VII. Project Authorization, CEQA Certification and Statement of Overriding Considerations

The Final EIR must contain specific information according to the CEQA Guidelines, §§ 15120 through 15132.²¹ The various elements of the Final EIR satisfy these CEQA requirements. The Final EIR consists of the Draft EIR, with revisions in response to comments and other information received. Volume 2 of the Final EIR contains the comments and recommendations received on the Draft EIR and individual responses to these comments, and a list of persons, organizations, and public agencies commenting on the draft.²²

The Commission must conclude that the Final EIR is in compliance with CEQA before approving SCE's request for a CPCN. The basic purpose of this determination is to ensure that the environmental document is a comprehensive, accurate, and unbiased tool to be used by the lead agency and other decision makers in addressing the merits of the proposed project. The document should embody "an interdisciplinary approach that will ensure the integrated use of the natural and social sciences and the consideration of qualitative as well as quantitative factors."²³ It must be prepared in a clear format and in plain language.²⁴ It must be analytical rather than encyclopedic, and emphasize alternatives over unnecessary description of the project.²⁵ Most importantly, it must be "organized and written in such a manner that [it] will be meaningful and useful to decision makers and the public."²⁶

The CPUC hereby certifies the Antelope Transmission Project, Segments 2 and 3, Final EIR, State Clearinghouse No. 2006041160. In accordance with State CEQA Guidelines § 15090, the CPUC, as California Lead Agency for the Project, certifies that:

(1) The Final EIR has been completed in compliance with the California Environmental Quality Act;

(2) The Final EIR was presented to the Commission, and the Commission has received, reviewed, and considered the information contained in the Final EIR and hearing documents prior to approving the project; and

(3) The Final EIR reflects the CPUC's independent judgment and analysis.

We find that the Final EIR/EIS is a comprehensive, detailed, and complete document that discusses clearly the advantages and disadvantages of the environmentally superior route, SCE's proposed route, and various alternatives. We find that the Final EIR is a competent and comprehensive informational tool, as CEQA requires it to be. The quality of the information in the Final EIR is such that we are confident of its accuracy. We have considered the information in the Final EIR in approving the Tehachapi-Vincent Transmission Project as described in this Decision. Accordingly, we certify the Final EIR.

A. Environmentally Superior Alternative

In accordance with CEQA requirements, an "environmentally superior alternative" must be identified among the alternatives analyzed in the EIR. The environmentally superior alternative is the alternative found to have an overall environmental advantage compared to the other alternatives based on the impact analysis in the EIR.

If the environmentally superior alternative is the "no project" alternative, the EIR must identify an environmentally superior alternative among the other alternatives. As described in Section D.4.5 of the Final EIR, the locations and development schedules for construction and operation of new power plants and transmission infrastructure that would be constructed if the proposed project is not implemented cannot be predicted and, as such, it is impossible to identify the impacts that would occur from alternative energy projects under the No Project Alternative; therefore, the No Project Alternative was not considered as part of the environmentally superior alternative analysis in the EIR.

Accordingly, the Final EIR for the proposed project provides a comparison of the proposed project and alternatives by environmental issue area, based on the detailed analyses contained in Sections C.2 to C.13 and D of the Final EIR. A detailed table summarizing this comparison can be found at pages D-100 through D-106, and also at pages ES-22 to ES-28 of the Final EIR. In that comparative analysis, noteworthy differences between the alternatives, and the alternative(s) which would have the least environmental impact, are identified on an issue-by-issue basis. That analysis is provided to support the recommendation for the environmentally superior alternative, which is provided at pages D-107 to D-116, and also at pages ES-28 to ES-36 of the Final EIR.

Determining which of the alternatives is environmentally superior involves judgment and depends on many factors. As shown in Table D.5-1 of the Final EIR, different alternatives are superior in certain environmental issue areas, while in other issue areas there are only slight differences among the alternatives, which ultimately do not alter the significance determinations for the impacts. In order to meet the CEQA requirements to identify an environmentally superior alternative, we must consider those issue areas that have the greatest potential to result in long-term, significant impacts, which include visual resources, biological resources, cultural resources, land use, and public recreation. Consideration must also be given to community concerns, such as air quality and noise. Impacts associated with construction (i.e., temporary or short term) or those that are easily mitigated to less-than-significant levels were also considered. Pursuant to CEQA Guidelines Section 15126.6(b), alternatives with potential for avoiding or substantially lessening the significant impacts may be considered even if they are more costly.

As shown in the comprehensive alternatives comparison matrix in Table D.5-2 of the Final EIR (a side-by-side comparison of the proposed project and alternatives), several of the alternatives have closely matched impacts, or would have fewer impacts for some issue areas while having greater impacts in other issues area, making a clear demonstration of the environmental superiority of one alternative difficult. In general, many environmental impacts are reduced as a result of decreasing the length of the new transmission line, ability to avoid existing homes, and placement of the new transmission line next to existing transmission corridors providing for use of existing access roads and similar visual setting.

From the comparison of the proposed project and alternatives by environmental issue area provided in the Final EIR, and considering long-term impacts to the environment, the environmentally superior alternative, by a slight margin, is Alternative 3. Alternative 3 is preferred from the standpoint of air quality, as it would reduce the average unpaved road travel distance, resulting in a reduction in fugitive dust emissions. Alternative 3 is preferred from the standpoint of biological resources, as it would parallel an existing transmission line corridor throughout Segment 2, where the lands traversed have generally been previously degraded and would result in the least amount of completely new ROW in native habitats. Alternative 3 is preferred from the standpoint of geology, soils and water quality, as it would cross less landslide prone area, decreasing the potential severity of impacts from seismically induced slope failures in comparison to the proposed project; furthermore, the shorter transmission line route would result in crossing less erosion prone soils.

However, Alternative 3 would have greater long-term significant impacts related to land use and recreation, noise, traffic and transportation, and population and housing, and would also increase some impacts related to biological resources and geology and soils. Alternative 3 would preclude planned residential development in the Ritter Ranch and Anaverde Ranch community development areas, and permanently affect recreational access to the Pacific Crest Trail (PCT) due to parking constraints. Construction and operational noise impacts would increase for residences along Godde Hill Road, Hacienda Ranch Road, Cherry Tree Lane, in addition to which nearby sensitive receptors in the Ritter Ranch and Anaverde Ranch community development areas would be affected. Alternative 3's transmission line route through a portion of the Ritter Ranch development area would also affect traffic on area roadways, and construction could impede pedestrian movements and bike paths within this area. In addition to the above, Alternative 3 would increase the impact to aquatic habitat for the southwest pond turtle and two-striped garter snake, as well as the severity of impacts from liquefaction.

For nearly all of the issue areas noted in the Final EIR where Alternative 3 is nominally the environmentally preferable alternative, there are no significant or potentially significant project impacts that cannot be mitigated to a level of insignificance by the implementation of the mitigation measures being adopted in connection with our approval of this project. In sharp distinction to this, we note that Alternative 3, and the similar Option B, would both cause one of the most serious and significant of the unavoidable significant impacts associated with any of the project alternatives, namely, the adverse impact on planned residential and school site development at Ritter Ranch and Anaverde Ranch that was discussed in Section VI.B.2. above.

In connection with this unavoidable significant environmental impact of Alternative 3 on land use at Ritter Ranch and Anaverde Ranch, we are particularly concerned about the associated adverse economic impact of Alternative 3. The uncontroverted testimony in this proceeding of Jora Sarkissian, Ritter Ranch's Project Manager, demonstrates that our selection of Alternative 3 would have drastic financial impacts on Ritter ranch development. Mr. Sarkissian testified that adoption of Alternative 3 could cost Ritter Ranch "upwards of $80 million."²⁷ Even discounting this soft number, Mr. Sarkissian provided compelling testimony that the hard cost to Ritter Ranch's developers of losing the 117 lots and 89 detached condo units that would necessarily not be able to be developed if Alternative 3 is selected would be "close to $19 million."²⁸ Moreover, this $19 million figure does not include the costs incurred to date by Ritter Ranch's developers for project planning, permitting and preliminary site work (including some $6 million in costs to undo the actual site preparation work that has been carried out to date for the lots and units that would be lost to Alternative 3),²⁹ none of which these developers would be able to recoup in connection with the portion of their approved development project that would be lost if SCE were allowed to proceed with Alternative 3.

For these reasons, we reject Alternative 3 as infeasible, as discussed in Attachment A, CEQA Findings of Fact, and approve the route proposed by SCE, as modified by Option A, which eliminates the otherwise unmitigable project impacts to visual resources, and which eliminates the need for any existing residences to be taken in connection with the construction and operation of the proposed project.

B. Project Authorization

Based on the foregoing considerations, we authorize SCE to construct the Tehachapi-Vincent Transmission Project according to the route it proposed, subject to the following minor routing deviation:

Between approximately Mile S2-5.7 and Mile S2-7.87, for a length of approximately 2.1 miles, the project route alignment shall deviate from the ROW proposed by SCE to avoid three existing homes located north of Elizabeth Lake Road (Option A).

The Final EIR has identified unavoidable significant impacts that will result from construction and operation of the authorized project. Section 15093(b) of the CEQA Guidelines³⁰ provides that, when the decision of the public agency allows the occurrence of significant impacts which are identified in the EIR but are not at least substantially mitigated, the agency must state in writing the reasons to support its action based on the completed EIR and/or other information in the record. CEQA Guidelines § 15093(b) requires that the decision-maker adopt a Statement of Overriding Considerations at the time of approval of the project if it finds that significant adverse environmental effects have been identified in the EIR that cannot be substantially mitigated to an insignificant level or be eliminated.

The following impacts are not mitigated to a less than significant level for the proposed project:

· Agricultural impacts associated with the permanent removal of approximately 1.0 acre of Prime Agricultural Land and 28.6 acres of Mixed Acreage Parcels, as discussed in Section VI.C above;

· Noise impacts of project operation, as discussed in Section VI.D above; and

· Air quality impacts of project construction, as discussed in Section VI.E above.

Adoption of the project approved by the Commission in this decision has eliminated certain other impacts, noted in Section VI above, that could not otherwise have be mitigated to a level of insignificance had other alternatives been approved. Furthermore, none of the other alternatives studied could mitigate the noise and air quality impacts referenced just above to a level of insignificance. Only the Commission's adoption of Alternative 1 would avoid the agricultural impact noted above, and, as discussed in Section VI.B.1 above, Alternative 1 would have required the taking of three existing residence, itself an unavoidable significant adverse environmental impact.

In addition, the Commission's adoption of Option A will eliminate otherwise unavoidable visual, land use and population and housing impacts, without itself creating any new, or additional, adverse impacts.

Pursuant to Public Resources Code § 21080 and CEQA Guidelines § 15091, we may not approve or carry out a project for which an EIR has been certified which identifies one or more significant effect on the environmental that would occur if the project is approved or carried out unless we make one or more of the following findings with respect to each significant effect:

· Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment;

· Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency; or

· Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.

In compliance with these requirements, we have made one or more of the findings set forth above with respect to each significant effect identified in the Final EIR. These findings are incorporated as part of this Decision as Attachment B, CEQA Findings of Fact. We adopt the CEQA Findings of Fact included in Attachment B as if fully set forth herein.

Additionally, the Commission adopts the following Statement of Overriding Considerations.

C. Statement of Overriding Considerations

The Commission recognizes that significant and unavoidable impacts will result from implementation of the proposed Tehachapi-Vincent Transmission Project. Having (i) adopted all feasible mitigation measures, (ii) adopted a routing alternative that reduces the impacts of the proposed project, (iii) rejected as infeasible other alternatives to the project, (iv) recognized all significant, unavoidable impacts, and (v) balanced the benefits of the project against the project's significant and unavoidable impacts, the Commission hereby finds that specific economic, legal, social, technological and other benefits outweigh and override the significant unavoidable environmental impacts for the reasons stated below.

The project will:

(1) enable compliance with the State's RPS Program, which requires retail sellers of electricity such as SCE and PG&E to increase their sale of electricity produced by renewable energy sources to 20 percent by 2010;

(2) enable the interconnection of various wind generation projects in the Antelope Valley-Tehachapi region to the SCE transmission system;

(3) eliminate existing constraints to the transmission of renewable energy from the Tehachapi and Antelope Valley areas to Southern California; and

(4) eliminate potential system-wide power flow and reliability problems due to overloading of the existing transmission system.

We set forth in detail the reasons for finding these substantial benefits in Section III above. Specifically, without system improvements provided by the Project, SCE and others could not deliver the necessary significant amounts of wind power from the region. As discussed above, wind provides one of the most economical sources of renewable power, and the Tehachapi area offers the largest wind resource in California and has the undeveloped potential of generating about 1,400 gigawatt-hours per year, with about 4,500 MWs of installed capacity. Additionally, there is significant industry commitment to develop the area for RPS purposes; utilities have received winning bids from, and SCE has signed contracts with, developers of wind projects, the output of which cannot be fully delivered without increased transmission capacity that the proposed project will provide.

The Commission finds that the Tehachapi-Vincent Transmission Project's unavoidable impacts are acceptable in light of these substantial benefits. Each benefit set forth above constitutes an overriding consideration warranting approval of the project, independent of the other benefits, despite each and every significant unavoidable impact.

We also find that although the Final EIR identifies Alternative 3 as the "environmentally superior alternative," we should not, and do not, approve that alternative, because: (i) the alternative that we do approve (SCE's proposed route, as modified by Option A) does not pose certain unavoidable adverse significant impacts that Alternative 3 would pose; and (ii) Alternative 3 would result in very serious adverse economic impacts.

As noted in subsection A above, the uncontroverted testimony in this proceeding of Ritter Ranch's Project Manager, demonstrates that our selection of Alternative 3 would have drastic financial impacts on Ritter Ranch development. Such concrete, adverse financial and socioeconomic impacts must and do outweigh and override any justification for selecting an alternative that is nominally "environmentally superior" when, as is the case here, that alternative (i) itself has unmitigable adverse impacts that the selected alternative avoids; and (ii) does essentially nothing more than incorporate a slightly shorter route that will have somewhat fewer "potential" adverse impacts. The choice to allow a financial consideration to override a nominally better environmental choice is especially compelling when, as in this case, all of those "potential" adverse impacts have been demonstrated in the Final EIR to be mitigable to a level of insignificance.

In the end, our decisions must be guided by common sense. It is simply not sensible for us to force a legitimate business to suffer millions of dollars in unnecessary costs solely because a comparative evaluation of potential adverse impacts, which is itself necessarily an exercise in judgment, not a hard calculation, suggests that the alternative choice that would impose such unnecessary costs may be marginally preferable to a different alternative that would not impose those unnecessary costs.

D. Mitigation Monitoring

Consistent with Public Resources Code § 21081.6 and CEQA Guidelines § 15097, the Commission must adopt a Mitigation Monitoring Program when it approves a project that is subject to preparation of an EIR and where the EIR identifies significant adverse environmental effects.

The Final EIR includes a proposed Mitigation Monitoring, Compliance, and Reporting Program for the mitigation measures it recommends for the proposed project. It recommends a framework for implementation of the Mitigation Monitoring Program by this Commission as the CEQA lead agency. Accordingly, we hereby approve and adopt the Mitigation Monitoring Program set forth in Appendix 9 of the Final EIR.

²¹ California Code of Regulations, Title 14, Chapter 3, §§ 15120 through 15132.

²² Id., § 15132.

²³ Id., § 15142.

²⁴ Id., §§ 15006(q) and (r), 15120, 15140.

²⁵ Id., §§ 15006, 15141; Pub. Res. Code § 21003(c).

²⁶ Pub. Res. Code § 21003(b).

²⁷ See, Testimony of Jora Sarkissian, at 12.

²⁸ Id.

²⁹ Id., at 13.

³⁰ The CEQA Guidelines are set forth at California Code of Regulations, Title 14, Chapter 3.