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Sunrise Powerlink
San Diego Union-Tribune, December 20, 2008

Powerlink foes weigh legal options
Groups say process favored SDG&E
By Onell Soto

Opponents of the Sunrise Powerlink are vowing to keep on fighting despite Thursday's vote by the California Public Utilities Commission approving the big power line from Imperial County to San Diego.

Groups representing consumers, environmentalists and backcountry activists say the process was unfairly tilted in favor of San Diego Gas & Electric, which proposed the line in 2005.

They are weighing legal options, such as asking appeals court judges to review the decision to make sure it was done properly.

Lawsuits are also possible over whether the commission violated state environmental laws. Additional suits could be filed in federal court if the U.S. Forest Service and the Bureau of Land Management give the go-ahead for SDG&E to use their land, opponents said.

SDG&E said it is moving forward with construction based on the PUC decision and plans to have the line in place by 2012.

But before any litigation is filed, the federal agencies need to weigh in and the PUC would have to reject a request that it reconsider its 4-1 decision in favor of Sunrise.

Courts could reverse decisions approving Sunrise if they find the agencies weighed evidence incorrectly or ruled without having a good reason for their decisions, experts said.

“If you're doing an appeal, you'd first say there's no substantial evidence; second, that no reasonable person would reach this decision,” said David Getches, law school dean at the University of Colorado and an environmental law expert.

Michael Shames, executive director of the Utility Consumers' Action Network, said the PUC's decision cannot be justified by the evidence in front of it – that it is, in legal terms, “arbitrary and capricious.”

An example, Shames said, was the fact that the decision depended on an estimate of the cost of power if SDG&E is forced to get a third of its electricity from solar, wind and geothermal sources.

“That was never discussed in this case,” Shames said. “It was thrown in at the end.”

Steven Siegel, a lawyer for the Center for Biological Diversity, a Sunrise opponent, said the commission ignored most of the evidence presented in the case.

The lengthy environmental impact report concluded that four or five other options, including generating more power in San Diego, were preferable environmentally.

Administrative law judges listened to dozens of witnesses, weighed economic arguments and considered the effect on wildlife. They concluded that the line was not needed.

The commissioner assigned to follow the process, Dian Grueneich, said the line could only be justified economically and environmentally if SDG&E could be required to use clean power.

After officials released their recommendations, PUC President Michael Peevey proposed a different decision that said the line was urgently needed.

He said that because the line would spur the development of power from the sun, wind and underground heat, there was no need to require SDG&E to prove it would transmit such power over Sunrise.

All the other commissioners except Grueneich agreed with him.

“It goes against the whole hearing process and the decision the (administrative law) judge made,” Siegel said.

SDG&E wouldn't discuss possible litigation in detail.

“We'll have to, of course, consider all of the follow-up actions that may be taken, but our plan is to move forward as quickly as possible,” said Chief Executive Debra Reed.

The company is expecting the Bureau of Land Management, as the lead agency for the federal government, to sign off on the project early next year. The agency would then issue permits for a right of way across its land.

A bureau official said yesterday that a decision is expected to be signed next month, followed by a 30-day comment period. He wouldn't say what decision the agency has tentatively reached.

The agency is still waiting to hear from the Fish and Wildlife Service and from state officials and Indian tribes over the effect the line's construction would have on endangered species and ancient artifacts.

The line will also require approval from the U.S. Forest Service, because the line will pass through Cleveland National Forest. A spokesman for the Forest Service said it would independently evaluate the risk of fire and environmental damage from the power line.

Assuming it gets permission from the federal agencies, SDG&E would then order materials such as steel towers, miles of copper cable and giant circuit-breakers, said Michael Niggli, chief operating officer.

It would also begin getting land or easements from private property owners, using eminent domain if necessary, he said.

The plan is to finish the $1.9 billion line in three years regardless of what happens in court.

“Just because someone files a lawsuit doesn't mean there's a delay,” Niggli said.

Sunrise has been thoroughly vetted, Niggli said.

“The Public Utilities Commission has, after years of study, said this line is needed for reliability, economics and our renewable energy policy, and they're the ones responsible for making that kind of decision,” Niggli said. “It's a very sound decision. Significant amounts of material have been put in the public record. Thousands of pages, experts of both sides have offered their testimony. This is a very open process, a very thorough process and a complete and accurate outcome.”

Getches, the law school dean, said approval from a government agency is rarely the last word in controversial projects like Sunrise.

“There are legal hurdles that can be put in the way of the project, and often legitimately so,” Getches said. He said appeals court judges don't look at whether the decision was right or wrong, but whether there was some evidence to justify the decision.

One side may have 10 times as many experts and studies backing it, but if the other side has some experts and studies, the losing side would not prevail on appeal.

“There's quite a bit of deference to administrative agencies,” Getches said. “It's not impossible to win that case, but it's an uphill battle.”

Michael Gardner of the Union-Tribune's Sacramento bureau contributed to this report.

© Copyright 1995-2008 Union-Tribune Publishing Co.

Photo © Paul S. Hamilton