II. Background
In 1991 the Commission opened an investigation (Investigation (I.) 91-01-012) in response to concerns raised by members of the public and the California State Legislature related to the possible health effects of EMF exposure from existing and planned utility facilities. The concerns were prompted by inconclusive international research results, some of which suggested a significant statistical relationship between EMF exposure and various illnesses and others which did not find a link between EMF exposure and disease.
In 1993, in Decision (D.) 93-11-013, the Commission found that, while the evidence of direct harm from EMF was not conclusive, there was sufficient evidence that there is an EMF health hazard. (D.93-11-013, mimeo. at 3.) The Commission adopted several EMF policies and programs to address the public concern and scientific uncertainty. The Commission required the utilities to undertake no-cost EMF mitigation measures and implement low-cost mitigation measures to the extent approved as part of a project's certification process. "Low-cost" was defined to be within the range of 4% of the total cost of a budgeted project but the Commission specified that this 4% benchmark is not an absolute cap. (D.93-11-013, mimeo. at 14, 15.) The Commission endorsed the concept that any mitigation measure to be implemented should achieve some noticeable reduction in EMF, but declined to adopt a specific goal for EMF reduction pending further scientific evidence. (D.93-11-013, mimeo. at 15.) The Commission also adopted several EMF measurement, education, and research programs and chose DHS to manage the education and research programs. At the time the Commission declined to establish a measurement of EMF exposure that would be harmful to public health because the Commission concluded that it lacked a firm scientific basis for adopting any particular value. (D.93-11-013, mimeo. at 11.)
Several studies since the last Commission decision in 1993 have found correlations that prompt additional public concern. In 2002, pursuant to I.91-01-012, DHS released its final report reviewing scientific studies on the health effects of EMF. The panel of DHS scientists unanimously believed that EMF exposure can cause some degree of increased risk of childhood leukemia, adult brain cancer, Lou Gehrig's Disease, and miscarriage. The three scientists of the DHS panel differed in their opinions concerning the connection of EMF with other diseases. One scientist was "prone to believe" and two were "close to the dividing line between believing and not believing" that EMF cause some degree of increased risk for adult leukemia. All three were undecided about the role of EMF and the risk of suicide. All were inclined to believe that EMF exposure does not cause an increased risk of breast cancer, heart disease, Alzheimer's Disease, or depression. They strongly believed that EMF do not increase the risk of birth defects or lower birth weight, and that EMF are not universal carcinogens.
Some of those concerned about EMF exposure pursued their concerns in the courts during the time the Commission was waiting for the conclusion of the DHS study. In one instance, where residents sought damages from San Diego Gas & Electric Company (SDG&E) for EMF exposure from an existing transmission line, SDG&E took the issue of EMF jurisdiction to the California Supreme Court. In SDG&E v. Covalt, 13 Cal 4th 893, (1996), the Court found that, given the Commission's continuing evaluation of the DHS four-year research program, Public Utilities Code Section 1759 applied regarding the Commission's regulation of EMF related to powerlines within its jurisdiction and that a cause of action for property damages from powerline EMF would impermissibly interfere with the Commission's regulatory policy.
In denying relief to the plaintiffs in this case, the Supreme Court deferred to an open rulemaking. (13 Cal 4th 893, 934 (1996)). The Court noted that the Commission has broad authority to determine whether the service or equipment of any public utility poses any danger to the health and safety of the public and to prescribe and order corrective measures. (13 Cal 4th 893, 923 (1996)). The Court interpreted the Commission's authority to require every public utility to construct, maintain and operate its facilities and equipment in a manner that safeguards the health and safety of its employees, customers, and the public to include the Commission's decision to regulate EMF. (13 Cal 4th 893, 926 (1996)). The Court also pointed to the Legislative directive (Stats. 1988, ch. 1551, §2 subd. (d)) for the Commission and DHS to investigate the health risks associated with EMF and to submit a report with the results. (13 Cal 4th 893, 926 (1996)). In that statute, the Legislature specifically required the Commission to include in this report a comprehensive description of any cancer or other medical risks associated with exposure to electromagnetic fields, any higher incidence of leukemia or other cancers experienced by children who reside or attend school in close proximity to electric utility facilities, any increased incidence of cancer for electric utility workers, a summary of all studies associated with cancer or other medical risks which may be related to exposure to electromagnetic fields, and a listing of high-priority research projects required to identify cancer or other medical risks related to exposure to electromagnetic fields. (Stats. 1988, ch. 1551, §2). The Supreme Court held that any action it took regarding EMF would impermissibly interfere with the pending actions by the Commission on EMF.
Subsequently, the Court has found that not all claims alleged in a civil action filed pursuant to Pub. Util. Code section 2106 are banned by section 1759. Hartwell Corp. v. Superior Court, 27 Cal. 4th 256, 276-277, (2002). More recently in Orloff v. Pacific Bell, 31 Cal. 4th 1132, (2003), the Court recognized that "the PUC does not have exclusive jurisdiction over all actions against a public utility, and that the mere possibility of, or potential for, conflict with the PUC is, in general, insufficient in itself to establish that a civil action against a public utility is precluded by section 1759." (31 Cal. 4th 1132, 1138 (2003)). The Court found that civil suits against public utilities actually complement Commission efforts because the Public Utilities Code authorizes the Attorney General, district attorney and city attorney to initiate enforcement actions against public utilities. (31 Cal. 4th 1132, 1153 (2003), Pub. Util. Code, §§7607, 7720, 7721).
Public concern about EMF and the activities utilities should undertake in response to those concerns continues unabated. In several transmission siting proceedings, for instance, such as the recent matters involving the Jefferson-Martin project (A.02-09-043) and the Mission-Miguel project (A.02-07-022), some parties and hundreds of community members expressed great concern regarding potential health effects from EMF exposure. Some parties have contested the adequacy of Environmental Impact Reports, prepared pursuant to the California Environmental Quality Act (CEQA), that do not consider EMF or propose routes that reduce or eliminate new exposures in populated areas. These parties express special concerns about exposures to schools, day care centers, and residences. These parties also object to the way that the utility applies the 4% benchmark in establishing its EMF exposure mitigation strategy. In such cases, we have considered EMF issues pursuant to Public Utilities Code § 1002. This pattern is repeated in each proceeding, adding expense and potential delay to each individual application to build a new transmission project. It is our goal that this rulemaking will facilitate more consistent and orderly consideration of EMF issues in future certificate proceedings.
