III. Discussion
As a threshold issue, PG&E has not established this application is exempt from CEQA. Moreover, MFNS is pursuing its applications in piecemeal fashion with the effect, whether or not intended, of avoiding CEQA review. Finally, because the application does not identify the actual facilities to be installed, it is impossible to determine what PG&E is asking us to approve. Thus, PG&E has failed to meet its burden of establishing that the Commission should approve its application. We discuss these determinations below.
This Commission studied portions of MFNS' project for D.00-09-039, D.01-05-056 and D.01-09-018. However, it is unclear what construction will occur as a result of this application's approval. We are asked, instead, simply to accept that unidentified new construction may occur without CEQA review.
Similarly, PG&E asks us to approve construction already completed without CEQA review because the BCDC in a letter stated that the project was "categorically exempt from the requirement to prepare an environmental impact report." (Application at 4.) However, we do not have evidence before us that BCDC was an appropriate lead agency for the project or that BCDC prepared and filed an approved Notice of Exemption for the project consistent with CEQA. MFNS concedes it does not know whether the BCDC ever consulted this Commission or any other agency in making this determination. MFNS simply asserts BCDC was the lead agency for purposes of environmental review under CEQA. (Id.)
We are asked to take on faith that "BCDC's jurisdiction extends beyond San Francisco Bay itself to land immediately to adjacent to the Bay." (Id. at 2.) Thus, we are told that construction MFNS has already performed is not our concern even though some of it took place in Hayward or on private land near the Bay. It is possible that all of MFNS' and PG&E's assertions are correct. However, the presentation is not adequate to enable us to make this assessment.
Moreover, we have concerns regarding MFNS' piecemeal approach to its San Francisco Bay fiber optic project. This approach makes it nearly impossible for us to determine the scope of the project, what we (or another agency) have reviewed and approved in compliance with CEQA, what has already been built, what will be built in the future, and whether we will have the opportunity to consider such future construction. Nowhere in the application or in information submitted later does PG&E (or MFNS) identify each item or category of construction in any detail so that we might determine whether or not the construction raises environmental concerns.
We cannot accept PG&E's assertion that the proposed (or already completed) construction is exempt from CEQA on the basis that "the installation was for electric utility facilities" (Application at 4 n. 2) because it is contradicted by the rest of PG&E's application. This project is clearly not solely for PG&E's electric utility operations, but is intended to assist MFNS in its fiber optic project covering the entire San Francisco Bay Area.
It is precisely because piecemealing of project activities precludes comprehensive environmental consideration of potential environmental impacts that CEQA prohibits it. (Cf., San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App. 4th 713, CEQA Guidelines 15165.) It is not the Commission's burden to sort out this confusion. Rather, the burden is on PG&E, or MFNS, or both, to present the project clearly. The confusion presented here makes it impossible for us to understand what we are being asked to approve or what if any environmental review has occurred or should occur. We have no choice but to deny the application.
