VI. ASSESSMENT OF RENEWABLE CONDITION

In addition to challenging the merits of the GHG analysis generally, CBD/Sierra Club allege that we violated CEQA by failing to assess the GHG emission reduction benefits of requiring the transmission line to carry renewable energy specifically. CBD/Sierra Club contend that because there was no data evaluating the GHG impact of the renewable condition there was insufficient data to compare the proposed decisions, as well as the alternatives. SDG&E responds that the Decision and EIR are based on substantial evidence and CBD/Sierra's disagreement is not grounds for rehearing. Specifically, SDG&E notes that there is no reason for the Commission to assess the renewable condition, since it was neither part of the project nor a mitigation measure. SDG&E is correct that CBD/Sierra Club have not shown any legal error.

During a late stage of the environmental review process, as well during the proceeding, CBD and Sierra Club suggested that approval of Sunrise should be conditioned on requiring the line to carry renewable energy - a suggestion that is adopted in Commissioner Grueneich's Alternate Decision, but not in the final Commission Decision. CBD/Sierra Club's point, that the Commission failed to adequately analyze the impacts of conditioning approval of Sunrise on its carrying renewables, is misplaced for two main reasons. First, as SDG&E notes, there is no requirement that the Commission analyze the renewable condition, because it was neither an alternative nor a mitigation measure and the EIR concluded that such a condition was unworkable. Second, as discussed above, the Commission's discussion concluding there would not be a GHG benefit by adopting the renewable condition is adequate and based on substantial evidence.

CEQA requires that an agency analyze the proposed project, "feasible mitigation measures which could minimize significant adverse impacts" (Guidelines, § 15126.4), and a reasonable range of alternatives which could "feasibly accomplish most of the basic objectives of the project" (Guidelines, § 15126.6 (c).). "CEQA does not require analysis of every imaginable alternative or mitigation measure; its concern is with feasible means of reducing environmental effects." (Concerned Citizens of South Central Los Angeles v. Los Angeles School Dist. (1994) 24 Cal.App.4th 826, 841.)

The renewable condition was not analyzed as an alternative or as a mitigation measure during the environmental review because it was not raised until late in the process, and because when it was raised the EIR judged it to be unworkable. The environmental review process began in 2006 and the original Draft EIR was issued in January, 2008. As CDB/Sierra Club acknowledge, they suggested the renewable condition on August 25, 2008, in comments on the Supplemental Draft EIR. (CBD/Sierra Club Rehrg. App., at p. 4 fn 2.) Because the renewable condition was not suggested or developed until a late stage of the environmental review process, it was not incorporated in the formal screening of alternatives, which occurs early in the preparation of an EIR. (See Guidelines, § 15126.6.) As long as the EIR considered a reasonable range of alternatives, there is no requirement that the EIR assess a hypothetical alternative that no one suggested.

In any event, after CBD/Sierra Club suggested the renewable condition the EIR determined it to be impracticable. This is because it is uncertain what renewables will be available in the Sunrise area and, therefore, to what extent SDG&E will be able to carry renewables on the Sunrise line. This conclusion is supported by SDG&E's statements that uncertainty made it impossible to determine how much renewable energy the line would carry (see EIR, Response to Comments B0041-50, 3-1621) , as well as the EIR's assessment that it is not clear what renewable projects will actually be developed (EIR, at GR 8, 2-43.) Regulatory constraints also make the condition unworkable, since it is CAISO, acting pursuant to FERC tariffs, that determines what power the line carries. (See CAISO CEO Mansour testimony, T.6249:15-19.)

In addition, the Decision concludes, based on evidence in the record, that the requiring Sunrise to carry renewables will not lessen the GHG impacts of the line. Based on CAISO's response to Request ISO-4 (Exh. I-16), we conclude, "provided the RPS is achieved, WECC-wide GHG emissions are virtually the same whether Sunrise carries energy from renewable or fossil-fuel generators." (Decision, at p. 167.) Thus, even if the renewable condition were feasible there is no indication that it would lessen the GHG impacts of the Sunrise line.

CBD/Sierra Club cite a Minnesota Commission decision where the agency conditioned a powerline's approval on the condition that the line carry renewable energy. (CBD/Sierra Club Rehrg. App., at p. 3.)⁴ CBD/Sierra Club's Minnesota example does not show that a similar condition is required, beneficial, or even feasible in regard to the Sunrise line. More significantly, it does not show that our decision not to impose the condition lacks an adequate basis. At this point in the proceeding, parties should not be rearguing policy, but rather must demonstrate legal error. Similarly, CBD/Sierra Club have requested that we take judicial notice of three other recent decisions relevant to the renewable condition. Although we take judicial notice of these decisions, they do support CBD/Sierra Club's claim that we committed legal error by approving the Sunrise line without the renewable condition.

CBD/Sierra Club also rely on the Grueneich Alternate and Dissent, as evidence of differing opinions regarding the condition. However, differing opinions do not invalidate the Commission's conclusions about the renewable condition. Therefore, CBD/Sierra's argument on this point lacks merit.

⁴ Order Granting Certificates of Need Subject to Condition (March 11, 2003) Minnesota Public Utilities Commission, Docket No. E-002/CN-01-1958.