⁴⁶ This is an example of why a rehearing application should not seek to introduce new evidentiary material. We should not be required to make new factual findings, based on untested material, in order to determine if one of our decisions complies with the law and relies on the evidence in the record.
(Cf., Pub. Util. Code, § 1757.)