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The following was sent to the Forest Supervisor, so that he may allow SDG&E to put the Sunrise Powerlink project through the Cleveland National Forest... as long as it is entirely tunneled under the forest.
William Metz, Forest Supervisor
10845 Rancho Bernardo Road, Suite 200
San Diego, California 92127
ATTN: Sunrise Powerlink Comments
The Forest Supervisor may permit the intrusion of San Diego Gas & Electric Company's proposed Sunrise Powerlink project, but under the United States Code and the Code of Federal Regulations as to Forest Service, the Forest Supervisor may require the proposed project be conditioned by tunneling construction entirely underground to preserve the scenic integrity of the Cleveland National Forest, especially with respect to those areas that are currently undisturbed by any human presence but which may be subject to possible future utility disturbance above ground.
A Forest Supervisor decision to make a permit contingent on the utility's tunneling and other efforts to avoid disturbing Cleveland National Forest scenic integrity (36 CFR §261.1a as to “Forest Officer may place such conditions on the authorization as that officer considers necessary for the protection or administration of the National Forest System...”) is well supported by federal law and regulations as authorized by Congress and the President. Laws and regulations forbid the destruction by fire and depredation (16 USC §551), the disturbance of timber (36 CFR §261.6) or natural features and plants (36 CFR §261.9), the use of motorized vehicles that damages or disturbs that land or vegetation (36 CFR §261.15), and the entry with motorized equipment into primitive areas not previously disturbed by human presence (36 CFR §261.21). The Forest Supervisor shall aid other agencies in the performance of duties as imposed on those agencies by law (16 USC §553). The Forest Supervisor, for the Secretary of Agriculture, is obligated to determine and demonstrate the best methods for conserving forest lands in cooperation specifically with the State of California (16 USC §562).
The added cost of tunneling and otherwise avoiding any scenic integrity disturbance of the Cleveland National Forest shall be borne by SDG&E's corporate holding company Sempra Energy, pursuant to a previous Interim Decision 02-01-039 of the California Public Utilities Commission (CPUC) on January 9, 2002 to infuse the necessary equity, working and other capital required for SDG&E expansion.
It is CPUC's conclusions of law under D.02-01-039, where one of the respondents was and is SDG&E and its holding company was and is Sempra Energy, that:
“1. The Commission is the arbiter of the meaning of its own decisions.
“2. In the context of Respondents' holding company decisions, when a utility's financial health is impaired and its ability to discharge its obligation to serve is consequently threatened, the first priority condition requires its holding company to give the utility preference over all competing potential recipients of capital resources.
“3. The holding company authorization decisions' discussion of the first priority condition in broad terms of utility financial health supports a reading of the condition as requiring the holding company to infuse the utility with all types of capital necessary for the utility to fulfill its obligation to serve.
“4. The 'balanced capital structure' condition in each holding company decision requires the utility to maintain its own balanced capital structure pursuant to the ratio set by the Commission in the respective general rate cases.
“5. According to SDG&E's interpretation – i.e., that the first priority condition only requires the utility to retain earnings to maintain a balanced capital structure and meet its obligation to serve, and does not require an affirmative holding company obligation to infuse funds into the utility – the first priority condition would impose the same requirement as the balanced capital structure condition and make the first priority condition superfluous. Because the decision cannot be read as making one of the conditions superfluous, the first priority condition must impose a different requirement, namely that the holding company must infuse capital into the utility when needed to meet its obligation to serve” (D.02-01-039 at pp.39-40).
Conclusion of Law No. 5 was modified by CPUC's D.02-07-043 of July 17, 2002 to read “The 'balanced capital structure' requirement is distinct from the first priority requirement – namely that the holding company must infuse capital into the utility when needed to meet its obligation to serve” (p. 40). According to CPUC, “Pursuant to the first priority condition, the holding companies are obligated to infuse capital into the utilities, particularly after having been the recipients of utility monies that could have been used to maintain the utilities' financial health during lean times” (p. 22). CPUC further states “The conditions under which the Commission approved the holding company structure impose a duty on the holding company to provide financial assistance to the utility should its ability to serve be jeopardized. When a utility's assets have been transferred to the holding company, as they have been for all three utilities, the utility is left with less capital with which to operate” (p. 23). Finally, “The holding companies... enjoy the benefits of a parent company as a result of the Commission's approval in the holding company decisions. If the holding company continues to exercise the authority conferred on it by the Commission, the Commission may require it to fulfill the first priority condition, even if the fulfillment causes a loss” (p. 29, emphasis added).
The status of CPUC Interim Decision 02-01-039 as modified by D.02-07-043 is that it has been reviewed and remanded to CPUC by California Court of Appeals in 2004, after the appeal was sought by the investor-owned utilities (118 Cal. App. 4th 1174). Subsequent to that remand, CPUC has closed the overarching 2000 California electricity crisis proceedings that provided the context for D.02-01-039 on ground that no investor-owned utilities or holding companies have submitted persuasive requests for rehearing (CPUC D.05-05-005 of May 5, 2005).
SDG&E holding company Sempra Energy reported total revenues of $8.1 billion for the 2009 calendar year, nearly $11 billion during year that included the Crash of 2008. Since 2000, Sempra Energy's ratio of quarterly dividend paid to shareholders relative to quarterly retained earnings is consistently between 35% to 39% of retained earnings while failing to infuse capital into SDG&E to prevent wildfires.
Without the Forest Supervisor imposing conditions necessary to preserve scenic integrity, the Forest Supervisor may be liable to Congress and the people of the United States for explaining the rationale in allowing the otherwise illegal disturbance of Cleveland National Forest scenic integrity. The Forest Supervisor should take great care to avoid any situation comparable to that of the Minerals Management Service with respect to BP as to the Deepwater Horizon incident, a situation that has resulted in the greatest ongoing ecological disaster in the history of the United States of America.
California CPUC citations available online:
If the above links do not work on your browser directly, then go to the CPUC website at http://docs.cpuc.ca.gov/published/proceedings/I0104002.htm and see DECISIONS.
The following was sent to the Forest Supervisor, so that he may allow SDG&E to put the Sunrise Powerlink project through the Cleveland National Forest... as long as it is entirely tunneled under the forest.
William Metz, Forest Supervisor
10845 Rancho Bernardo Road, Suite 200
San Diego, California 92127
ATTN: Sunrise Powerlink Comments
The Forest Supervisor may permit the intrusion of San Diego Gas & Electric Company's proposed Sunrise Powerlink project, but under the United States Code and the Code of Federal Regulations as to Forest Service, the Forest Supervisor may require the proposed project be conditioned by tunneling construction entirely underground to preserve the scenic integrity of the Cleveland National Forest, especially with respect to those areas that are currently undisturbed by any human presence but which may be subject to possible future utility disturbance above ground.
A Forest Supervisor decision to make a permit contingent on the utility's tunneling and other efforts to avoid disturbing Cleveland National Forest scenic integrity (36 CFR §261.1a as to “Forest Officer may place such conditions on the authorization as that officer considers necessary for the protection or administration of the National Forest System...”) is well supported by federal law and regulations as authorized by Congress and the President. Laws and regulations forbid the destruction by fire and depredation (16 USC §551), the disturbance of timber (36 CFR §261.6) or natural features and plants (36 CFR §261.9), the use of motorized vehicles that damages or disturbs that land or vegetation (36 CFR §261.15), and the entry with motorized equipment into primitive areas not previously disturbed by human presence (36 CFR §261.21). The Forest Supervisor shall aid other agencies in the performance of duties as imposed on those agencies by law (16 USC §553). The Forest Supervisor, for the Secretary of Agriculture, is obligated to determine and demonstrate the best methods for conserving forest lands in cooperation specifically with the State of California (16 USC §562).
The added cost of tunneling and otherwise avoiding any scenic integrity disturbance of the Cleveland National Forest shall be borne by SDG&E's corporate holding company Sempra Energy, pursuant to a previous Interim Decision 02-01-039 of the California Public Utilities Commission (CPUC) on January 9, 2002 to infuse the necessary equity, working and other capital required for SDG&E expansion.
It is CPUC's conclusions of law under D.02-01-039, where one of the respondents was and is SDG&E and its holding company was and is Sempra Energy, that:
“1. The Commission is the arbiter of the meaning of its own decisions.
“2. In the context of Respondents' holding company decisions, when a utility's financial health is impaired and its ability to discharge its obligation to serve is consequently threatened, the first priority condition requires its holding company to give the utility preference over all competing potential recipients of capital resources.
“3. The holding company authorization decisions' discussion of the first priority condition in broad terms of utility financial health supports a reading of the condition as requiring the holding company to infuse the utility with all types of capital necessary for the utility to fulfill its obligation to serve.
“4. The 'balanced capital structure' condition in each holding company decision requires the utility to maintain its own balanced capital structure pursuant to the ratio set by the Commission in the respective general rate cases.
“5. According to SDG&E's interpretation – i.e., that the first priority condition only requires the utility to retain earnings to maintain a balanced capital structure and meet its obligation to serve, and does not require an affirmative holding company obligation to infuse funds into the utility – the first priority condition would impose the same requirement as the balanced capital structure condition and make the first priority condition superfluous. Because the decision cannot be read as making one of the conditions superfluous, the first priority condition must impose a different requirement, namely that the holding company must infuse capital into the utility when needed to meet its obligation to serve” (D.02-01-039 at pp.39-40).
Conclusion of Law No. 5 was modified by CPUC's D.02-07-043 of July 17, 2002 to read “The 'balanced capital structure' requirement is distinct from the first priority requirement – namely that the holding company must infuse capital into the utility when needed to meet its obligation to serve” (p. 40). According to CPUC, “Pursuant to the first priority condition, the holding companies are obligated to infuse capital into the utilities, particularly after having been the recipients of utility monies that could have been used to maintain the utilities' financial health during lean times” (p. 22). CPUC further states “The conditions under which the Commission approved the holding company structure impose a duty on the holding company to provide financial assistance to the utility should its ability to serve be jeopardized. When a utility's assets have been transferred to the holding company, as they have been for all three utilities, the utility is left with less capital with which to operate” (p. 23). Finally, “The holding companies... enjoy the benefits of a parent company as a result of the Commission's approval in the holding company decisions. If the holding company continues to exercise the authority conferred on it by the Commission, the Commission may require it to fulfill the first priority condition, even if the fulfillment causes a loss” (p. 29, emphasis added).
The status of CPUC Interim Decision 02-01-039 as modified by D.02-07-043 is that it has been reviewed and remanded to CPUC by California Court of Appeals in 2004, after the appeal was sought by the investor-owned utilities (118 Cal. App. 4th 1174). Subsequent to that remand, CPUC has closed the overarching 2000 California electricity crisis proceedings that provided the context for D.02-01-039 on ground that no investor-owned utilities or holding companies have submitted persuasive requests for rehearing (CPUC D.05-05-005 of May 5, 2005).
SDG&E holding company Sempra Energy reported total revenues of $8.1 billion for the 2009 calendar year, nearly $11 billion during year that included the Crash of 2008. Since 2000, Sempra Energy's ratio of quarterly dividend paid to shareholders relative to quarterly retained earnings is consistently between 35% to 39% of retained earnings while failing to infuse capital into SDG&E to prevent wildfires.
Without the Forest Supervisor imposing conditions necessary to preserve scenic integrity, the Forest Supervisor may be liable to Congress and the people of the United States for explaining the rationale in allowing the otherwise illegal disturbance of Cleveland National Forest scenic integrity. The Forest Supervisor should take great care to avoid any situation comparable to that of the Minerals Management Service with respect to BP as to the Deepwater Horizon incident, a situation that has resulted in the greatest ongoing ecological disaster in the history of the United States of America.
California CPUC citations available online:
If the above links do not work on your browser directly, then go to the CPUC website at http://docs.cpuc.ca.gov/published/proceedings/I0104002.htm and see DECISIONS.