Articles Posted in Utilities Law

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A devastating wildfire (the Butte Fire) swept through Calaveras and Amador counties in September 2015. The fire started when a tree came into contact with an overhead power line owned and operated by petitioners Pacific Gas and Electric Company and PG&E Corporation (together, PG&E or the company). Real parties in interest (plaintiffs) brought suit against PG&E, seeking punitive damages under Public Utilities Code section 2106 and Civil Code section 3294. PG&E sought summary adjudication of plaintiffs’ request for punitive damages under section 3294 only. The trial court denied the motion. PG&E thereafter sought writ relief from the trial court’s order. The Court of Appeal concluded there were no triable issues of fact which, if resolved in plaintiffs’ favor, could have subjected PG&E to punitive damages under section 3294. Accordingly, the Court granted the petition. View "Pacific Gas & Electric Co. v. Superior Court" on Justia Law

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In 2016, the court of appeal held that if the advocacy of an intervenor contributes to a California Public Utilities Commission (CPUC) proceeding by assisting CPUC in the making of any order or decision (Pub. Util. Code 1802(i))[3]) that is part of the final resolution of the proceeding, whether or not on the merits, CPUC may determine whether, in its judgment, the intervenor’s contribution was substantial enough to merit a compensation award. The court of appeal vacated CPUC's subsequent award. CPUC's determination of “substantial contribution” to some interim or procedural “order or decision” is not alone, sufficient to justify "awarding every penny" claimed for work in connection with the proceeding as a whole. CPUC needed to show how its findings fit into the statutory requirement that compensable work be traceable to some “order or decision,” which is a measure of whether an intervenor achieved some degree of advocacy success. CPUC retains ample discretion to assess whether a given type of contribution counts as “substantial” in a proceeding. In exercising that discretion, CPUC may recognize that even small victories may have a major impact on the course of a proceeding, but there must still be some objective indication of successful advocacy. The remand decisions did not trace the amounts of fees and costs to specific orders or decisions. View "New Cingular Wireless PCS, LLC v. Public Utilities Commission" on Justia Law

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In 2016, the court of appeal held that if the advocacy of an intervenor contributes to a California Public Utilities Commission (CPUC) proceeding by assisting CPUC in the making of any order or decision (Pub. Util. Code 1802(i))[3]) that is part of the final resolution of the proceeding, whether or not on the merits, CPUC may determine whether, in its judgment, the intervenor’s contribution was substantial enough to merit a compensation award. The court of appeal vacated CPUC's subsequent award. CPUC's determination of “substantial contribution” to some interim or procedural “order or decision” is not alone, sufficient to justify "awarding every penny" claimed for work in connection with the proceeding as a whole. CPUC needed to show how its findings fit into the statutory requirement that compensable work be traceable to some “order or decision,” which is a measure of whether an intervenor achieved some degree of advocacy success. CPUC retains ample discretion to assess whether a given type of contribution counts as “substantial” in a proceeding. In exercising that discretion, CPUC may recognize that even small victories may have a major impact on the course of a proceeding, but there must still be some objective indication of successful advocacy. The remand decisions did not trace the amounts of fees and costs to specific orders or decisions. View "New Cingular Wireless PCS, LLC v. Public Utilities Commission" on Justia Law

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Plaintiff filed suit against Edison, alleging claims related to the flow of electricity due to neutral-to-earth voltage (NEV) that came from Edison's electrical substation and flowed onto plaintiff's property. On retrial, the jury found in favor of plaintiff and awarded her damages on her nuisance claim, but the trial court denied plaintiff's motion for attorney fees. Both parties appealed. The Court of Appeals held that, based upon the evidence presented at trial, the court could not conclude as a matter of law that the harm plaintiff suffered did not outweigh the public benefit of Edison's conduct. The court held, however, that the trial court erred in admitting irrelevant evidence related to stray voltage incidents involving prior owners or tenants of the house or other properties, and that the admission of that evidence was prejudicial to Edison. Accordingly, the court reversed the judgment and remanded for retrial of the nuisance claim. The court dismissed as moot plaintiff's cross-appeal. View "Wilson v. Southern California Edison Co." on Justia Law

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Crown proposed to install 13 microcell transmitters on utility poles, primarily in the public right of way, as part of a Distributed Antenna System (DAS) in the Day Valley area, a rural portion of unincorporated Aptos. A staff report characterized the microcells as “relatively visually inconspicuous” small structures Santa Cruz County concluded that Crown’s DAS project was categorically exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000) and rejected a claim that an exception to the exemption applied for “unusual circumstances” or “cumulative impact.” The court of appeal affirmed the superior court in upholding the approval. The court rejected arguments that the county: failed to consider the entire project and instead improperly segmented the project by considering each microcell individually; in determining that the “cumulative impact” exception did not apply, failed to consider information submitted by opponents that AT&T was interested in putting cell transmitters in the Day Valley area; erroneously concluded that the “location” exception and the “unusual circumstances” exception did not apply based on the residential agricultural nature of the area. Opponents produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area. View "Aptos Residents Association v. County of Santa Cruz" on Justia Law

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PG&E filed suit against HART for negligently servicing a large transformer at a hydroelectric power plant and for damages under Public Utilities Code section 7952. The trial court concluded that because PG&E did not own the transformer, PG&E could not prove essential elements of its causes of action for negligence and damages under section 7952. In the published portion of the opinion, the Court of Appeal held that the transformer was necessary or useful equipment as that phrase was used in section 7952; PG&E was an electrical corporation for purposes of section 7952; the preposition "of" in the phrase "equipment of any...electrical...corporation" was used in the proprietary sense; the ownership of property interests in the equipment need not be complete ownership because the phrase "equipment of any...electrical...corporation" also encompassed equipment in which the corporation was a partial owner; the evidence presented showed that PG&E held multiple property interests in the transformer and thus it might be regarded as a partial owner of the transformer entitled to recover the measure of damages set forth in section 7952; and therefore HART has not carried its burden of demonstrating PG&E's cause of action for damages under section 7952 lacked merit. View "Pacific Gas and Electric Co. v. Hart High-Voltage Apparatus Repair and Testing Co." on Justia Law

Posted in: Utilities Law

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In a 2005 Cooperation and Option Agreement to facilitate Russell's construction and operation of the Energy Center, a natural gas-fired, combined cycle electric generating facility in Hayward, the city granted Russell an option to purchase 12.5 acres of city-owned land as the Energy Center's site and promised to help Russell obtain permits, approvals, and water treatment services. Russell conveyed a 3.5-acre parcel to the city. The Agreement's “Payments Clause” prohibited the city from imposing any taxes on the “development, construction, ownership and operation” of the Energy Center except taxes tethered to real estate ownership. In 2009, Hayward voters approved an ordinance that imposes “a tax upon every person using electricity in the City. … at the rate of five and one-half percent (5.5%) of the charges made for such electricity” with a similar provision regarding gas usage. Russell began building the Energy Center in 2010. In 2011, the city informed Russell it must pay the utility tax. The Energy Center is operational.The court of appeal affirmed a holding that the Payments Clause was unenforceable as violating California Constitution article XIII, section 31, which provides “[t]he power to tax may not be surrendered or suspended by grant or contract.” Russell may amend its complaint to allege a quasi-contractual restitution claim. View "Russell City Energy Co. v. City of Hayward" on Justia Law

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Tetrachloroethylene (also known as perchloroethylene or PCE) and trichloroethylene (TCE), were detected in groundwater drawn from a drinking water well in the South Basin area operated by the Irvine Ranch Water District (IRWD). The Orange County Water District (District) undertook efforts to identify the source of groundwater contamination and engaged consultants to recommend further avenues of investigation. Although the District's investigation has continued, it had not yet developed a final treatment plan or remediated any contamination by the time of the underlying litigation. During its investigation, the District filed suit against various current and former owners and operators of certain sites in the South Basin area that it believed were in some way responsible for groundwater contamination. The District asserted statutory claims for damages under the Carpenter-Presley Tanner Hazardous Substance Account Act (HSAA) and the Orange County Water District Act (OCWD Act) and for declaratory relief. The District also asserted common law claims for negligence, nuisance, and trespass. Following numerous motions for summary judgment and summary adjudication, and a limited bench trial on the District's ability to bring suit under the HSAA, the trial court entered judgments in favor of the defendants on all of the District's claims. The District appealed, challenging the judgments on numerous grounds. The Court of Appeal confirmed that the HSAA allowed the District to bring suit under the circumstances here, and that the District could recover certain remediation-related investigatory costs under the OCWD Act. The Court also addressed the HSAA's nonretroactivity provision and concluded its requirements were not satisfied here. Furthermore, the Court concluded the theory of continuous accrual applies to the District's negligence cause of action, such that no defendant except one has shown the statute of limitations barred that claim. As to the District's causes of action for trespass and nuisance, the Court concluded the District raised a triable issue of fact regarding its potential groundwater rights in the South Basin. In doing so, the Court addressed the State’s potential interests in groundwater (as allegedly delegated to the District), the District's regulatory powers over groundwater, and its rights based on its groundwater replenishment or recharge activities. The Court concluded the District's potential rights in groundwater were insufficient, on the current record in this case, to maintain a trespass cause of action. However, triable issues of fact precluded summary judgment on the District's nuisance claim for all defendants except one. Finally, the Court concluded most of defendants' site-specific arguments (primarily based on causation) did not entitle them to summary adjudication of any causes of action. The judgments will therefore be affirmed in part and reversed in part. View "Orange Co. Water Dist. v. Sabic Innovative Plastics" on Justia Law

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The trial court held that the rate charged by Metropolitan Water District of Southern California for transporting water (“wheeling”) violated several laws and awarded the San Diego County Water Authority damages for breach of a water exchange agreement between the two agencies. The court held that the Authority lacked standing to challenge a provision in water conservation program contracts between the parties that penalizes the Authority for participating in litigation or supporting legislation to challenge or modify Metropolitan’s existing rate structure. The court of appeal remanded. The trial court erroneously held that although Metropolitan is required to pay its pro rata share of the costs of maintaining the California Aqueduct, these costs may not be considered in calculating Metropolitan’s wheeling charges, essentially because Metropolitan does not own the aqueduct. The inclusion of Metropolitan’s system-wide transportation costs, including transportation charges paid to the State Water Project, in the calculation of its wheeling rate does not violate the wheeling statutes, common law, or the parties’ agreement. The allocation of “water stewardship” charges to the wheeling rate was proper. The Authority has standing to challenge the unconstitutional anti-litigation condition. View "San Diego County Water Authority v. Metropolitan Water District of Southern California" on Justia Law

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Rowe, age 12, suffered catastrophic injuries during a family camping trip at San Mateo County Memorial Park, when a tree fell on his tent as he lay sleeping. Pacific Gas and Electric (PG&E) owns and maintains an electricity distribution line that serviced a nearby restroom, and has a license permitting it to enter the park to inspect and maintain its equipment and vegetation near its power lines, including near Rowe's campsite. Rowe’s family paid an entrance fee to the county, but paid nothing to PG&E. The county paid PG&E for electricity. Civil Code section 846 confers property owners with immunity from liability arising from the recreational use of their property, with an exception applicable when permission to enter the premises for a recreational purpose “was granted for a consideration.” The court of appeal concluded that the consideration exception applies to PG&E even though Rowe’s fee was not paid to PG&E. Payment of consideration for permission to enter premises for a recreational purpose abrogates section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff’s injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access. View "Pacific Gas and Electric Co. v. Superior Court" on Justia Law