New “Green” Transmission Lines - the Local Government Perspective

League of California Cities

2010 Annual Conference and Expo

San Diego, California

September 16, 2010

Alan Waltner

Steven Weissman

Michael Day

Introduction to Panel

• Steven Weissman, Director, Energy and Clean Tech Program, Center for Law, Energy and the Environment, UC Berkeley (former CPUC administrative law judge – Sunrise Powerlink Project)

• Michael Day, Partner, Goodin, MacBride, Squeri,

Day & Lamprey LLP, counsel for City of Chino Hills, Tehachapi Renewable Transmission Project

The Problem

• New and expanded powerlines are going to be needed to bring renewable energy from solar, wind, geothermal and other renewable sources to market

• Cities are largely preempted from regulating powerlines directly

• Opportunities for participation are limited and challenging

The Impetus Behind Renewable Energy Development

• Public interest and concern over climate change• AB 32 (Global Warming Solutions Act of 2006)• Renewable Portfolio Standards – 20% by 2010

and 33% by 2020• Federal Incentives – DOI Secretarial Orders and

ARRA (stimulus bill) Incentives• State Executive Orders• Memoranda of Understanding• State “Heat-Rate” Legislation (no new purchases

of electricity produced from coal)

Existing Transmission and the Solar Resource

New lines need to go somewhere

“Not in my backyard”

Ongoing, Recent and Potential Transmission Planning Processes

• Renewable Energy Transmission Initiative (RETI)• California Public Utilities Commission (CPUC) Long

Term Procurement Plan (LTPP)• California Transmission Planning Group (CTPG)• California Independent System Operator (CAISO)• Bureau of Land Management (BLM) Westwide Corridors

Programmatic Environmental Impact Statement • California Energy Commission (CEC) “SB 1059” Corridor

Designation Process

• All are complex and time consuming to follow• By the time a project proposal reaches your city, it will

have considerable momentum

Major Transmission Projects in the Pipeline

• Sunrise Powerlink• Tehachapi Renewable

Transmission Project• Devers-Palo Verde• Green Path North

(cancelled)

Stages in the Transmission Line Development Process (IOUs)

• Investor owned utility proposes a transmission line project

• CAISO determines what is needed to add the project to the grid to maintain reliability criteria

• Project sponsor seeks approval from CPUC– Environmental review is performed by the lead permitting

agency under the California Environmental Quality Act (CEQA)– Consistency with previous plans (such as LTPP)

• Litigation• Construction

• (For municipal utilities, review and approval occurs in the same entity)

.

Renewable Energy

Genertor

Substation

Substation

Transmission Towers and Lines

Distribution (<50 kV)

Small Electric Consumer

Transmission 115, 230, 500 kV

lines

Local Regulation of IOU Lines is Preempted under the Public Utilities Code and CPUC General Order 131-D

•

The CPUC is to “Consider” the Following Under PUC 1002 and

General Order 131-D

• Community values

• Recreational and park areas

• Historical and aesthetic values

• Influence on environment

• Also, as the “lead agency, the CPUC needs to evaluate environmental effects and alternatives under CEQA

A Different Set of Rules Applies to Transmission Lines Proposed by

Municipally Owned Utilities

• MOUs approve their own projects, and are not subject to CPUC review

• CEQA review required

• Special rules for consideration of local input under Government Code 53091, 53096 and 65402; Public Utilities Code 12808.5

Special Rules for MOUs

• Local building ordinances do not apply (GC 53091(d))• Local zoning ordinances apply “to the location or

construction of [transmission] facilities . . .if the zoning ordinances make provision for those facilities.” (GC 53091(e))

• The MOU can override a local zoning ordinance by a 4/5 vote, after a public hearing, if it finds that “there is no feasible alternative to its proposal.” (GC 53096)

• The determination is made in connection with approval of the project’s EIR by the MOU

• That determination is subject to judicial review based on the substantial evidence standard

Special Rules for MOUs (con’t)

• Similar approach for general plan consistency• The local agency makes a determination

regarding general plan consistency (GC 65402)• The MOU can override the local determination

for lines100KV or larger, after a hearing and based on a 4/5 vote with an “infeasibility" finding (PUC 12808.5), subject to judicial review

Federal Preemption of Transmission Line Siting

• Local regulation is preempted on federal lands• The federal Bureau of Land Management has

established “Section 368” corridors on federal lands

• Under Federal Power Act Section 216, the Federal Energy Regulatory Commission can preempt state and local regulation of transmission lines in “National Interest Electric Transmission Corridors” (broadly designated) if the state PUC withholds approval for more than one year or excessively conditions the project

FERC’s Section 216 “Corridor”

Summary of Local Opportunities for Participation

• California Public Utilities Commission “Certificate of Public Convenience and Necessity” Process for Projects by Investor Owned Utilities

• Municipally Owned Utility Processes• Potential Exercise of Property Rights over

the Right of Way• California Environmental Quality Act• Political and Public Relations Approaches

Panelists

• Steven Weissman, Director, Energy and Clean Tech Program, Center for Law, Energy and the Environment, UC Berkeley (former CPUC administrative law judge – Sunrise Powerlink Project)

• Michael Day, Partner, Goodin, MacBride, Squeri,

Day & Lamprey LLP, counsel for City of Chino Hills, Tehachapi Renewable Transmission Project

Contact Information

Alan WaltnerLaw Offices of Alan Waltner779 Dolores StreetSan Francisco, CA 94110

waltnerlaw@gmail.com415-641-4641www.waltnerlaw.com