3. Scope of Issues

Pursuant to General Order (GO) 131-D, a permit to construct requires that the Commission review and approve the project in compliance with CEQA and that the project complies with the Commission's electromagnetic field (EMF) guidelines.

CEQA requires the lead agency (the Commission in this case) to conduct a review to identify environmental impacts of the project (CEQA Guidelines § 15126.2), and ways to avoid or reduce environmental damage (CEQA Guidelines §§ 15126.4 and 15126.6), for consideration in the determination of whether to approve the project or a project alternative. If the Commission approves a project which results in significant unavoidable environmental impacts, it must state the overriding considerations for doing so, i.e., the specific economic, legal, social, technological, or other benefits of the project that outweigh the adverse environmental impacts. (CEQA Guideline § 15093.) The Commission may not approve a project other than the environmentally superior alternative unless the mitigation measures or the alternative is infeasible. (CEQA Guideline § 15091.) Prior to approving the project or a project alternative, the lead agency must certify that the environmental review was conducted in compliance with CEQA, that the final EIR was presented to the decision-making body of the lead agency and that the decision-making body reviewed and considered the environmental review document prior to approving the project or a project alternative, and that the environmental review document reflects the lead agency's independent judgment and analysis. (Pub. Res. Code § 21082.1(c)(3), CEQA Guidelines § 15090.) Finally, if substantial changes are proposed in the project which will require major revisions of the prior EIR due to new significant environmental impacts or a substantial increase in the severity of previously identified significant impacts, the lead agency must prepare a subsequent or supplemental EIR (SEIR). (CEQA Guidelines §§ 15162 and 15163.)

Accordingly, and as set forth in the assigned Commissioner's scoping memo and ruling, the issues to be determined in this proceeding are:⁵

1. What are the significant environmental impacts of the proposed project?

2. Are there potentially feasible mitigation measures that will eliminate or lessen the significant environmental impacts?

3. What is the environmentally superior alternative?

4. Was the SEIR completed in compliance with CEQA, did the Commission review and consider the SEIR prior to approving the project or a project alternative, and does the SEIR reflect the Commission's independent judgment?

5. Are the mitigation measures or project alternatives infeasible?

6. Are there overriding considerations that merit Commission approval of the proposed project or project alternative notwithstanding its unavoidable adverse environmental impacts?

7. Is the proposed project and/or project alternative designed in compliance with the Commission's policies governing the mitigation of EMF effects using low-cost and no-cost measures?

⁵ CARE offered "rebuttal testimony" to the assigned Commissioner's scoping memo, challenging it as "nonsense" for rejecting CARE's contention that the scope of the proceeding should include the issue of whether the BLM is required to produce a supplemental environmental impact statement on the proposed project. CARE's "rebuttal testimony" on this issue is beyond the scope of the proceeding and is accorded no weight.