Articles 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

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MID, an irrigation district, petitioned for a writ of mandate, challenging the trial court's conclusion that MID was not a "municipal corporation" for purposes of Public Utilities Code section 10251. The court concluded that the term "municipal corporation" is ambiguous, and the court resolved the ambiguity by adopting the meaning in its strict or proper sense because it is the common and thus best indicator of statutory intent. Therefore, the court concluded that the term "municipal corporation" used in section 10251 does not include irrigation districts. Accordingly, the trial court properly granted summary adjudication of MID's fourth cause of action under section 10251. The court denied the petition for writ of mandate. View "Merced Irrigation District v. Superior Court" on Justia Law

Posted in: Utilities Law

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Plaintiffs, “telephone corporations” require installation of wireless facilities, including antennas, transmitters, and power supplies, on existing utility poles in the city’s rights-of-way. In 2011, San Francisco adopted an ordinance, requiring Plaintiffs to obtain a permit before installing or modifying any wireless facility in the public right-of-way, citing the need “to regulate placement … that will diminish the City’s beauty.” The ordinance required a showing of technological or economic necessity and created three “Tiers” of facilities based on equipment size. It conditioned approval for Tiers II and III on aesthetic approval; locations designated “Planning Protected” or “Zoning Protected,” or “Park Protected,” triggered different aesthetic standards. Any Tier III facility required a finding that “a Tier II Facility is insufficient to meet the Applicant’s service needs.” “Any person” could protest tentative approval of a Tier III application. The trial court held that the modification provisions violated the Middle Class Tax Relief and Job Creation Act; provisions conditioning approval on economic or technological necessity, were preempted by section 7901. The aesthetics-based compatibility standards were not preempted. An amended ordinance, enacted in response, retained the basic permitting structure, but removed the size-based tiers, requiring compliance with aesthetics-based standards based on location. The court of appeal reversed, finding that the ordinance was not preempted. View "T-Mobile W., LLC v. City & Cnty. of. San Francisco" on Justia Law

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Aguirre sought injunctive and declaratory relief against the California Public Utilities Commission (CPUC) for failing to comply with the Public Records Act (PRA), Government Code sections 6250-6276.48 The complaint alleged that the San Onofre Nuclear Generating Station was closed after it leaked radiation in 2012; that costs of the shutdown and loss due to the shutdown exceeded $4 billion; and that CPUC approved the owner assigning $3.3 billion of these costs to utility ratepayers during an ex parte meeting in Warsaw, Poland. Aguirre made PRA requests seeking the production of emails and other documents related to the CPUC’s investigation of the shutdown and the settlement and meetings. The superior court rejected CPUC’s motion to dismiss. The court of appeal agreed with CPUC. Public Utilities Code section 1759 bars the superior court from exercising jurisdiction over the suit. The duty to comply with the PRA is an “official duty” of the CPUC. A “writ of mandate in any court of competent jurisdiction” is one of the statutory means available to enforce the PRA (Gov. Code 6258), and a “writ of mandamus” may be brought against the CPUC in the Supreme Court or the Court of Appeal in appropriate cases under section 1759(b). View "Cal. Pub. Utils. Comm'n v. Superior Court" on Justia Law

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SCOPE filed suit alleging that the trial court erred in denying its writ of mandate claim because the Agency’s acquisition of Valencia Water Company is unlawful. The court concluded that the court does not have to dismiss the appeal as untimely under the streamlined procedures available for validating certain acts of public agencies, Code Civ. Proc., 860 et seq., because the validation procedures invoke a court’s in rem jurisdiction, and that subject matter jurisdiction attaches only if there is a statutory basis for invoking those procedures and proper notice. Because that basis is absent here and because estoppel does not apply to subject matter jurisdiction, the validation procedures’ accelerated timeline for appeal is inapplicable. The court also concluded that there is substantial evidence to support the trial court’s factual finding that the purveyor did not become the agency’s alter ego in this case. The agency did not violate article XVI, section 17 of the California Constitution for two reasons - namely, the provision reaches only stock acquisitions that extend credit and the provision’s exception for stock ownership applies to any “mutual water company” and any other “corporation” (whether or not it is a mutual water company). Thus, the fact that the corporate purveyor in this case was not a mutual water company is of no significance. Accordingly, the court affirmed the judgment. View "Santa Clarita Org. v. Castaic Lake Water Agency" on Justia Law

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Panoche, a producer of electricity, and Pacific Gas and Electric Company (PG&E), a utility that purchases its electricity, disputed which of them should bear the costs of complying with a legislatively-mandated program to reduce greenhouse gas emissions pursuant to the Global Warming Solutions Act (Assem. Bill 32 (2005–2006 Reg. Sess.). PG&E invoked the arbitration clause in its agreement with Panoche. Panoche resisted arbitration, arguing that the controversy was not ripe for resolution because ongoing regulatory proceedings at the California Air Resources Board and the California Public Utilities Commission would at least provide guidance in the arbitration and could render the proceeding unnecessary. The arbitration panel denied Panoche’s motion, and after a hearing determined that Panoche had assumed the cost of implementing AB 32 under the agreement and understood that at the time of signing. The arbitrators also concluded that the parties “provide[ed] for recovery of GHG costs” by Panoche through a “payment mechanism” in the agreement. The trial court agreed with Panoche, ruled that the arbitration was premature, and vacated the award. The court of appeal reversed and ordered confirmation of the award. Panoche identified no procedural disadvantage it suffered in going forward with the arbitration as scheduled and failed to meet the “sufficient cause” prong under Code of Civil Procedure 1286.2(a)(5). View "Panoche Energy Ctr. v. Pac. Gas & Elec." on Justia Law

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The court of appeal previously remanded the suit, concerning the rights to groundwater contained in the Santa Maria Valley Groundwater Basin. The parties are landowners who extract groundwater for agricultural use and public water producers that pump groundwater for municipal and industrial use. The court of appeal directed the trial court to quiet title to the landlowners’ overlying rights to native groundwater by declaring that these rights have priority over all appropriators, less the amount that the public producers are entitled to pursuant to their prescriptive rights. The trial court amended its judgment to hold that the city had established a total prescriptive right of 5100 acre feet per year and Golden State Water Company had established a total prescriptive right of 1900 acre feet per year, both perfected against the Basin aquifer as a whole, so only a proportionate amount of the prescriptive right could be exercised against the landowners’ overlying rights. The court did not quantify the proportionate prescriptive rights nor reconsider its prevailing party determination or allocation of costs. The court of appeal affirmed, holding that the trial court properly quieted title and did not err when it declined to reconsider the prevailing party determination. View "City of Santa Maria v. Adam" on Justia Law