XI. 2007 FIRES

According to CBD/Sierra Club, the EIR and Decision err in failing to consider SDG&E's role in the October 2007 fires in SDG&E's service territory. They argue that since SDG&E's negligence caused the fires, we err in failing to consider SDG&E's past behavior and the likelihood that SDG&E will follow the adopted mitigation measures. In a separate challenge to the fire analysis, UCAN contends, without citation to the record, that the Decision "contradicts" unrebutted testimony that the risks of outages dues to wildfires along the Southern Route are unacceptable. SDG&E counters that: (1) the 2007 fires were caused by fundamentally different types of power lines; (2) the Commission adopted mitigation measures to handle the fire risk; (3) the EIR does consider the 2007 fires Investigation Reports; and (4) the Sunrise CPCN is not the appropriate forum to investigate prior alleged illegal conduct. CBD/Sierra Club and UCAN do not demonstrate legal error in the Commission's fire risk analysis.

Partly because the October 2007 fires occurred during the preparation of the EIR, the preparers were fully aware of the serious fire risks that can result from power lines in SDG&E service territory. Consequently, the EIR has an extensive fire risk analysis, and a separate "Fires and Fuel Management" section. (EIR, § D.15.1). Following this extensive analysis, the EIR finds that the approved route would have the following three significant and unmitigable (Class I) impacts related to fire and fuels management: Impact F-1(Construction and/or maintenance activities would significantly increase the probability of a wildfire); Impact F-2 (Presence of the overhead transmission line would significantly increase the probability of a wildfire); and Impact F-3 (Presence of the overhead transmission line would reduce the effectiveness of firefighting).

The thorough treatment of fire risk in the EIR also resulted in development of ten mitigation measures that are incorporated as part of the approved project and would reduce fire impacts. These are listed in the Decision, as well as the EIR and include: developing and implementing a Construction Fire Prevention Plan; ensuring coordination for emergency fire suppression; remove hazards from the work area, and; establishing and maintaining adequate line clearances. (Decision, at p. 217.)

Also, as the Decision notes, the 2007 Fires were caused by smaller distribution lines, which are different type of power line and present a more extensive fire risk. (Decision, at p. 211.) UCAN challenges this conclusion and then argues that there is no evidence that the risk of outages from fire is acceptable. (UCAN Rehrg. App., at p. 39.) UCAN's analysis is confused because whether the towers create a fire risk, and whether there is a risk that fire will cause an outage are two separate issues. In any event, both conclusions are supported. The EIR thoroughly explains and analyzes the greater fire risks associated with smaller distribution lines as opposed to larger transmission lines such as Sunrise. (EIR, at p. D15-4.) In addition, the EIR explains that if the line or substation were damaged due to fire SDG&E would be able to reroute electricity using other components of its regional system (as it did after the 2007 fires). (Id. at

p. D10-171.) Moreover, there would be back-up power generators. (Ibid.) Although this analysis specifically concerns the original Proposed Route, the ability to overcome an outage would be the similar for the route as approved. Thus, the Commission has a basis for judging this outage risk to be acceptable, contrary to UCAN's assertions.

Although the EIR considers the earlier fires (EIR, § D.15.1), CBD/Sierra Club argue that the Commission does not adequately consider SDG&E's negligence in the 2007 fires. Their only support for the contention that SDG&E's earlier role is relevant is Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California (1988) 47 Cal. 3d 376. In Laurel Heights, the Court holds that the Regents prior record of violations concerning radioactive materials was relevant to consideration of "the proponent's promises in an EIR," regarding the radioactive materials. (Id. at p. 420.)

We acknowledge there is an investigation pending regarding SDG&E's culpability regarding the 2007 fires, but as the EIR explains, an environmental review is not the appropriate forum for determining legal culpability. (EIR, Response to Comment G0018-26, at 4-824.) In any event, the Decision does not rely on SDG&E's promises regarding fire safety. Rather, we adopt an extensive mitigation monitoring program. (EIR, § D.15.22.) The Commission and other agencies, including the Bureau of Land Management, the California Department of Forestry and Fire Prevention ("CAL FIRE"), United States Forest Service, Imperial and San Diego Counties and city fire agencies, are all agencies that will be responsible for ensuring adherence to and proper implementation of the mitigation measures required as part of the Sunrise Project. SDG&E's past practices are independent of its adherence to the required mitigation measures related to Sunrise.

For these reasons, pursuant to CEQA, the Decision's and the EIR's discussion of SDG&E's past practices in the previous fires, as well as of the fire risk inherent in the Sunrise project, is thorough and legally adequate.