BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

In the Matter of the Application of San Diego Gas & Application 06-08-010
Electric Company (U 902-E) for a Certificate of Public
(Filed August 4, 2006)
Convenience and Necessity for the Sunrise Powerlink
Transmission Project

COMMENTS OF THE CENTER FOR BIOLOGICAL DIVERSITY AND THE

SIERRA CLUB ON THE PROPOSED AND ALTERNATE PROPOSED
DECISIONS

Steven Siegel
Staff Attorney
Center for Biological Diversity
3421 Park Place
Evanston, IL 60201
Phone: (619) 241-6409
Email: ssiegel@biologicaldiversity.org

Justin Augustine
Staff Attorney
Center for Biological Diversity
351 California Street, Suite 600
San Francisco, CA 94104
Phone: (415) 436-9682 x302
Email: jaugustine@biologicaldiversity.org

Dated: November 20, 2008

 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

In the Matter of the Application of San Diego Gas & Application 06-08-010
Electric Company (U 902-E) for a Certificate of Public
(Filed August 4, 2006)
Convenience and Necessity for the Sunrise Powerlink
Transmission Project

COMMENTS OF THE CENTER FOR BIOLOGICAL DIVERSITY AND THE

SIERRA CLUB ON THE PROPOSED AND ALTERNATE PROPOSED
DECISIONS

I. Introduction
The Center for Biological Diversity (the Center) and the Sierra Club thank the
Administrative Law Judges (ALJs), the team who prepared the Environmental Impact
Report/Environmental Impact Statement (EIR) for the Sunrise transmission project
(STP), California Public Utility Commission (PUC or Commission) staff and the
Commissioners for the care and attention throughout the process of considering the
subject application of San Diego Gas & Electric (SDG&E). Both the Proposed Decision
(PD) prepared by the Administrative Law Judges and the Alternative Proposed Decision
(APD) are well considered decisions. Ultimately, however, the fundamental difference in
the opinions is their opposing views of whether the subject application is approved or
denied. The only decision that can reasonably be reached after full consideration of the
evidence presented and the issues addressed in the record is the decision in the PD to
deny the application.

II. The Proposed Decision of the Administrative Law Judge

The Center and the Sierra Club fully agree with the decision to deny the
application of SDG&E for a certificate of public convenience and necessity for the STP.
We concur with the ALJs’ findings and conclusions that the STP will cause severe
environmental damage, there are ample and less damaging alternatives to meet renewable

2
energy goals, the STP is not needed to meet reliability needs, the project presents
unacceptable risks to public health and safety from fires, and the project is opposed by an
overwhelming number of citizens involved in the public participation process.
The PD describes the severe impact of the proposed project on Anza-Borrego
Desert State Park and adopts the rankings of environmentally superior alternatives
identified by the Commission in the EIR. The EIR identifies the no action alternative,
two in-area alternatives, and other alternatives as environmentally superior to the
proposed project/“Northern” alternatives supported by SDG&E. We concur with the
PUC’s determination that the highest ranking STP alternative ranked no better than fourth
among the alternatives considered. We further agree with the PD directing SDG&E to
pursue its existing Renewable Portfolio Standard (RPS) opportunities aggressively.
The PD finds “justifying new transmission by its potential to promote new coal
plant development is antithetical to state policy.” 1 We agree, particularly in the context
of this application, which SDG&E promoted to support the development of renewable
energy. We agree with conclusions that the evidence shows in-area renewable power is
economical, and suggest the PD does not go far enough in this regard. Given increases
over time in solar panel manufacturing, and additional success of the California Solar
Initiative, we expect in-area renewable costs to drop dramatically. In addition, the PD
does not factor in the substantial economic and even more significant non-economic costs
of catastrophic fires likely to occur if the application were approved.
SDG&E is ill-prepared to use Sunrise to achieve ambitious state goals reducing
greenhouse gas (GHG) emissions. The PD cites appropriately to SDG&E policy of
complying with existing laws to achieve state goals. 2 Complying with the law, however,
is not a discretionary policy, nor does it happen in a vacuum. The Company was given
every opportunity on the record to demonstrate it has a plan in place to achieve a 33%
renewable energy delivery requirement, or otherwise reduce its GHG emissions. No plan
exists. Until such time as it can demonstrate it is prepared to use the STP to achieve state
purposes, it is wholly inappropriate for the state to authorize an environmentally

1
PD, page 63.
2
PD, page 168.

3
destructive project at substantial cost to ratepayers. The PD is the only decision that
reflects the record in this detailed and extensive proceeding.
We do not here detail all the reasons the record is accurately stated in the PD
when describing Anza-Borrego Desert State Park, laws applicable to state parks, the
California Wilderness Act, the consequences of a first-ever de-designation of wilderness
as a lasting legacy of this project, the impact the proposed project would have to
endangered, threatened, and other vulnerable species, and the enormous outpouring of
public concern over cherished areas. The project, including its southern alternatives,
would become a vast experiment on species with literally no place left to go, and no time
to recover if the experiment failed. 3 Suffice to say, we agree that the findings in the PD
are the only rational result.
In a separate section we will address the sufficiency of the EIR. While we agree
with its ultimate conclusions and findings, the scope of environmental damage is not
adequately explained by broad conclusions lacking information necessary to avoid or
minimize harm from any project alternative. This concern applies to both the PD and
APD.
The PD discusses the potential for catastrophic fire either resulting directly from
the STP or indirectly because the STP interferes with the ability to stop a fire started from
other causes. We agree with the finding in the PD that wildfire risks reinforce the many
reasons to deny SDG&E’s application. 4 We also agree the extraordinary public
involvement in this proceeding and outpouring of opposition to the STP by the same
public that would pay for and allegedly benefit from the ill-conceived project warrants
rejection of the application.
There are a number of areas which overlap between the PD and APD. Some of
the issues addressed in both decisions are addressed below, in our discussion of the APD.
We respectfully ask the Commission to adopt the proposed decision of the Administrative
Law Judges in this proceeding.

3
PD, page 192.
4
PD, page 213.

4
 III. The Alternative Proposed Decision
The Alternative Proposed Decision (APD) of the Assigned Commissioner in this
proceeding, Commissioner Grueneich, is well thought out in regard to reducing GHG
emissions and increasing reliance on clean energy. The record demonstrates a
transmission line is not needed. However, the APD establishes the groundwork for a
future transmission line if circumstances were to change. The APD also includes
conditions that are essential to ensuring any line, if approved, carries clean energy.
While we suggest certain modifications to the conditions, we agree with the
Commissioner that conditions ensuring the STP delivers clean energy are both workable
and necessary if a line is approved. The record of this hearing demonstrates that without
such conditions, there is little expectation that the STP will deliver substantial amounts of
renewable energy.

A. Section 19 Conditions Placed on Approval

The following measures will achieve the clean energy guarantee sought by
conditioning approval of the STP application:
1. Approve the application only after SDG&E has procured contracts for a clearly
identified amount of new renewable energy in the Imperial Valley;
2. Energize the line only when a specific, pre-defined amount of new renewable
energy is ready for delivery;
3. Require economic consequences for failing to achieve the milestones above.
A clean energy guarantee should include a clear, simple enforcement clause rather than a
complex compliance plan. This will help prevent renewable energy delays and give
Imperial Valley renewable energy developers assurances their projects have adequate
transmission. The remainder of this section addresses the points outlined above.

1. Approve the application only after SDG&E has procured contracts for a clearly
identified amount of new renewable energy in the Imperial Valley: This measure gives
SDG&E control over the approval timeline. When enough renewable energy is
contracted and those contracts have been approved by the Commission, approval of the
application becomes effective. In determining how much energy must be under contract,

5
we recommend the Commission consider (1) contract failure rates of 50% are
documented; 5 (2) the only contracts that should be counted towards meeting this
milestone are those that would deliver renewable energy that could not otherwise be
delivered with existing transmission; 6 and (3) the contracts must be viable. 7
Renewable energy developers at the all-party meeting on November 13, 2008
agreed that requiring SDG&E to contract for a specific amount of renewable energy by a
date certain would encourage renewable energy development. Mr. Weisgall of Cal
Energy stated, “I wanted to respond to your direct question, would a condition of a
certain amount of renewables encourage or discourage production in Imperial Valley, and
I think unequivocally the answer is, yes, it would encourage renewable energy
development in Imperial Valley. It would be a mandate on SDG&E. It would be a stick.
It would be a carrot for renewable energy development.” 8
Mr. Kelly of the Independent Energy Producers Association agreed specific
commitments will encourage renewable energy developers in the Imperial Valley. Mr.
Kelly stated his association would “like to see firm commitments for viable projects in
that area that can use the line, and sooner rather than later…work can start now if
developers get those signals and they have firm commitments and they have viable
projects.” 9
SDG&E would be hard pressed to suggest there is a lack of renewable energy
developers, viable renewable energy projects, or a competitive marketplace for renewable

5
“2006 Integrated Energy Policy Report Update,” California Energy Commission, January 2007, CEC-
100-2006-001-CMF, p. 39; “Building a ‘Margin of Safety’ Into Renewable Energy Procurements: A
Review of Experience with Contract Failure,” January 2006, CEC-300-2006-004, p. 42; CPUC “Progress
of The California Renewable Portfolio Standard Report to the Legislature,” January 2007, page 5.
http://www.cpuc.ca.gov/static/energy/electric/renewableenergy/index.htm
6
The record in this proceeding demonstrates existing transmission can deliver energy from existing
contracts. Testimony of Linda Brown, SDG&E Director of Transmission Planning, Tr. page 695;
California Independent Systems Operator witness Robert Sparks testified more than 700 MW may be
delivered without Sunrise. Transcript, pages 1869; 1876-1877; 1963-1964. Stirling representative
Mr.Cowman affirmed that Sunrise is not needed for phase 1, Transcript, page 6305.
7
The record demonstrates overwhelmingly that Stirling is likely to fail. Please see Conservation Groups
Phase 1 opening brief, November 9, 2007, pages 8-15 and testimony of Dr. Butler, exhibit C-3.
8
Transcript, Nov. 13, page 52.
9
Transcript, Nov. 13, page 47.

6
energy in the Imperial Valley. Repeatedly throughout the hearing the Company pointed
to the energy queue to suggest it had numerous renewable energy contracting options and
little doubt the line would be fully subscribed with renewable energy. In fact, from the
opening statement of Chief Operating Officer Niggli 10 to SDG&E’s closing statement 16
months later, 11 SDG&E has provided a veritable drumbeat of assurances there is more
renewable energy available in the Imperial Valley than SDG&E could provide even if the
STP is approved.
The Minnesota PUC (MPUC), in approving the transmission project referenced in
the alternative decision, required its lines be fully subscribed with wind energy before
going into service. There are striking parallels between the circumstances in Minnesota
and the present case. The MPUC determined:
“The most straightforward way to ensure that the proposed lines will be used to
carry wind generation and the way most likely to succeed is to require Xcel to
purchase the 825 megawatts of wind the lines are intended to carry and to secure
transmission authority from MISO before the lines are ready to go into service.
Since these requirements are consistent with both the purpose of Xcel’s certificate
of need application and with its existing legal obligations to add significant
amounts of renewable generation to its supply portfolio, it is the best solution to
the stalemate resulting from the interdependence of wind development and
transmission availability.” 12

The MPUC then went on to state:

Given Xcel’s plethora of renewable energy obligations, its request to build
transmission lines for the explicit purpose of carrying renewable energy, and the
significant risk that these lines might not be used for that purpose, it makes little
sense not to require Xcel to acquire the 825 megawatts of wind generation that it
expects those lines to carry.” 13

10
SDG&E opening statement by Mr. Niggli, July 9, 2007, Transcript, page 97: “The interest in developing
these resources is staggering. As of July 2nd, there is 7,144 megawatts of renewable energy projects in the
CAISO queue that could connect to the SDG&E system.”
11
SDG&E attorney Mr. Barnes, November 7, 2008, Transcript, page 6290: “The record in this proceeding
shows 6,600 megawatts of renewable generation that could be facilitated by Sunrise in the ISO’s
interconnection queue. So there’s a very robust showing that folks are interested and, in fact, need this
line.”
12
Minnesota Public Utilities Commission, In the Matter of the Application of Northern States Power
Company d/b/a Xcel Energy for Certificates of Need for Four Large High Voltage Transmission Line
Projects in Southwestern Minnesota, Docket No. E-002/CN-01-1958, March 11, 2003 (“Minnesota
example”), page 17.
13
Id, page 18.

7
The analysis of the MPUC is directly applicable when considering the application of
SDG&E.

2. Energize the line only when a specific pre-determined amount of new

renewable energy is ready for delivery: Here, as in number 1 above, SDG&E can control
its own fate. If the company procures its contracts wisely, it should be ready to deliver
substantial amounts of renewable energy when construction of the transmission line is
complete. SDG&E should be required, as was done in Minnesota, to deliver a specific
amount of renewable energy at the time the line is energized.
The specific, pre-determined amount of new renewable energy to be delivered on
the STP should be defined as 100%. The alternate proposed decision is based on the
premise that the line is only economical if SDG&E is on an aggressive, speedy trajectory
to load the STP with renewable energy. Additionally, the Commission found that “…if
the state is required to generate 33% of its energy from renewable resources by 2020,
then all new procurement of new energy resources between now and 2020 must be
entirely renewable energy, except some new fossil for peaking capacity and to replace
aging fossil plants critical to renewable integration.” 14 SDG&E has previously
committed to eliminating any purchases of coal for delivery on the STP. With the line
dedicated to renewable energy, coal will no longer be a factor.
Reasons to require close to 100% renewable energy delivery on the transmission
line go far beyond economics. The California Global Warming Solutions Act of 2006
(AB 32) identifies overriding public purposes for delivering renewable energy:
Global warming poses a serious threat to the economic well-being, public health,
natural resources, and the environment of California. The potential adverse
impacts of global warming include the exacerbation of air quality problems, a
reduction in the quality and supply of water to the state from the Sierra snowpack,
a rise in sea levels resulting in the displacement of thousands of coastal businesses
and residences, damage to marine ecosystems and the natural environment, and an
increase in the incidences of infectious diseases, asthma, and other human health-
related problems. 15

14
PUC October 2008 RPS Quarterly Report, page10, at http://www.cpuc.ca.gov/NR/rdonlyres/A7691A23-
1B7E-4B02-8858-9D964A3B17A3/0/RPS_Rpt_to_Legislature_Oct_2008.pdf).
15
Cal. Health & Safety Code Section 38501(a).

8
The Commission has already determined increasing use of renewable energy is critical to
achieve the objectives of the Global Warming Solutions Act.

3. Require economic consequences for failing to achieve the milestones above:

The Center and the Sierra Club vigorously support increasing renewable energy use as
quickly as reasonably possible. To that end, SDG&E’s success in achieving state
renewable energy goals benefits all parties and we recommend a plan that gives the
Company every opportunity to succeed. Nevertheless, a plan that is unenforceable or
otherwise lacks incentives for compliance and consequences for non-compliance is
doomed for failure. Therefore, it is critical that SDG&E’s commitments are clearly
defined by a date certain and there are clear consequences if SDG&E does not meet its
commitments. Looking again to Minnesota, its PUC declared:
“the proposed transmission lines represent an estimated $163 million investment
that would normally be borne by ratepayers. Building the proposed lines will
probably require the taking of private land for public benefit under the power of
eminent domain. Building and operating the proposed lines will inevitably cause
some damage to the natural environment. These costs are significant, and they
obligate the Commission to take steps to ensure that the purpose for which they
are incurred is ultimately served by them.” 16

In the case of the STP, it is even more imperative than in the Minnesota case to ensure
the purpose of the STP is to deliver renewable energy. SDG&E’s proposal comes at
substantially great cost to the environment, public safety, and to the ratepayers of San
Diego. Social and economic costs, including environmental destruction, health and
safety risks, and private property loss through eminent domain will all occur before the
line is energized. Before ratepayers bear any economic burden of supporting SDG&E
profits for constructing and operating the line, it is essential the Commission ensure the
Company first meet its renewable energy commitments by imposing a clean energy
guarantee.

16
Minnesota Public Utilities Commission, In the Matter of the Application of Northern States Power
Company d/b/a Xcel Energy for Certificates of Need for Four Large High Voltage Transmission Line
Projects in Southwestern Minnesota, Docket No. E-002/CN-01-1958, March 11, 2003 (“Minnesota
example”), page 16.

9
 Only after SDG&E meets its renewable energy commitments should it be allowed
to profit from the line. The Commission may achieve this goal by either delaying rate
increases resulting from the STP or by placing the share of increased rates that would
represent SDG&E profits in an escrow account until after the line is energized with 100%
renewable energy.
The process described above goes a long way toward addressing each of the
issues identified during the November 13, 2008, all-party meeting discussing methods to
condition approval of the line upon a clean energy guarantee. SDG&E President and
Chief Executive Officer Ms. Reed explained that in examining the compliance plan
proposed in the alternative decision, “the portion [SDG&E is] greatly concerned about is
having another application process and continuing with the uncertainty of a decision on
this.” 17 Ms. Reed also expressed concern it would need to gather data on renewable
projects not contracted to SDG&E 18 and suggested a compliance plan would lead to
uncertainty in an environment that seeks certainty. 19 If the above outlined renewable
energy guarantee is required by the Commission, certainty will be provided to SDG&E
and renewable generators without delay, without additional application processes, and in
a manner that will create an immediate market for renewable energy development.
Paradoxically, SDG&E’s proposal to forego clearly defined, enforceable
conditions in favor of uncertain verbal “assurances” will frustrate state clean energy goals
and result in exactly the uncertainty it suggests it wishes to avoid. The Company asks
that clear conditions be replaced with its vague promises to voluntarily work toward a
33% renewable energy goal 20 and eliminate purchasing coal for delivery on the STP.
SDG&E’s promise to “voluntarily” work toward a 33% RPS is already obsolete.
By Executive Order of the Governor, all retail sellers of electricity are now required to

17
SDG&E statement by Ms. Reed, November 7, 2008, Transcript, page 6296.
18
Transcript, page 6241.
19
Transcript, page 6242.
20
SDG&E’s “assurances” were packaged as a three part promise, with the third part an agreement to
replace any failed contracts it has signed for renewable energy in the Imperial Valley. It is difficult to see
how this promise is anything but part to its commitment to reach the 33% standard. While we have
disagreed with the Company, it has testified repeatedly it doesn’t believe it can achieve even a 20% RPS
without those same contracts and would have no choice but to replace them if they prove unsuccessful.

10
serve 33 percent of their load with renewable energy by 2020. 21 In addition, SDG&E’s
verbal promises are not a replacement for a roadmap that defines how the Company will
achieve this goal. In fact, SDG&E’s commitment to meet this standard was not
accompanied by any plan or milestones. It is already clear that the Company’s plan, if
one exists, does not follow the Commission’s assessment that to achieve the 33%
standard, all future energy contracts must be for renewable energy. This becomes evident
when examining SDG&E’s second “assurance,” its promise not to purchase coal.
During oral argument, SDG&E alluded to unstated “asterisks” to its no-coal
promise. 22 During the all-party meeting, SDG&E’s promise was reduced to continuing
with the status quo. 23 The Company would continue to purchase short-term contracts for
coal and continue deliveries on its existing long term coal contracts. 24 The only change
the Company identified that might result in a reduction of its coal purchases had nothing
to do with its own practices, but limitations placed on others. The Company
representative said SDG&E officials felt comfortable they could move toward reducing
coal purchases because the “west-wide cap and trade system that the western states are
working on is going to put limits on power plants, coal plants that are in the West that
feed into this system.” 25
SDG&E’s clarification on its promise not to use the STP to deliver coal-
generated power underscores even further why conditions on approving the application
are necessary. The record demonstrates that clear, firm, and binding requirements must
be placed on SDG&E if the STP is to achieve the renewable energy objectives of the
alternative proposed decision and the state-wide 33% RPS requirement. Milestones will
have little meaning if the consequences for missing them are merely a cost of doing
business. Only a clear and enforceable decision will provide certainty the line will
substantially be used to deliver renewable energy.

21
Executive Order S-14-08, November 17, 2008, paragraph 1.
22
Transcript, page 6302.
23
All-party meeting, November 13, 2008, Transcript, page 27, lines 14-16.
24
Id, statements of Mr. Skopec, pages 26-27.
25
Id, page 30.

11
 B. The Danger of Catastrophic Fire was not Adequately Considered
The record includes information on the deadly October 2007 fires, including fires
started by SDG&E power lines. In January 2008, the Center and Sierra Club, joined by
UCAN and Mussey Grade Road Alliance, with the concurrence of the State Parks
Foundation and the Anza-Borrego Foundation, filed a motion to include the results of
ongoing fire investigations in the record of this proceeding. Conclusion of law 12
renders as moot this motion, which was never ruled upon. We respectfully request a
ruling on the motion and full consideration in the record of the implications the
investigation reports have on the subject application. The findings are critically
important for public safety and our environment.
The risk of a catastrophic fire again occurring is undeniable. The EIR finds risks
that the STP may start a catastrophic fire, as well as the risk that the STP may interfere
with fighting a fire caused from other sources, to be significant and unmitigable. The
EIR also finds the area the STP would traverse to be one of the most fire prone regions in
the world. In this context, it is absolutely critical that those with a duty to minimize the
risk of fire can be trusted to implement all fire avoidance, minimization, and mitigation
measures. It is also vital that any lessons learned from the fires that can be used to reduce
the risk of future fires be incorporated into the design of any future power line. With a
finding that there is no reliability need until 2014, and an additional finding that the line
will not expedite SDG&E’s requirement to reach a 20% RPS by 2010, there is time to
approve of a line with all necessary safety measures.
The findings of the fire investigations demonstrate SDG&E lacks the
responsibility to operate a new line. CAL FIRE investigators concluded the Company
acted in violation of state criminal laws. PUC investigators concluded the Company
acted in violation of health and safety regulations. Perhaps even worse, PUC
investigators concluded SDG&E failed to fully cooperate in the PUC’s investigation. 26
Further, the investigators concluded new safety rules may be required. It is premature to
conclude SDG&E has learned anything from its recent experience – four of the five most

26
SDG&E’s conduct has been troubling throughout this proceeding as well. A third phase of this
proceeding has been added as a result of allegedly misleading representations made by the Company.

12
destructive California fires caused by power lines occurred in SDG&E’s territory. 27 The
Company has an unacceptable record. Approving a project conditioned upon “the most
rigorous, reasonable mitigation available to reduce the risk of fire ignition” 28 becomes
meaningless if the measures are not carefully implemented. No after the fact penalties
can repair damage to life and our environment.
The conclusions of both the PUC and CAL FIRE investigations beg the question
of why SDG&E would be given authorization to construct a new transmission line when
the Commission itself has concluded the risks of this line are significant and unmitigable,
and the party authorized to construct and operate the line is now under two separate
orders instituting investigations into its conduct. Furthermore, a separate order has been
issued as a direct result of SDG&E’s role in the October 2007 fires instituting a
rulemaking to protect the public from fires and other hazards. With findings of no need
for a line until 2014, SDG&E’s application should be denied. The Company should
instead be ordered to demonstrate its cooperation with PUC investigators and operate its
existing infrastructure in accordance with all laws. There is now time to allow the safety
rulemaking to proceed, and to revisit a potential STP when new safety rules are in place.

C. Renewable Energy Contracts with SDG&E Do Not Require New

Transmission
The APD correctly notes that SDG&E failed to quantify the amount of Imperial
Valley development it projects as a result of Sunrise, as opposed to development that
would happen without Sunrise. 29 Inexplicably, the APD relies in part upon renewable
energy developments that would happen without Sunrise as a basis for approving the
STP, or in the case of Stirling, are highly unlikely to happen regardless of the decision in
this matter. A decision on the STP should not rest on existing contracts since they either
are not viable or would move forward without the STP and its attendant costs and

27
APD, page 206.
28
APD, page 214.
29
APD, page 69.

13
damaging environmental consequences. 30 In particular, the APD identifies the combined
900 MW three phase contract with Stirling, 40 MW of geothermal power with
Esmeralda, and two contracts with Bethel. 31 Testimony demonstrates the Stirling
contracts are not viable; 32 Exhibit C-41 demonstrates through the Independent Evaluator
that the geothermal contracts do not require the use of the STP; and SDG&E has testified
the Bethel contracts are not reliant upon the STP. 33 The Commission has an opportunity
to require SDG&E to demonstrate it has viable contracts for developments that would
need new transmission before it authorizes the STP, even with conditions. The evidence
is clear the existing contracts do not need the STP and the APD errs in relying upon them
as a basis for justifying approval of the subject application.
Section 17.2 of the APD also relies on links between known projects and the STP
to conclude the projects are “connected” actions. While “intervenors do not have the
burden of proving the unreasonableness of [the utility’s] showing” 34 and the
preponderance of evidence must be demonstrated by the applicant, 35 there is little
evidence or analysis to support the conclusion that the STP is needed to support the
conclusion the actions are connected. SDG&E has not met its burden to show a
connection between any of the developments it has identified and the STP. Stirling phase
1 is allegedly moving forward without the STP, as are the geothermal contracts. The
only remaining so-called connected generation project is the La Rumorosa wind project.
Not a single contract has been approved for this project 36 and there is no evidence in the

30
700 MW of geothermal resources are available and not transmission dependent. If Stirling is removed
from the picture, substantial growth in viable renewable developments in the Imperial Valley can continue
unabated without the STP.
31
APD, page 28.
32
Testimony of Dr. Butler, Exh. C-3 and Conservation Group phase 1 brief, pages 9-15.
33
SDG&E witness McClanahan.
34
APD, page 18.
35
APD, page 19.
36
A 250 MW power purchase agreement by SCE was withdrawn.

14
record to demonstrate that transmission capacity from expiring contracts on the SWPL in
2011 can’t be used to transmit any power that might come from the wind project. 37

D. The Renewable Energy Transmission Initiative is Not Complete

SDG&E has argued the Renewable Energy Transmission Initiative (RETI) should
not be considered because the initiative did not exist when it filed its application. 38 This
initiative is to identify areas for renewable energy development. Reports are expected in
2009 identifying environmentally beneficial means of transmitting energy from those
areas. Transmission possibilities from the Imperial Valley include upgrades to the IID
system and Greenpath North, in addition to Sunrise. When SDG&E moved forward with
its application, it claimed a reliability need of 2010. The finding there are no reliability
needs until at least 2014 allows the Commission to move forward methodically in its
approach, rather than approve transmission in a piecemeal manner as it is asked to do in
this proceeding. The regional planning process should be given full consideration and
not merely dismissed because of the date of SDG&E’s application.

E. An Environmentally Destructive Decision is Moving Forward on

Flawed Assumptions
The APD moves forward on the basis of economic analysis finding the STP is the
most cost-effective way to reach 33% RPS. However, there is little confidence in the
numbers used in this analysis. The decision states “without an uncertainty analysis we
have no way to measure fully the level of risk ratepayers bear when we accept or reject a
proposed project. In the future, we expect a CPCN applicant to provide an uncertainty
analysis…” 39 Ultimately, the decision finds “there is a tremendous amount of
uncertainty regarding conclusions reached by the models used in this case.” 40

37
Exhibit P-1.
38
APD, page 128.
39
APD, page 163.
40
APD, page276, finding 17.

15
 With a reliability need now placed at no sooner than 2014, the race for approving
the line on flawed assumptions and a lack of analysis the Commission says should not be
repeated in future applications, the question must be raised why this line is being
approved now. Unlike the questionable modeling, it is clear the line through any STP
alternative is extraordinarily damaging to the environment. No transmission project has
been found with more significant unmitigable impacts, including risk of catastrophic fire
in areas twice burned since 2003. We submit that before one of the 25 most diverse
ecological hotspots 41 on earth is further fragmented and damaged, something more than
assumptions fraught with a tremendous amount of uncertainty should be used as
justification.

F. Environmental Analysis
Much of the analysis in the PD described in Section I above is applicable to
analysis in the APD, including the severe and wholly unacceptable impacts of Northern
STP alternatives. We concur with this discussion, if not the finding that the EIR
adequately describes the full severity of environmental impacts of the Southern
alternatives. More detailed comments were submitted through the CEQA process and
below in Section IV.

G. The In-area Renewable Alternative Meets State Goals

The APD concludes the in-area renewable alternative contains sufficient
renewable resources to meet the 33% RPS goal. The two primary justifications for not
adopting this alternative are an economic analysis that is based on uncertain and
unreliable assumptions (Section E above) and concern the alternative does not tap
specifically into Imperial Valley renewable energy. The latter concern, however, is not
legally sufficient. First, the 33% standard can still be met. Second, as discussed in
Section D above, the RETI process is not complete and making a decision in a piecemeal
fashion both defeats the value of the RETI process and will lead to what is already clearly
an environmentally destructive transmission route when less damaging alternatives may

41
Exhibit C-1, testimony of Jerre Stallcup

16
be available to bring the same resources to market. Third, as discussed elsewhere in the
decision, IID and Greenpath are among alternative transmission options that developers
may ultimately prefer over the STP. A related point is that if the planned IID
developments and Greenpath move forward, available transmission may be far in excess
of renewable generation. As discussed elsewhere, ISO testimony has already identified
an excess of 700 MW of existing transmission capacity for renewable power from the
Imperial Valley. Therefore, the focus on energy specific to one region does not justify an
STP alternative when there are renewable energy sources in the San Diego area that the
Commission has already determined may be accessed in an environmentally superior
manner than the proposed Southern Route.

H. There Are No Overriding Justifications to Support Transmission

Alternatives
The APD acknowledges the most economic manner to achieve a 20% RPS is by
selecting an in-area alternative. With SDG&E currently below 6% RPS, the most
economical projects in the San Diego area should be encouraged to move forward
without rushing into the selection of an environmentally damaging transmission
alternative. The Center and Sierra Club support achieving 33% RPS as quickly as
possible with the lowest environmental cost. Regional planning efforts to minimize
environmental harm should be considered before adopting a piecemeal approach to
transmission that is needed no sooner than 2014. Ample local resources are available to
timely achieve both the 20% and 33% RPS standards. Reasons the record does not
support a finding of overriding justifications include, but are not limited to: GHG
emissions may be reduced through the environmentally superior in-area renewable
energy alternative; both the 20% and 33% renewable energy standards may be met
through in-area alternatives; economic analysis supporting an STP alternative is based on
flawed assumptions; there is no immediate energy need; a decision at this time will
override larger environmental planning processes; and the safety risks, environmental
damage, and overwhelming public sentiment all lead to conclusions opposing this
project.

17
 IV. Appendices D and E: CPUC CEQA Mitigation and Findings of Fact
The Center and the Sierra Club disagree with the finding of legal sufficiency in
the EIR/EIS for the reasons expressed in our comments submitted throughout the CEQA
and NEPA processes. The limited comments below identifying factual, legal or technical
errors in the appendices to the alternative decision are not intended to limit the
deficiencies documented in our comments throughout the environmental review
processes and our testimony.

A. Mitigation Land Should Be Purchased Prior to Beginning

Construction
The final EIR includes a substantial change from the draft EIR by allowing
construction to proceed before mitigation land is acquired. 42 This change is arbitrary and
capricious and likely to cause irreparable harm to species and habitat. The change, made
in response to comments of SDG&E, allows vegetation disturbing activities to occur
before land is acquired, and even allows the line to be energized so long as acquisition is
“assured.” 43 Performance bonds are considered adequate assurance to allow the project
proceed without the purchase of mitigation lands.
The difficulty in determining property values is discussed in the EIR in a context
apart from the decision finding performance bonds provide “assurance” that land will be
purchased. The EIR concludes that it is “essentially impossible to generally quantify
[property values] due to the individuality of properties/neighborhoods, differences in
personal preferences of individual buyers/sellers, and the weight of other factors that
contribute to a person’s decision to purchase a property.” 44 This analysis in the EIR is
equally applicable in describing why a performance bond does not assure mitigation land
will be purchased, or even assure the bond is a sufficient amount.

42
FEIR, page 4-1059; APD, Appendix D, page 4; Appendix E, pages E-29; and elsewhere.
43
In the case of the Quino chekerspot butterfly, not only is land not identified, but BLM is relying on
SDG&E, who is only conducting “preliminary work on mitigation concepts.” EIR, page 4-821. BLM is in
violation of its Section 7 ESA responsibilities and in violation of NEPA.
44
FEIR, page 4-113 (new language to the added to the FEIR in underlined portion of the page).

18
 A second fundamental problem with allowing construction and habitat destruction
to begin before the purchase of mitigation land is there may not be mitigation land
available at any price, either because the land is not for sale or appropriate land does not
exist. This point was raised in testimony submitted by CBD and the Sierra Club. It was
also raised by both the U.S. Fish and Wildlife Service and the California Department of
Fish and Game. The Wildlife Agencies found the EIR approach of postponing
identification of mitigation unreasonable and provided a detailed explanation for their
reasoning. 45 Similarly, the U.S. EPA concluded the EIR did not provide enough
information to adequately evaluate the environmental impacts. 46 The response in the EIR
asserts it is not reasonably feasible to identify available mitigation land for each of the
various alternatives. 47 This response, however, does not address whether there is
available mitigation land for the selected alternative.
The appendices to the alternative proposed decision repeatedly highlight that it is
uncertain mitigation lands are available or even exist. 48 Considering the uncertainty that
mitigation land can be purchased at any price, the decision to treat a performance bond as
an assurance that the mitigation land will be purchased is legally, factually, and
technically in error. The decision should use the initial approach in the DEIR of
requiring the purchase of all mitigation land before allowing the irreparable damage of
destroying existing habitat.

B. Additional Surveys are Necessary

Alternative Decision Appendix E acknowledges the inadequacy of existing
surveys. 49 The pre-construction period should be used to conduct at least an additional

45
Comment A0024-4.
46
FEIR, page 3-454.
47
FEIR, page 3-371.
48
APD, Appendix E, pages 135, 137,141, 143, 145, and elsewhere.
49
APD, Appendix E, Page E-41 “No focused surveys for this species [California gnatcatcher] were
conducted…”; page E-138. “Since no protocol surveys [for quino checkerspot butterfly] were completed
for the Project…]”; page E-145, acknowledging additional plant surveys are needed, and elsewhere in the
appendices. Also see FEIR, Page 4-44, referencing section F0003-2.

19
year of wildlife and habitat surveys, including surveys for rare plants and threatened and
endangered species. As highlighted in testimony by Ms. Anderson and Dr. Longcore,
blanket conclusory statements that harm is significant do not provide the public and
decision makers with information on what the harm actually is, or provide the public with
an opportunity to comment on its impact. The surveys should be used to realign the route
to avoid or minimize harm to the maximum extent possible.

C. Mitigation Ratios and Location for Critical Habitat Equivalent Land

The Wildlife Agencies point out that critical habitat must be mitigated within the
same critical habitat unit where impacts occur. This adjustment is made to various
mitigation measures. 50 A similar adjustment in mitigation, both as to mitigation ratios
and location of the mitigation, should be made for land that is not designated as critical
habitat, but was only excluded from designation because it was presumed to be otherwise
adequately protected. For example, the EIR acknowledges that lands on MCAS Miramir
were excluded from willowy monardella critical habitat specifically because of
protections offered by the MCAS Miramar Integrated Natural Resource Management
Plan. 51 Because these lands were treated by the federal agencies as the equivalent of
critical habitat, mitigation for these lands should be equivalent to critical habitat lands. 52
In addition, the EIR lacks analysis to assess whether any other lands used by threatened
or endangered species were similarly excluded from critical habitat, and therefore fails to
provide adequate mitigation for any such lands. The CEQA findings and mitigation
measures adopted for the alternative decision should be modified to account for these
lands.

D. Route Options
Alternative Decision Appendix E, Section 1.2 should include additional efforts to
work with Caltrans to underground portions of the line along I-8. EIR Response G0018-

50
FEIR, pages 3-371 and 372.
51
FEIR, page 4-127.
52
APD, Appendix E, page E-145 and elsewhere do not appear to consider this recommendation.

20
5 states this alternative can only be considered in “unusual situations.” The record
demonstrates everything about this project is unusual. The BLM is presently seeking a
“one-time exception” to authorize an amendment to the land use plan for the Eastern San
Diego County to support the project. The transcript repeatedly highlights the unusual
nature of the project. In closing arguments alone, the project was described as “one of
the most complex,” among “the toughest,” “the most expensive transmission project
proposed,” and has “more significant and unmitigable [environmental] impacts than any
line ever approved in California.” 53 The line presents unmitigable threats to public
safety by, among other things, increasing the risk of catastrophic fires. 54 Under the
circumstances, additional work must be done with Caltrans to reduce the impacts of the
line.

E. Violation of Environmental Laws

Because golden eagles are fully protected species under state and federal law, no
“take permit” can be given for any project activities. The CEQA findings adopt the
mitigation measure as stated on EIR page E.1.2-30 to “Implement appropriate
avoidance/minimization strategies for eagle nests.” A much clearer directive needs to be
included to prevent the “take” of this raptor. This is particularly problematic because
golden eagle nests are known on the route selected in the alternative decision.
The CEQA findings would lead to violation of Section 7 of the Federal
Endangered Species Act (ESA), 16 U.S.C. Section 1536(a)(2). This section states that an
agency may not authorize, fund, or carry out any action that will result in the destruction
or adverse modification of critical habitat for threatened or endangered species. The
FEIR concludes:
“there would be impacts to bighorn sheep critical habitat that could not be
reduced to a less than significant level. Therefore, the proposed project and
alternatives would not be consistent with this goal.” 55 (emphasis added)

53
Transcript, pages 6232, 6235, and 6277.
54
APD, Appendix E, page E-193.
55
FEIR, page 3-31, response A0001-5; APD, Appendix D, page D-14; Appendix E, page E-137.

21
This finding demonstrates approval of a southern alternative would place the BLM in
violation of Section 7 of the ESA. Therefore, it makes little sense to begin the project
prior to obtaining the land. A finding should be made to require all federal agencies to
comply with Section 7 of the ESA prior to authorizing construction to begin. As written,
it appears only the Forest Service must consider Biological Opinions of the U.S. Fish and
Wildlife Service and even here, it is unclear that the Forest Service must comply with
conditions described in the opinions. 56

V. Conclusion
For the reasons described herein, the Proposed Decision of the Administrative
Law Judge to deny the subject application should be adopted by the Commission as the
final decision in this matter.
Respectfully submitted,
/s/ Steven Siegel____________
Steven Siegel
Staff Attorney
Center for Biological Diversity
3421 Park Place
Evanston, IL 60201
Phone: (619) 241-6409
Email: ssiegel@biologicaldiversity.org

/s/ Justin Augustine___________

Staff Attorney
Center for Biological Diversity
351 California Street, Suite 600
San Francisco, CA 94104
Phone: (415) 436-9682 x302
Email: jaugustine@biologicaldiversity.org

56
APD, Appendix D, page D-51.

22
 Appendix 1

Proposed Decision – Center for Biological Diversity and

Sierra Club Proposed Findings of Fact and Conclusions of Law

The findings of fact and conclusions of law in the PD are incorporated by

reference in this appendix, with the modifications below.

Proposed Modification to the Findings of Fact

15. There is a tremendous amount of uncertainty regarding conclusions reached by the

models used in this case. The uncertainty of the modeling assumptions described in these
findings of fact is high enough that any finding of RPS savings cannot be relied upon.

Proposed Additional Finding of Fact

Models used in this case do not adequately account for anticipated increases in energy
efficiency and decreases in solar energy costs associated with providing local area
generation.

Proposed Modification to the Conclusions of Law

6. The Final EIR/EIS is missing essential survey data and other information necessary to
sufficiently describe the scope of transmission alternative impacts, is not in compliance
with CEQA, and should not be certified.

8. [Add following text to the beginning of the existing paragraph] The motion of the
Center for Biological Diversity, Sierra Club, Mussey Grade Road Alliance, and UCAN
for inclusion of the fire investigation results in the record is granted.

Alternative Proposed Decision – Center for Biological Diversity

And Sierra Club Proposed Findings of Fact and Conclusions of Law

We do not include revisions to the proposed findings of fact and conclusions of

law in the Alternative Proposed Decision since any finding granting the application is
inconsistent with the evidence and law. We do not waive any arguments in law and fact
regarding the sufficiency of any fact or conclusion presented in the alternative proposed
decision.

23
 TABLE OF CONTENTS

I. Introduction................................................................................................................. 2
II. The Proposed Decision of the Administrative Law Judge.......................................... 2
III. The Alternative Proposed Decision ........................................................................ 5
A. Section 19 Conditions Placed on Approval ............................................................ 5
B. The Danger of Catastrophic Fire was not Adequately Considered....................... 12
C. Renewable Energy Contracts with SDG&E Do Not Require New Transmission 13
D. The Renewable Energy Transmission Initiative is Not Complete........................ 15
E. An Environmentally Destructive Decision is Moving Forward on Flawed
Assumptions.................................................................................................................. 15
F. Environmental Analysis........................................................................................ 16
G. The In-area Renewable Alternative Meets State Goals ........................................ 16
H. There Are No Overriding Justifications to Support Transmission Alternatives... 17
IV. Appendices D and E: CPUC CEQA Mitigation and Findings of Fact ................ 18
A. Mitigation Land Should Be Purchased Prior to Beginning Construction............. 18
B. Additional Surveys are Necessary ........................................................................ 19
C. Mitigation Ratios and Location for Critical Habitat Equivalent Land ................. 20
D. Route Options ....................................................................................................... 20
E. Violation of Environmental Laws......................................................................... 21
V. Conclusion ................................................................................................................ 22

24
 TABLE OF AUTHORITIES

Statutes

Cal. Health & Safety Code Section 38501.......................................................................... 8

Other Authorities

Executive Order S-14-08 ............................................................................................ 10, 11

In the Matter of the Application of Northern States Power Company d/b/a Xcel Energy
for Certificates of Need for Four Large High Voltage Transmission Line Projects in
Southwestern Minnesota ............................................................................................. 7, 9

25
 CERTIFCATE OF SERVICE

I hereby certify that, pursuant to the California Public Utilities Commission’s

Rules of Practice and Procedure, I have served a true copy of the attached COMMENTS
OF THE CENTER FOR BIOLOGICAL DIVERSITY AND THE SIERRA CLUB ON
THE PROPOSED AND ALTERNATE PROPOSED DECISIONS to parties on the
service list for Application No. 06-08-010. Service was completed by electronic mail
using the comma-delimited file. I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.

Executed this 20th day of November, 2008, at Evanston, Illinois.

/s/ Steven Siegel

_______________________
Steven Siegel
Center for Biological Diversity
3421 Park Place
Evanston, IL 60201
Phone: (619) 241-6409
Email: ssiegel@biologicaldiversity.org

26
 SERVICE LIST

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27
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28
Csmmarket@aol.com
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29
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30
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