The California Public Utilitites Commission (CPUC)'s December 24, 2008 decision approving the Sunrise Powerlink was an exercise in regulatory wish fulfillment.  Rather than accepting the actual facts in the case, the regulators contorted the evidence to achieve their objective of approving the line despite the facts.  This point is graphically described in the Application for Rehearing filed by UCAN on January 23, 2009.   UCAN argues that California law is clear that when regulators make a decision – especially $2 billion decisions – they need to have a clear factual basis for that decision.  In this case, the courts will find that the regulators couldn’t legitimately approve this project.

The record shows clearly that if this line is built it won’t add any additional renewable energy to California’s renewable portfolio.

• It won’t reduce greenhouse gas emissions – the record shows that it will likely increase.
• It wasn’t necessary for SDG&E to be able to meet its 20% or 33% renewable quotas.
• And it won’t save the state’s ratepayers a dime, let alone hundreds of millions of dollars.

And these assertions aren’t from UCAN – this is based upon SDG&E’s own testimony!   UCAN also points out how the regulators chose to ignore a solution that would cost a few hundred thousand dollars in favor of SDG&E’s proposal that would cost a few billion dollars.  The courts will have to remind the regulators that it isn’t their money they are spending….it is the public’s money.

This Commission's 4-1 vote decision rejects a proposed decision by two ALJs (Weissman and Vieth) and an alternative decision by the assigned Commissioner (Grueneich) in granting a CPCN to SDG&E for the construction of a powerline through the southern portion of San Diego & Imperial Counties.    Instead, it issued a decision that was an exercise in predetermination; its singular determination to approving a transmission line from Imperial to San Diego counties led it to selectively choose from the evidentiary record in order to justify that decision.    As explained in the 109-page UCAN application for rehearing filed on January 23, 2009,  the CPUC's Sunrise decision commits legal error in a number of ways.    The appealable deficiencies created by the Commission’s December 24th decision include the:

1.    Failure to apply the proper standard of review  (clear and convincing rather than preponderance of the evidence);
2.    Failure to properly consider the UCAN No-Project Alternative;
3.    Failure to provide parties with sufficient procedural due process to assess means by which the 33% mandate could be suitably and cost-effectively addressed;
4.    Ignoring substantive evidence that would have rendered the project cost-ineffective, even assuming a 33% mandate;
5.    Lacking the requisite authority to base its decision of a 33% RPS upon the governor’s executive order;
6.    Manipulation of the evidentiary record to create facts that didn’t exist;
7.    Material factual errors throughout the decision;
8.    Reliance upon extra-evidentiary facts to justify the decision;
9.    Failure to consider the true costs of the Sunrise project upon the state’s ratepayers;
10.   Concluding that the project adds additional renewable energy capacity available to California’s utilities when the facts show otherwise;
11.    Concluding that the project reduces GHG emissions when the facts show otherwise;
12.    Concluding that the project increases reliability when the facts show otherwise;
13.    Circumventing the potential seismic dangers attributable to the siting of the line at the Imperial Valley substation;
14.    Failure of the CPUC to require SDG&E to compare Sunrise to the UCAN Alternative;
15.    Numerous deficiencies of the EIR including the failure to consider the UCAN No-Project alternative as an environmentally superior alternative to the Southern Route;
16.    Failure of the EIR  to properly consider overriding considerations;
17.    Failure of the EIR to consider SWPL’s capacity to import renewable power from Imperial County; and
18.    Failure of the EIR to adequacy assess distributed generation and demand-side alternatives. 

This application for rehearing (see attachment below)  is a necessary procedural step required in order for UCAN to seek court review by the Court of Appeals.   The CPUC is expected to reject the UCAN application, after which UCAN will be filing for appellate court review.