Brown Allen Malcolm Scoping Memo Scheduling Prehearing Conference

2. Conduct of Proceeding

SES has stated in a letter to the proceeding's Assigned Commissioner and ALJs and reiterated at the prehearing conference that it will not participate in this proceeding until and unless the federal court finds that the Commission has jurisdiction over the project. The Commission has already considered and rejected SES' motion for a stay of the proceeding (see Decision (D.) 04-07-040). Consistent with the ALJ's statement at the prehearing conference, the Commission intends to move forward with this proceeding in compliance with the Commission's order. The Commission does not wish to be in a position of delaying review of the project.

The Commission is within its authority to investigate matters that are germane to utility regulation even when the Commission would otherwise not have jurisdiction over the entities engaged in transactions with California public utilities. See PG&E Corporation v. Public Utilities Commission (2004) 118 Cal App. 4^th 1174, 1202. The Commission may also issue subpoenas to non-jurisdictional entities pursuant to Pub. Util. Code § 311. Therefore, because the Commission may investigate such non-jurisdictional matters, there can be no question as to the Commission's right to investigate issues in the present case, where it appears that SES is a public utility subject to the Commission's jurisdiction.

At the prehearing conference, SES stated this Commission's order for it to participate in this proceeding would put it in the awkward position of having to "disobey the orders of one or the other of the agencies." SES did not explain or provide any cite to a FERC order, which prohibits SES from participating in the Commission's proceeding. In fact, relevant FERC's orders do not require that SES not participate in any Commission proceeding or that such participation would somehow prejudice or harm SES.

The Commission expects SES to respond to any reasonable discovery request and to comply with all orders, rulings and directives of the Commission, the Assigned Commissioner and the ALJs, to whom the Commission has delegated authority to manage and preside over this proceeding. To the extent that SES fails to participate in the proceeding, however, SES risks foregoing its opportunity to influence the decision in this case.