VI. California Environmental Quality Act
(CEQA) Analysis
CEQA applies to discretionary projects to be carried out or approved by public agencies. Because the Commission must act on an applicant's request for approval of its application under § 851, the Commission must act as either a lead or responsible agency under CEQA. The lead agency is the public agency with the greatest responsibility for supervising or approving the project as a whole.7 The Commission, as the designated lead agency, must consider what review is necessary under CEQA. If appropriate, the Commission must investigate alternatives, require the avoidance of adverse impacts, and require restoration or enhancement of environmental quality to the fullest extent possible.
PG&E claims that the Project was exempt under CEQA Guidelines § 15301(b) and § 15061(b)(3), and Commission Rule 17.1(h)(1)(A)(2), which provide a CEQA exemption for "minor alterations of existing... facilities involving negligible or no expansion of use."8 In D.04-04-014, we considered the installation of fiber optic cable on existing electric utility structures, and held that the installation qualified as a "minor alteration of existing facilities" and was, therefore, exempt from further analysis under CEQA because none of the following exceptions to the exemption from CEQA applied:
(1) there is a reasonable possibility that the activity may have a significant effect on an environmental resource of hazardous or critical concern;
(2) the cumulative impact of successive projects of the same type in the same place, over time, is significant; or
(3) there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.9
The exemption granted in D.04-04-014 appeared to contemplate activities that would have no significant environmental impact, such as installing fiber optic cable on existing electric utility structures. Here, in addition to the installation of aerial facilities in electric utility structures, the Project includes 2.3 miles of trenching or boring. Therefore, the Project involved alterations of existing facilities that were not minor, and that involved physical expansion, beyond the previously existing facility use that was not negligible, and that could potentially cause environmental impacts. In addition, there is no evidence that the Project was reviewed by another agency or in another forum. Therefore, a CEQA review of the entire Project was required.10 Since the Project was partially completed before this application was filed, and no CEQA review was performed, PG&E failed to comply with CEQA.
CEQA reviews potential environmental impacts relative to a baseline established before a project is constructed in order to allow public input, and to mitigate any potentially significant environmental impacts.11 In this instance, construction was partially completed before the application was filed, and no baseline was established. Any environmental impacts due to construction have already occurred, and the opportunity for public comment at this point would be meaningless. Therefore, CEQA review at this time would serve no useful purpose.12 One option at this point is to require removal of the installed facilities. However, that could also impact the environment. Therefore, we will not require removal of the facilities.
Normally, we would consider imposing a fine for failing to comply with CEQA.13 Because we find that it may not have been clear to PG&E at the time the Project began that a § 851 application was needed, and because the § 851 application is the trigger for Commission CEQA review, the failure here does not warrant a fine.14 However, we advise PG&E that future applications submitted for approval under § 851 that involve construction must include sufficient information, including a detailed project description, to allow the Commission to evaluate a claimed CEQA exemption before the facilities are constructed.
7 CEQA Guidelines § 15051(b)). 8 CEQA Guidelines § 15301. 9 D.04-04-014, p. 6, citing General Order 131-D and CEQA Guidelines § 15300.2. 10 Once a CEQA review is triggered, potential impacts of the entire Project must be evaluated, even if some of the construction activities may be exempt. See, e.g., CEQA Guidelines § 15378. 11 County of Amador v. El Dorado County Water Association, (1999) 76 Cal. App; 4th 931, 944, 953. 12 See, e.g., D.04-07-021, pp. 11-12. 13 The fact that D.02-02-023 in A.00-11-026 approved the subject facilities as existing facilities is not relevant to the issue of whether PG&E failed to comply with CEQA because that application was filed after this application was filed, and after most of the facilities were constructed. In other words, the failure had already occurred when A.00-11-026 was filed. 14 This is consistent with the conclusion we reached in D.04-10-036 in A.00-03-032 that was filed on the same day as this application and addressed a similar agreement between PG&E and WilTel Communications, LLC.
