5. Discussion
5.1 Legal standards
The Commission's authority to provide injunctive relief is firmly rooted in the California Constitution, the Public Utilities Code, and case law.
The Commission is not an ordinary administrative agency, but a constitutional body with broad legislative and judicial powers. The California Constitution, Article XII, Sections 1-6, grants the Commission plenary power over the regulation of public utilities. The Commission has broad authority to regulate public utilities, including the power to fix rates, hold hearings, and establish its own rules and procedures. [citations omitted] Our reliance in the Interim Decision on Pub. Util. Code Section 701 and Consumers' Lobby is well founded. We noted that in Consumers' Lobby, [25 Cal.3d at 907] the California Supreme Court recognized that the Commission has equitable jurisdiction, which permits it to issue injunctions: `The commission often exercises equitable jurisdiction as an incident to its express duties and authority. For example, the Commission may issue injunctions in aid of jurisdiction specifically conferred upon it. [citations omitted.]'
Southern California Edison Company et al., Decision (D.) 01-07-033, 2001 Cal. PUC LEXIS 877 **11-12.
An individual assigned Commissioner or ALJ may issue a temporary restraining order or preliminary injunction in order to preserve the status quo, subject to its ratification or alteration by the full Commission. (See the California Constitution, Article XII, Section 2 ["Any commissioner as designated by the commission may hold a hearing or investigation or issue an order subject to commission approval."]; see also Pub. Util. Code Section 310; Systems Analysis and Integration, Inc. dba Systems Integrated v. Southern California Edison Company, D.96-12-023, 69 CPUC2d 516, 522 [ALJ issued temporary restraining order on November 21 and a preliminary injunction on November 30, and dissolved the injunction on March 21. The Commission issued its decision the following December].)
The Commission uses the same test for temporary restraining orders that it uses for preliminary injunctions. (See Westcom Long Distance, Inc. v. Pacific Bell et al., D.94-04-082, 54 CPUC 2d 244, 259; see also Re Standards of Conduct Governing Relationships Between Energy Utilities and Their Affiliates, D.98-12-075, 84 CPUC2d 155, 169.) To obtain a temporary restraining order, the moving party must show (1) a likelihood of prevailing on the merits; (2) irreparable injury to the moving party without the order; (3) no substantial harm to other interested parties; and (4) no harm to the public interest.
We emphasize at the outset that this ruling is not a final ruling on the merits and should not be construed as prejudging the ultimate outcome of this proceeding. Rather, we examine Little's likelihood of success on the merits and balance the hardships and harms based on the showings made in the record of this proceeding to date. The evidence brought forth at the evidentiary hearing to be held in this case and the arguments made by the parties in their closing briefs will be fully evaluated and considered in the Presiding Officer's Decision.
Although this ruling is not a final decision on the merits of the parties' positions in this proceeding, consideration of the likelihood of Little's ultimate success on the merits does affect the balancing of the respective hardships between Little and SDG&E. For example, the more likely it is that a complainant will prevail, the less severe must be the alleged harm if injunctive relief does not issue. (See King v. Meese (1987) 43 Cal.3d 1217, 1227; see also Los Angeles Memorial Coliseum Com'n v. Nat. Football (9th Cir. 1980) 634 F.2d 1197, 1201 and 1203 [requiring a showing of all required elements for injunctive relief, and defining the analysis as discretion exercised along a "single continuum," such that a "minimal showing on the merits is required even when the balance of harms tips decidedly toward the moving party. Conversely, at least a minimal tip in the balance of hardships must be found even when the strongest showing on the merits is made."]) We will apply these standards in evaluating this request.
5.2 Likelihood of success on the merits
The project:
The project SDG&E is building is not the project described in AL 1520-E, in four significant respects. First, as elucidated in this proceeding to date, SDG&E is completely rebuilding existing TL 669. When this project is completed, every existing wood pole for TL 669 will have been replaced and one new pole will have been added. The wires on those poles will be completely new - the wires for the reconductoring of TL 669 and the wires for new TL 6942.
Second, SDG&E is replacing a large number of poles on existing TL 6916. Of the approximately 70 existing wood poles, one is being replaced with a heavier wood pole and 22 are being replaced with steel poles.6 Overall, 60 existing poles are being replaced, rather than the 27 poles identified in
AL 1520-E.Third, new TL 6942 will bypass Scripps Substation by running underground around it. In AL 1520-E, TL 6942 is described as running to Scripps Substation from Miramar Substation and then out again to Sycamore Substation.7
Fourth, the majority of the underground portion of new TL 6942 is being built under the aegis of the Scripps Lake underground project. The existence of this project was not disclosed to the Commission until SDG&E responded to Little's claim in this proceeding that SDG&E was building TL 6942 in violation of the ALJ's ruling of September 14, 2004.
We conclude that Little is likely to succeed on the merits of his claim that SDG&E is not entitled to exemption from the requirement of a PTC for the overhead portion of the work on this project. In AL 1520-E, SDG&E claimed exemption under GO 131-D Section III.B.1.(e), covering "the placing of new or additional conductors, insulators, or their accessories on supporting structures already built." Between Scripps Substation and Miramar Substation, new conductors will be placed on supporting structures that did not exist when AL 1520-E was submitted - the 37 replacement poles. Between Scripps Substation and Sycamore Substation, additional conductors will be placed on supporting structures of which approximately one-third did not exist when AL 1520-E was submitted - the 23 replacement poles. These structures are not, for the purposes of this project, "already built;" constructing them is part of the project itself. This exemption is therefore inapplicable.8
Environmental issues:
GO 131-D provides that the exemptions found in Section III.B.
. . shall not apply when any of the conditions specified in CEQA Guidelines Section 15300.2 exist:
a. there is reasonable possibility that the activity may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped and officially adopted pursuant to law by federal, state, or local agencies; or
b. the cumulative impact of successive projects of the same type in the same place, over time, is significant; or
c. there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.9
That is, if any of the specified conditions exist, the project is not exempt from the PTC requirement.
Little claims that there are two sets of unusual circumstances in this case, each of them related to safety. As SDG&E notes, the unusual circumstances exception applies only when a project has characteristics that distinguish it from the usual run of projects in the exempt category. See Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243. We discuss the two sets of circumstances separately.
First, Little has shown, and SDG&E has not provided any information to the contrary, that the Army Corps of Engineers is studying the area of the project for the presence of UXO. As explained in McQueen v. Midpeninsula Regional Open Space District (1988) 202 Cal.App.3d 1136, the presence of hazardous wastes on property being acquired for park and open space purposes is an unusual circumstance for purposes of the exception. SDG&E in this case proposes to dig many large holes into the ground over an extensive part of the former Camp Elliott Area D study area. It is fair to say that the ordinary utility right-of-way area is not a repository of potentially explosive weaponry, just as the court in McQueen decided that the ordinary park area was not a repository for PCB. Little is likely to prevail on the claim that the possibility of UXO in the path of the project is an unusual circumstance under CEQA.
Second, Little asserts that a catastrophic fire a year prior to construction is an unusual circumstance for transmission line projects. He has shown that the Cedar fire has had a major impact on vegetation in the area. He argues that this change creates risks of landslides and erosion related to construction in affected areas. SDG&E responds that current regrowth of vegetation is adequate to protect hillsides during the construction and that its construction management practices will protect against erosion. But SDG&E is jumping too far ahead in the analysis. If unusual circumstances exist because of the fire, then the only consequence is that SDG&E's project is not exempt from the PTC requirements. If a PTC is required, SDG&E's construction practices will then be relevant in evaluating the environmental impact of the project in more detail. Little is likely to prevail on the claim that the Cedar fire is an unusual circumstance under CEQA.
Little also claims that the "environmental resource of critical concern" exception set out in subsection (a) applies to this project because the project may impact on the habitat of the Gnatcatcher, a threatened species. In its Answer to Little's complaint, SDG&E concedes that "portions of the Project traverse areas containing habitat suitable for the Coastal California gnatcatcher." SDG&E further asserts that its Subregional Natural Community Conservation Plan (NCCP), a comprehensive plan for management of habitat issues in the San Diego area, ensures that it will comply with all applicable restrictions related to Gnatcatcher habitat. This may or may not ultimately be true, but it is not relevant to the threshold issue of whether the project is exempt from the PTC requirements. Little is likely to prevail on the issue of whether there is a "reasonable possibility that the activity may impact" the Gnatcatcher habitat area.
5.3 Irreparable harm to moving party
Because the potential environmental impacts Little identifies are all impacts from or related to construction, those impacts will have occurred or will be difficult or impossible to mitigate if the project is built while this proceeding is pending. It goes without saying that potentially lethal explosions of UXO constitute irreparable harm. The harm from landslides and/or serious erosion, were they to occur, could be irreparable, depending on their location and severity.
5.4 No substantial harm to other interested parties
SDG&E asserts that it, as well as the public, would be harmed if it could not work on this project during the pendency of this proceeding. SDG&E states that at least part of the project is needed quickly for reliability purposes, and that deferring construction poses a substantial risk of harm to the transmission system and thus to the public. Because the asserted harm to SDG&E is inseparable from SDG&E's position on the public interest involved, we discuss both below.
5.5 The public interest
Little asserts that without a TRO, this proceeding will be rendered meaningless because SDG&E will have finished constructing the project during the pendency of the case. As noted above, the potential environmental impacts Little identifies are all impacts from or related to construction, which will have occurred or will be difficult or impossible to mitigate once the project is built. Little further observes that, despite the orders to preserve the status quo that were previously entered in this proceeding, SDG&E continues to work on the Scripps Lake underground project, even though that project is coextensive with the undergrounding of new TL 6942. He argues that the public interest in safety, environmental protection, and the good order of Commission proceedings will therefore be advanced by the issuance of a TRO.
SDG&E asserts that the public interest in a reliable electrical transmission system would be damaged by a TRO. SDG&E proposes instead that, for purposes of the TRO request, we consider the project in two parts. The first part is the reconductoring of TL 669 between Scripps Substation and Miramar Substation. SDG&E represents that this is needed for reliability in the short term, as TL 669 has less capacity than TL 6916, which runs from Sycamore Substation to Scripps Substation. Upgrading the capacity of TL 669 to equal that of TL 6916 will allow all available power to flow through TL 6916 and TL 669 from Sycamore Substation to Miramar Substation. SDG&E states that if it could begin the reconductoring of TL 669 by January 15, 2005, it could complete that work by summer 2005. SDG&E would then voluntarily defer work on new TL 6942 until the completion of this proceeding.
While we appreciate SDG&E's willingness to put forward this proposal, it is not a feasible solution. Although it appeared to be a minor part of the project described in AL 1520-E, the reconductoring of TL 669 is in fact a major part of the actual project that SDG&E is building. We are mindful of SDG&E's concern about reliability. We, too, want SDG&E to be able to improve reliability. The project SDG&E is building, however, may not be eligible for the exemptions claimed in AL 1520-E. Indeed, in this ruling we conclude that, on the present state of the record, the project is unlikely to be eligible for exemption. If we were to adopt SDG&E's suggestion, we would be allowing SDG&E to build a project, prior to a decision on the merits of this complaint, for which legal authorization could be unavailable.
This brings us to our final point on the public interest: the integrity of the Commission's processes. GO 131-D creates a three-tiered system of review of transmission line projects. Projects of 200 kV or more require an application for a certificate of public convenience and necessity. Projects between 50 and 200 kV require a permit to construct. The third category is projects between 50 and 200 kV that qualify for an exemption listed in Section III.B.1. Utilities notify the Commission of exempt projects by advice letter, pursuant to Section XI.B.4.
This system relies on the completeness and accuracy of the submissions by the utilities, especially if the utility proceeds by advice letter. In this proceeding, we have discovered that the information provided in AL 1520-E is quite different from the information that has been provided to date in this proceeding. It is not appropriate for SDG&E to use this proceeding to alter the project described in AL 1520-E and then have the new project approved in the guise of a compromise about temporary injunctive relief.
We encourage SDG&E to proceed expeditiously to seek appropriate approval for any needed reliability improvements. We suggest that Little and SDG&E make use of the mediation services available through the ALJ Division to aid them in trying to resolve the issues in this case. We also urge the parties to focus their efforts on mediation and on preparation of testimony for the evidentiary hearing, rather than on submitting additional material that cannot be effectively evaluated prior to an evidentiary hearing.
6 Approximately 30 poles are being removed once the undergrounding portion of the project is completed.
7 At the PHC, SDG&E initially adhered to the description of new TL 6942 running into and then out of Scripps Substation. After it was pointed out that Plan 50027 showed new TL 6942 bypassing Scripps Substation, SDG&E confirmed the bypass plan.
8 Little also challenges the applicability of the exemption in subsection B.1.(g) to the project. Though he raises important questions going to the merits on this point, this is a legal question on which there has been no briefing. Thus, on the present record he has not demonstrated a likelihood of prevailing on the merits of this claim.
9 The Guidelines implementing the California Environmental Quality Act (CEQA), Pub. Res. Code § 21000 et seq., are found at 14 Cal. Code Regs. Section 15000 et seq.
