California regulators concerned about precedent from decision on Tehachapi project

The two California regulators who voted against placing a 3.5-mile portion of the Tehachapi Renewable Transmission Project (TRTP) underground through the city of Chino Hills, Calif., are concerned that the decision sets a precedent for revisiting prior decisions, and sends negative messages about regulatory certainty as well as whether the decision means affluent communities have a better chance of influencing commission decisions than communities that are less well-heeled.

“Our disagreement is grounded in our core duties as commissioners to balance our decision-making in a thorough analysis of impacts on all affected ratepayers, and not only the residents of this individual community,” Commissioners Carla Peterman and Michel Florio said in their joint dissent filed July 24 (Docket No. A07-06-031).

The California Public Utilities Commission (CPUC) voted 3-2 on July 11 to underground the Chino Hills portion of the project, which is being built by Southern California Edison (SCE).

While section 1708 of the state Public Utilities Code allows the commission to “rescind, alter, or amend any decision made by it … at any time,” Peterman and Florio said that specific provision “should be used extremely sparingly to avoid introducing a great deal of uncertainty into the commission’s decision-making process.”

As Peterman articulated at the time of the vote, the joint dissent expressed concern about substituting the judgment of a mostly new set of commissioners for the judgment of those that originally decided the case after seeing all of the evidence.

“If we had been among those commissioners, we may have reached a different conclusion originally,” they wrote in their dissent.

The commissioners presently seated did not have the benefit of drawing on a complete record addressing siting, design and engineering for the entire transmission line of which Segment 8A through Chino Hills is a part, they continued.

Peterman and Florio restated another issue that they touched on at the time of the vote: the matter of setting a precedent.

“We are concerned that it will invite other interested parties who disagree with our decisions to persist in appeals until we change our minds on other matters,” the commissioners wrote. “Ultimately, a commission decision needs to have some meaning and finality, unless we have made some sort of legal error, which we do not believe to be the case here.”

Although the state’s Public Utility Code allows the commission to consider community values when making a decision, Peterman and Florio took issue with the way the majority interpreted that provision. The majority approval “defines ‘community values’ … as primarily visual impacts,” they wrote.

The dissenting commissioners expressed concern that approving undergrounding through Chino Hills but not through other nearby cities sends an unintended message that communities that can afford to pay attorneys to intervene in CPUC proceedings can succeed in changing the commission’s mind, while other cash-strapped cities cannot.

Finally, Peterman and Florio noted that the $224m price cap placed on the underground portion of the project is more than 50 times the $4m it would have cost to complete the originally approved overhead line. They also noted that, while the cost of the project will be borne by all customers in the state and “may be small for individual residential customers, it is large for certain large energy users who provide jobs in this state.”

In their joint dissent the commissioners noted that while underground transmission lines may be a significant feature in California’s future, they should be considered and approved prospectively, not in hindsight.

“We would have preferred to consider that idea on a forward-looking basis for new transmission siting, and not retroactively apply it to a line for which the commission approved a certificate of public convenience and necessity (CPCN) almost four years ago, and, on the basis of that determination, has already been substantially built,” the commissioners said.

Former commissioner says initial decision was not overturned

One of the commissioners who was involved in the original decision views the matter differently.

“I am honored by the fact that [Peterman and Florio] wanted to respect the precedent of the previous decision but I do not view the (July 11) decision as overturning the previous decision; it simply modified the route,” former Commissioner Timothy Simon told TransmissionHub July 25. Simon was a member of the CPUC in 2009 when the portion of the project that passes through Chino Hills was originally approved.

While he voted in favor of the route through Chino Hills based on the Garamendi principle that allowed the siting of the line along the existing right-of-way (ROW), Simon expressed appreciation for the residents’ concerns about the impact of the 200-foot towers.

“I think you really have to stand under one of those towers to appreciate how tall they really are,” Simon said.

The record in the matter arguably did not demonstrate the towers’ impact, he said.

The Garamendi principles are findings to California Senate Bill 2431, which was passed in 1988 and related to the role of electrical transmission in the state’s future development. One of the four principles “encourage[s] the use of existing rights-of-way by upgrading existing transmission facilities where technically and economically justifiable.”

Further, Simon noted it was the CPUC, and not project developer SCE, that chose the above-ground alignment.

“[Southern California] Edison didn’t want that [overhead] route to begin with; we as commissioners chose that route” because of significant opposition to the alternate route proposed through a state park, Simon said. “To Edison’s credit, they wanted that alternative route, but we saw that the litigation that would have transpired would have delayed the delivery of the power from [facilities including] the Tehachapi Wind Farm [which] was already under construction.”

While acknowledging the possibility, Simon was also less concerned about whether the July 11 decision would be viewed as a wide-ranging precedent for underground transmission, noting that the location chosen for a given transmission line – including whether the alignment is above ground or underground – must be practical and realistic.

“I do believe that when it’s just and reasonable, when there’s environmental value, undergrounding in certain communities may be the very solution we’re looking for,” Simon said. “I see opportunities here as states continue to deal with the fights that occur in transmission siting, so I’m looking at this glass as half full.”

When completed, the 250-mile, $2.5bn, 500-kV project will be capable of moving up to 4,500 MW of renewable energy from wind and solar installations in the state’s renewable-rich Tehachapi area to the load pockets of the Los Angeles basin.

SCE has called the $2.5bn Tehachapi project “a critically important, high-voltage transmission line, the timely completion of which is essential for California’s progress toward its aggressive renewable energy goals.”

SCE is a subsidiary of Edison International (NYSE:EIX).