7. Comments on Proposed Decision
The proposed final decision of ALJ Hallie Yacknin in this matter was mailed to the parties in accordance with Pub. Util. Code § 311 and comments were allowed pursuant to Rule 14.3 of the Commission's Rules of Practice and Procedure. SDG&E and BAD filed opening comments on June 6, 2012, and reply comments on June 11, 2012.
SDG&E recommends that the proposed decision's discussion of feasibility of the partial undergrounding of the 138 kV transmission line be revised to find feasibility on the basis of the weighing of the environmental benefits of the mitigation measure against its economic cost pursuant to Pub. Res. Code § 21081(a)(3). To the contrary, while environmental factors are relevant for the purpose of identifying potentially feasible mitigation measures and project alternatives in the EIR pursuant to CEQA Guideline § 15126.6(a), they do not support an agency's finding that an identified potentially feasible mitigation measure or alternative is ultimately infeasible (or feasible) pursuant to Pub. Res. Code § 21081(a)(3) and CEQA Guideline § 15091(a)(3). An agency may find an identified mitigation measure or alternative to be infeasible for "[s]pecific economic, legal, social, technological, or other considerations." (Id.) It may not reject a mitigation measure as infeasible on the basis of the relative weight that it gives to the significant environmental impact that the mitigation measure would mitigate or eliminate. Indeed, it would undercut the very premise of CEQA were agencies at liberty to do so.5
SDG&E asserts that, in citing to Maintain Our Desert Environment for the proposition that a mitigation measure is not economically infeasible if the project can be successfully accomplished notwithstanding the greater costs of the mitigation measure, the proposed decision errs in "applying a judicial test for private projects to public utility projects." (SDG&E comments at 5.) SDG&E cites to D.09-07-024 for the proposition that, in the context of a public utility project, the impact on rates is a relevant consideration for judging the feasibility of alternatives and asserts that, in so holding, D.09-07-024 rejected the economic feasibility test. To the contrary, D.09-07-024 did not reject any "judicial test for private projects" or adopt a different economic test for public utility projects. Rather, D.09-07-024 affirmed that the impact on rates is an additional, relevant consideration in the determination of the infeasibility of a mitigation measure or alternative. While we do not reject the economic feasibility test of Maintain our Desert Environment as SDG&E advocates, we revise the proposed decision to acknowledge that, although there is no evidence here that the rate impact renders the undergrounding measure infeasible, it is an additional, relevant consideration.
SDG&E recommends that the proposed decision be modified to delete the suggestion that the Commission might not have the authority to approve a project, notwithstanding its significant and unavoidable environmental impacts, on the basis of the value of matters outside of the Commission's regulatory jurisdiction. SDG&E does not identify legal error, and we see no need to adopt its recommendation.
SDG&E recommends that the proposed decision be modified to give Energy Division broader authority to approve changes to the approved project during construction. SDG&E does not identify legal error, and we see no need to adopt its recommendation.
SDG&E identifies several typographical errors, which we correct.
BAD identifies an error in the proposed decision's characterization of the final EIR/EIS, as opposed to the draft EIR/EIS, as identifying the number of residences within 1,000 feet of the 138 kV transmission line right of way route as 25, which we correct.
BAD asserts that the proposed decision errs in finding that SDG&E's MFMP is consistent with the Commission's EMF policies because the MFMP was prepared in advance of the final EIR/EIS, which amended the draft EIR/EIR to re-route a portion of the 138 kV transmission line in the environmentally superior alternative. To the contrary, the fact that the final EIR/EIS identifies (and this decision approves) a slightly different route does not render the MFMP inconsistent with the Commission's EMF policies. In addition, GO 131-D imposes an ongoing obligation on SDG&E to revise the MFMP as necessary to ensure that the final plan remains consistent with the Commission's EMF policies.
5 SDG&E cites to City of Del Mar v. City of San Diego (1982) 133 Cal. App. 3d 401 at 417, and to later authority that favorably cites to that decision, for the proposition that environmental factors may also be weighed in determining whether a mitigation measure or project alternative is infeasible. However, to the extent that this proposition can be found in those cases, it is dicta because Del Mar and the other cited authority rely on economic, social, and/or policy considerations, not environmental factors, as the basis for finding a mitigation measure or alternative to be infeasible.
