11. Comments on Proposed Decision
The proposed decision (PD) of the ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed by Acton, Alta, CARE, Chino Hills, DRA, HFE and SCE by November 23, 2009. Reply comments were filed by Acton, Chino Hills, DRA, HFE and SCE on November 30, 2009.178
Alta's comments support the PD. DRA's comments largely supported the PD, with the exception of reiterating its previously stated concerns regarding the large potential impact of Alta's contracts, which is discussed in Section 4.2.3. DRA's reply comments are discussed further below.
Acton objects to the PD regarding: analyzing the project segments separately; project need; project cost; and fire prevention and suppression. The comments raise the same arguments presented in Acton's briefs, which have already been adequately addressed.
Acton's comments request that the Commission condition construction of the Project with ensuring safe and reasonable residential access, certain local requirements such as equestrian trail easements, and removal of a billboard unlawfully constructed within the SCE ROW.179 We agree that these are serious concerns which SCE should address with Acton. We therefore direct SCE to meet with Acton and to identify reasonable measures consistent with state law and Commission orders, and to file an advice letter setting forth these measures, if any, within six months.
CARE objects to the PD as evidencing a pre-judging of the outcome prior to the completion of the environmental review. CARE bases these objections on the PD's recitation of determinations by other entities and processes, such as the CAISO and RETI, as a "post hoc rationalization" of a "pre-decision."180 This is incorrect. These other decisions, reports, etc. are cited as examples demonstrating independent assessments for the need for the Project. They did not pre-judge or interfere with the separate, independent environmental analysis embodied in the Final EIR, which has guided our ultimate decision on the Project.
CARE further argues that the PD and the Final EIR fail to consider distributed generation and the No Project Alternatives as alternatives in the Final EIR. This is incorrect. The Final EIR considered the full variety of alternatives required under CEQA that meet the project objectives, including the No Project Alternative.
CARE correctly notes that the Final EIR failed to address the comments on the DEIR/DEIS submitted by CARE and prepared by its expert Smallwood. This oversight has been corrected and written responses to the comments have been included in the "Revisions to the Final EIR" appended hereto as Attachment 3.
Acton, CARE, Chino Hills and HFE all disagree with the Final EIR's selection of the Environmentally Superior Alternative. Those arguments largely restate the parties' earlier positions, which were fully considered in the PD.181
Acton argues that the Environmentally Superior Alternative does not comply with CEQA in that it "includes infrastructure that creates significant impacts but is unnecessary to achieve any of the project objectives."182 First, we do not agree that the Environmentally Superior Alternative contains any unnecessary infrastructure. Nevertheless, there are no requirements under CEQA that all infrastructure proposed as part of a project be necessary to meet project objectives.183 All that is required is that the EIR analyze a reasonable range of alternatives that avoid or substantially lessen any of the significant effects of the project and meet most of the project objectives.184 The CEQA project objectives were used to screen for potentially feasible alternatives that accomplish most of the Project objectives.185
Chino Hills argues that the Final EIR should undertake "a scientific rating of the alternatives."186 The Final EIR includes a detailed and methodical comparison of Alternatives in Chapter 4 (Comparison of Alternatives). Table
4.2-1 in the Final EIR presents a summary matrix by environmental issue/resource area of the environmental issues and impacts associated with the alternatives. To further compare the environmental impacts of the Project amongst the alternatives, Sections 4.2.1 through 4.2.16 of the Final EIR provides a discussion of the noteworthy differences between the alternatives for each environmental issue/resource area. Finally, Final EIR Table 4.2-2 provides a summary of the alternative comparisons. This methodology results in a thoughtful and careful comparison that is more than adequate to provide decisionmakers with sufficient information to allow for meaningful evaluation and comparison.
Chino Hills's proposal for an "objective" way to compare impacts essentially amounts to totaling the number of significant impacts under each alternative without regard to their magnitude or the relative importance of the resources involved. This approach is overly simplistic and contrary to common CEQA practice, e.g., practice guidance explaining that "[o]ften, alternatives will reduce some impacts and increase others. When none of the alternatives is clearly environmentally superior to the project, it should be sufficient for the EIR to explain the environmental advantages and disadvantages of each alternative in comparison with the project."187 Nothing in CEQA suggests that the environmental superiority of an alternative should be based purely on a numerical calculation. We have considered numerous factors in reaching our conclusion, and our determination that Alternative 2 is environmentally superior to Alternative 4CM is supported by the Final EIR and by substantial evidence in the record.
Chino Hills and HFE support Alternative 4CM, coupled with the 21st Century Proposal, and object to the selection of the Environmentally Superior Alternative.
HFE contends that Alternative 4CM is environmentally superior, based upon the fact that Alternative 4CM, coupled with the 21st Century Proposal, would "significantly improve environmental conditions in the Park"188 and "would leave Chino Hills State Park in better condition than it is now."189
However, the California Supreme Court has expressly rejected the idea that an alternative should be found "environmentally superior" because it would more effectively address existing environmental problems. (In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1168.) In In re Bay-Delta, the Supreme Court stressed the importance of distinguishing "between preexisting environmental problems..., on the one hand, and adverse environmental effects of the proposed [project]," explaining that existing environmental problems "would continue to exist even if there were no [proposed project], and thus under CEQA they are part of the baseline conditions rather than program-generated environmental impacts that determine the required range of alternatives." (Id. at 1167-68.) Hence, improvement of existing conditions is not a factor in determining the environmentally superior alternative under CEQA.
Chino Hills and HFE contend that Alternative 4CM, coupled with the 21st Century Proposal, is consistent with the CHSP General Plan.190 This is not a question that the Commission can definitively resolve, as the interpretation of the CHSP General Plan is not within our jurisdiction. However, the only evidence that we have in the record regarding the CHSP General Plan is a letter from CDPR stating that Alternative 4 is inconsistent with the CHSP General Plan.191 Ultimately, the question of interpretation and potential amendment of the CHSP General Plan will be a matter for CDPR and/or the State Park and Recreation Commission to resolve, and the parties' various arguments for whether the use is in compliance would be left for future, uncertain resolution by a process outside of our control.
Both Chino Hills and HFE object to the PD's determination that the 21st Century Proposal cannot be imposed by the Commission.192 Those arguments largely restate the parties' earlier positions, which were fully considered in the PD in Section 6.2.3.3 and Section 7.3.1.2. However, several additional arguments were raised that warrant further discussion.
HFE argues that the 21st Century Proposal is legally required because "the EIR/S proposes no mitigation for Alternative 4CM's impacts within the Park."193
To the contrary, the Final EIR identifies mitigation for all of Alternative 4CM's significant impacts. HFE misunderstands the PD to say that Alternative 4CM would have no impacts. In fact, the PD recognizes the impacts of Alternative 4CM absent mitigation and determines that the mitigation identified in the Final EIR fully mitigates these impacts. As HFE itself states, the Commission "has wide latitude to determine the proper mitigation measures for a group of impacts."194 In this case, we have determined that the proper mitigation measures for the impacts of Alternative 4Cm are those identified in the Final EIR.
Further, HFE argues that restoration of degraded habitat is reasonable mitigation for impacts to habitat. We agree; therefore, restoration and compensation for project impacts are already required under the EIR's Mitigation Measure (MM) B-1a, which is identified in the Final EIR as mitigation for Alternative 4CM, as HFE is apparently aware.195 As stated in herein, we cannot require mitigation to "below baseline conditions", i.e., that mitigation cannot be designed to improve existing conditions but only to mitigate impacts of a proposed project.
HFE states that the 21st Century Proposal "proposes to improve conditions in areas where habitat has been degraded by invasive species or other disturbances."196 As we have noted, we will not impose mitigation to improve conditions that are already degraded, only mitigation that will alleviate impacts caused by the Project.
Chino Hills argues that "the Mitigation Plan elements would not be superfluous to the mitigation measures established in the FEIR."197
As we have previously stated, the "Bio-Corridor Expansion" and "Habitat Enhancement" components of the 21st Century Proposal are not necessary because they would not provide meaningful additional mitigation of Project impacts beyond the measures identified in the EIR. Restoration and compensation are already identified as full mitigation for the impacts of Alternative 4CM under
MM B-1a. Under MM B-1a, land acquired for compensation could include lands identified in the 21st Century Proposal; however, the acreage of lands acquired/restored depends on the actual ground disturbance that occurs during construction and would be orders of magnitude less than what is proposed in the 21st Century Proposal. By restoring and/or compensating for all disturbance caused by the Project, impacts associated with loss of habitat and native vegetation communities would be less than significant. The 21st Century Proposal would require substantial additional land acquisition with no relationship between the amount of land to be acquired and the project impacts. We cannot legally require such measures.
An EIR is not required to discuss mitigation measures for less than significant environmental impacts.198 In fact, once mitigation has been identified that reduces project impacts below the level of significance, imposition of further mitigation may disproportionately burden the project applicant.199 Further, to the extent measures set forth in the 21st Century Proposal would alter existing conditions and impacts not caused by Alternative 4CM, we may not legally impose them under CEQA and related state and federal constitutional provisions.
The mitigation set forth in the Final EIR and the MMP already provides sufficient mitigation to ensure enforcement of all mitigation measures. Chino Hills has not provided evidence that funding and endowment to hire an environmental scientist and a ranger would actually mitigate any of the impacts of Alternative 4CM.
Chino Hills argues that the 21st Century Proposal meets the Nollan/Dolan test, arguing that it has demonstrated a rough proportionality of 3 to 1 for replacement habitat to impacted habitat, and that the Commission has authorized such replacement in the past.200 HFE makes similar arguments in its comments.201 HFE argues that the 21st Century Proposal is sufficiently specific to qualify as mitigation under CEQA. However, HFE provides no evidence to support its claim that the 21st Century Proposal is "a reasonable, enforceable plan or program that is sufficiently tied to the actual mitigation of the ... impacts at issue."202
These arguments ignore or misinterpret the nexus requirements set forth in the U.S. and California constitutions and the established application of this doctrine in the context of CEQA. The CEQA Guidelines clearly state, "Where the mitigation measure is an ad hoc exaction, it must be `roughly proportional' to the impacts of the project." (CEQA Guidelines § 15126.4(a)(4)(B).) The U.S. Supreme Court did not purport to limit this requirement or the holding of Ehrlich v. City of Culver City (1996) 12 Cal.4th 854 in its decision in Lingle v. Chevron U.S.A., Inc. (2005) 544 U.S. 528. U.S. Supreme Court cases are not authority for propositions not considered therein. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265)
Moreover, despite Chino Hills' and HFE's arguments to the contrary, we have been unable to find any nexus between the 21st Century Proposal and the impacts of the TRTP that would not already be mitigated by measures identified in the EIR, which our "wide latitude" to determine the proper mitigation measures allows us to adopt. Because the mitigation measures in the Final EIR already mitigate the impacts of 4CM to less than significant levels, there is no legal or factual basis to require additional habitat restoration or acquisition in unrelated areas of the CHSP.
Specifically, we have seen no evidence that Alternative 4CM would impact the land proposed for acquisition under the 21st Century Proposal; we have seen no evidence that Alternative 4CM would impact the three canyons proposed as habitat restoration areas in the Plan (Water Canyon, Brush Canyon and Lower Aliso Canyon); we have seen no evidence that creation of a fund for new park personnel will mitigate the impacts of Alternative 4CM; and we have seen no evidence that removal of existing transmission facilities will mitigation the visual impacts of Alternative 4CM. On this record, we cannot impose the 21st Century Proposal on SCE.
HFE argues that the PD should require SCE to remove the existing
de-energized transmission lines in the Park as a condition of project approval, rather than assuming that SCE will remove these lines under the 1982 settlement agreement to which SCE and HFE are parties. Yet HFE has previously stated that "under CEQA the effects of these existing lines are not considered impacts of the TRTP"203 and that "SCE's obligation to remove these lines is independent of its obligation to mitigate the environmental impacts of the TRTP."204 Therefore, HFE concedes that there is no nexus between the impacts of the TRTP and the removal of the existing lines. Accordingly, the CPUC has no authority require removal of these lines as a condition of approving the TRTP.205
Nevertheless, SCE is under an existing obligation to HFE and the CHSP to remove these lines, pursuant to the 1982 settlement with HFE. SCE has not fulfilled this element of the settlement for a period of over 29 years.
Therefore, we direct SCE to meet and confer with the Department of Parks and Recreation, the CHSP, and with HFE to develop a plan for fulfillment of SCE's prior obligations, and to report to the Director of Energy Division every
six months regarding the progress of fulfillment of this obligation until its completion satisfactory to the Director of Energy Division.
HFE argues that the PD errs in finding that community values favor the Environmentally Superior Alternative, as both the Environmentally Superior Alternative and Alternative 4CM would both provide the same transmission capacity. However, this overlooks the impact of the uncertainty and delay that adoption of Alternative 4CM would introduce into the RPS program. The PD has been revised to highlight our reliance upon that delay as a factor in the determination in Section 7.3.1.1.
Chino Hills reiterates its previous arguments regarding construction risks, operational risks, and fire prevention and suppression risks, which were adequately considered in the PD in Section 7.3.2, as well as regarding the cost of Alternative 4CM, which was adequately considered in Section 7.3.3.
It appears that Chino Hills misunderstands the PD's treatment of §399.2.5 in consideration of route selection, arguing that the PD ignores Section 1002 factors.206 Section 7.3.1 of the PD provides a full comparison of the Environmentally Superior Alternative with Alternative 4CM under Section 1002.
Chino Hills objects to what it perceives as a double standard, whereby the PD considers the General Plan for the CHSP but not the General Plan for Chino Hills. This disregards the fact that there is a significant difference in the roles that these General Plans must play in our deliberations. The General Plan for the CHSP is considered because we cannot authorize SCE to take actions in the CHSP incompatible with the CHSP General Plan. In contrast, we can authorize SCE to construct the Environmentally Superior Alternative through an existing ROW in Chino Hills.
Chino Hills disputes this conclusion and objects that the PD fails to adequately consider the delay posed by its litigation before the San Bernardino County Superior Court, arguing that SCE cannot rely upon §1759 absent an investigation of the plaintiff's claims, a finding that the utility has complied with the ROW grant, and that further action was unnecessary, citing Koponen v. Pacific Gas and Electric Company (2008), 165 Cal.App.4th 345, 358.
We disagree with Chino Hills's interpretation of § 1759. Nevertheless, we have considered Chino Hills' arguments regarding the ROW grant. Our findings and conclusions are based upon the evidentiary record of this proceeding, which included a consideration of the language of the easement grants. In granting the CPCN, the PD considered that evidence, including the language of the easement provision from Exhibit CH-54, which includes provisions regarding reconstruction, enlargement, and improvement of the transmission lines within the ROW, and contains no limiting language which would support a finding of an overburdening of the easement. We therefore now explicitly find that construction of the Environmentally Superior Alternative is consistent with the language of the easement provision found in Exhibit CH-54. This finding is based upon the evidentiary record and upon the other findings of fact and conclusions of law contained herein.
Chino Hills argues that we cannot modify the terms of an easement obtained by contract.207 We have not done so herein. However, Chino Hills cannot add additional terms to the easement obtained by contract, and we do not believe that the San Bernardino County Superior Court will reconstruct the contract.
SCE supports the PD with limited revisions. SCE has requested certain revisions to the PD, the CEQA Findings of Fact and the Final EIR to clarify the information presented therein. Where appropriate, we have implemented these minor modifications. All modifications to the Final EIR are reflected in the "Revisions to the Final EIR" appended hereto as Attachment 3.
In addition, SCE requested revisions to support future implementation through condemnation, most of which have been adopted. More specifically, Findings of Fact 44-46 and Conclusions of Law 23-25 are adopted to support implementation.
SCE requests that the PD be modified to apply the 15% contingency upon costs derived from final route selection and engineering designs. SCE proposes that it be allowed the opportunity to update its cost estimates through an advice letter following adoption of a final route and completion of engineering, similar to the process set forth in D.07-01-040 regarding SCE's Devers-Palo Verde No. 2 Transmission Project.
DRA objects to the proposal, arguing that the PD was properly reasoned, and that adoption of SCE's proposed ordering paragraph would remove the maximum cost language.208 DRA offered a counter-proposal based upon our decision authorizing SDG&E's Sunrise Powerlink Project, whereby we would adopt a maximum cost and authorize an advice letter process to potentially adjust that maximum cost upon final route selection and engineering designs.
We find SCE's proposal to be a reasonable recommendation. We recognize DRA's concerns, but see minimal benefit in adopting a maximum cost figure with conditions which would nevertheless effectively require supplementation by a subsequent advice letter. Hence, we adopt SCE's proposed revisions to the PD regarding contingency, with direction that SCE use a 15% contingency level.
178 The Natural Resources Defense Council (NRDC) is not a party to the proceeding but submitted a comment letter drafted November 24, 2009. In its letter, NRDC stated that it does not support any of the Chino Hills Alternatives (including 4CM) and believes that based on the formal record each of the five Chino Hills Alternatives described in the Proposed Decision poses an unacceptable risk of adverse impact to Chino Hills State Park. The NRDC letter also stated that NRDC supports removing the existing transmission lines from Chino Hills State Park at the earliest possible time.
179 Acton's Comments at paragraphs 2-3.
180 CARE's Comments at 8.
181 These parties contend that the PD failed to adequately consider the testimony that supports their positions, relying largely on what the PD does not say. In the interest of clarity, we have not recited all of the evidence considered in reaching each finding of fact. However, all of the numerous exhibits, comments and briefs have been fully considered. In addition, the parties had the opportunity to address the Commission at the En Banc Hearing on November 20, 2009 for over an hour, and at the FOA for over two hours.
182 Acton's Comments at paragraph 13.
183 See CEQA Guidelines §15124(b).
184 CEQA Guidelines §15126.6.
185 See Final EIR, Appendix A.
186 Chino Hills' Comments at 11.
187 1 Kostka & Zischke, Practice Under The California Environmental Quality Act
(2d ed Cal CEB 2008), § 15.37.
188 HFE's Comments at 3.
189 HFE's Comments at 4.
190 Chino Hills' Comments at 14-18; HFE's Comments at 4.
191 See footnote 72 above.
192 HFE argues that the PD completely ignores the benefits of Alternative 4CM and provides a legally flawed analysis of the 21st Century Proposal. HFE's Comments at 8.
193 HFE's Comments at 10.
194 HFE's Comments at 13-14.
195 See citation to FEIR, Section 3.4-129 in HFE's Comments at 12.
196 HFE's Comments at 12, emphasis added.
197 Chino Hills' Comments at 16.
198 See San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 1517.
199 See CEQA Guidelines § 15126.4(a)(4)(B); Dolan; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854.
200 Chino Hills' Comments at 20.
201 HFE's Comments at 15-17. See, Dolan, 512 U.S. at 378 (agency must have specific evidence establishing a nexus).
202 HFE's Comments at 13.
203 HFE's Opening Brief at 5.
204 HFE's Opening Brief at 4.
205 See CEQA Guidelines § 15126.4(a)(4)(A); Nollan v. California Coastal Commission (1987) 483 U.S. 825.
206 Chino Hills' Comments at 3.
207 Chino Hills' Comments at 22.
208 DRA Reply Comments at 4.
