Dissenting Opinion of Commissioner Wood

Pacific Gas & Electric Company - Rule 851 Ripple Dissent

(Agenda Item #24, April 22, 2004)

I dissent on this matter because I disagree with the standard of review applied in the majority decision to determine the benefits of the transaction pursuant to Section 851. It cites the standard as being one of assuring that the transaction is "not adverse to the public interest." Consistent with numerous prior decisions, I believe that it would be more appropriate to apply the affirmative test that determines whether the transaction is, in fact, in the ratepayer and broader public interest.

This is not a mere semantic distinction. The "not adverse" test, as implemented by some administrative law judges, seems to place no burden on the moving parties, since it is impossible to prove a negative. As occurred here, the judge merely notes that no one has filed a protest and then finds that the transaction is not "adverse." Apparently, the burden is placed on some motivated third party to step forward and point out any problems that might exist. It is more appropriate, I believe, to require that the parties wishing to pursue this transaction demonstrate how it will benefit ratepayers and the broader public. Where a transaction is truly beneficial, the burden of providing this proof should not be great. On the other hand, if the transaction does not result in a net benefit, then the application should be denied.

/s/ CARL WOOD

Carl Wood

Commissioner

San Francisco, California

April 22, 2004