b) The EIR's Project Description is Consistent With the Decision, And With CEQA

The EIR described the scope of the project it would review as including both SCE's "core" proposal-the EITP-and the ISEGS solar project proposed by BrightSource. This project description followed CEQA's requirement that an EIR study "the whole of an action." (Guidelines, § 15378, sub. (a).) The federal environmental review of the EITP, performed by BLM, did not consider ISEGS to be a "connected action" that was studied as part of the project under review. The EIR explained that a variety of reasons led it to determine that that ISEGS fell within the scope of the overall CEQA project including: (i) ISEGS was known to be located directly adjacent the EITP; (ii) at the time of the EIR's development date, ISEGS had already executed PPAs specifying the use of the IETP; and (iii) the proposal to build ISEGS had become definite and well-defined, as evidenced by the fact that it was being permitted and reviewed by the CEC. (E.g., EIR at p. 1-4.) In the proceedings dealing directly with SCE's application, representatives from BrightSource appeared to affirm that their project was in the final stages of development, and stated they were anxious for this Commission to quickly approve the EITP and were "prodding Edison [i.e., SCE] on a regular basis[.]" (Pre-Hearing Conference Transcript at p. 16.)

Nevertheless, CBD asserts the EIR's project description is not broad enough. The rehearing application does not refer to the record describing the EITP or other activity in the Ivanpah Dry Lake Area. Instead, CBD's alleges error on the grounds that the EIR's approach supposedly differs from the Decision's need analysis. CBD alleges that all the "actions represented by the PPAs and the projects in the CAISO queue that are relied upon in the Decision regarding need" should have been included in the scope of the CEQA "project" reviewed by the EIR. (CBD Rehrg. App., p. 6.) CBD asserts that the Decision's analysis "assumes these projects will likely be developed...." (CBD Rehrg. App., p. 4.)

In fact, both the Decision and the EIR explicitly determined that most proposed renewable facilities, other than ISEGS, were "speculative[.]" (Compare
D.10-12-052, p. 27 with EIR at p. 2-36.) The Decision, for its part, directly acknowledged that we were reviewing the EITP at a point in time when-except for ISEGS-we could not determine what renewable generation would ultimately be developed or connected to the EITP. At page 27, the Decision explained:

In the context of renewable energy development, it is often the case that transmission must be planned and permitted before generation fully commits to an area. This is the situation here.

Because we were uncertain what renewable generation would ultimately be developed, we analyzed SCE's application in a way that recognized the different stages of development that had been reached by the renewable energy proposals discussed in the Decision. At one end of the range, we found the ISEGS project was very likely to be developed, with a projected on-line date as early as 2012. Our analysis could have, but did not, rely on this project alone because of the possibility that it might connect to a different transmission line. (D.10-12-052, p. 30.) At the other end of the range, we found that projects in the CAISO interconnection queue were "more speculative."
(D.10-12-052, p. 27.) We noted the length of time needed to develop a project that had obtained a place in the CAISO queue and mentioned the need for a project to obtain financial backing.48 (D.10-12-052, pp. 26, 59.)

Because of this fact pattern, the Decision explained that we would not rely on a finding that any particular renewable facility would necessarily transmit power over the EITP in order to approve that transmission line. Instead, we determined to:

look[] to the renewable potential for the area that the transmission line will serve as an indicator of the need for the proposed line. Our analysis continues to emphasize the amount of generation already under RPS contracts [i.e., PPAs] with the investor owned utilities, and, in this case, gives some weight to the number of interconnection requests in the area as an indicator of future growth.

(D.10-12-052, pp. 27-28 (emphasis added).) Contrary to CBD's claims, this analysis does not "assume[] these projects will likely be developed...." (Cf., CBD Rehrg. App.,
p. 4.) In order to resolve SCE's application, we sought to identify "renewable potential" that could "serve and an indicator" of need specifically because the fact pattern here did not allow us to engage in an analysis determining whether any particular facility would in fact be built. (D.10-12-052, p. 27.) By giving different weight to the different information about renewable power sources, our analysis was able to consider early-stage proposals as one factor in our analysis, while at the same time acknowledging that many of those proposals were speculative, and would need to successfully complete a lengthy and challenging development process if they were to be built.

In addition, the claim that every proposal that was considered in the Decision's discussion of SCE's application-no matter what weight it was given-must also be studied in the EIR as part of the EITP project fails to recognize that a CEQA review and the analysis of the EITP we performed pursuant to the Public Utilities Code involved very different rules and criteria. CBD does not provide any explanation for its claim that our acknowledgement of the renewable potential of the Ivanpah Dry Lake Area caused all of the proposals we mentioned to meet the CEQA's criteria determining what should have been studied as part of the overall EITP "project."

A regulatory decision to approve or deny an application for a CPCN applies its own standards, and is ultimately an exercise of this Commission's discretion. (E.g., Pub. Util. Code, § 1001.) For example, as discussed above, the Decision considers PPAs because, in a prior proceeding, after considering the positions of several different parties, we determined to use the existence of PPAs as an "indicator" we would use to determine if the specific requirements of section 399.2.5 were met. (ATP (2007) [D.07-03-013], supra, at p. 14; see also TRTP (2009) [D.09-12-044].) CBD is incorrect to assume that our use of this indicator, for the purpose of evaluating a CPCN application under the Public Utilities Code, must dictate the result of a CEQA inquiry, pursuant to Guidelines section 15378 and relevant case law, into what constitutes "the whole of an action."

When CEQA's criteria are applied, it becomes clear that the EIR properly described the project it would study because it determined what to study. That analysis proceeds from the core requirement that an EIR must be informative, and therefore must study "the whole of an action" including, under some circumstances, reasonably foreseeable future consequences of a proposal. (Guidelines, § 15378, subd. (a); Laurel Heights Improvement Assn. v. Regents of the Univ. of Cal. (1988) 47 Cal.3d 376, 392 ("Laurel Heights I").) Case law provides that speculative proposals, proposals that are not a reasonably foreseeable consequence of the action being studied, and projects with "independent utility" should not be included in the scope of a "project" reviewed by an EIR. (Laurel Heights I, supra, at p. 396; Del Mar Terrace Conservancy v. City of
San Diego ("Del Mar Terrace") (1992) 10 Cal.App.4th 712, 798.) Determining what constitutes the "whole of an action" applies these standards to the relevant facts, and requires us to exercise judgment. Claims about the standards we used to evaluate certain facts in order to review the EITP pursuant to section 399.2.5 are not germane to the question of whether or not the EIR's properly applied CEQA's requirements to the facts presented here.

We do not wish to speculate about what facts CBD believes might show that CEQA's criteria require the project description to be expanded, but we note that none of the proposals discussed in the Decision-proposals that have not advanced farther that obtaining a place in the CAISO queue and those that have obtained PPAs-meets CEQA's requirements for inclusion as part of the overall EITP project. Facilities in the CAISO interconnection queue are generally at an early stage of development. Not only is there no public information about these facilities, the information that is known could be inaccurate or duplicative. (RT, Vol. 1, pp. 114-115.) For example a proposed renewable facility might seek several different interconnections, some with the CAISO and some through other means, such as public power. A proposal that has only obtained a queue position has likely not obtained any other development milestones, such as a PPA, financing, or engaging in the process to obtain government permits and approvals.
(RT, Vol. 1, at pp. 91-93.) Because there is little public information available about these proposed facilities, and it is unclear how, or if, they will ultimately develop, proposals that have only secured a position in the CAISO interconnection queue must be considered too amorphous to undergo environmental review.

The Decision's analysis also considered four PPAs-three of which involved BrightSource, whose ISEGS project was considered as part of the overall project for EITP. Only one project with a PPA, First Solar Desert Stateline project, was not included in the EIR's overall project description because it did not meet the EIR's criteria for inclusion. The EIR used two criteria to determine whether proposed renewable energy facilities were properly included in the scope of the EITP project:
(i) whether a renewable energy proposal had signed a PPA specifying the use of the EITP and (ii) whether or not that proposal had begun environmental review by the "development date" of December 31, 2009. (EIR at p. 2-36.)

These criteria reflect CEQA's criteria. They look to see if a proposal is related to the EITP, has achieved development milestones, and has become sufficiently definite, with enough public information to allow environmental review. When "future development is unspecified and uncertain, no purpose can be served by requiring an EIR to engage in sheer speculation as to future environmental consequences." (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 738.) Further, while reasonably foreseeable future projects should be included in the whole of an action, projects with independent utility may be studied independently. (Laurel Heights I, supra, 47 Cal.3d at p. 396; Del Mar Terrace, supra, 10 Cal.App.4th at p. 798.) By applying a development date, the EIR ensured that it would work with a "stable and finite" project description. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193.) CBD does not challenge the use of these criteria or provide any explanation of why it believes the facts about Desert Stateline meet CEQA's criteria for inclusion of an activity within the "whole of an action."

In the case of Desert Stateline, the EIR determined among other things that proposals that had not yet begun environmental review or made their environmental design public as of its development date were so "speculative" (under CEQA's criteria) that the EIR could not properly study their environmental effects. (EIR at p. 2-36.) Desert Stateline attempted a filing with the BLM to trigger environmental review in August 2009, but that filing was rejected. Subsequently, another filing was rejected and the EIR notes that Desert Stateline has not yet begun review, and the timeline for that review is still unknown. (EIR at p. 5-4.)

These facts support the EIR's determination that too little information is available about Desert Stateline to allow for environmental review. CBD does not address any of these facts in its rehearing application or explain why the inclusion of Desert Stateline's PPA in the Decision's analysis shows that this proposal is well-developed enough to be capable of undergoing environmental review. (Cf., Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1266.) Nor does CBD explain why the Decision's reliance on this PPA, in combination with a number of other factors, demonstrates that Desert Stateline meets the CEQA criterion of being a reasonably foreseeable future consequence of the EITP.49 (Cf., Pub. Util. Code, § 1732.)

Finally, CBD also fails to explain why the EIR's analysis of renewable generation, as a whole, is improper. Although the EIR did not analyze these proposals as part of the overall EITP project, the EIR explicitly noted that proposals to develop renewable energy that were not being analyzed at the project level were, instead, identified and discussed in the cumulative impacts section. (EIR at p. 2-36.) The EIR made its approach to describing facilities other than ISEGS clear, and the issue was addressed by groups in their Comment Letters. Yet CBD's rehearing application contains no discussion of the EIR's findings regarding project description, the responses to Comment Letters50 discussing the scope of the project, or the cumulative impacts analysis. As a result, CBD's rehearing application fails to demonstrate error.

WWP, for its part, alleges that the "segmentation of the EITP project from the ISEGS" contravenes CEQA. It is not clear what is meant by this claim because the EIR included both the EITP and ISEGS in the "whole of the action" for CEQA purposes. (E.g., EIR at p. 2-36.) WWP may be addressing BLM's NEPA review, which did not consider ISEGS to be part of the NEPA project. However, that claim is not properly raised here.

48 Testimony showed that a proposal to construct a renewable generation plant follows a lengthy development cycle. At the very beginning of this cycle the backers of a proposal make one (or more) requests for interconnection without revealing any specific information about their proposal. Later, one (or more) PPAs are signed, and finally an LGIA is entered into an approved by federal regulators. (RT, Vol. 1, pp. 86, 88, 91, 112-113, 115.)

49 In fact, CBD's Comment Letter states that a PPA should not be considered as a strong indicator that a project will in fact come to fruition. CBD states that "project approvals are not foregone conclusions ...." Specifically addressing PPAs, CBD states: "although this indicates the intention of the project proponent, it does not mean that the project will be approved or constructed as proposed." (EIR, Appendix G, Comment Letter No. 23 at p. 7.)

50 We note for example, that the Silver State project, which is being proposed for Nevada and which has obtained a PPA to provide capacity to a Nevada utility, using that utility's transmission facilities, was discussed extensively in CBD's Comment Letter but was not mentioned in the rehearing application. (EIR, Appendix G, Comment Letter No. 23 at pp. 5-6.) By way of contrast, Desert Stateline was not mentioned in CBD's Comment Letter. (Cf., Pub. Resources Code, § 21177.) CBD's comments may have been related to the federal environmental review, not California's CEQA process, but because there is no discussion of the matter in the rehearing application we cannot determine why CBD now believes CEQA requires some renewable energy proposals to be included in the "whole of the action" instead of others.

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