NOI Decision on September 20, 1979

Certification Granted on September 30, 1981

California Supreme Court Decision:

Sonoma County v. Energy Commission (Cal. 1985) 40 Cal.3d 361, 220 Cal.Rptr. 114

AFC Staff Counsel: Steve Cohn

Hearing Officer: Garret Shean

Presiding Member: Commissioner Suzanne Reed

AFC Filing and Project Description (Powerplant and Transmission Line)

Pacific Gas and Electric Company (PG&E) filed an AFC for its 110 MW Geysers Unit 16 Geothermal Project, and an appurtenant major electric transmission line facility (2,600 MW capacity), on December 12, 1979.

The powerplant site was on the east slope of the Mayacamas Mountains in Lake County, above the tiny community of Anderson Springs. The major transmission line would transmit power from Geysers 16 (and numerous other PG&E and non-PG&E geysers facilities) to the first point of system interconnection at the Lakeville Substation, 43 miles away, in Sonoma County, near the City of Sonoma.

The controversy in this proceeding revolved around Sonoma County’s efforts to control the transmission line siting process through its own county and city land use plans. In Sonoma County, large, above-ground transmission lines were considered to be unsightly, dangerous, and undesirable. The Energy Commission, for the first time in its history, chose to override the laws of other governmental agencies in order to site a necessary facility. (No other override would be seriously considered for the next twenty years, until the Metcalf Energy Center, Docket No. 99-AFC-3.)

Geysers Overview

Geothermal power was the CEC’s most successful preferred technology during the late 1970s and early 1980s, with a total of twelve powerplants certified in the Geysers Known Geothermal Resource Area (KGRA) of Lake and Sonoma Counties, making it the world’s largest geothermal field. Geothermal, followed later by cogeneration, was the Energy Commission’s chosen alternative to the large coal and nuclear plants long favored by utilities.

PG&E had pioneered in the geysers many years earlier, prior to the Energy Commission’s creation. Over a dozen PG&E geothermal plants were already operating before the CEC started licensing geysers facilities. PG&E produced more geothermal power than any other utility in the geysers (if not the planet).

Projections had indicated that a vast potential of close to another 1,000 MW existed for additional geothermal plants. Municipal utilities and even qualifying facilities (QFs) wanted their share of the geothermal bonanza. PG&E itself had identified sites for Units 17-24.

The geothermal boom overwhelmed available transmission capacity out of the geysers to the main population centers. The lack of adequate transmission was a constant source of dispute between PG&E and the municipal utilities. With the Geysers 16 Castle Rock Junction to Lakeville Transmission Line, and its 2,600 MW capacity, PG&E intended to solve all of its present and future geothermal transmission line problems. This transmission line was an absolute necessity for PG&E’s planned geysers development, and it could also accommodate other geothermal powerplants, ending the geysers transmission logjam.

The municipal utilities would attempt their own long-range geysers transmission solution, the Geothermal Public Power Line (GPPL), Docket No. 84-NOI-1, 86-AFC-2). Geothermal plants had given the municipal utilities significant generation sources, reducing reliance upon PG&E. GPPL was intended to provide the municipal utilities with independence from PG&E transmission in addition to generation. However, PG&E’s new collector line was years ahead of the municipal utilities’ effort. GPPL would only make sense if geothermal development continued at the rapid pace which had been projected.

But by the mid 1980s, the geysers boom would come to an end. The PG&E service area developed a surplus of electricity, in large part due to an influx of QF projects with a capacity below 50 MW, and thus not subject to CEC jurisdiction. PG&E then stopped building powerplants altogether, as other, more reliable/cheaper options, became available, such as the purchase of energy from outside California.

Meanwhile, the geysers steam supply unexpectedly started to decline, reducing the output of many existing powerplants, while dooming future projects. PG&E began to close its older, less efficient Geysers units in hopes of conserving steam. The municipal utilities scrapped all their future geysers plants as well as GPPL. PG&E, having successfully licensed and constructed the Geysers 16 Castle Rock Junction to Lakeville Transmission Line, would indefinitely continue to transmit municipal utility power out of the geysers in addition to its own electricity.

Geysers 16 Powerplant Issues

This AFC was about the transmission line, not the powerplant. Nearly all Geysers 16 powerplant issues, such as air quality and biology were ultimately settled without any need for adjudication. Under Transportation Safety, In socioeconomics, the Committee insisted that one of the hazardous and substandard roads leading to the Geysers 16 site be reconstructed prior to PG&E beginning work on the powerplant. Pages 44-48 of the CEC Decision.) This required PG&E to fund road improvements in cooperation with Lake and/or Sonoma Counties. (Transportation Safety Condition of Certification (pp), page 49 of the CEC Decision.)

Castle Rock Junction to Lakeville Transmission Line Issues

Electromagnetic Fields (EMF)

Public fear of adverse health impacts, such as cancer, from transmission line electromagnetic fields (EMF) is very widespread. The Committee ordered both PG&E and the CEC staff to present evidence on the potential EMF health effects from the proposed 43 mile transmission line.

This resulted in highly technical expert testimony, reviewing a host of studies, generally showing a lack of convincing evidence for a harmful effect from exposure to EMF. The point was disputed by intervenors’ witness, who argued that the literature did indicate some relationship between EMF and adverse effects, at least in the laboratory. (Pages 78-89 of the CEC Decision.)

The Committee concluded that while EMF may have been shown to induce biological effects in a laboratory setting, there was no persuasive evidence to demonstrate adverse human health impacts from exposure to electric fields created by high voltage transmission lines. (Pages 89-92 of the CEC Decision.) This has remained the consistent position of both CEC staff and the Commission ever since.

By requiring PG&E to underground the line through the community of Oakmont, the Committee further determined that people would not receive increased exposure to electric fields from the PG&E facility. (Pages 157-168 of the CEC Decision.)

Land Use Non-Conformities

In the NOI proceeding, PG&E managed to convince the Committee and the Commission that its proposed transmission line conformed to the Sonoma County General plan (NOI Final Report, pages 149 and 15l). Upon re-examination in the AFC, this conclusion was found to be incorrect.

After hearing AFC evidence regarding a vast array of potential non-conformities, the Commission determined that PG&E’s proposed Castle Rock Junction to Lakeville Transmission Line did not conform to the Sonoma County General Plan, the Franz Valley Specific Plan, the North Sonoma Valley Specific Plan, the Bennett Valley Specific Plan, the Sonoma Mountain Specific plan, or the City of Santa Rosa General Plan. (Land Use, pages 71-73 of the CEC Decision, and Finding 108 on page 74 of the CEC Decision.)

Public Resources Code section 25523(d)(1) directs the Commission to consult with the governments in question to see if the non-conformities can be corrected or eliminated. The Committee made these attempts at conciliation with both Sonoma County and the City of Santa Rosa. The local governments insisted upon a new transmission line route and undergrounding of the line in numerous additional areas. These modifications were unacceptable to PG&E. The Committee thus concluded that the noncompliance with local law could not be eliminated. (Pages 72-73 of the CEC Decision.)

Public Resources Code section 25525 prevented the Commission from certifying the transmission line with these legal non-conformities "unless the commission determines that such facility is required for public convenience and necessity and that there are not more prudent and feasible means of achieving such public convenience and necessity."

This meant initiation of the Energy Commission’s first override proceeding.

Override

PG&E requested the Energy Commission to exercise its override powers under Public Resources Code section 25525 so that the Castle Rock Junction to Lakeville Transmission Line could be certified despite the multiple land use non-conformities. (Page 73 of the CEC Decision.) On February 25, 1981, the Commission adopted standards to guide this "extraordinary remedy available to an applicant". These standards defined the showing necessary for a finding of "public convenience and necessity" and also emphasized consideration of alternatives to PG&E’s proposal, including modifications which the Commission itself could order. (Pages 103-106 of the CEC Decision.)

The Commission calculated the likelihood of geysers curtailment due to the unavailability of transmission. Major curtailment of present and future geysers plants was found to be inevitable unless the new PG&E transmission line were built. (Pages 106-111 of the CEC Decision.) The Commission thus made the formal Public Resources Code section 25525 override finding that the Castle Rock Junction to Lakeville Transmission Line "is required for the public convenience and necessity." Finding 160, page 111 of the CEC Decision.)

Eight different alternatives to PG&E’s proposal were considered by the Committee during the override proceedings. Each alternative could eliminate one or more of the land use non-conformities. For seven of these alternatives, PG&E had the evidentiary burden of proof to show that they were not more prudent and feasible than applicant’s proposal, in accordance with twelve CEC-adopted criteria, such as economic and environmental impacts, reliability, and acceptable engineering practice.

100 pages of the Commission Decision are spent comparing and contrasting evidence regarding the various transmission line alternatives that was presented during an exhaustive set of override hearings. (Pages 111-211 of the CEC Decision.) The Commission reached 120 separate findings regarding the alternatives, concluding at last that, except for additional undergrounding of the line at two locations, "There are not more prudent and feasible means to achieve the public convenience and necessity than the PG&E proposed Castle Rock Junction to Lakeville transmission line". (Finding 281, page 211 of the CEC Decision.)

Adoption

Conditions of Certification imposed the added undergrounding, and the override of the Sonoma County/City of Santa Rosa land use restrictions was complete, in accordance with Public Resources Code section 25525. (Pages 211-213 of the CEC Decision.)

The Energy Commission unanimously certified PG&E Geysers 16, including the 43 mile Castle Rock Junction to Lakeville transmission line, on September 30, 1981. The AFC had taken nearly two years to complete, but Geysers 16 was not over yet.

Litigation

While PG&E started constructing the transmission line licensed by the Energy Commission, Sonoma County began a lawsuit challenging both the licensing and the constitutionality of the statutory scheme for judicial review of the CEC’s AFC decisions. Both Geysers 16 and the transmission line would be virtually completed before conclusion of the state lawsuit. [There was also Federal litigation against the transmission line, Lapham v. CEC, 705 F.2d 358 (9th Cir. 1983), but the case was dismissed on the grounds that it really belonged in state court.] The only Calilfornia judicial ruling came on the issue of Supreme Court vs. superior court jurisdiction. Four years after certification, a divided California Supreme Court upheld the Warren-Alquist Act’s judicial review section as authorized by the PUC provisions in the California Constitution.

Sonoma County actually filed two lawsuits against the Energy Commission. One was in Sonoma County Superior Court, where plaintiffs clearly hoped for a "home court" advantage. However, at Public Resources Code section 25531(a), the Warren-Alquist Act specified that Energy Commission AFC decisions "are subject to judicial review in the same manner as the decisions of the Public Utilities Commission on the application for a Certificate of Public Convenience and Necessity for the same site and related facility." Furthermore, Public Resources Code section 25531(b) declared that "no court in this state has jurisdiction" to hear an AFC case "or to stop or delay the construction" of a CEC licensed facility, except as provided in this section.

It meant that the PUC judicial review process, Public Utilities Code section 1756, applied to Energy Commission AFC decisions: original jurisdiction solely with the California Supreme Court. Sonoma County thus filed a petition for review with the Supreme Court, challenging the constitutionality of Public Resources Code section 25531. If Sonoma County prevailed at the Supreme Court, the county could then attack the merits of the AFC decision in superior court. Should the Supreme Court uphold Public Resources Code section 25531, denying superior court jurisdiction, Sonoma County waived any further review of the CEC decision.

Sonoma County’s position was that no language in the California Constitution authorized the Legislature to adopt Public Resources Code section 25531, which conflicted with Constitutional provisions establishing superior court jurisdiction. The county argued that while Article XII of the Constitution allowed the Legislature to establish original Supreme Court jurisdiction over PUC decisions, there was no provision in the Constitution allowing similar treatment for Energy Commission decisions.

In a 5-2 decision, the Supreme Court majority rejected Sonoma County’s jurisdictional claim on the grounds that: "Since section 25531 is a means of implementing and facilitating the PUC’s licensing of thermoelectric power facilities sought to be constructed and operated by public utilities, its enactment was authorized by Article XII." (See Sonoma County v. Energy Commission (Cal. 1985) 40 Cal.3d 361, 371, 220 Cal.Rptr. 114, 120.

Thus, the Energy Commission’s judicial review statute was upheld under special constitutional provisions relating to the PUC. While the Energy Commission won the Geysers 16 case, the Supreme Court’s rationale for upholding Public Resources Code section 25531 was very limited. PG&E was a public (investor-owned) utility, and Geysers 16, including the transmission line, required a certificate of public convenience and necessity from the PUC. Under those facts, the majority opinion favors the Energy Commission and the constitutionality of Public Resources Code section 25531.

But what if the CEC applicant is a municipal utility, qualifying facility (QF), or independent power producer, none of whom are under PUC jurisdiction? An AFC granted to any of these applicants would be immediately effective without any requirement for a certificate of public convenience and necessity from the PUC. The Supreme Court’s majority opinion provides no overt support for the constitutionality of Public Resources Code section 25531 when an AFC is granted to such an applicant. Yet for many years, nearly all AFC applicants have been entities exempt from PUC jurisdiction, as the investor-owned utilities stopped building new power plants.

This legal vulnerability of Public Resources Code section 25531 has been a source of CEC concern since 1985. In Luz SEGS IX-X, (a QF applicant, Docket No. 89-AFC-1), the issue was formally raised again, by intervenor James LaMont's petition to the California Supreme Court. That petition was first granted, then vacated as improvidently issued.

Eventually, the jurisdictional issue may re-surface in another case, but the legal situation keeps changing. A new Public Utilities Code section 1756 (PUC Writ of Review) was adopted in 2000, allowing PUC decisions to be challenged in either the Court of Appeals or the Supreme Court. Thus, the Court of Appeals became an appropriate venue for petitions challenging an Energy Commission AFC decision. Such petitions have recently been filed in both the Court of Appeals and the Supreme Court, only to be denied without comment. In 2001, Public Resources Code section 25531 was changed back to overtly provide for Supreme Court judicial review over CEC licensing appeals. It remains to be seen if any court wishes to either hear the merits of an AFC challenge or re-litigate the Geysers 16 issue of original Supreme Court jurisdiction.

Divestment

As part of electric industry de-regulation, PG&E divested itself of most thermal powerplants that it owned. This included all the operational Geysers plants, including Geysers 16, which were purchased by Calpine in 1999. (See PUC Application 98-01-008, Decision 99-04-026, April 1, 1999.)