DISCUSSION

On January 17, 2001, Governor Gray Davis proclaimed a state of Emergency to exist due to the energy shortage in the State of California. On February 8, 2001, the Governor issued Executive Order D-26-01 which states that "this energy supply emergency poses a threat to public health, safety, and welfare and requires the siting of new powerplants that can be on-line to avoid electricity supply shortages this summer and next." The Executive Order also ordered, among other things, that all state and local agencies referred to in that Executive Order undertake the tasks described therein as expeditiously as possible for the purpose of accelerating the availability of new generation sources to the State.

In light of current electrical generation shortages and Governor Gray Davis'

January 17, 2001 Executive Order declaring a state of energy supply emergency, the Commission finds it necessary to take all reasonable steps to ensure an adequate and reliable supply of electricity during the summer of 2001, and during other future energy supply emergencies. The Commission finds it necessary and appropriate to accelerate the date for construction of

vital transmission and distribution facilities that are exempt from certificate of public convenience and necessity or permit to construct requirements so that construction may begin soon after the relevant protest period has ended, assuming that either no protests are filed, or that protests that are filed are determined to be without merit. Any acceleration of potential construction dates should not come at the expense of the protest period associated with the notice of proposed construction.

GO 131-D Section XI.B provides that planning directors and the Energy Commission be notified by direct mail of the proposed construction not less than 30 days before construction is intended to begin, and advertisements concerning the proposed construction by published for two consecutive weeks, with the first publication "not later than 45 days before the date when construction is intended to begin." GO 131-D does not, however, preclude us from authorizing construction to begin sooner than 30 days after notice was mailed to planning directors and the Energy Commission, or sooner than 45 days after the initial newspaper publication of the notice of construction. The date a utility may intend to begin construction may not coincide with our determination as to when to authorize construction needed to provide essential facilities so we may meet our regulatory responsibilities to ensure adequate and reliable electrical service.

Any delays in the construction of utility facilities necessary to provide access to new sources of electrical energy resources that are not based on technical constraints, or on the need to provide the public with an adequate opportunity to review and/or protest proposed construction of utility facilities is of grave concern. During energy supply emergencies, delaying the start of construction until 45 days after first publication of notice of the proposed construction may interfere with our efforts to ensure adequate electrical energy supplies during the peak summer energy use period of 2001 and future energy supply emergencies.

We are establishing a procedure to accelerate utility construction schedules during bona fide energy supply emergencies, in light of the critical nature of such energy to the health and welfare of our citizens. The desirability of accelerating construction schedules during energy supply emergencies must be balanced against the need for public review and comment concerning proposed new facilities.

Until protest periods lapse, we have no way of determining whether any protests will be filed, or whether any protests that may be filed will have merit. If protests that have merit are filed by the end of the protest period, the Executive Director may take up to 30 days to issue an Executive Resolution granting or denying the protests. If, however, no protests are filed by the end of a protest period, then no utility response to protests would be required, and the Executive Director would be free to issue an Executive Resolution promptly thereafter.

If protests are filed, a utility has up to 5 business days to respond. Once a utility's response is received, the Energy Division needs time to review the protests and the utility's response, and to consult with the Executive Director concerning the required Executive Resolution. The content of the Executive Resolution will depend on the issues raised by the protests and response. If the protests do not state valid reasons for believing that the proposed project does not qualify for an exemption from the requirement for a certificate of public convenience and necessity or permit to construct, or that other specified conditions prevail, or if the utility's response convincingly counters the protests, an Executive Resolution denying the protests and authorizing prompt construction could be issued within a relatively short time after the end of the utility response period. Of course, if the protests raise valid issues, it may be necessary for the Executive Director to grant the protests and order further proceedings prior to any approval of construction.

Given the uncertainty as to whether any protests will be filed, and the possibility that a utility may need to respond to protests, we recognize that utilities cannot confidently plan to begin construction prior to the end of the time the utility would have to respond to any protests pursuant to GO 131-D Section XIII. We also recognize that the Energy Division must be given time to reflect any utility response in its advice to the Executive Director.

We will authorize the Executive Director to issue an Executive Resolution addressing informational advice letters filed pursuant to GO 131-D immediately after the close of the 20 protest period, if no protests are received, and if the Executive Director, in consultation with the Energy Division, concurs with the utility's conclusion that the proposed construction is properly the subject of an informational advice letter and does not require a certificate of public convenience and necessity or permit to construct. Such Executive Resolutions may authorize construction to begin immediately, subject to reasonable construction conditions.

If protests are received, the Executive Director is authorized to issue an Executive Resolution within 30 days after the utility's response to protests has been received, in accord with GO 131-D Section XIII. If the Executive Director concurs with the utility's conclusion that the proposed construction is properly the subject of an informational advice letter and does not require a certificate of public convenience and necessity or permit to construct, and that the protests raise no meritorious issues requiring further Commission consideration, the Executive Resolution may authorize construction to begin within 30 days after the advice letter was filed, subject to reasonable construction conditions. This process allows 5 business days for utility responses to protests, and additional time for the Energy Division to review protests and utility responses, and to consult with the Executive Director regarding the Executive Resolution to be issued. Further, this process simplifies the provision of notice to planning directors, the Energy Commission, and the public.

If the Executive Director does not concur with the utility's conclusion that the proposed construction is properly the subject of an informational advice letter rather than a certificate of public convenience and necessity or permit to construct, and/or if he or she determines that meritorious protests have been filed, he or she may, of course, issue an Executive Resolution rejecting the advice letter filing or granting the protest(s), as appropriate, in accord with GO 131-D Section XIII, i.e. by ordering the utility to file an application for a certificate of public convenience and necessity or permit to construct.

Guidelines for Processing Advice Letters for Projects not Requiring Certificates of Public Convenience and Necessity or Permits to Construct During Energy Supply Emergencies Declared by the Governor of California.

The following guidelines may be applied, during energy supply emergencies declared by the Governor of California, to projects that are subject to the informational advice letter provisions of GO 131-D, and do not require a certificate of public convenience and necessity or permit to construct. The Commission does not intend to amend GO 131-D at this time, or take action beyond the minimum necessary to allow accelerated construction schedules, consistent with due process, during bona fide energy supply emergencies, we limit our new procedure to the following:

1. For the purposes of this resolution. advice letters subject to General Order 131-D must be filed with the Energy and Legal Divisions at the addresses noted in Guideline 5, below.

2. The notice requirements of GO 131-D Section XI.B may be reduced during a bona fide energy supply emergency, which is defined as a time during which the Governor of California has issued one or more Executive Orders declaring the existence of an energy supply emergency.

3. Advice letters proposing the accelerated construction of projects that are critically necessary for the generation or transmission of new energy supplies and are subject to the informational advice letter provisions of GO 131-D must include a declaration under penalty of perjury stating that an energy supply emergency exists, as demonstrated by the issuance by the Governor of California an Executive Order declaring such a state of emergency.

4. The utility filing such an advice letter must, at the time of filing: a) mail notice of the project and its proposed construction schedule to the planning directors of any counties and city in which the project will be constructed, and the Energy Commission; b) publish, for two consecutive weeks, a newspaper advertisement concerning the project, with the initial publication being on or before the date the advice letter is filed; c) post notice at the proposed construction site.

5. Notices under these guidelines shall meet all normal requirements for such notice, regarding the description of the project, the opportunity to file protests, and so on.

6. All notices, including notice to planning directors and the Energy Commission, notices published in newspapers, and notices posted at the proposed construction site, should comply with General Order 131-D Section XI.C and include the following language:

    An electric utility regulated by the California Public Utilities Commission intends to construct new facilities described above at _________________ (provide address). These facilities are being constructed to help alleviate the energy emergency currently facing California. Because of this energy emergency, the California Public Utilities Commission is considering such projects on an expedited basis.

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    If you object to the proposed project and would like to file a protest with the California Public Utilities Commission, please send a letter containing your objection or protest to the following three addresses:

    1. Utility Contact Address

    2. Bruce Beauregard

      CEQA Unit

      Energy Division

      California Public Utilities Commission

      505 Van Ness Ave.

      San Francisco, CA 94102

    3. Pam Nataloni

      Legal Division

      California Public Utilities Commission

      505 Van Ness Ave., Room 4300

      San Francisco, CA 94102

    The letter to the California Public Utilities Commission may also be filed by electronic mail at the following address: construction@cpuc.ca.gov. If you send a protest by electronic mail, please be sure to include your name and address.

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