Petition for Writ of Certiorari — San Diego Gas & Electric Company, Petitioner v. California Public Utilities Commission

Supreme Court briefApr 30, 2019

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No. 18-____

IN THE

Supreme Court of the United States

SAN DIEGO GAS & ELECTRIC COMPANY,

Petitioner,

v.

PUBLIC UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ Of Certiorari to the

California Court of Appeal, Fourth Appellate

District

PETITION FOR A WRIT OF CERTIORARI

Jeffrey N. Boozell

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

865 S. Figueroa St., 10th Floor

Los Angeles, CA

(213) 443-3200

Kathleen M. Sullivan

Counsel of Record

Stephanie N. Solomon

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

51 Madison Ave., 22nd Floor

New York, NY 10010

(212) 849-7000

kathleensullivan@

quinnemanuel.com

April 30, 2019

Counsel for Petitioner

i

QUESTION PRESENTED

Whether it is an uncompensated taking for public

use in violation of the Fifth and Fourteenth Amendments for a State to impose strict liability for inverse

condemnation on a privately owned utility without

ensuring that the cost of that liability is spread to

the benefitted ratepayers.

ii

PARTIES TO THE PROCEEDING

The following were parties to the proceeding before the California court of appeal:

1. San Diego Gas & Electric Co. (“SDG&E”), Petitioner in this Court, was Petitioner below.

2. The Public Utilities Commission of the State of

California, Respondent in this Court, was Respondent below.

3. Protect Our Communities Foundation was a

Real Party in Interest below.

4. The Utility Reform Network was a Real Party

in Interest below.

5. Utility Consumers Action Network was a Real

Party in Interest below.

6. Ruth Hendricks was a Real Party in Interest

below.

7. San Diego Consumers’ Action Network was a

Real Party in Interest below.

8. Mussey Grade Road Alliance was a Real Party

in Interest below.

9. Pacific Gas and Electric Company was an Interested Entity/Party below.

10. Southern California Edison Gas Company

was an Interested Entity/Party below.

iii

RULE 29.6 DISCLOSURE STATEMENT

SDG&E is a private, investor-owned utility. Enova Corporation owns 100% of SDG&E. Sempra Energy in turn owns 100% of Enova Corporation.

Sempra Energy has no parent corporation, and no

publicly held company owns 10% or more of its stock.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING ........................... ii

RULE 29.6 DISCLOSURE STATEMENT ............... iii

TABLE OF AUTHORITIES....................................... vi

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 4

JURISDICTION .......................................................... 4

CONSTITUTIONAL PROVISIONS

INVOLVED ....................................................... 4

STATEMENT .............................................................. 4

REASONS FOR GRANTING THE WRIT ................ 11

I.

THE DECISION BELOW CONFLICTS

WITH THE TAKINGS CLAUSE AND

THIS

COURT’S

TAKINGS

PRECEDENTS ............................................... 11

II.

THIS CASE IS AN IDEAL VEHICLE

TO ADDRESS THE QUESTION

PRESENTED .................................................. 19

III.

THIS CASE PRESENTS A QUESTION

OF

EXCEPTIONAL

NATIONAL

IMPORTANCE ............................................... 21

CONCLUSION .......................................................... 27

APPENDIX A—California Court of Appeal's Decision

(November 13, 2018)……………………………1a

v

APPENDIX B—California Supreme Court's Decision

(January 31, 2019)……………………...………5a

APPENDIX C—California Public Utilities

Commission Decision

(November 30, 2017)………….…………...……6a

APPENDIX D—California Public Utilities

Commission, Joint Concurrence

(December 26, 2017)………...…………...……86a

APPENDIX E—California Public Utilities

Commission, Order Denying Rehearing

(July 13, 2018)………..…………………...……94a

vi

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. United States,

364 U.S. 40 (1960)..................................... 13, 14, 17

Babbitt v. Youpee,

519 U.S. 234 (1997)............................................... 13

Barham v. S. Cal. Edison Co.,

74 Cal.App. 4th 744 (1999) ............... 6, 7, 10, 12, 16

Dolan v. City of Tigard,

512 U.S. 374 (1994)............................................... 13

Duquesne Light Co. v. Barasch,

488 U.S. 299 (1989)............................................... 18

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998)............................................... 17

Edison International, Southern California

Edison Company v. Superior Court (Abate)

No. B294164 (Cal. App. Dec. 3, 2018), No.

S253094 (Cal. Dec. 17, 2018) ................................. 21

In re 2007 Wildfire Insurer Litig.

(Super. Ct. San Diego County, Jan. 29,

2009, No. 37-2008-0093083, CU-NP-CTL) .............7

In re San Diego Gas & Elec. Co.,

146 FERC ¶ 63,017, 2014 WL 713556

(2014)........................................................................8

vii

Kelo v. City of New London,

545 U.S. 469 (2005)............................................... 13

Knick v. Township of Scott,

862 F.3d 310 (3d Cir. 2017)

cert. granted 138 S. Ct. 1262 (2018) ................ 19, 20

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005)............................................... 15

Marshall v. Department of Water and Power

219 Cal. App. 3d 1124 (1990) .................................6

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1960)......................................... 13, 17

Pacific Bell Tel. Co. v. S. Cal. Edison Co.,

208 Cal.App.4th 1400 (2012) ..................................6

Pacific Gas & Electric Co. v. Superior Court

(Abbott)

No. A154847 (Cal. App. July 20, 2018), No.

S251585 (Cal. Oct. 1, 2018) ................................... 20

Pacific Gas & Electric Co. v. Superior Court

(Abu-Shumays)

No. C087071 (Cal. App. May 9, 2018), No.

S249429 (Cal. June 8, 2018) .................................. 20

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978)............................................... 15

San Diego Gas & Elec. Co. v. Sup. Ct.,

13 Cal. 4th 893 (1996) ............................................6

Sultum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997)............................................... 13

viii

Williamson County v. Hamilton Bank of

Johnson City,

473 U.S. 172 (1985)............................................... 19

Statutes

28 U.S.C. § 1257(2) ......................................................4

42 U.S.C. § 1983 ........................................................ 20

Cal. Pub. Util. Code, §451.1 ...................................... 21

Cal. Stats. 2018, ch. 626, §§ 26–27, 32 ..................... 21

U.S. Constitutional Provisions

U.S. Const. amend. V ............................................ 4, 12

U.S. Const. amend. XIV, § 1 ................................. 4, 12

California Constitutional Provisions

Cal. Const. Art. I, sec. 19 .......................................... 12

Other Authorities

Anne C. Mulkern, No silver bullet. Can Calif.

Save its utilities?, E&E News (Apr. 1,

2019),

https://www.eenews.net/stories/1060137633 ........ 24

ix

Arvo Van Alstyne, Statutory Modification of

Inverse Condemnation: The Scope of

Legislative Power, 19 Stan. L. Rev. 727, 738

(1967)...................................................................... 13

Cal. Assembly Comm. on Utils. & Energy

(Feb. 26, 2018),

http://assembly.ca.gov/media/assemblyutilities-energy-committee-20180226/video.......... 25

Cal. Dep’t of Forestry & Fire Prot., Top 20

Most Destructive California Wildfires (Nov.

19, 2018),

http://www.fire.ca.gov/communications/

downloads/fact_sheets/Top20_Destruction.p

df ............................................................................. 27

Chelsea Harvey, Here’s What We Know About

Wildfires and Climate Change, Scientific

American (Oct. 13, 2017),

https://www.scientificamerican.com/article/

heres-what-we-know-about-wildfires-andclimate-change/ ...................................................... 26

Ethan Howland, Utilities to fight climate risk

via insurance upgrades, 2018 CQ Roll Call

Was. Energy Briefing 1673 (Nov. 14, 2018).......... 22

Governor Newsom’s Strike Force, Wildfires

and Climate Change: California’s Energy

Future (Apr. 12, 2019),

https://www.gov.ca.gov/wpcontent/uploads/2019/04/Wildfires-andClimate-Change-California%E2%80%99sEnergy-Future.pdf. ................................................ 25

x

Greg Gordon & Kevin Prior, PCG Has

Suspended Dividends, Citing Uncertainty

Regarding Wildfire-Related Liabilities,

Evercore ISI (Dec. 21, 2017) ............................ 23, 25

Ivan Penn & Peter Eavis, Liability Claims

From Wildfires Threaten Utility, N.Y.

Times, Nov. 14, 2018, available at

https://www.nytimes.com/2018/11/14/busine

ss/energy-environment/california-fireutilities.html. ......................................................... 24

J.D. Morris, California considers wildfire

insurance fund to avoid repeat of PG&E’s

woes, S.F. Chronical (Feb. 25, 2019),

https://www.sfchronicle.com/business/articl

e/California-mulls-wildfire-insurance-fundto-avoid-13641330.php?psid=oFzg ........................ 24

Jonathan Arnold, CPUC Denies SDG&E

Wildfire Recovery; Notes “Incorrect Premise”

of IC Doctrine, Deutsche Bank Power

Flash (Nov. 30, 2017) ............................................. 23

Mark Chediak & Kiel Porter, PG&E

Bankruptcy Looms, CEO to Exit as Fire

Costs Dwarf Cash, Bloomberg (Jan 14,

2019),

https://www.bloomberg.com/news/articles/2

019-01-14/pg-e-plans-bankruptcy-filing-ascalifornia-wildfires-costs-mount ........................... 24

xi

Melissa Pamer & Elizabeth Espinosa, ‘We

Don’t Even Call It Fire Season Anymore ...

It’s Year Round’: Cal Fire, KTLA5 News

(Dec. 11, 2017),

http://ktla.com/2017/12/11/we-dont-evencall-it-fire-season-anymore-its-year-roundcal-fire/ ................................................................... 26

Mike Yamamoto, Market Notes: Tuesday,

December 12, (Dec. 12, 2017),

https://investitute.com/activitynews/market-notes-tuesday-december-122017/ ....................................................................... 23

Moody’s Investors Service, Rating Action:

Moody’s Changes San Diego Gas &

Electric’s Rating Outlook to Negative From

Stable (Apr. 11, 2018),

http://www.moodys.com/research/Moodyschanges-San-Diego-Gas-Electric-ratingoutlook-to-negative-PR_380749 ............................ 23

Robinson Meyer, Has Climate Change

Intensified 2017’s Western Wildfires?, The

Atlantic (Sept. 7, 2017),

https://www.theatlantic.com/science/archiv

e/2017/09/why-is-2017-so-bad-for-wildfiresclimate-change/539130/ ......................................... 26

Sammy Roth, Edison CEO talks wildfires,

climate change and the utilities vanishing

monopoly, L.A. Times, (Mar. 13, 2019)

https://www.latimes.com/business/la-fisouthern-california-edison-sce-wildfiresclimate-change-20190313-story.html ................... 24

xii

William P. Barr, Henry Weissmann, & John

P. Fratz, The Gild that Is Killing the Lily:

How Confusion over Regulatory Takings

Doctrine Is Undermining the Core

Protections of the Takings Clause, 73 Geo.

Wash. L. Rev. 429 (2005) ....................................... 16

INTRODUCTION

California’s privately owned utilities face crippling liability for damage to private property from

wildfires that have become the “new normal” in California. The prospect of such liability has increased

insurance costs, weakened credit ratings, and discouraged investment in California’s privately owned

utilities, who supply power to the overwhelming bulk

of the State’s businesses and residents and provide a

vital aspect of California’s infrastructure. The catastrophic consequences of such liability are not hypothetical; they have already driven one privately

owned utility (Pacific Gas & Electric Co. (“PG&E”))

into a recent highly publicized bankruptcy.

This situation is almost entirely the creature of

law. In a series of California intermediate appellate

court decisions, California has imposed “inverse condemnation” liability on privately owned utilities for

damaging private property, just as if they were government actors. Because inverse condemnation is a

form of strict liability in California, it is far more attractive to plaintiffs and the plaintiffs’ bar than the

hard work of proving that the utilities’ negligence in

the operation of their powerlines proximately caused

any wildfires or other damage. But unlike government actors, privately owned utilities lack the coercive power of taxation and cannot unilaterally set

their own rates. To recover the costs of inverse condemnation liability, they must ask their regulator,

the California Public Utilities Commission (“CPUC”)

to allow them to pass the costs of that liability on to

their ratepayers.

2

The CPUC, affirmed by the California courts, has

now said no. In denying the application of petitioner

San Diego Gas & Electric Company (“SDG&E”) to

recover through rates the $379 million SDG&E was

forced to pay in unreimbursed inverse condemnation

costs from wildfires, the CPUC said that inverse

condemnation was “not relevant” to its decision. Instead, the CPUC applied its own administrative

“prudent manager” standard and deemed SDG&E

entitled to nothing.

This is an uncompensated taking of SDG&E’s

private property for public use in violation of the

Fifth and Fourteenth Amendments to the federal

Constitution. The well-settled purpose of compensation for takings in eminent domain is to ensure that

the costs of public improvements are borne by the

benefitted public. The same is true for inverse condemnation, which ensures that damage from public

improvements is not visited disproportionately on

particular private parties but rather is borne by the

benefitted public as a whole.

California law, in violation of these principles,

has now created a takings whipsaw in which the

State transfers the cost of damage from public improvements from one private party (the damaged

homeowners and businesses) to another private party (SDG&E and other privately owned utilities). It

thus does exactly what inverse condemnation is supposed to avoid: visits all the costs of damage from

public improvements on a single private party—here,

SDG&E. And in equal measure, California creates

an unconstitutional windfall for ratepayers, who are

the relevant public benefitted by the privately owned

3

utilities’ investment in electric power generation,

transmission and distribution facilities.

All three of California’s privately owned utilities

have tried in vain through repeated proceedings to

persuade the California court of appeal and California Supreme Court to grant discretionary review to

consider these issues. They have asked those courts

repeatedly without success to revisit the imposition

of inverse condemnation liability on privately owned

utilities. And from the other direction, SDG&E

asked those courts to review the CPUC decision

denying recovery, arguing that, assuming inverse

condemnation applies, denial of recovery is both an

unreasonable application of state law and an unconstitutional taking without just compensation. Again

without success.

In light of the California court of appeal’s and

California Supreme Court’s steadfast refusal to consider these important questions, this Court should

grant review. The decision of the California appellate court below takes privately owned utilities’

property for public use without just compensation, in

conflict with the Takings Clause as applied to the

States through the Due Process Clause, and in conflict with this Court’s settled takings jurisprudence.

And the question presented indisputably has grave

public importance: the legal whipsaw now created

by California’s appellate decisions threatens enormous and exponentially increasing financial and infrastructure harm to the largest economy in the

Nation and the fifth largest economy in the world.

Certiorari should be granted.

4

OPINIONS BELOW

The California court of appeal’s opinion is reproduced at App. 1a. The decision of the California Public Utilities Commission is reproduced at App. 6a and

its denial of rehearing is reproduced at App. 94a.

The California Supreme Court’s denial of the petition

for review is reproduced at App. 5a.

JURISDICTION

The California court of appeal issued its opinion

on November 13, 2018. App. 1a. On January 31,

2019, the California Supreme Court denied SDG&E’s

timely filed petition for review. App. 5a. This Court

has jurisdiction under 28 U.S.C. § 1257(2).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment, U.S. Const. amend. V,

provides in pertinent part:

No person shall * * * be deprived of life,

liberty or property, without due process of

law; nor shall private property be taken

for public use, without just compensation.

The Due Process Clause of the Fourteenth

Amendment, U.S. Const. amend. XIV, § 1, provides:

No State shall * * * deprive any person of

life, liberty or property, without due

process of law.

STATEMENT

A. Factual Background

SDG&E is a private, investor-owned utility that

supplies gas and electricity to over 3.4 million customers in San Diego County and southern Orange

5

County, California. See Petitioner’s Appendix of Exhibits in Support of Writ of Review in the California

Court of Appeal (“Cal. Ptn’s App.”) 1 Cal. Ptn’s App.

497, 500. SDG&E owns and operates nearly 19,000

miles of electrical distribution and transmission

lines, including many in rural backcountry areas

that it is legally obligated to serve and where the

risk of wildfires is significant. 1 Cal. Ptn’s App. 500501. In keeping with CPUC regulations and utility

industry best practices, SDG&E has multiple programs to mitigate and reduce wildfire risk, and has

been lauded as a “potential example of excellence.” 2

Cal. Ptn’s App. 822-824.

In October 2007, Southern California experienced

severe Santa Ana winds with reported wind speeds

of 40 to 60 miles per hour and gusts up to 100 miles

per hour. 1 Cal. Ptn’s App. 382, 31 Cal. Ptn’s App.

11787, fn. 30. As these winds swept across Southern

California, they caused hundreds of fires, only some

of which the thinly stretched firefighting resources

were able to contain and which burned over 500,000

acres. 1 Cal. Ptn’s App. 149-150, 31 Cal. Ptn’s App.

11777. The Witch Fire combined with the Guejito

Fire burned nearly 200,000 acres, damaging over

1,140 homes. 31 Cal. Ptn’s App. 11786, 11789,

11804. The Rice Fire burned nearly 9,500 acres and

damaged over 200 homes. 13 Cal. Ptn’s App. 6142.

Property owners, insurers, and government entities alleging damage from the fires filed more than

2,500 lawsuits against SDG&E, bringing, among

others, claims for inverse condemnation.

6

B. California Law Of Inverse Condemnation

Under California law, inverse condemnation is a

form of strict liability that can be enforced whether

or not the damage from a public improvement was

foreseeable, and even if there was no fault or negligence. See, e.g., Marshall v. Department of Water

and Power of the City of Los Angeles, 219 Cal. App.

3d 1124, 1138-39 (1990); see also San Diego Gas &

Elec. Co. v. Sup. Ct., 13 Cal. 4th 893, 939-40 (1996).

All a plaintiff need establish is a causal relationship

between the government’s (or in this case, a privately

owned utility’s) activity and the alleged property

loss. Marshall, 219 Cal. App. 3d at 1138-39. And a

defendant can be held strictly liable for damages if

its public improvement was a substantial cause of

the damage, even if it is only one of several concurrent causes. See id.

The decisions of two intermediate California appellate courts have imposed inverse condemnation

liability on privately owned utilities to the same extent as such liability applies to government actors.

See Pacific Bell Tel. Co. v. S. Cal. Edison Co., 208

Cal. App. 4th 1400 (2012); Barham v. S. Cal. Edison

Co., 74 Cal. App. 4th 744 (1999). These decisions

and other decisions implementing them have never

been reviewed by the California Supreme Court.

Each decision imposed inverse condemnation liability on privately owned utilities on the express assumption that the resulting costs would be recovered

from ratepayers as the relevant benefitted public.

Pacific Bell expressly noted that there was no “evidence” that the CPUC would not allow a privately

owned utility to pass on inverse condemnation damages liability through adjustments “during its period-

7

ic reviews.” 208 Cal. App. 4th at 1407-08. Similarly,

Barham allowed a privately owned utility to be held

“liable in inverse condemnation” just the same “as a

public utility,” but in doing so recognized that the

key purpose of inverse condemnation is to “spread

among the benefiting community any burden disproportionately borne by a member of that community.”

74 Cal. App. 4th at 752-53.

C. Proceedings Below

Overruling a demurrer filed by SDG&E, the California superior court held that plaintiffs could bring

their inverse condemnation claims against SDG&E

even though it is a privately owned utility, not a government entity. See Minute Order, In re 2007 Wildfire Insurer Litig., p.2 (Super. Ct. San Diego County,

Jan. 29, 2009, No. 37-2008-0093083, CU-NP-CTL).

In light of the strict liability imposed by inverse

condemnation under California law, SDG&E decided

to settle the inverse condemnation claims against it

in order to reduce its exposure and avoid unnecessary litigation. 1 Cal. Ptn’s App. 141-42. As a result,

although plaintiffs asserted $5.6 billion in damages,

SDG&E resolved those claims with payments totaling $2.4 billion. 1 Cal. Ptn’s App. 57. SDG&E recovered $1.1 billion from its liability insurers and

another $824 million from settlements with third

parties based on cross-claims it had filed, leaving

SDG&E with $476 million in unrecovered settlement

payments and legal expenses. 31 Cal. Ptn’s App.

11778, fn. 2.

In 2012, SDG&E applied to the Federal Energy

Regulatory Commission (“FERC”), which regulates

the interstate transmission rates charged by utilities

8

like SDG&E, to include a portion of its unrecovered

payments in those rates. In 2014, FERC granted

SDG&E’s application, allowing immediate recovery

of $23 million and subsequent recovery of another

$67 million in settlement payments. See In re San

Diego Gas & Elec. Co., 146 FERC ¶ 63,017, 2014 WL

713556 (2014).

In so doing, FERC held that recovery was warranted without regard to the prudence of SDG&E’s

maintenance operations. Id. at ¶ 66,112-13. FERC

reasoned that SDG&E would have been held liable

under California inverse condemnation law without

regard to fault, and that, “[b]y settling, SDG&E

avoided facing considerable litigation risk and disposed of claims for significantly less than the amount

demanded by the claimants.” Id.

In 2015, SDG&E applied to the CPUC to include

in the rates under the CPUC’s jurisdiction $379 million—most but not all of the unrecovered settlement

payments.

App. 9a-10a.

The CPUC denied

SDG&E’s request, ruling that SDG&E had failed to

prove that its operation and management of the facilities connected with the fires satisfied the CPUC’s

own administratively developed “prudent manager”

standard. App. 81a-83a. Under the CPUC’s “prudent manager” standard, privately owned utilities

are allowed to recover costs only if they prove that

those costs were “prudently incurred by competent

management exercising the best practices of the era,

and using well-trained, well-informed, and conscientious employees who are performing their jobs

properly.” App. 13a.

The CPUC deemed the fact that SDG&E had

been subjected to strict liability for inverse condem-

9

nation “not relevant to a Commission reasonableness

review under the prudent manager standard.” App.

75a. According to the CPUC, “nothing” in prior judicial decisions extending inverse condemnation to private utilities “would supersede this Commission’s

exclusive jurisdiction over cost recovery/cost allocation issues involving CPUC regulated utilities,”

which the CPUC ruled required it to assess the prudence of SDG&E’s conduct before the fires ignited.

App. 76a.

The CPUC’s president and another commissioner

issued a joint concurrence expressing concern about

the application of inverse condemnation to privately

owned utilities, and deeming “unsound” the premise

that utilities would be able to “socialize[]” the cost of

such liability across ratepayers, as the prior California intermediate appellate court decisions in Barham and Pacific Bell had expressly assumed. App.

91a.

In addition, the concurrence noted that

applying inverse condemnation to privately owned

utilities that are not guaranteed to recover their

costs would increase those utilities’ capital costs and

insurance expenses, ultimately leading to higher

rates for ratepayers. App. 92a. The concurrence

urged the California legislature and courts to

reconsider whether inverse condemnation applies to

privately owned utilities. App. 92a-93a. Neither has

since done so.

SDG&E applied for rehearing, which the CPUC

denied.

App. 94a-137a.

The CPUC rejected

SDG&E’s argument that the “prudent manager”

standard should not apply under state law to inverse

condemnation costs, 127a-134a, and also rejected

SDG&E’s constitutional challenges to its application

10

of the “prudent manager” standard to bar recovery,

App. 134a-137a.

The CPUC declined to harmonize its ruling with

the judicial decisions in Barham and Pacific Bell,

even though those decisions had subjected private

utilities to inverse condemnation claims on the

express assumption that the CPUC would spread

inverse condemnation costs among the ratepayers.

App. 125a-131a. Deeming itself bound to apply its

“prudent manager” standard, the CPUC did not

consider whether applying the standard to inverse

condemnation costs created an unjust and

unreasonable whipsaw between contradictory legal

standards. App. 131a-134a. Finally, the CPUC

denied that applying the “prudent manager”

standard to inverse condemnation costs creates an

unconstitutional taking. App. 134a-137a.

D. The California Courts’ Denial Of Review

SDG&E filed a petition for a writ of review with

the California court of appeal, which denied review

in a summary three-page order. App. 1a-4a. The

court of appeal did not address the California judicial

decisions that had subjected privately owned utilities

to inverse condemnation or the cost-spreading rationale underlying those decisions.

Nor did it

address the unconstitutional taking created by the

CPUC decision or seek to avoid that serious

constitutional issue by interpreting section 451 of the

California public utilities code (which provides for

rate recovery for “just and reasonable” charges) to

afford rate recovery for inverse condemnation costs.

Instead the court of appeal rejected SDG&E’s

arguments without explanation:

11

The Commission’s determination that the

princip[les] of inverse condemnation did

not bar its prudent manager analysis under

section 451 was not in excess of its powers,

nor a violation of the law, including the

Constitutions of the United States and

California. Contrary to SDG&E’s assertion,

the Commission’s review was statutorily

mandated, and no legal authority

authorized it to forgo it obligations under

section 451. Of note, SDG&E settled the

inverse condemnation claims in the wildfire

litigation rather than continue to advance

its position that it could not be held strictly

liable as a non-governmental entity.

Further, had the Commission determined

that SDG&E acted as a prudent manager,

the costs could have been passed onto the

ratepayers regardless of any potential

strict liability in a civil litigation setting.

App. 3a-4a.

SDG&E then filed a petition for review in the

California Supreme Court, which the Court summarily denied. App. 5a.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

THE

TAKINGS

CLAUSE

AND

THIS

COURT’S TAKINGS PRECEDENTS

This Court should grant certiorari because the

decision below conflicts with the fundamental right

to just compensation for takings of private property

for public use, as enshrined in the Fifth Amendment

12

as applied to the States through the Fourteenth

Amendment and embodied in this Court’s Takings

Clause jurisprudence.

The CPUC’s denial of

recovery, affirmed by the California court of appeal,

is a regulatory taking warranting just compensation.

The California courts’ decision to impose liability

without such compensation upends settled law in

this area, warranting this Court’s review.

A. The Decision Below Conflicts With The

Core Cost-Spreading Premise Of The

Takings Clause

California law now imposes an unconstitutional

whipsaw on privately owned utilities. Barham and

Pacific Bell, decisions whose holdings the California

Supreme Court has consistently declined to review or

reconsider, impose inverse condemnation liability on

privately owned utilities just as if they were

government actors with the unfettered ability to

spread the costs of such liability to the benefitted

public. They are not. As the CPUC’s refusal to allow

SDG&E to recover those costs starkly illustrates,

privately owned utilities, unlike government actors,

may not spread inverse condemnation costs across

the benefitted public—here the ratepayers who

benefit from electric power generation and

transmission. The decision below thus conflicts with

this Court’s precedent under the Takings Clause.

Inverse condemnation is a judicially developed

doctrine rooted in federal and state constitutional

provisions that “private property [shall not be] be

taken for public use, without just compensation.”

U.S. Const. amend. V, XIV; see Cal. Const. Art. I, sec.

19 (“Private property may be taken or damaged for

public use only when just compensation…has first

13

As this Court has consistently

been paid….”).

explained, the purpose of the Takings Clause is “to

bar Government from forcing some people alone to

bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. 40, 49 (1960).

In particular, “the just compensation requirement

spreads the cost of condemnations and thus ‘prevents

the public from loading upon one individual more

than his just share of the burdens of government.’”

Kelo v. City of New London, 545 U.S. 469, 497 (2005)

(O’Connor, J., dissenting) (quoting Monongahela

Nav. Co. v. United States, 148 U.S. 312, 325 (1960)).

This rationale applies equally to suits for inverse

condemnation. See, e.g., Arvo Van Alstyne, Statutory

Modification of Inverse Condemnation: The Scope of

Legislative Power, 19 Stan. L. Rev. 727, 738 (1967)

(explaining that the purpose of the California law of

inverse condemnation is to ensure that losses are

“distributed over taxpayers at large rather than be

borne by the injured individual”).

This rationale makes sense where the taking is

made by the government, which is then free to spread

that cost among the benefitted public through the

coercive power of taxation. A government entity

sued in inverse condemnation by an injured property

owner may draw from general funds or raise taxes in

the community, and a publicly owned utility may

unilaterally raise the rates that consumers pay for

the services the utility provides. See, e.g., Sultum v.

Tahoe Regional Planning Agency, 520 U.S. 725

(1997) (taking by regional government planning

agency); Babbitt v. Youpee, 519 U.S. 234 (1997)

(taking by federal government); Dolan v. City of

Tigard, 512 U.S. 374 (1994) (taking by city).

14

Unlike the government or a public utility,

however, a privately owned utility may not raise the

rates that it charges customers or pass the costs of

inverse condemnation liability on to ratepayers

without the approval of its regulator, the CPUC.

And the CPUC below treated SDG&E quite unlike a

public entity by barring its request to spread those

costs across the ratepayers who benefit from

electricity generation and transmission. In denying

SDG&E the ability to spread its inverse

condemnation costs, the CPUC applied a “prudent

manager” standard that does not apply when the

government seeks to spread liability for such costs.

Such a ruling conflicts with the foundational

premise

of

the

Takings

Clause.

Inverse

condemnation assumes that it is an unconstitutional

taking to require the property owner who lost his

home or business in a wildfire to “bear public

burdens which, in all fairness and justice, should be

borne by the public as a whole.” Armstrong, 364 U.S.

at 49. But by the same logic it is an unconstitutional

taking to shift that public loss to another private

entity—here, SDG&E—rather than to the ratepaying

electricity customers who benefit from the public

improvement of power generation and transmission

in the State. Either the destruction of property in a

wildfire is a taking or it is not; but it cannot be a

taking for some purposes (when compensating

property owners) but not others (allowing SDG&E

the right to recover from the rate-paying public).

This Court should grant review to clarify these basic

principles in this context.

15

B. The Decision Below Conflicts With This

Court’s Regulatory Takings Precedent

The imposition of inverse condemnation liability

on privately owned utilities without ensuring that

those costs are spread across the benefitted ratepaying public further conflicts with this Court’s precedent on regulatory takings. Such takings result

from government action that (as here) diminishes or

destroys economic value without the formal exercise

of the power of eminent domain. In evaluating regulatory takings, this Court has instructed courts to

examine three factors: (1) “[t]he economic impact of

the regulation on the claimant”; (2) “the extent to

which the regulation has interfered with distinct investment-backed expectations”; and (3) whether the

government action balances the “benefits and burdens of economic life to promote the common good.”

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-39

(2005) (quoting Penn Central Transp. Co. v. New

York City, 438 U.S. 104, 124 (1978)).

As the decision below fails to recognize, those factors are all satisfied here. First, the economic impact

of imposing $379 million in inverse condemnation

costs on SDG&E without just compensation is selfevidently substantial. And notably, SDG&E’s total

liability from inverse condemnation from the Witch,

Guejito and Rice fires alone might have been much

greater, indeed in the billions, had it not exercised

foresight in settling cases and managing its insurance coverage so as to recover from third parties.

Second, requiring a privately owned utility to satisfy a “prudent manager” standard before it can recover the costs of inverse condemnation liability

clearly upsets its reasonable investment-backed ex-

16

pectations. As noted, the judicial precedents under

which California imposed inverse condemnation liability on privately owned utilities in the first place

expressly assumed that the resulting costs would be

spread across the benefitted rate-paying public. See

Pacific Bell, 208 Cal. App. 4th at 1407-08; Barham,

74 Cal. App. 4th at 752-53; see supra at pp. 6-7.

Thus, prior to the decision in this case, SDG&E’s investors reasonably believed that SDG&E would be

permitted to pass on the costs of inverse condemnation claims to ratepayers via adjustments in the ratesetting process. The CPUC decision negated these

reasonable, investment-backed expectations, triggering the just compensation requirement.

Moreover, privately owned utilities are compelled

by their regulatory obligations to sink significant investments into infrastructure and facilities, and are

compelled to continue providing services regardless

of profitability, without the option of exiting the

market. As one notable set of commentators has

thus suggested, “doctrinal confusion is nowhere more

apparent or more important than in the treatment of

takings principles applicable to public utilities.” See

William P. Barr, Henry Weissmann, & John P.

Fratz, The Gild that Is Killing the Lily: How Confusion over Regulatory Takings Doctrine Is Undermining the Core Protections of the Takings Clause, 73

Geo. Wash. L. Rev. 429, 431 (2005).

Third, far from balancing the benefits and burdens of economic life, the whipsaw created by uncompensated inverse condemnation liability here

would concentrate the entire burden of damage from

the electricity infrastructure on privately owned utilities like SDG&E. Indeed, it would simply shift the

17

disproportionate burden of property damage from

public improvements from one private member of the

community (the damaged property owner) to another

private member of the community (here, SDG&E)

without ever allowing it to spread those costs among

the relevant public that benefits from power generation and transmission. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 529-30 (1998) (finding

unconstitutional regulatory taking where law requiring payments into health fund for coal workers, even

though the payor was no longer in the coal mining

business).

While the CPUC did not dispute the enormous

economic impact of its denial of any recovery, it erred

in arguing that there was no regulatory taking

because SDG&E had no “guaranteed expectation of

rate recovery under Section 451.” App. 136a. That

argument ignores the decisions of this Court and the

California court of appeal imposing inverse

condemnation liability on private utilities only on the

assumption that such liability would be recovered

through rate-making and thus spread among

ratepayers. The CPUC also argued that its actions

were in keeping with the CPUC’s statutory

obligations and established rate-making practice and

its interest in protecting ratepayers from unjust and

unreasonable rates.

Id.

The Takings Clause,

however, is a constitutional restriction that

supersedes statutes and agency practice. Moreover,

there is nothing “unjust or unreasonable” about

allowing a private utility to pass onto ratepayers the

cost of satisfying a burden that should be “borne by

the public as a whole,” Armstrong, 364 U.S. at 49,

and spread among those benefitted, Monongahela

Nav. Co., 148 U.S. at 325. Therefore, the CPUC

18

failed to dispel the constitutional taking effected by

applying the “prudent manager” standard to inverse

condemnation costs.

In light of the CPUC’s and court of appeal’s

failure to reconcile their decision with the Takings

Clause, the decision below will sow further confusion

in both state and federal courts regarding this

Court’s regulatory takings jurisprudence, and call

into question the important lines this Court has

drawn in explaining when a State’s imposition of a

new and expensive burden on a single private

individual has gone too far.

The principles set forth in Duquesne Light Co. v.

Barasch, 488 U.S. 299 (1989), do not suggest otherwise. There, the Court found there was no “confiscatory” taking from a public utility in the rate-setting

process because the rate permitted by the public utilities commission still allowed for a reasonable rate of

return on investment. Id. at 315. But that case did

not determine whether a particular state action

would constitute a regulatory taking. Nor did the

Court state, or even suggest, that an overall reasonable rate of return would insulate a State from any

and all takings challenges in the utilities context.

Surely, the State could not have police seize a parcel

of property or a building at SDG&E’s corporate

headquarters without compensation, and then argue

that its actions were constitutional because, even

without that property, SDG&E is still able to attract

capital and earn a reasonable rate of return on its

investments.

The same is true here: California has created a

judicial regime whereby SDG&E and other privately

owned utilities will be forced to absorb all of the costs

19

of inverse condemnation claims for wildfire-related

losses across the State, but will receive none of the

benefits that a government actor would receive in being able to spread the inverse condemnation costs to

the benefitted public by creating a new tax, drawing

from the public coffers, or increasing electricity rates.

Such a regime threatens core principles of the Fifth

and Fourteenth Amendments without regard to

whether the rate set by the CPUC would also be considered unconstitutionally confiscatory or not. This

Court’s guidance is therefore needed to resolve this

issue and provide much needed clarification in this

area of the law.

II. THIS CASE IS AN IDEAL VEHICLE TO

ADDRESS THE QUESTION PRESENTED

There is no reason why the question presented

here may not be fully and finally resolved by this

Court. First, unlike in many cases in which federal

unconstitutional takings questions arise from state

court proceedings, there is no question that SDG&E

has exhausted its state-law remedies. Specifically,

SDG&E has attempted to obtain “just compensation”

from the State by asking the CPUC for permission to

spread inverse condemnation liability across

ratepayers via the rate-setting process before seeking

this Court’s review. App. 6a. Thus, this case does

not present any of the procedural pitfalls of cases

like Williamson County v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985), or Knick v. Township of

Scott, 862 F.3d 310 (3d Cir. 2017), certiorari granted

138 S. Ct. 1262 (2018), where the plaintiff elected to

bring his Takings Clause claim in federal district

court without availing himself of potential state

court remedies first. See Williamson Cnty., 473 U.S.

20

at 194-96 (holding that Takings Claim action

brought under 42 U.S.C. § 1983 was not yet ripe

because plaintiff did not first seek compensation

through the procedures the state provided); Knick,

862 F.3d at 324-26 (same).

Second, the California court of appeal and

Supreme Court have repeatedly declined to grant

review of the issues raised here, suggesting that no

judicial resolution of the issues under state law will

be forthcoming so as to moot SDG&E’s federal

Takings Clause claim. The California appellate

courts have declined review of these issues despite

the CPUC’s members’ own repeated petitions for

judicial review, see supra, at p. 9, and in the face of

the

privately

owned utilities’ exponentially

increasing inverse condemnation liability from

wildfires.

Specifically, the California court of appeal and

Supreme Court have not only denied SDG&E’s

petitions for review in this case, but have also

summarily denied six related petitions for review. In

those petitions, PG&E and Southern California

Edison (“SCE”) questioned the California state-law

decisions imposing inverse condemnation on

privately owned utilities in light of the CPUC’s

decision denying recovery here. See, e.g., Pacific Gas

& Electric Co. v. Superior Court (Abu-Shumays) No.

C087071 (Cal. App. May 9, 2018), No. S249429 (Cal.

June 8, 2018) (2015 Butte Fire); Pacific Gas &

Electric Co. v. Superior Court (Abbott) No. A154847

(Cal. App. July 20, 2018), No. S251585 (Cal. Oct. 1,

2018) (2017 North Bay Fires); Edison International,

Southern California Edison Company v. Superior

Court (Abate) No. B294164 (Cal. App. Dec. 3, 2018),

21

No. S253094 (Cal. Dec. 17, 2018) (2017 Thomas

Fires).

The denial of those petitions strongly

suggests that no state judicial relief is forthcoming.

Finally, there is no near-term prospect of any

legislative relief or clarification of the California law

of inverse condemnation as applied to privately

owned utilities. Last summer, Governor Jerry

Brown, recognizing that wildfires are the “new

normal” in California, proposed legislation that

would have reformed inverse condemnation law as

applied to privately owned utilities by removing the

strict liability standard and replacing it with a

standard reflecting a utility’s proportionate fault.

But the Legislature declined to adopt the Governor’s

proposal, instead enacting a statute concerning

wildfire cost recovery, Cal. Stats. 2018, ch. 626,

§§ 26–27, 32, that disclaimed any change in civil

liability standards, Cal. Pub. Util. Code, §451.1,

subd. (c), and effectively reaffirmed the CPUC’s

“prudent manager” standard, id., § 451.1, subd.

(a)(1)–(12). The Legislature thus left the legal

whipsaw squarely in place, underscoring the

ripeness of the Takings Clause question presented

here.

III. THIS CASE PRESENTS A QUESTION OF

EXCEPTIONAL NATIONAL IMPORTANCE

The national importance of the takings question

presented here can hardly be overstated, and further

warrants the grant of certiorari. The California

courts’ imposition of uncompensated inverse

condemnation liability on privately owned utilities

threatens grave economic and infrastructure harm

not only to privately owned utilities in California,

but also to the California economy as a whole. And

22

because California is the largest economy among the

States and now the fifth largest economy in the

world, such risks inherently threaten the United

States’ economy as well.

California’s three largest privately owned

utilities—PG&E, SCE, and SDG&E—together

deliver power to 34.6 million of California’s nearly 40

million residents over 124,100 of California’s 163,696

square miles. These privately owned utilities not

only supply three-quarters of the State’s electricity,

but also employ nearly 40,000 California residents

and play a critical role in advancing environmental

goals. The threat of expansive inverse condemnation

liability against privately owned utilities has greatly

increased financial pressures on those utilities.

First, the threat of uncompensated inverse

condemnation liability in an era of escalating

wildfires has increased the cost of insurance and

eventually may render all California utilities

uninsurable.

According to one report, utilities’

insurance costs in California have “skyrocketed” and

sometimes

insurance

has

become

simply

“unavailable.”1

Second, the threat of uncompensated inverse

condemnation liability increases the costs of capital

for privately owned utilities. When the CPUC issued

the order below denying SDG&E recovery, market

analysts commented that California privately owned

utilities presented

a

“uniquely

unpalatable

proposition of socialized no-fault liability” with “no

Ethan Howland, Utilities to fight climate risk via

insurance upgrades, 2018 CQ Roll Call Was. Energy

Briefing 1673 (Nov. 14, 2018).

1

23

assurance of presumed recoverability,”2 and warned

that the utilities would experience a “material

increase in their cost of capital.”3 Indeed, Moody’s

changed SDG&E’s rating outlook from “stable” to

“negative,” noting that the CPUC’s decision denying

SDG&E rate recovery would cause “higher

regulatory risk for investor-owned utilities in

California due to inverse condemnation exposure and

the uncertainty that they will be able to recover

Following the

related costs from ratepayers.”4

CPUC’s decision in this case, another analyst wrote

that California utilities were “uninvestable right

now” because there were “too many unknowns and

significant risk.”5

Third, privately owned utilities have suffered

plunges in their stock prices in the aftermath of

every new wildfire, reflecting the exponentially

increasing costs and risks of inverse condemnation

Jonathan Arnold, CPUC Denies SDG&E Wildfire

Recovery; Notes “Incorrect Premise” of IC Doctrine,

Deutsche Bank Power Flash, at 3 (Nov. 30, 2017).

2

Greg Gordon & Kevin Prior, PCG Has Suspended

Dividends, Citing Uncertainty Regarding Wildfire-Related

Liabilities, Evercore ISI, at 2 (Dec. 21, 2017).

3

Moody’s Investors Service, Rating Action: Moody’s

Changes San Diego Gas & Electric’s Rating Outlook to

Negative

From

Stable

(Apr.

11,

2018),

http://www.moodys.com/research/Moodys-changes-SanDiego-Gas-Electric-rating-outlook-to-negative-PR_380749.

4

Mike Yamamoto, Market Notes: Tuesday, December 12,

2017 (Dec. 12, 2017), https://investitute.com/activitynews/market-notes-tuesday-december-12-2017/.

5

24

claims.6

In January 2019, PG&E filed for

bankruptcy in the face of an likely unrecoverable

estimated $30 billion in inverse condemnation

liability resulting from a series of wildfires.7 And

this may just be the tip of the iceberg. SCE recently

took a charge of $4.7 billion tied to wildfire events in

its service territory8 and both Edison International’s

CEO and analysts have opined that SCE could be

just one or two more fires away from bankruptcy.9

See Ivan Penn & Peter Eavis, Liability Claims From

Wildfires Threaten Utility, N.Y. Times, Nov. 14, 2018, at

A1,

available

at

https://www.nytimes.com/2018/11/14/business/energyenvironment/california-fire-utilities.html.

6

Mark Chediak & Kiel Porter, PG&E Bankruptcy

Looms, CEO to Exit as Fire Costs Dwarf Cash, Bloomberg

(Jan

14,

2019),

https://www.bloomberg.com/news/articles/2019-01-14/pge-plans-bankruptcy-filing-as-california-wildfires-costsmount.

7

Anne C. Mulkern, No silver bullet. Can Calif. Save its

utilities?,

E&E

News

(Apr.

1,

2019),

https://www.eenews.net/stories/1060137633.

8

Id.; Sammy Roth, Edison CEO talks wildfires, climate

change and the utilities vanishing monopoly, L.A. Times

(Mar. 13, 2019), https://www.latimes.com/business/la-fisouthern-california-edison-sce-wildfires-climate-change20190313-story.html; see J.D. Morris, California considers

wildfire insurance fund to avoid repeat of PG&E’s woes,

S.F.

Chronical

(Feb.

25,

2019),

https://www.sfchronicle.com/business/article/Californiamulls-wildfire-insurance-fund-to-avoid13641330.php?psid=oFzg.

9

25

The financial impact of inverse condemnation

liability on privately owned utilities has other ripple

effects on the national economy by harming

consumers and environmental goals. As the CPUC’s

own President warned legislators, “the financial

pressure on utilities from inverse condemnation may

lead to higher rates for ratepayers.”10 And as one

analysis recognized following the 2017 Wine Country

wildfires, “unless the law is changed regarding

application of inverse condemnation to investorowned utilities or the CPUC changes its position on

recovery under that law,” California utilities will

experience material increases in capital costs,

“stressing their ability to invest in CA infrastructure

and help the state meet its aggressive clean energy

agenda.”11 Most recently, Governor Newsom’s Strike

Force report explained that California’s “regime—

strict liability for wildfire damage coupled with

uncertain ability to recover those damages in rates—

increases the risk of bankrupt utilities, which in turn

drives up costs for consumers, threatens fair

recoveries for fire victims, undermines the state’s

ability to mitigate and adopt to climate change, and

creates uncertainty for utilities employees and

contractors.”12

Cal. Assembly Comm. on Utils. & Energy (Feb. 26,

2018),

http://assembly.ca.gov/media/assembly-utilitiesenergy-committee-20180226/video,

at

1:04:2-1:04:58

(testimony of CPUC President and Commissioner Michael

Picker).

10

11

Gordon & Prior, supra.

Governor Newsom’s Strike Force, Wildfires and Climate Change: California’s Energy Future (Apr. 12, 2019),

https://www.gov.ca.gov/wp-

12

26

These problems will only get worse as wildfires

(and wildfire litigation) increase exponentially with

climate change.

Officials from the California

Department of Forestry and Fire Protection (“Cal

Fire”) have warned that recent trends “’reflect a

major shift in wildfires, one … seen over the past 10

years” showing that “’[w]ildfires are becoming more

damaging and destructive.’”13

They also have

cautioned that fire season could now persist yearround.14 By the end of this century, temperatures in

the United States are expected to rise another 3.5

degrees Celsius,15 or over 6 degrees Fahrenheit. The

increase in the risk of wildfires caused by increased

temperatures is exponential, not linear, meaning

that each degree increase in temperature may herald

a much greater proportional increase in the number

and severity of wildfires.16 Indeed, of the twenty

content/uploads/2019/04/Wildfires-and-Climate-ChangeCalifornia%E2%80%99s-Energy-Future.pdf.

Melissa Pamer & Elizabeth Espinosa, ‘We Don’t Even

Call It Fire Season Anymore ... It’s Year Round’: Cal Fire,

KTLA5

News

(Dec.

11,

2017),

http://ktla.com/2017/12/11/we-dont-even-call-it-fireseason-anymore-its-year-round-cal-fire/.

13

14

Id.

Robinson Meyer, Has Climate Change Intensified

2017’s Western Wildfires?, The Atlantic (Sept. 7, 2017),

https://www.theatlantic.com/science/archive/2017/09/why

-is-2017-so-bad-for-wildfires-climate-change/539130/.

15

Chelsea Harvey, Here’s What We Know About

Wildfires and Climate Change, Scientific American (Oct.

13,

2017),

https://www.scientificamerican.com/article/heres-whatwe-know-about-wildfires-and-climate-change/.

16

27

most destructive wildfires in California since 1932,

five occurred in 2017, and thirteen after 2000,

including the five largest.17

These profound economic and infrastructure

consequences

of

wildfire-related

inverse

condemnation claims against privately owned

utilities underscore the need for the Court’s

intervention, especially in the face of inaction by the

California judicial and legislative branches. This

Court should grant review.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Kathleen M. Sullivan

Jeffrey N. Boozell

Counsel of Record

QUINN EMANUEL

URQUHART & SULLIVAN, Stephanie N. Solomon

LLP

QUINN EMANUEL URQUHART

865 S. Figueroa St.

& SULLIVAN, LLP

th

51 Madison Ave., 22nd Floor

10 Floor

Los Angeles, CA

New York, NY 10010

(212) 849-7000

(213) 443-3200

kathleensullivan@

quinnemanuel.com

Counsel for Petitioner

April 30, 2019

Cal. Dep’t of Forestry & Fire Prot., Top 20 Most

Destructive California Wildfires (Nov. 19, 2018),

http://www.fire.ca.gov/communications/downloads/fact_sh

eets/Top20_Destruction.pdf.

17

APPENDIX

1a

APPENDIX A

COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

————

D074417

(Public Utilities Commission No. 17-11-033)

————

SAN DIEGO GAS & ELECTRIC,

v.

Petitioner,

PUBLIC UTILITIES COMMISSION,

Respondent;

PROTECT OUR COMMUNITIES FOUNDATION et al.,

Real Parties in Interest.

————

THE COURT:

The petition for writ of review filed by San Diego

Gas & Electric Company (SDG&E) and the accompanying exhibits, the answers filed by real parties in

interest Protect Our Communities Foundation (POCF)

and Ruth Henricks, the answer filed by the California

Public Utilities Commission, and the reply to answers

filed by SDG&E have been read and considered by

Justices Benke, O’Rourke, and Dato.

SDG&E challenges the Commission’s decision denying its application to include $379 million in settlement

payments stemming from litigation involving wildfires

caused by its facilities in 2007. SDG&E asserts the

2a

Commission’s decision should be annulled because it

interpreted Public Utilities Code section 451 (further

statutory references are to the Public Utilities Code)

in a manner that unconstitutionally conflicts with the

strict liability the utility faced in the wildfire litigation

as a result of the plaintiffs’ inverse condemnation

claims. SDG&E also argues the Commission’s decision

must be annulled because insufficient evidence supported its determination that (1) SDG&E was an

imprudent manager and (2) SDG&E’s conduct caused

the Witch Fire.

“‘“[A]ny aggrieved party [to a decision of the

Commission] may petition for a writ of review in the

court of appeal . . . .”’” (SFPP, L.P. v. Public Utilities

Commission (2013) 217 Cal.App.4th 784, 793 (SFPP).)

“[W]hen ‘writ review is the exclusive means of appellate review of a final order or judgment, an appellate

court may not deny an apparently meritorious writ

petition, timely presented in a formally and procedurally sufficient manner, merely because, for example,

the petition presents no important issue of law or

because the court considers the case less worthy of

its attention than other matters.’ [Citation.] We are

not, however, ‘compelled to issue the writ if the

[Commission] did not err . . . .’” (Ibid.)

“The limited grounds and standards for our review

are set forth in section 1757, subdivision (a). ‘No new

or additional evidence shall be introduced upon review

by the court. In a complaint or enforcement proceeding, or in a ratemaking or licensing decision of specific

application that is addressed to particular parties, the

review by the court shall not extend further than to

determine . . . whether any of the following occurred:

(1) The commission acted without, or in excess of, its

powers or jurisdiction. (2) The commission has not

3a

proceeded in the manner required by law. (3) The

decision of the commission is not supported by the

findings. (4) The findings in the decision of the

commission are not supported by substantial evidence

in light of the whole record. (5) The order or decision

of the commission was procured by fraud or was an

abuse of discretion. (6) The order or decision of the

commission violates any right of the petitioner under

the Constitution of the United States or the California

Constitution.’” (SFPP, supra, 217 Cal.App.4th at

pp. 793-794.)

“‘There is a strong presumption favoring the validity of a Commission decision.’” (SFPP, supra, 217

Cal.App.4th at p. 794.) “‘Generally, we give presumptive value to a public agency’s interpretation of a

statute within its administrative jurisdiction because

the agency may have “special familiarity with satellite legal and regulatory issues,” leading to expertise

expressed in its interpretation of the statute. [Citation.]

Therefore, “the PUC’s ‘interpretation of the Public

Utilities Code should not be disturbed unless it fails to

bear a reasonable relation to statutory purposes and

language . . . .’”’” (Ibid.)

The Commission’s determination that the principals

of inverse condemnation did not bar its prudent

manager analysis under section 451 was not in excess

of its powers, nor a violation of the law, including the

Constitutions of the United States and California.

Contrary to SDG&E’s assertion, the Commission’s

review was statutorily mandated, and no legal authority authorized it to forego its obligation under section

451. Of note, SDG&E settled the inverse condemnation claims in the wildfire litigation rather than

continue to advance its position that it could not be

held strictly liable as a non-governmental entity.

4a

Further, had the Commission determined that SDG&E

acted as a prudent manager, the costs could have been

passed onto the ratepayers regardless of any potential

strict liability in a civil litigation setting.

In addition, the exhibits submitted by SDG&E do

not support its assertion that the Commission’s findings

under section 451 were not supported by sufficient

evidence. Specifically, the record contains substantial

evidence showing both that SDG&E’s facilities caused

all three of the wildfires at issue, and that SDG&E did

not meet its burden to show that it reasonably and

prudently operated and maintained those facilities.

(See Toward Utility Rate Normalization v. Public

Utilities Com. (1978) 22 Cal.3d 529, 537 [“The findings

of fact by the Commission are to be accorded the same

weight that is given to jury verdicts and the findings

are not open to attack for insufficiency if they are

supported by any reasonable construction of the

evidence.”].)

In sum, SDG&E has failed to demonstrate that the

Commission erred on the claims it asserts. Under

these circumstances, we decline to issue the writ of

review. (Pacific Bell v. PUC (2006) 140 Cal.App.4th

718, 729.) The petition is denied. The application of

Southern California Edison Company and Pacific Gas

and Electric Company for leave to file an amicus

curiae brief is denied as moot.

BENKE, Acting P. J.

Copies to: All parties

5a

APPENDIX B

IN THE SUPREME COURT OF CALIFORNIA

En Banc

————

S252748

————

SAN DIEGO GAS & ELECTRIC,

v.

Petitioner,

PUBLIC UTILITIES COMMISSION,

Respondent;

PROTECT OUR COMMUNITIES FOUNDATION et al.,

Real Parties in Interest.

————

Court of Appeal, Fourth Appellate District,

Division One - No. D074417

————

The request for judicial notice is granted.

The petition for review is denied.

CANTIL-SAKAUYE

Chief Justice

6a

APPENDIX C

ALJ/SPT/SL5/ek4

Date of Issuance 12/6/2017

Decision 17-11-033 November 30, 2017

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

————

Application 15-09-010

————

Application of San Diego Gas & Electric Company

(U902E) for Authorization to Recover Costs

Related to the 2007 Southern California

Wildfires Recorded in the Wildfire Expense

Memorandum Account (WEMA).

————

DECISION DENYING APPLICATION

————

7a

Table of Contents

Title

Page

DECISION DENYING APPLICATION ..................... 1

Summary...................................................................... 2

1.

Factual Background ............................................. 2

2.

Procedural Background ........................................ 3

3.

Legal Standards Applied...................................... 9

4.

Discussion and Analysis .................................... 11

4.1. Witch Fire ....................................................... 11

4.1.1. Witch Fire Background ........................... 11

4.1.2. SDG&E’s Position on its Operation

and Management of its Facilities

Prior to the Witch Fire ............................ 15

4.1.3 ORA’s Position on SDG&E’s Operation and Management of its Facilities Prior to the Witch Fire ..................... 21

4.1.4. Intervenors’ Position on SDG&E’s

Operation and Management of its

Facilities Prior to the Witch Fire ............ 24

4.1.5. Reasonableness Review: SDG&E’s

Operation and Management of its

Facilities Prior to the Witch Fire ............ 27

4.2. Guejito Fire ..................................................... 29

4.2.1. Guejito Fire Background ......................... 29

4.2.2. SDG&E’s Position on its Operation

and Management of its Facilities

Prior to the Guejito Fire .......................... 31

4.2.3. ORA’s Position on SDG&E’s Operation and Management of its Facilities Prior to the Guejito Fire ................... 33

8a

4.2.4. Reasonableness Review: SDG&E’s

Operation and Management of its

Facilities Prior to the Guejito Fire .......... 35

4.3. Rice Fire .......................................................... 36

4.3.1. Rice Fire Background .............................. 36

4.3.2. Legal Requirements................................. 37

4.3.3. Issues and Party Positions ...................... 38

4.3.3.1. FF1090’s Inspection and Trimming Schedule .................................. 38

4.3.3.2. FF1090’s latent defect and the

issue of Reliability Trees .................. 40

4.3.4. Discussion ................................................ 41

4.3.4.1. SDG&E’s Tree Inspection and

Trimming Schedule .......................... 42

4.3.4.2. FF1090’s Latent Defect and the

Issue of Reliability Trees .................. 47

4.4. Commission Precedent ................................... 49

4.5. Wind and Weather Conditions in October

2007 ................................................................. 55

4.6. Reconsideration of Threshold Issues ............. 61

5.

Conclusion .......................................................... 61

6.

Intervenor Compensation .................................. 64

7.

Comments on Proposed Decision ....................... 64

8.

Assignment of Proceeding .................................. 65

Findings of Fact ......................................................... 65

Conclusions of Law .................................................... 69

ORDER....................................................................... 72

9a

DECISION DENYING APPLICATION

Summary

This decision finds that San Diego Gas & Electric

Company did not reasonably manage and operate its

facilities prior to the 2007 Southern California Wildfires and therefore denies the utility’s request to

recover costs recorded in its Wildfire Expense Memorandum Account. Because we deny this application on

its merits, the issue preliminarily scoped for phase two

of this proceeding is moot.

This proceeding is closed.

1. Factual Background

Beginning on October 21, 2007, a fire storm ripped

through portions of Southern California. This fire

storm, which was comprised of more than a dozen

fires, spread over portions of Orange, San Diego, Los

Angeles, San Bernardino, Ventura, Santa Barbara,

and Riverside counties. These wildfires caused extensive damage to properties in the region, widespread

evacuations, and fatalities.1 Investigative reports issued

in the aftermath of the 2007 wildfires by the California

Department of Forestry and Fire Protection (Cal Fire)

and the Commission’s Consumer Protection and Safety

Division (CPSD) (now the Safety and Enforcement

Division), attributed the ignition of three of these

wildfires to San Diego Gas & Electric Company (SDG&E)

facilities. These three fires, the Witch, Guejito and

Rice wildfires (2007 Wildfires), are the subject of the

instant proceeding.

On September 25, 2015, SDG&E filed Application

(A.) 15-09-010 seeking Commission approval to recover

1

Application (A.) 15-09-010 at 2.

10a

$379 million recorded in its Wildfire Expense Memorandum Account (WEMA). The WEMA is an account

established per Resolution E-4311, to track costs

associated with the Witch, Guejito, and Rice wildfires.

The $379 million represents a portion of the total $2.4

billion in costs and legal fees incurred by SDG&E to

resolve third-party damage claims arising from the

Witch, Guejito and Rice Wildfires.2 When translated

into typical residential rates, the WEMA costs would

lead to an increase of $1.67 per month when amortized

over six years.

2. Procedural Background

The 2007 Wildfires were the subject of two prior

proceedings before the Commission. Investigation (I.)

08-11-0073 concluded with Decision (D.) 10-04-047,

which approved a settlement agreement between the

Commission’s CPSD and SDG&E. Pursuant to the

settlement agreement, SDG&E paid penalties ($14.75

million) but did not admit to any safety violation or

role in the cause of the 2007 wildfires.4 Subsequently,

SDG&E, alongside Southern California Gas Company

and Pacific Gas and Electric Company, filed A.09-08020 to seek authority to establish a Wildfire Expense

Balancing Account (WEBA) to record future recovery

2

A.15-09-010 at 1. Portions of the $2.4 billion were recovered

from liability insurance coverage ($1.1 billion) and settlement

payments from third parties (Cox Communications and three

contractors totaling $824 million). Other portions of the costs

were allocated to Federal Energy Regulatory Commission

jurisdictional rates. In addition, SDG&E proposes to voluntarily

contribute $42 million. (Id. at 7.)

3

Investigation on the Commission’s own Motion into the

Operations and Practices of SDG&E Regarding the Utility

Facilities linked to the Witch and Rice Fires in 2007.

4

D.10-04-047 at 5.

11a

costs associated with the 2007 Wildfires. D.12-12-029

ultimately denied the utilities’ request to open the

WEBA.5 D.12-12-029 additionally ordered the memorandum accounts (WEMA), authorized by Commission

Resolution E-4311, to remain open pending a reasonableness review6 in an appropriate proceeding.7 Following this order, SDG&E filed A.15-09-010 on

September 25, 2015.

Between October 23 and October 30, 2015, protests

were timely filed and served by San Diego Consumers’

Action Network (SDCAN), the Utility Consumers’

Action Network (UCAN), The Utility Reform Network,

Center for Accessible Technology (TURN/CforAT),

Protect Our Communities Foundation (POC), Office of

Ratepayer Advocates (ORA), and Mussey Grade Road

Alliance (MGRA). TURN/CforAT argued that the

proceeding should be phased, with the first phase

addressing whether SDG&E had prudently managed

its facilities and operations and the second phase

addressing the reasonableness of the and timing of the

5

Ordering Paragraph 1 of D.12-12-029.

6

There is usually a significant distinction between a balancing

account and a memorandum account as used by the Commission.

Both accounts are typically employed to ensure the accurate

recovery of the actual cost of a regulatory program. The goal is to

avoid the risk of over- or under-recovery in retail rates of

reasonably incurred program costs. Balancing accounts have an

associated expectation of recovery. They have been pre-authorized by the Commission, and it is the amounts -- and not the

creation of the accounts themselves -- that the Commission

reviews for reasonableness. Memorandum accounts, in contrast,

are accounts in which the utilities record amounts for tracking

purposes. While the utilities may later ask for recovery of the

amounts in those accounts, recovery is not guaranteed. See D.0306-013 at 4-5.

7

Ordering Paragraph 2 of D.12-12-029.

12a

amounts requested. Under this proposal, Phase 2

would only be reached if it was determined that

SDG&E had prudently managed its facilities. Ruth

Henricks (Henricks) filed and served a Motion for

Party Status on October 2, 2015 that was subsequently granted.

8

In its November 9, 2015 reply, SDG&E opposed

phasing A.15-09-010 and the protestors’ request to

incorporate the record from the prior proceedings

as part of the record for the instant proceeding.

Additionally, SDG&E stated that the reasonableness

standard should only be applied to: (1) its decision to

pursue the settlement of the claims stemming from the

2007 Wildfires litigation; (2) the process SDG&E

employed in settling the claims; and (3) its efforts in

reducing the costs.9

On February 19, 2016, a Joint Proposed Schedule

was served by MGRA, ORA, POC, Henricks, SDCAN,

TURN, and UCAN (collectively, the Joint Intervenors).

The Joint Proposed Schedule requested that A.15-09010 be litigated in phases as proposed by TURN/

CforAT, and that parties be provided with the opportunity to brief certain threshold legal and policy issues

in relation to the appropriateness of the rate recovery.

The assigned Administrative Law Judge (ALJ) convened a prehearing conference on February 22, 2016.

Subsequently the assigned Commissioner issued a

Scoping Memorandum and Ruling (Scoping Ruling) on

April 11, 2016.

The Scoping Ruling implemented a two-phase

approach for this proceeding with a separate reason8

TURN/CforAT Protest at 4.

9

SDG&E Reply at 3; Scoping Ruling at 3.

13a

ableness review for each phase. Phase 1 was to address

whether any threshold legal issues raised by the Joint

Intervenors should be a bar to the application and

prudent operation of the facilities. Specifically, Phase

1 was scoped as:

(1) Whether any of the Threshold Issues10

serves as a bar to recovery; and

(2) Whether SDG&E’s operation, engineering and management the facilities alleged

to have been involved in the ignition of

the fires was reasonable and prudent.

Each of the three fires should be

addressed separately.11

The Scoping Ruling stated that prior Commission

decisions indicate that a reasonableness standard

should entail a review of the prudency of SDG&E’s

actions leading up to the fire. The Scoping Ruling

specifically referenced D.14-06-007 in which the

Commission held that for costs to be found reasonable,

the utility must prove that they were:

prudently incurred by competent management exercising the best practices of the era,

and using well-trained, well-informed and

conscientious employees who are performing

their jobs properly . . . [T]he Commission can

10

The Threshold Issues are: Whether rate recovery would

create a moral hazards . . . the fairness of imposing rate increases

on San Diego customers, particularly those who were already

victims of the fires . . . , and whether SDG&E has already been

compensated for such risks in its rates and whether it warrants

special recovery outside of the normal general rate case

process . . . : (Scoping Ruling at 6 citing the Joint Intervenors

Joint Proposed Schedule).

11

Scoping Ruling at 6.

14a

and must disallow those costs: that is unjust

and unreasonable costs must not be recovered

in rates from ratepayers.12

The Scoping Ruling further stated that this standard is consistent with the Commission’s obligation

under Pub. Util. Code § 451 to ensure that resulting

rates will be just and reasonable and that service is

provided in a safe manner.

Opening briefs on Threshold Issues were filed by

SDG&E, ORA and UCAN on May 11, 2016. On May

26, 2016, Reply briefs were filed by SDG&E and

UCAN. The assigned ALJ reviewed the arguments

posed by the intervening parties to dismiss the

application on the basis of the Threshold Issues as a

motion for summary judgment. On August 11, 2016,

the assigned ALJ issued a ruling against the intervening parties and confirming the procedural schedule

set forth in the Scoping Ruling. The August 11, 2016

ruling allowed for the re-consideration of the arguments in the briefs after the development of an

evidentiary record.13

If the proceeding was not dismissed during the

first phase, the second of A.15-0-010 would have the

Commission consider whether SDG&E’s actions and

decision making in connection with settling of legal

claims and costs in relation to the wildfires were

reasonable.14

In October 2016, this proceeding was reassigned to

ALJ S. Pat Tsen and ALJ Pro Tem Sasha Goldberg.

12

Scoping Ruling at 6 citing D.14-06-007 at 31.

13

Ruling Confirming Procedural Schedule Following Briefs on

the Threshold Issues, August 11, 2016 at 4.

14

Id. at 5.

15a

Following this reassignment, ORA filed a motion for

change of venue, which was ultimately denied.15 In

accordance with the procedural schedule set by the

Scoping Ruling, the newly assigned ALJs and Commissioner scheduled and held two Public Participation

Hearings (PPHs) in Escondido, California, on January

9, 2017.16 Over 200 residents of San Diego County

attended the PPHs, as well as several local news

outlets.

Evidentiary Hearings for Phase 1 of this proceeding

were held at the Commission’s San Francisco hearing

rooms the week of January 23, 2017. In response to

requests from SDG&E and ORA, the assigned ALJs

issued a ruling on February 10, 2017 modifying the

post-hearing briefing schedule for Phase 1. In addition

to modifying due date(s) for briefs, this ruling directed

parties to obtain confirmation that the Cal Fire

investigative reports on the 2007 Wildfires were in fact

final and/or closed.17

On March 17, 2017, ORA served an affidavit from

the Unit Chief for Cal Fire’s MVU Unit affirming that

Cal Fire considers the investigative reports into the

2007 Wildfires final, with no plans to re-open or

supplement any of these investigations.18 Opening

briefs for Phase 1 were filed and served on March 24,

15

Administrative Law Judges’ Ruling Denying the Office of

Ratepayer Advocates’ Motion to Change Venue (December 21,

2016).

16

Administrative Law Judges’ Ruling

Participation Hearings (November 11, 2016).

Setting

Public

17

Ruling Administrative Law Judges’ Ruling Modifying Procedural Schedule and Requiring Supplemental Information at 4.

18

ORA Response regarding Cal Fire Affidavit (March 17,

2017).

16a

2017 by SDG&E, ORA, SDCAN, UCAN, POC, and

Henricks. Reply briefs were filed and served on

April 14, 2017 by SDG&E, ORA, MRGA, UCAN, and

SDCAN. The record for Phase 1 of this proceeding was

submitted19 for Commission consideration on July 6,

2017 after Henricks filed a motion to accept the late

filing of Henricks’ Opening Brief.

On August 22, 2017 a proposed decision (PD)

denying SDG&E’s recovery in this proceeding was

served on the service list to A.15-09-010. Opening

comments on the PD were filed on September 11, 2017,

along with motions by Pacific Gas and Electric

Company (PG&E) and Southern California Edison

Company (SCE) for party status. The filing of motions

by PG&E and SCE at this late juncture triggered

responses from the intervenors and ORA in this proceeding. After evaluating the motions and responses,

the assigned ALJs granted PG&E and SCE limited

party status20 on September 26, 2017. This limited

party status gave PG&E and SCE the opportunity to

comment on the legal issue of inverse condemnation.

PG&E and SCE filed joint comments on the issue of

inverse condemnation on October 4, 2017. SDG&E,

ORA, POC, UCAN and MGRA filed replies to the joint

comments on October 11, 2017.

In addition to the comment period for inverse

condemnation, on September 18, 2017, the assigned

ALJs noticed an All Party Meeting. The All Party

Meeting, held by Commissioner Liane Randolph, took

place in Chula Vista, California, immediately after the

19

20

Rules of Practice and Procedure, Rule 13.14(a).

See A.15-09-010 E-mail Ruling Granting Limited Party

Status to Southern California Edison Company; A.15-09-010 Email Ruling Granting Limited Party Status to PG&E.

17a

conclusion of the September 28, 2017 Commission

Meeting. The All Party meeting provided parties with

the opportunity to address the Commission. Participants in the All Party Meeting included SDG&E,

PG&E, SCE, ORA, MGRA, POC, SDCAN, Henricks,

and UCAN.

Due to the scheduling of the All Party Meeting,

and building in time for replies to PG&E and SCE’s

comments on inverse condemnation, the statutory

deadline for this proceeding was extended by D.17-09038 to April 11, 2018.

3. Legal Standards Applied

The appropriate standard in a ratesetting matter is

preponderance of the evidence.21 As the Applicant,

SDG&E bears the burden of proof. Preponderance of

the evidence usually is defined “in terms of probability

of truth, e.g., ‘such evidence, when weighed with that

opposed to it, has more convincing force and the

greater probability of truth’.”22 In short, SDG&E must

present more evidence that supports the requested

result than would support an alternative outcome.

The Commission’s standard for reasonableness

reviews, reaffirmed in a series of decisions, is as

follows:

The term reasonable and prudent means that

at a particular time any of the practices,

methods and acts engaged in by a utility

follows the exercise of reasonable judgment in

light of the facts known or which should have

been known at the time the decision was

made. The act or decision is expected by the

21

D.16-12-063 at 9, citing D.12-12-030 at 44.

22

D.12-12-030 at 42, aff’d D.15-07-044 at 28-30.

18a

utility to accomplish the desired result at the

lowest reasonable cost consistent with good

utility practices. Good utility practices are

based upon cost effectiveness, safety and

expedition.23

We have analyzed SDG&E’s management and

operation of its facilities prior to the ignition of the

Witch, Guejito and Rice Wildfires within the rubric

of the Commission’s prudent manager standard. In

comments to the proposed decision, SDG&E contends

that the Commission is imposing a perfection standard. That is not the case. Our decision today analyzes

the Witch, Guejito, and Rice fires separately, taking

into account extensive records submitted by the

parties, industry practice in 2007, and contemporaneous information available to SDG&E at the time

of the separate ignitions. Each analysis is fact specific

and has been reached after careful consideration of the

record. Contrary to SDG&E’s assertion, holding utilities

accountable under the reasonable and prudent manager standard in no way imposes a standard of

perfection. The Commission was prepared in this case,

as it will in the future, to find SDG&E’s conduct is

reasonable and prudent, if the facts warrant such a

conclusion.

4. Discussion and Analysis

In this section, the Commission analyzes the Witch,

Guejito, and Rice fires separately and determines

SDG&E’s prudency in managing its facilities. As the

Applicant seeking recovery, SDG&E must affirmatively satisfy the Commission that it acted prudently.

We weigh evidence presented by SDG&E that it acted

prudently, against evidence presented by the interve23

24 CPUC 2d 476, 486.

19a

nors that SDG&E did not act prudently. In each

analysis, we find SDG&E to have failed its burden of

proof to show by a preponderance of the evidence, that

it complied with the Commission’s prudent manager

standard.

4.1. Witch Fire

4.1.1. Witch Fire Background

The Witch Fire, which later merged with the Guejito

Fire, was the second largest fire to occur in San Diego

County in 2007.24 The SDG&E facility involved in the

ignition of the Witch Fire was Tie Line (TL) 637.25 TL

637 is a 69 kilovolt (kV) transmission line that connects the Santa Ysabel and Creelman substations.26

TL 637 is approximately 14 miles long and runs along

a remote backcountry section of San Diego County.27

Although there were no eyewitnesses to the ignition

of the fire, the Cal Fire investigator determined that a

fault on TL 637 between poles Z416675 and Z416676

on October 21, 2007 led to arcing of the lines, which

dispersed hot particles to land in the grassy field below

the powerlines.28 These particles were determined to

have ignited the Witch Fire which was then spread by

wind.29 There was a Red Flag Warning30 in place at

24

ORA-01 at 6.

25

SDGE-11-A at 2.

26

Id.

27

Id. at 3

28

Id. at 3; ORA-01 at 6 to 7.

29

SGDE-11-A at 3-4, citing Cal Fire Report (Witch) at 2, 14,

and 19.

30

ORA-01 at 45: The National Weather Service issues a Red

Flag Warning “to call attention to limited weather conditions of

particular importance that may result in extreme burning

20a

4:45 a.m., prior to the Witch Fire’s ignition on October

21, 2007.31

The following chart depicts a timeline of the events

occurring the day of the Witch Fire ignition:

Timeline of Events on October 21, 2007 on TL 63732

Time

8:53 a.m.

Description of Event

Fault 1 occurred on TL 637

The Transmission System Operator dispatched Electric Troubleshooters to either

9:05 a.m. and

end of TL 637(Santa Ysabel and Creelman

9:08 a.m.

substations) to gather additional information about the 8:53 a.m. fault

9:30 a.m.

SDG&E’s Grid Operations were responding to the Harris Fire which burned in

southern San Diego County near the

vicinity of SDG&E’s 500 kV transmission

line, the Southwest Powerlink

10:00 a.m.

Electric Troubleshooters reported back to

the Transmission System Operator at Grid

Operations

The Troubleshooters found that the protection devices at

each end of the line operated and opened the circuit

breakers, which remained opened for ten seconds, and then

conditions. It is issued when it is an on-going event or the fire

weather forecaster has a high degree of confidence that Red Flag

criteria will occur within 24 hours of issuance.” (Citing the

National Weather Service Glossary, Red Flag Warnings.)

31

32

ORA-02-A.

SDGE-11-A at 6-7, referencing Appendices 3 and 4

(Appendix 3 is the Operations Shift Supervisor Daily Log from

October 21, 2007), (Appendix 4 is the Electric Switching Order for

TL 637 on October 21, 2007).

21a

reclosed the line, because the faults had cleared within the

ten seconds The Troubleshooters learned that the faults

were temporary because they had cleared within 10

seconds, and so the flow of electricity was restored.33

11:22 a.m.

Fault 2 occurred on TL 637

11:42 a.m.

Cal Fire requests Grid Operations to deenergize the Southwest Powerlink to allow

air drops of fire retardant in the area.

12:01 p.m.

Electric Troubleshooters dispatched to the

Santa Ysabel and Creelman substations

12:15 p.m.

SDG&E’s Grid Operations opened the

Southwest Powerlink as a Forced Outage

12:19 p.m.

Electric Troubleshooter reported back to

Grid Operations from the Santa Ysabel

substation that the circuit breakers had

again operated and had reclosed.

12:23 p.m.

Fault 3 occurred on TL 637, while the

Troubleshooters were at the Santa Ysabel

and Creelman substations.

Under SDG&E’s Transmission Monitoring & Control

Procedure 1100, when a line faults and immediately

recloses and the cause for the trip is unknown, the line

should be patrolled by either a vehicle or aerially, via a

helicopter.

12:29 p.m.

Witch Fire observed by Air Tanker Pilot

(according to the Cal Fire Report)

12:33 p.m.

Patrolman was sent to patrol TL 637

12:39 p.m.

Patrolman informed the Grid Operations

Transmission System Operator that he

33

SDGE-11-A at 7.

22a

would go out to patrol TL 637 in person

rather than by air.

12:56 p.m.

Electric Troubleshooter reported back to

Grid Operations from the Creelman substation that the circuit breakers had again

operated and had reclosed.

1:10 p.m.

Grid Operations became aware of the

Witch Fire

1:14 p.m.

SDG&E’s Transmission Construction and

Maintenance Manager rerouted a Construction Supervisor to Santa Ysabel

1:59 p.m.

SDG&E’s Transmission Construction and

Maintenance Manager requested that Grid

Operations disable automatic reclosing on

TL 637

2:01 p.m.

Grid Operations Transmission System

Operator turned-off automatic reclosing at

the Santa Ysabel substation

2:05 p.m.

Grid Operations Transmission System

Operator requested a Troubleshooter be

dispatched to the Creelman substation to

turn-off automatic reclosing.

3:00 p.m.

An SDG&E Construction Supervisor with

SDG&E’s Transmission Construction and

Maintenance Manager met a Cal Fire crew

at the Santa Ysabel substation

3:25 p.m.

Fault 4 occurred on TL 637, automatically

reclosed at the Creelman substation

3:27 p.m.

TL 637 became de-energized by the Grid

Operations Transmission System Operator

23a

A series of four faults occurred on TL 637 on October

21, 2007: the first fault at 8:53 a.m.; the second fault

at 11:22 a.m.; the third fault at 12:23 p.m.; and the

fourth fault at 3:25 p.m.34 Cal Fire concluded that the

Witch Fire ignited after the third fault occurred on TL

637 at 12:23 p.m. on October 21, 2007 because an Air

Tanker Pilot first observed the fire at 12:29 p.m.35

SDG&E Grid Operations became aware of the Witch

Fire at 1:10 p.m., and de-energized TL 637 after the

fourth fault at 3:27 p.m.36

Ultimately, the Witch Fire led to the destruction of

1,141 homes, 509 outbuildings, and 239 vehicles.37

Once combined with the Guejito Fire, the Witch Fire

burned a total of 197,990 acres.38 The combination of

the Witch and Guejito Fires led to two fatalities and

injured 40 firefighters.39

4.1.2. SDG&E’s Position on its Operation

and Management of its Facilities

Prior to the Witch Fire

SDG&E maintains that its operation and management of its facilities linked to the Witch Fire prior to

October 21, 2007 were reasonable.40 SDG&E supports

its position by claiming: (1) SDG&E’s response to the

faults along TL 637 was reasonable given the information available at the time of the faults; (2) SDG&E’s

34

SDGE-11-A at 6 to7.

35

SDGE-11-A at 6 to 7.

36

SDGE-11-A at 6 to 7.

37

ORA-01 at 7, citing Cal Fire Report (Witch) at 2.

38

Id.

39

Id.

40

SDG&E Phase 1 Opening Brief at 30.

24a

recloser policy was reasonable and prudent; and

(3) the Witch Fire was not foreseeable.41

SDG&E’s Response to Faults along TL 637

SDG&E maintains that the facts surrounding the

Witch Fire do not show that SDG&E acted unreasonably or imprudently in its response to the four faults

occurring along TL 637 on October 21, 2007.42 SDG&E

does not dispute the fact that its facilities were directly

involved in the ignition of the Witch Fire, SDG&E put

forth Mr. Ali Yari (Mr. Yari), SDG&E’s Director of

Electric Grid Operations, to testify as to SDG&E’s

reasonable and prudent monitoring of the faults along

TL 637.43

First, SDG&E contends that its actions and

response to the faults occurring along TL 637 were

reasonable given the information it had available in

real time on October 21, 2007.44 Mr. Yari testified that

in 2007, SDG&E did not have the capability to

determine in real-time the exact location of the faults

occurring along the 14-mile stretch of TL 637.45

SDG&E maintains that the relay equipment at the

substation stores voltage and current information, and

not specific fault locations.46 Mr. Yari testified that it

would have taken at least one hour to get the

protection engineer in a position to dial into the relay,

plus about 30 additional minutes to download and

41

SDG&E Phase 1 Reply Brief at 30 to 31.

42

SDG&E Phase 1 Reply Brief at 37.

43

SDGE-11-A at 1.

44

SDG&E Phase 1 Reply Brief at 37.

45

Id.

46

Id. at 41.

25a

process the information. SDG&E asserts that this

need for engineering intervention to analyze the

data stored in the relay showed that SDG&E acted

prudently in responding to the faults on TL 637.48

SDG&E contends its response to the faults along TL

637 was reasonable because its interpretation of the

data stored in the relay along TL 637 was both analytical and appropriate, given the standards in 2007.49

47

Second, SDG&E maintains its Grid Operations’

response time to inspect TL 637 was reasonable given

the threat to the Southwest Powerlink on October 21,

2007.50 In his direct testimony, Mr. Yari explains how

the threat of the Harris Fire to the Southwest

Powerlink impacted SDG&E’s monitoring of TL 637.

Mr. Yari notes, the threat to the Southwest Powerlink

“was a major event consuming SDG&E resources –

including the attention of Grid Operations personnel

and the resources available to conduct patrols. . . .

SDG&E was particularly concerned about the outage

of this major transmission line since it was essential

to grid stability across Southern California. . . .

SDG&E was also taking seriously the faults on TL 637

but there was no indication of any kind of emergency

. . . since faults are not particularly unusual on a windy

day . . .”51 SDG&E maintains that even though its

Grid Operations de-energized the Southwest Powerlink at 12:15 p.m., Grid Operations was appropriately

monitoring the faults along TL 637.52 SDG&E argues

47

SDG&E Phase 1 Reply Brief at 43.

48

Id. at 42.

49

Id.

50

Id. at 37, SDGE-11-A at 1-13.

51

SDGE-11-A at 9.

52

Id.

26a

that its dispatch of troubleshooters to investigate

the faults on TL 637 was all that was required to be

reasonable.53

Third, SDG&E argues that, because it had not

previously experienced fires related to transmission

lines coming into contact with one another, SDG&E’s

level of concern about the faults along TL 637 was

appropriate.54 Through Mr. Yari, SDG&E stressed

that conductor-to-conductor activity is “relatively rare”

and on windy days a fault is not unusual given the

potential for debris to come into contact with a

conductor.55 Because of this “relatively rare” activity,

SDG&E asserts it was reasonable not to suspect that

hot particles were being emitted from the activity

along TL 637.56

As such, SDG&E maintains that its monitoring of

the faults on TL 637 was reasonable and prudent.

53

SDG&E Phase 1 Reply Brief at 37 to 38.

54

SDG&E Phase 1 Reply Brief at 38, citing SDGE-11-A at

15-16.

55

Id. and SDGE-11-A at 8.

56

SDGE-11-A 8 to 9.

27a

SDG&E’s Recloser Policy

SDG&E asserts its recloser policy57 in effect on

October 21, 2007 as both reasonable and prudent.58

SDG&E maintains ORA fails to show how SDG&E’s

awareness of the 2001 Power Line Fire Prevention

Field Guide (2001 Field Guide) put SDG&E on notice

of the risks of its recloser policy prior to October 2007.

SDG&E notes the 2001 Field Guides’ excerpt, “automatic reclosers re-energizing the line into the fault

may cause repeated arcing and increase the probability of igniting vegetation,” does not show SDG&E’s

imprudence in utilizing its recloser policy in response

to the faults along TL 637.59 SDG&E asserts that even

if it were possible to turn off TL 637’s automatic

reclosers after the second fault, such an action would

57

SDG&E Recloser Policy: Similar to all electric utilities across

the country, SDG&E uses protection devices on all of its transmission lines to ensure that the electric system detects and

responds to fault activity and isolates the faulted line. Those

protection devices measure currents and voltages and detect any

abnormal system conditions or faults, on the associated lines. If

a transmission system line faults, the protective relays operate to

open the circuit breakers (de-energizing the line), and the circuit

breakers remain open for ten seconds before the reclosers attempt

to reclose them. If the circuit breakers do not reclose successfully,

which would indicate that the fault has not cleared after 10

seconds, the recloser “locks out” and prevents further automatic

reclose attempts. If the circuit breakers reclose successfully, the

circuit is restored. As an additional protection, even if the circuit

breakers reclose successfully after 10 seconds, the recloser will

lockout if the lines faults again within 120 second of the initial

fault. If no additional faults occur within that 120-second period,

the recloser resets. ORA-18 at 2, citing Geier Testimony Excerpts

(I.08-11-006).

58

SDG&E Phase 1 Reply Brief at 49.

59

SDG&E Phase 1 Reply Brief at 49 to 50.

28a

not have avoided the Witch Fire’s ignition.60 Moreover,

Mr. Yari testified that disabling automatic reclosers

after the second fault would have been imprudent

“given the important of keeping [TL 637] in service to

serve the backcountry during a very windy day” and

that the recloser policy was industry practice.61

Foreseeability of Witch Fire

SDG&E maintains that the facts surrounding the

Witch Fire do not show that SDG&E acted unreasonably or imprudently based on what SDG&E knew at

the time.62 More specifically, SDG&E argues that

Henricks, MGRA, UCAN and POC fail to show how

the Witch Fire was foreseeable.63

First, SDG&E put forth Mr. David Geier (Mr. Geier)

to testify as to SDG&E’s fire preparedness in 2007.64

Mr. Geier, SDG&E’s Vice President of Electric Transmission and System Engineering, discussed the

2003 Wildfires65 in his direct testimony and the steps

SDG&E took in the aftermath of the 2003 Wildfires to

reduce the risk of wildfires in its service territory.66

Mr. Geier explained how post-2003 SDG&E focused on

improving the integrity and reliability of the utility’s

60

SDG&E Phase 1 Reply Brief at 50.

61

SDG&E Phase 1 Reply Brief at 51, citing Reporter’s Transcript Volume 3 at 384.

62

SDG&E Phase 1 Reply Brief at 30 to 31.

63

SDG&E Phase 1 Reply Brief at 30.

64

SDG&E Phase 1 Reply Brief at 31.

65

SDGE-05 at 15, 2003 Wildfires: In San Diego County alone,

the 2003 Wildfires burned over 400,000 acres, destroyed more

than 2,400 homes, and caused extensive damage to SDG&E

facilities.

66

SDG&E Phase 1 Reply Brief at 31.

29a

transmission and distribution systems, especially in

the areas subject to the extreme Santa Ana winds.67

Through Mr. Geier, SDG&E showed that it created a

full-time fire coordinator position to provide training

to its employees on fire risk, in addition to creating a

database to track fire causes and patterns.68 Despite

the newly created fire coordinator position and database, SDG&E maintains that there was no information available that could have been used to predict

the Witch Fire ignition.69

Second, SDG&E maintains that there has not been

a credible showing that there has ever been a comparable event to the 2007 Wildfires.70 SDG&E contends

that while the 2003 Wildfires were significant, the

2007 Wildfires happened under different circumstances.71 Specifically, SDG&E contends that the 2007

Wildfires involved over a dozen major fires igniting

over a short period of time, including ignitions

to powerlines, which was not the case in 2003.72

Accordingly, SDG&E maintains there was no way to

have foreseen what occurred in October 2007 based on

historical data.73

Third, SDG&E contends that the Witch Fire was not

foreseeable because SDG&E designed, engineered,

maintained and inspected TL 637 in compliance with

67

SDGE-05 at 16.

68

SDGE-05 at 16.

69

SDG&E Phase 1 Reply Brief at 32 citing SDGE-12 at 25.

70

SDG&E Phase 1 Reply Brief at 32.

71

SDG&E Phase 1 Reply Brief at 32.

72

SDG&E Phase 1 Reply Brief at 32.

73

SDG&E Phase 1 Reply Brief at 33.

30a

the Commission’s industry standards.74 General Order

(GO) 95 requires that all infrastructure be designed,

constructed, rebuilt and maintained to account for

known local conditions.75 And while MGRA and other

intervenors have raised SDG&E’s compliance with GO

95 in regards to the foreseeability of the Witch Fire,

SDG&E maintains those arguments fail to discredit

SDG&E’s showings of compliance and prudence.76

Specifically, SDG&E asserts MGRA fails to show how

rebuilding TL 637 to a higher wind loading standard

would have prevented the Witch Fire.77

As such, SDG&E maintains that its operation and

management of TL 637 was reasonable.

4.1.3 ORA’s Position on SDG&E’s Operation and Management of its Facilities

Prior to the Witch Fire

ORA maintains that SDG&E has not shown by a

preponderance of the evidence that SDG&E’s operation and management of its facilities prior to the

ignition of the Witch Fire were reasonable.78 ORA

argues that SDG&E’s response to the faults occurring

on TL 637 was unreasonable.79 Within this argument,

ORA contends: (1) the timing of SDG&E’s response to

the faults along TL 637 was not appropriate; and

(2) SDG&E did not effectively use fault location information available at the relays in response to the

74

SDG&E Phase 1 Reply Brief at 33.

75

MGRA Phase 1 Reply Brief at 8.

76

SDG&E Phase 1 Reply Brief at 33.

77

SDG&E Phase 1 Reply Brief at 33.

78

ORA Phase 1 Reply Brief at 13.

79

Id.

31a

faults. ORA additionally argues that SDG&E’s

recloser policy in effect on October 21, 2007 imprudently increased fire risk.81

80

SDG&E’s Response to Faults along TL 637

ORA contends that SDG&E has not shown it acted

prudently in connection to the ignition of the Witch

Fire.82 ORA maintains SDG&E’s failure to use fault

location information effectively demonstrates that the

utility failed to act reasonably regarding the faults

along TL 637.83

First, ORA maintains that SDG&E should have

responded sooner to investigate the faults occurring on

TL 637 on the morning of October 21, 2007.84 ORA

points to SDG&E’s dispatch of troubleshooters in

support of this argument: “the dispatch time for the

second trip was almost four times as long as for the

first trip that occurred less than three hours before.

Multiple line trips of TL 637 in a single day should

have been a concern to the utility, especially since this

was a rare event that had occurred only 9 times in

the previous 24 years.”85 ORA argues that SDG&E’s

response time was slow, noting that over 6 hours

passed from the time of the initial fault on TL 637 to

its de-energization.86 ORA argues that SDG&E should

have had the resources in place to communicate the

need for patrol; and that SDG&E’s failure to have

80

Id.

81

ORA Phase 1 Reply Brief at 28.

82

ORA Phase 1 Reply Brief at 13.

83

ORA Phase 1 Reply Brief at 13.

84

ORA Phase 1 Opening Brief at 10.

85

Id. citing ORA-03 at 1-3 (TL 637 Fault History).

86

ORA Phase 1 Opening Brief at 11.

32a

resources available constituted imprudent management.87 ORA maintains that this imprudent management lead to the ignition and spread of the Witch

Fire.88

Second, ORA maintains that SDG&E did not effectively use the fault location information it had

available to respond to the faults along TL 637.89 ORA

contends that SDG&E could have obtained the

location of faults in time to be in a better position to

respond to the faults on TL 637.90 Specifically, ORA

refers to the following fault time and location information obtained through discovery to rebut SDG&E’s

argument that it could not analyze the data stored in

the relay without engineering intervention.91

Fault Time

Fault Location

8:53 a.m.

2.73 miles / 2.74 miles

11:22 a.m.

2.73 miles / 2.75 miles

12:23 p.m.

2.79 miles /2.76 miles

3:25 p.m.

2.82 miles / 2.84 miles

ORA notes that SDG&E did not retrieve the above

mileage data until October 22, 2007, a day after the

ignition of the Witch Fire.92 Additionally, ORA highlights the testimony of Mr. Yari, that had SDG&E

looked at the mileage data, it would have been in a

87

ORA Phase 1 Opening Brief at 12.

88

ORA Phase 1 Opening Brief at 34.

89

ORA Phase 1 Reply Brief at 13.

90

Id. at 17.

91

ORA Phase 1 Opening Brief at 13.

92

ORA Phase 1 Opening Brief at 13 to 16, referencing ORA-19.

33a

better position to respond to the faults.93 In sum, ORA

asserts it was imprudent of SDG&E to not effectively

use data that was available at the relays in responding

to the faults. Moreover, ORA contends that had

SDG&E used the fault location data on October 21,

2007, rather than the day after ignition, it would have

assisted SDG&E in having a quicker response time.94

SDG&E’s Recloser Policy

ORA maintains SDG&E’s recloser policy in effect

during the faults along TL 637 imprudently increased

fire risk.95 Under cross-examination by ORA, Mr. Geier

acknowledged and essentially agreed with the 2001

Field Guide’s assertion, “Automatic reclosers reenergizing the line into the fault may cause repeated

arcing and increase the probability of igniting vegetation.”96 ORA contends this assertion put SDG&E on

notice of the risks posed by automatic reclosers to

ignite vegetation, as early as 2001.97 ORA asserts that

these risks and the fact that there was a Red Flag

Warning in place on October 21, 2007, and that there

were an unusual number of trips shows that SDG&E

was imprudent when it did not anticipate that its

facilities posed a fire risk on October 21, 2007.98

As such, ORA maintains the record established

SDG&E did not act prudently on October 21, 2007.

93

ORA Phase 1 Reply Brief at 17, citing Reporter’s Transcript

Volume 3 at 349.

94

ORA Phase 1 Opening Brief at 17.

95

ORA Phase 1 Opening Brief at 28.

96

Hearing Reporter’s Transcript Volume 2 at 197; ORA Phase

1 Opening Brief at 29, citing ORA-20.

97

ORA Phase 1 Opening Brief at 32.

98

ORA Phase 1 Reply Brief at 15.

34a

4.1.4. Intervenors’ Position on SDG&E’s

Operation and Management of its

Facilities Prior to the Witch Fire

Many of the intervenors to this proceeding contend

that SDG&E fails to prove by a preponderance of the

evidence that SDG&E’s operation and management of

its facilities prior to the ignition of the Witch Fire

were reasonable.99 Henricks, MGRA, UCAN and POC

assert that the fact that SDG&E had prior experience

with catastrophic fires, renders SDG&E imprudent

when SDG&E failed to adequately address the faults

on TL 637.100

Foreseeability of Witch Fire

Henricks, MGRA, UCAN and POC maintain that

the facts show SDG&E did not operate its facilities

reasonably prior to the ignition of the Witch Fire.101

Henricks asserts that SDG&E was familiar with the

2003 Wildfires, and thus was on notice that a fire could

spread to the extent to which the Witch Fire spread.102

Henricks highlights the testimony of SDG&E’s witness Lee Schavrien (Mr. Schavrien) to show that

SDG&E had knowledge of the catastrophic events

linked to 2003 Wildfires.103 Henricks maintains that

SDG&E’s knowledge of the 400,000 acres burned, 16

lives lost, and 2400 homes destroyed by the 2003

Wildfires put SDG&E on notice that such an event

99

Henricks Phase 1 Opening Brief at 5.

100

Henricks Phase 1 Opening Brief at 4; MGRA Phase 1 Reply

Brief at 13 to 15.

101

See generally Henricks Phase 1 Opening Brief.

102

Henricks Phase 1 Opening Brief at 4.

103

Henricks Phase 1 Opening Brief at 4, referencing Reporter’s

Transcript Volume 2 at 264 to 271.

35a

could occur again.

As such, Henricks maintains

SDG&E did not act reasonably because the 2007

Wildfires were foreseeable.105

104

MRGA argues that SDG&E fails to show it acted

reasonably in its operation and management of TL

637.106 MGRA contends that SDG&E fails to establish

it had no reason to suspect the faults occurring along

TL 637 were the result of unusual conductor to conductor contact.107 More specifically, MGRA contends that

had SDG&E applied SDG&E’s prior knowledge of load

standards and the Santa Ana wind conditions differently, the Witch Fire could have been prevented, or at

the very least foreseen.108

UCAN and POC maintain that SDG&E failed to act

reasonably prior to the Witch Fire’s ignition because

fires were foreseeable given the history in SDG&E’s

service territory.109 Although UCAN’s arguments as to

wind and weather conditions are addressed in more

detail in Section 4.4 of this decision (Wind and Weather

Conditions in October 2007), UCAN’s assertions touch

on how SDG&E failed to act reasonably in regards to

the Witch Fire.110 UCAN contends that the Santa Ana

wind conditions were a foreseeable, known local condition and SDG&E should have been prepared for the

104

Henricks Phase 1 Opening Brief at 5, referencing Reporter’s

Transcript Volume 2 at 264 to 271.

105

Henricks Phase 1 Opening Brief at 5.

106

MGRA Phase 1 Reply Brief at 13.

107

MGRA Phase 1 Reply Brief at 15 to 16.

108

MGRA Phase 1 Reply Brief at 16.

109

UCAN Phase 1 Opening Brief at 3; POC Phase 1 Opening

Brief at 3.

110

UCAN Phase 1 Opening Brief at 3.

36a

possibility that its electrical equipment might spark

wildfires during a Santa Ana windstorm.111 And although

UCAN does not dispute the fact that SDG&E’s

facilities were not linked to the 2003 Wildfires, UCAN

does contend that the events surrounding the 2003

Wildfires put SDG&E on notice of the fire potential

years prior to the ignition of the 2007 Wildfires.112 As

such, UCAN maintains that SDG&E cannot prove by

a preponderance of the evidence that its management

and operation of its facilities prior to the ignition of the

Witch Fire were reasonable.113

4.1.5. Reasonableness Review: SDG&E’s

Operation and Management of its

Facilities Prior to the Witch Fire

In evaluating SDG&E’s operation and management

of its facilities in connection with the Witch Fire,

the Commission must determine whether SDG&E

employed reasonable judgement in its operation and

management of its facilities in the period leading up to

the ignition of the Witch Fire.

SDG&E’s response to the faults along TL 637 was

unreasonable when viewed in light of the record of

this proceeding. The threat of the Harris Fire to

the Southwest Powerlink, does not excuse SDG&E’s

failure to monitor the faults on TL 637. The fact that

there are other wind related wildfires in the area

should put a prudent manager on notice to anticipate

wind related events to its facilities. Also, in the 24 year

history of FL 637, there were only nine days with

multiple faults. While compliance with industry

111

UCAN Phase 1 Opening Brief at 3.

112

UCAN Phase 1 Opening Brief at 3.

113

UCAN Phase 1 Reply Brief at 5.

37a

practice is relevant to our reasonableness review,

SDG&E must also show it acted reasonably in light of

the circumstances at the time. The Red Flag Warning

indicating high wind conditions, other fires in the

vicinity, the request by Cal Fire to de-energize another

transmission line, and three faults over a period of 3.5

hours, all alerted SDG&E to the potential for fires and

should have caused SDG&E to act more proactively on

October 21, 2007.114 Mr. Yari testified it would take 1.5

hours for a protective engineer and computer to

calculate the exact location of the fault(s) on TL 637.

Had SDG&E de-energized TL 637 or sent a protective

engineer out to either end of TL 637 before the third

fault occurred, it may have prevented the third fault

from igniting the Witch Fire at 12:23 p.m. Moreover,

it would have been more reasonable for SDG&E to

send a protective engineer to calculate the fault

mileage information on the date the faults occurred

and the fire ignited.

While SDG&E’s recloser policy was industry practice, it knew as early as 2001 that automatic reclosers

energizing into the fault may cause arcing and

increase fire risk. SDG&E fails to show how it was

reasonable for its Grid Operations to take 6.5 hours to

de-energize TL 637 after the initial 8:53 a.m. fault.

This 6.5 hour lapse does not show that SDG&E was

engaged in reasonable utility practice. It would have

been more reasonable to force an outage before the

Witch Fire ignited at 12:23 p.m. However, the fact that

SDG&E did not de-energize TL 637 until 3:27 p.m.,

does not show how SDG&E acted reasonably in its

decision to not de-energize the line immediately at

1:10 p.m. Even though SDG&E management was

114

ORA-01 at 10:13-15; ORA-03 at 1-3.

38a

aware of the 2001 Field Guide’s assertion that automatic reclosers increase the risk to ignite vegetation,

SDG&E still failed to take more proactive steps to

prevent the Witch Fire’s ignition.

There were multiple events happening on October

21, 2007 which show SDG&E was unreasonable not to

foresee the Witch Fire or to assert now that that it was

not foreseeable. The Red Flag Warning in effect on

October 21 2007 coupled with the 9:30 a.m. ignition of

the Harris Fire put SDG&E on notice that wind and

weather could cause the ignition of another fire in its

territory on October 21, 2007. The four faults on a line

that did not have a history of faults combined with

SDG&E’s knowledge of the destruction caused by the

2003 Wildfires, including the Cedar Fire, contradicts

the argument that the Witch Fire was unforeseeable.

As such, SDG&E fails to prove by a preponderance

of the evidence that it acted prudently in its operation

and management of its facilities linked to the ignition

of the Witch Fire.

4.2. Guejito Fire

4.2.1. Guejito Fire Background

The Guejito Fire was first reported by Cal Fire at

01:00 on October 22, 2007 near the City of Escondido,

in San Diego County.115 The SDG&E facility involved

in the ignition of the Guejito Fire was a 12 kV overhead conductor. CPSD and Cal Fire attributed the

ignition of the Guejito Fire to a Cox Communications

(Cox) lashing wire coming into contact with an

SDG&E 12 kV overhead conductor, between SDG&E

115

ORA-01 at 17.

39a

poles P196387 and P196394.116 The SDG&E conductors were located above the Cox lines.117

GO 95, within the California State Rules for

Overhead Electric Line Construction, sets the basic

minimum allowable clearance of wires from other

wires at crossings.118 Rule 38 of GO 95 specifies a

minimum clearance of 6 feet with a maximum reduction of ten percent under wind conditions.119 On

November 2, 2007 an SDG&E engineering contractor,

Nolte Associates, Inc. performed an engineering survey

on the facilities linked to the Guejito Fire’s ignition.120

The Nolte Survey documented a 3.3-foot clearance

between the SDG&E conductors and Cox lines prior to

any repair work being completed after the ignition of

the Guejito Fire.121

The Cox facilities involved in the Guejito Fire were

installed in August of 2001.122 SDG&E purports that it

is not known when the 3.3-foot clearance violation

occurred, as there were no pre-fire surveys completed

on the facilities in question.123 At hearings however,

SDG&E presented Mr. Greg Walters, a former manager of SDG&E’s Compliance Management Group and

Joint Facilities Department, to testify that it was his

belief that the Cox facilities involved in the Guejito

116

ORA Phase 1 Opening Brief at 34, citing ORA-05 at 926.

117

ORA Phase 1 Opening Brief at 34, citing ORA-50.

118

General Order 95 at Table 2.

119

Id.

120

Id.

121

Id. at 18-19.

122

ORA Phase 1 Reply Brief at 18.

123

SDG&E Phase 1 Reply Brief at 59.

40a

Fire were not in compliance with GO 95, Rule 38,

Table 2 at the time of installation.124

In its opening brief, ORA notes that CPSD found

SDG&E to be in violation of the following statutory

provisions at the time it conducted its post-fire survey

of the SDG&E facilities involved in the Guejito Fire:

• Public Utilities Code Section 451 (“Failing to

detect/repair a broken lashing wire and/or

failing to maintain required clearances.”);

• GO 95, Rule 31.1 (“Failing to detect/repair a

broken lashing wire and/or failing to maintain

required clearances, in consideration of the

given local conditions such as the well-known

Santa Ana winds.”); and

• GO 95, Rule 38 (“As supported by the Nolte

Survey, the clearances between Cox’s and

SDG&E’s facilities were noncompliant before/

during and after the Guejito [F]ire ignition,

which occurred during conditions that did not

justify the noncompliance.”)125

SDG&E’s expert, Mr. Darren Weim (Mr. Weim),

testified that detailed inspections prior to the Guejito

Fire were conducted on June 22, 2007 (for Pole

P196394) and April 8, 2005 (for Pole P196394).126 Mr.

Weim noted, “[o]ther than missing or damaged high

voltage or warning signs (which were repaired), no

[other] conditions were noted in these inspections.”127

124

A.15-09-010 at 15; Reporter’s Transcript Volume 5 at 793.

125

ORA Phase 1 Opening Brief at 25; citing ORA-05 at

1238:3-4.

126

SDGE-06 at 11.

127

SDGE-06 at 11.

41a

As referenced above, the Guejito Fire, which later

combined with the Witch Fire, burned a total of 197,990

acres before being contained.128 Once combined, the

Guejito and Witch Fires led to two fatalities and 40

injured firefighters.129

4.2.2. SDG&E’s Position on its Operation

and Management of its Facilities

Prior to the Guejito Fire

SDG&E does not dispute that GO 95 required a 6foot clearance; however, SDG&E maintains that its

operation and management of its facilities involved

in the Guejito Fire prior to October 22, 2007 were

reasonable.130 SDG&E argues that it appropriately

inspected the facilities linked to the ignition Guejito

Fire.131 Furthermore, SDG&E contends ORA fails to

show how a compliant clearance between the Cox line

and the SDG&E overhead conductors could have

prevented the ignition of the Guejito Fire.132

GO 95 Clearance Requirements and SDG&E’s

Inspections

At hearings, SDG&E presented Mr. Darren Weim

(Mr. Weim), SDG&E’s Manager of Northeast Construction & Operations, to discuss the utility’s design,

construction, and maintenance standards that were in

place prior to 2007.133 While SDG&E does not dispute

GO 95’s 6-foot clearance requirement, Mr. Weim’s

128

ORA-01 at 7.

129

ORA-01 at 18.

130

SDG&E Phase 1 Reply Brief at 59-60.

131

Id.

132

SDG&E Phase 1 Reply Brief at 3.

133

A.15-09-010 at 15.

42a

testimony was used to show the programmatic approach

SDG&E takes in its inspection and maintenance of its

facilities.134 Mr. Weim testified regarding SDG&E’s

Corrective Maintenance Program. He elaborated on

two of the inspections carried-out under SDG&E’s

Corrective Maintenance Program.135 A “patrol inspection” involves visual inspections, designed to identify

obvious structural problems and hazards.136 A

“detailed inspection” requires trained employees to

perform thorough checks on distribution poles and all

attachment facilities to identify GO 95 clearance

violations.137 Mr. Weim noted that the most recent

patrol inspection was completed on August 30, 2007,

with no hazards identified.138 The most recent detailed

overhead inspections were conducted on June 22, 2007

and April 8, 2005, but did not uncover design or

construction issues with respect to poles P196387 and

P196394.139

SDG&E maintains that “if the 3.3 foot clearance

pre-dated SDG&E’s inspections, and those inspections

did not uncover the problem, those facts merely show

that SDG&E was not perfect.”140 SDG&E maintains

that the Commission’s prudence standard “is not a

‘perfection’ standard: it is a standard of care that

demonstrates all actions were well planned, properly

134

SDG&E Phase 1 Reply Brief at 60.

135

SDGE-06 at 4.

136

SDGE-06 at 4 to 5.

137

SDGE-06 at 5.

138

SDGE-06 at 10.

139

SDGE-06 at 11.

140

SDG&E Phase 1 Reply Brief at 60.

43a

supervised and all necessary records retained.”141

Furthermore, SDG&E maintains that ORA failed to

show that the 3.3-foot clearance contributed to the

Guejito Fire’s ignition.142

As such, SDG&E maintains that its management

and control of its facilities prior to the ignition of the

Guejito Fire were reasonable.

4.2.3. ORA’s Position on SDG&E’s Operation and Management of its Facilities

Prior to the Guejito Fire

ORA maintains that SDG&E has failed to prove by

a preponderance of the evidence that SDG&E’s operation and management of its facilities linked to the

Guejito Fire were reasonable.143 ORA cites to the facts

surrounding the ignition of the Guejito Fire as well as

the applicable clearance requirements per GO 95.

GO 95 Clearance Requirements and SDG&E’s

Inspections

ORA argues that SDG&E’s failure to comply with

GO 95 renders the utility’s operation and management

of its facilities imprudent.144 ORA contends that the

lack of records documenting when the 3.3-foot clearance violation occurred does not mean that SDG&E

met the prudent manager standard.145 ORA maintains

that the fact that Mr. Walters testified, under oath,

that the clearance violation occurred at the time of the

2001 Cox line installation is evidence of imprudent

141

Id. citing D.14-06-007 at 36.

142

SDG&E Phase 1 Reply Brief at 63.

143

ORA Phase 1 Reply Brief at 18.

144

Id.

145

Id.

44a

utility management.

Additionally, ORA contends

that the longstanding clearance violation was a safety

risk, rendering SDG&E imprudent.147 Bolstering this

argument, ORA highlights the specific statutory violations CPSD found during its post-fire investigation

of the facilities linked to the Guejito Fire.148 ORA

contends that CPSD’s finding that SDG&E failed to

maintain its facilities in compliance with Public

Utilities Code § 451, GO 95 Rule 31.1, and GO 95 Rule

38 , shows SDG&E was imprudent in managing its

facilities linked to the Guejito Fire.149

146

As such, ORA maintains that SDG&E’s operation

and management of its facilities prior to the ignition

of the Guejito Fire were not reasonable.150

4.2.4. Reasonableness Review: SDG&E’s

Operation and Management of its

Facilities Prior to the Guejito Fire

In evaluating SDG&E’s operation and management

of its facilities in connection to the Guejito Fire, the

Commission must determine whether SDG&E employed

reasonable judgment in its operation and management of its facilities in the period leading up to the

ignition of the Guejito Fire.

The record shows that SDG&E utilized its Corrective

Maintenance Program to perform patrol and detailed

(overhead) inspections of P196387 and P196394 prior

to the Guejito Fire ignition. SDG&E asserts its failure

to identify the 3.3-foot clearance violation merely

146

Id. citing Reporter’s Transcript Volume 5 at 792.

147

Id. at 24.

148

ORA Phase 1 Opening Brief at 24.

149

ORA Phase 1 Opening Brief at 24.

150

ORA Phase 1 Reply Brief at 30.

45a

shows the utility was not perfect; we disagree. SDG&E’s

use of patrol and overhead inspection protocols may be

reasonable. The repeated failure of these patrols to

identify the clearance violation is not reasonable.

While SDG&E’s testimony highlights its Corrective

Maintenance Program, the existence of the Corrective

Maintenance Program is not sufficient to establish

that SDG&E fulfilled its duty to be a reasonable and

prudent manager. At the same time, the lack of

inspection records indicates a failure to act prudently.

The fact that the Cox line was installed in 2001, six

years before the fire, and that no inspection records

affirmatively reference compliance with GO 95 clearance requirements is problematic. Moreover, we find

the six-year gap in inspection records (from 2001 to

2007) to be indicative of imprudent management.

SDG&E asserts that to find its failure imprudent

would be to interpret the prudence standard as a

perfection standard. We disagree. Documentation of

compliance with objective clearance standards at some

point during the many years the Cox line was installed

is not equivalent to perfection.

As such, SDG&E fails to prove by a preponderance

of the evidence that it acted prudently in its operation

and management of its facilities prior to the ignition

of the Guejito Fire.

4.3. Rice Fire

4.3.1. Rice Fire Background

The Rice Fire ignited on October 22, 2007 in

Fallbrook, California.151 The Cal Fire Investigation

Report into the Rice Fire concluded that the cause of

151

SDGE-08 at 2.

46a

the fire was a downed powerline.152 CPSD determined

that a limb from sycamore Tree FF1090 (FF1090)

broke and fell onto SDG&E 12 kV overhead conductors

on October 22, 2007, which in turn caused the conductors to break and fall to the ground.153

In comments to the proposed decision, SDG&E

alleges that the weight of the evidence shows it could

not have prevented the Rice Fire, because it had no

way to know of a defect in the broken tree branch that

fell onto the conductors. SDG&E reiterates its claim

that the broken branch was not marked for trimming

and would not have been removed.154 We revise our

discussion below to address these comments with

further support from the evidentiary record of this

proceeding. The Commission finds that SDG&E failed

to trim FF1090 on a timely basis and failed to keep

adequate records for FF1090. SDG&E failed to show

that it was prudent in its management of FF1090, or

that it could not have identified the defective branch

with proper management. We find the evidence

inconclusive as to the growth direction and the growth

pattern of the broken branch.

4.3.2. Legal Requirements

The Commission’s GO 95, Rule 35 sets the general

clearance requirements for vegetation around powerlines.155 Rule 35 requires that where dead, rotten or

diseased trees or dead, rotten, or diseased portions of

otherwise healthy trees overhang or lean toward

power conductors, those trees or portions are to be

152

ORA-01 at 22.

153

SDGE-08 at 2.

154

See SDG&E’s Comment

155

SDGE-08 at 2.

47a

removed. In 2007, GO 95 required a radial clearance

of 18 inches, and Public Resources Code Section

4293156 required a radial clearance of 4 feet, between

vegetation and 12 kV conductors.157 To comply with

both Commission rules and State law, SDG&E designed

and implemented its Vegetation and Management

Program (VMP ) and Tree Pre-inspection procedures.158 In this decision, we review the VMP that was

in place on October 22, 2007. SDG&E’s VMP manual

describes SDG&E’s Tree Pre-inspection procedures in

156

Public Resources Code § 4293: Except as otherwise provided

in Sections 4294 to 4296, inclusive, any person that owns, controls, operates, or maintains any electrical transmission or

distribution line upon any mountainous land, or in forest-covered

land, brush-covered land, or grass-covered land shall, during

such times and in such areas as are determined to be necessary

by the director or the agency which has primary responsibility for

the fire protection of such areas, maintain a clearance of the

respective distances which are specified in this section in all

directions between all vegetation and all conductors which are

carrying electric current: (a) For any line which is operating at

2,400 or more volts, but less than 72,000 volts, four feet; (b) For

any line which is operating at 72,000 or more volts, but less than

110,000 volts, six feet; (c) For any line which is operating at

110,000 or more volts, 10 feet. In every case, such distance

shall be sufficiently great to furnish the required clearance at

any position of the wire, or conductor when the adjacent air

temperature is 120 degrees Fahrenheit, or less. Dead trees, old

decadent or rotten trees, trees weakened by decay or disease and

trees or portions thereof that are leaning toward the line which

may contact the line from the side or may fall on the line shall be

felled, cut, or trimmed so as to remove such hazard. The director

or the agency which has primary responsibility for the fire

protection of such areas may permit exceptions from the

requirements of this section which are based upon the specific

circumstances involved. (Amended by Stats. 1976, Ch. 1300.)

157

SDGE-08 at 16.

158

SDG&E-08, Appendix 3.

48a

detail. The document provides an overview of the

VMP, inventory criteria for vegetation, instructions to

the Vegetation Management System, factors affecting

reliability, procedure to escalate issues, updating

inventory of vegetation, tree growth rates and the

Vegetation Management Areas (VMAs). The manual

is comprehensive and indicates that SDG&E had a

robust VMP in 2007.

4.3.3. Issues and Party Positions

Although no party disputes that the Rice Fire

started when a broken limb from FF0190 fell onto

SDG&E’s conductors, parties dispute whether SDG&E

prudently marked, inspected and trimmed FF1090

pursuant to its VMP. Parties focused their litigation

efforts on the tree inspections, trimming schedule and

activities related to the clearance requirements. ORA

and SDG&E also introduced testimony and evidence

regarding Reliability Trees and FF1090’s latent defect.

4.3.3.1. FF1090’s Inspection

Trimming Schedule

and

FF1090 is a fast growing sycamore tree inventoried

by the VMP in its Vegetation Management System

(VMS) in 1999. The VMS is a software application

designed by SDG&E to record tree data within a

dynamic inventory of vegetation having the potential

to grow into or fall into SDG&E electric power lines

and facilities.159 SDG&E pre-inspectors update information contained within certain fields in the database

based on their evaluation of the tree. One of the fields

in the VMS database is called “Months to next trim”,

and the inspector can choose 0-3, 3-6, 6-9 months, etc.

from the drop down menu. SDG&E’s VMS considers

159

Ibid at 8.

49a

the tab “0-3 months” as setting a timeline that begins

during the subsequent trim cycle, which in this case

meant between September to November 2007.

The record shows that FF1090 was inspected on

July 18, 2007 and the SDG&E inspector chose the 0-3

months tab to remove direct overhang. On October 22,

2007, three months later, when the Rice Fire ignited,

FF1090 had not been trimmed. ORA and SDG&E

heavily litigated the issues of when FF1090 should

have been trimmed, whether FF1090 exhibited a

clearance violation, and whether the trim would have

prevented the branch from falling onto the conductors.

ORA argues that FF1090 should have been trimmed

before October 18, 2007, three months from the July

18, 2007 pre-inspection. ORA believes that failure to

trim FF1090 led directly to the branch breaking off

and falling on the conductors. SDG&E states that the

“Months to next trim” tab should be used to estimate

how many months will elapse before the tree grows out

of compliance. According to SDG&E, a selection of 0-3

months would mean that the tree should be trimmed

in the upcoming trim cycle, which in this case, would

have been between September and November of

2007.160 SDG&E further alleges that the broken off

branch was growing away from the power lines, and

as such would not necessarily have been subject to

trimming.

4.3.3.2. FF1090’s latent defect and

the issue of Reliability Trees

The parties did not focus on some other aspects of

the VMP manual that are nevertheless important in

160

See SDG&E-13 Prepared Rebuttal Testimony of Don Akau

at 10-11.

50a

determining whether SDG&E acted prudently prior to

the fire. Don Akau, SDG&E’s Vegetation Management

Program Manager, testified about the hidden defect he

observed in the broken branch after the fire. Mr. Akau

referred to “staining” at the point where the fallen

branch broke from the main trunk161 and proposed

that the staining could be an indicator of “included

bark”, or “internal structural stressing and cracking in

the branch union” which in his opinion contributed to

the failure of the limb in the winds.162

Throughout this proceeding, SDG&E claimed that

the included bark was hidden, and could not have been

discovered by its personnel during their inspections.

According to SDG&E’s VMP manual, a Reliability

Tree is “Any Tree, located inside or outside the utility

right-of-way, that has a reasonably good potential for

interrupting service to an overhead circuit (excluding

secondary) with the current routine cycle.”163 When a

pre-inspector identifies a Reliability Tree, it is

mandatorily marked in the VMS as a Reliability Tree

and for trimming.164 A Reliability Tree exhibits one or

more factors listed in the VMP manual, and per

SDG&E’s inspection procedures, must be marked,

pruned and inspected to ensure grid reliability.

FF1090 was not marked as a Reliability Tree before

the Rice Fire.

4.3.4. Discussion

In evaluating SDG&E’s operation and management

of its facilities in connection with the Rice Fire, the

161

SDG&E-08 at 19 and SDG&E-13 at 8.

162

Ibid.

163

SDG&E-08, Appendix 3 at 7.

164

Ibid. at 30.

51a

Commission must determine whether SDG&E

employed reasonable judgment in its operation and

management of its facilities in the period leading up to

the ignition of the Rice Fire. The general purpose of

routine pre-inspections is to identify vegetation for

pruning and removal that will not maintain required

clearance for a full cycle (fourteen months). As part of

the inspection process, the pre-inspector is also tasked

to identify and mark Reliability Trees. A Reliability

Tree is “Any Tree, located inside or outside the utility

right of way, that has a reasonably good potential for

interrupting service to an overhead circuit within the

current routine cycle.” According to the VMP manual,

“a majority of tree related outages that occur in the

utility right-of-way are the result of tree or limb

failure, not tree growth.”165 When a Reliability Tree is

identified the pre-inspector shall [emphasis added]

check both the reliability and trimming required box

in the tree tab.166

As part of its VMP, SDG&E relies on its inspectors

to select the appropriate fields in the VMS and to

identify potential Reliability Trees. It is essential for

SDG&E personnel and contractors to be well trained

in the procedures of the VMP so that they accurately

select the drop down menus in the VMS.167

Based on an exhaustive review of the record and

informed primarily by SDG&E’s own VMP manual,

165

Ibid.

166

Ibid.

167

The Vegetation Management System (VMS) is a database

which tracks all of the inventoried vegetation within SDG&E’s

territory. The VMS has various drop down menus which allow an

inspector to identify issues with a tree and recommend the proper

course of action.

52a

the Commission finds SDG&E acted imprudently in

its management of FF1090. First, we find SDG&E to

have deviated from its usual timeline in trimming

FF1090. Secondly, SDG&E’s pre-inspector mistook the

‘months to next trim’ menu to mean that a selection of

0-3 months means that an actual trimming would take

place within 0-3 months of the pre-inspection. The

contractor’s misunderstanding of the VMS led him to

incorrectly select a menu item that delayed the

trimming beyond three months from the inspection

date. Thirdly, SDG&E did not identify FF1090 as a

“Reliability Tree” even though FF1090 seems to have

exhibited at least two characteristics on the “Tree

Hazard Checklist.”168 Each of these elements of the

record is discussed below. In each of these instances,

SDG&E failed to demonstrate that it employed

reasonable judgment in its operation and

management of its facilities in the period leading up to

the ignition of the Rice Fire.

4.3.4.1. SDG&E’s Tree Inspection

and Trimming Schedule

The record shows that at the time of the Rice Fire’s

ignition, SDG&E had a VMP in place whereby FF1090

was inspected and trimmed. A summary of all

available pre-inspections and subsequent trim dates

recorded in the VMS Tree Information Sheet up to the

Rice Fire are shown in the table below:

168

Ibid.

53a

Tree FF1090 Inspection and Prune dates

Tree FF1090 Inspection Date Prune date

05/07/1999

05/01/2000

01/25/2001

No trim record

01/02/2002

04/29/2002

01/13/2003

05/07/2003

11/11/2003

02/17/2004

11/17/2004

02/11/2005

07/12/2005

No trim record

07/19/2006

No trim record

07/18/2007

(10/15/2007)*

(10/19/2007)*

10/22/2007

* SDG&E states that Davey Tree Surgery Company

and SDG&E personnel performed follow up inspections on October 15, 2007 and October 19, 2007

respectively, and that FF1090 was in compliance with

clearance requirements on those two visits. However,

these additional inspection dates are not shown in the

tree information sheet submitted by SDG&E. SDG&E

asserts the October 15, 2007 inspection by a data

request response submitted by Davey.169

The Tree Information Sheet identifies FF1090 as

a fast growing sycamore tree with a growth rate of

between four to six feet every year. FF1090 was

inventoried on May 7, 1999 and pruned on May 1,

169

See SDGE-08, Appendix 7.

54a

2000. It was inspected again on January 25, 2001 and

January 2, 2002. Having not been trimmed for 20

months, the January 2, 2002 inspection documents

FF1090 as having between 1.5 to 4 foot clearance to

the conductors and SDG&E pruned FF1090 on April

29, 2002.170 In 2002, SDG&E had notice that, because

of FF 1090’s growth rate, not trimming the tree

annually resulted in FF1090 being out of clearance

compliance. Subsequent to the 2002 violation, FF1090

was inspected and pruned annually until the

inspection on July 12, 2005. FF1090 was not trimmed

after July 12, 2005, nor was it trimmed after the

inspection on July 19, 2006. By the July 18, 2007

inspection, FF1090 had not been trimmed for over 29

months.171

There were only two instances in FF1090’s

inventoried history in which it was not trimmed on an

annual basis. The first instance in which SDG&E

failed to trim FF1090 annually was in 2002, when the

tree was recorded as being within 4 feet of conductors.

The Rice Fire marks the end of the second time period

during which SDG&E fell out of the annual trimming

schedule. At the time of the Rice Fire ignition, SDG&E

had not trimmed FF1090 for 29 months. The fact that

SDG&E deviated from its own standard time table,

and allowed more than two years to elapse without

pruning this fast-growing tree, shows that SDG&E

was not reasonable or prudent in its management of

FF1090.

170

SDGE-08 at Appendix 6. SDG&E argues that ORA failed to

prove FF1090 was out of compliance, we note that it is SDG&E

who carries the burden of proof to show it was acting prudently

and reasonably, not the other way around.

171

Ibid.

55a

ORA and SDG&E focus their arguments on the

definition of 0-3 months and whether it meant that

FF1090 should have been trimmed by October 18,

2007. The Commission reviews all available data as a

whole. SDG&E’s inspector described his reasoning in

selecting 0-3 months: “And I listed from zero months

to three months as when it should be trimmed. I chose

that option on the drop-down menu.” “[I]t had strong

growth towards the lines, and I felt it would encroach

in the 4 foot distance from the primary line in the

facilities within three months.”172

In light of this testimony, SDG&E’s claim that “0-3

months” did not set a deadline for trimming is

unpersuasive. SDG&E’s contract requires Davey to

train its pre-inspectors on many topics in the VMP

manual and to use the VMS. But, in this instance, the

pre-inspector did not have a clear understanding of the

drop down menu functions in the VMS. The inspector’s

misunderstanding of SDG&E’s tree trimming program

underscores the need for proper training. If the contractor made a mistake due to insufficient or improper

training, SDG&E is still responsible for acts, omissions, or failures of its agents under PUC Section

2109.173

In comments on the proposed decision, SDG&E

further asserted that the broken off branch grew away

from the powerline, and was not marked for trimming.

172

ORA-44, Transcript excerpts of the March 25, 2008

Examination Under Oath of Mark Clemens.

173

California Public Utilities Code section 2109: “In

construing and enforcing the provisions of this part relating to

penalties, the act, omission, or failure of any officer, agent, or

employee of any public utility, acting within the scope of his

official duties or employment, shall in every case be the act,

omission, or failure of such public utility.”

56a

SDG&E did not carry its burden to show that the

broken branch grew away from the powerline. Rather,

the growth direction of the broken branch is inconclusive from the record. Testimony from Mr. Akau states

that the branch was positioned toward the northeast,

growing away from the powerline;174 testimony from

Mr. Ronald Hay states that the broken branch grew to

the south, toward the utility lines;175 and testimony

from Mr. David Kracha states that broken limb grew

completely vertically and did not grow toward or away

from the powerlines.176

Next, assuming that the broken branch grew away

from the powerline, a second evidentiary issue emerges.

SDG&E presented multiple witnesses stating that the

broken branch was part of co-dominant leader growthwith two similar-sized branches growing from the

same union point. SDG&E has argued throughout

this proceeding that due to the co-dominant nature of

these branches, the breaking of one necessitated the

removal of the other. After observing the broken

branch on October 22, 2007, before Cal Fire could

inspect the ignition site, SDG&E’s Chris Thompson

ordered the removal of the remaining leader branch,

and reduction of FF1090’s entire canopy to prevent

additional failures.177 SDG&E justifies the reduction

of the entire canopy of FF1090 by stating it was

necessary to prevent further failures. Applying the

same rationale, the evidence indicates that that

174

See SDG&E-08 at 18.

175

See ORA-40, Transcript excerpts of May 28, 2008 examination under oath of Ronald Hay.

176

See ORA-41, Transcript excerpts of May, 28, 2008 Examination under oath of David Kracha.

177

See SDG&E-13, Appendix 4 at 4.

57a

trimming of FF1090’s overhang would have required

balanced trimming throughout the canopy. Thus, even

if the broken branch did not have clearance problems,

a prudent manager trimming on a regular schedule

likely would have trimmed FF1090 to balance the

other branches that did have clearance issues.

According to SDG&E, two additional inspections of

FF1090 took place on October 15, 2007 and October

19, 2007, and those inspections found FF1090 to be

in compliance with clearance requirements.178 The

October 19, 2007 inspection was conducted by SDG&E

personnel, but also is not shown in the Tree

Information sheet.

4.3.4.2. FF1090’s Latent Defect and

the Issue of Reliability Trees

In addition to FF1090’s inspection and trim history,

the Commission also considers whether SDG&E has

met the burden of showing that it could not have

identified the defect in FF1090. The Commission’s

analysis of the record and the VMP concludes that

SDG&E has not met its burden: There is insufficient

evidence to show that acting responsibly SDG&E

could not have identified the defect in FF1090. The

broken branch with included bark exhibited at least

two factors which could warrant FF1090 being marked

as a Reliability Tree.

To begin, Section 5 of SDG&E’s VMP manual

discusses Reliability Trees. The five-page section

defines Reliability Trees and provides a Hazard Tree

Checklist for evaluating trees for reliability and six

178

We note the October 15, 2007 inspection is not recorded on

SDG&E’s own Tree Information Sheet, but reported by Davey as

part of a data response in SDG&E-08, appendix 7.

58a

sample photos.

Two checklist items are relevant

to FF1090: 1) “are there multiple vertical branches

originating from one point that may indicate weak

attachment?” and 2) “are there narrow-angled branch

crotches that may indicate included bark?180”

179

Section 5 of SDG&E’s VMP manual is consistent

with General Order 95, Rule 35, which requires that

diseased and rotten portions of otherwise healthy

trees growing toward or hanging over powerlines be

removed.

SDG&E presents evidence of the included bark

and the limb’s growth direction through Mr. Akau’s

testimony, a hand drawn diagram by Mr. Akau, and

testimony from Ronald Matranga and Chris Thompson,

SDG&E arborists who visited the Rice Fire site after

the fire. According to SDG&E, the broken limb which

caused the ignition contained hidden ‘included bark’,

which could not be observed during routine inspections. In his direct and rebuttal testimony, Mr. Akau

referred to the presence of “staining” at the point

where the fallen branch broke from the main trunk.181

Mr. Akau proposes that the staining could be an

indicator of “included bark”, or “internal structural

stressing and cracking in the branch union” which in

his opinion contributed to the failure of the limb in the

winds.182

The record, however, does not clearly support that

SDG&E did not have advance notice of the structural

defect.

179

Ibid.

180

SDG&E-08, Appendix 3 at 30.

181

SDG&E-08 at 19 and SDG&E-13at 8.

182

Ibid.

59a

Mr. Akau testified regarding SDG&E’s Vegetation

Management Program and presented inspection protocol for “Reliability Trees,” and stated that no structural

defects were noted by SDG&E’s contractors during the

July 18, 2017 inspection 183 SDG&E’s Chris Thompson

testified in I.08-11-006 that the cause of the included

bark was co-dominant leader branches in FF1090.184

Mr. Thompson states in his testimony that FF1090’s

included bark occurred “when two separate leaders

start growing together and pushing against each other

as they grow in diameter.”185 Further corroboration of

FF1090’s growth pattern can be found in the transcribed testimony of Ronald Hay, which described the

broken branch as part of “a healthy clutter[spelling

per transcript] of branches that grew straight up.”186

While as discussed above, SDG&E personnel provided conflicting testimony on the growth direction of

the broken branch, in contrast SDG&E personnel have

been consistent in their recollection of the growth

pattern of the broken limb.

The testimony indicates that the broken branch was

part of at least two vertical branches, possibly more,

growing closely together. This testimony indicates

that the tree appeared to have some physical characteristics that would have warranted further attention.

Based on the testimony of SDG&E’s personnel, SDG&E

183

SDGE-13 at 9, citing “Direct Testimony of Ronald

Matranga” in I.08-11-006, June 6, 2009 at 3-5.

184

SDG&E-13, Appendix 4 at 4.

185

Ibid.

186

See ORA-40, Transcript excerpts of May 28, 2008 Examination under oath of Ronald Hay at 23.

60a

has not met its burden of showing that it could not

have identified the defect in FF1090.

4.4. Commission Precedent

The Commission has a long history of cases that

apply the reasonable and prudent manager standard

to after-the-fact reviews of costs incurred by utilities.

In each case, the facts showed that the costs the

Commission denied were directly attributable to clear

and identifiable utility failures or errors.

Mohave

The facts of I.86-04-002 have similarities to the facts

of the instant proceeding. On June 9, 1985, a weld in

a high-pressure steam pipe at the Mohave Coal Plant

(Mohave) ruptured, blasting steam hotter than 1,000

degrees Fahrenheit through an employee breakroom

and Mohave’s control room.187 As a result, six people

were killed and ten others were severely injured.188

The steam caused extensive damage to the control

room, as well as other portions of the plant.189 The

Commission ultimately concluded that Southern

California Edison Company (SCE) acted unreasonably

in failing to implement an inspection program to

ensure that the portion of the piping system that

ultimately failed was maintained in a safe condition.190

In reaching its decision, the Commission offered,

“[e]vidence of accepted industry practices will often be

relevant to a reasonableness inquiry, but compliance

with such practices will not relieve the utility of [its]

187

D.94-03-048 at 2.

188

D.94-03-048 at 2.

189

D.94-03-048 at 2.

190

D.94-03-048 at 2.

61a

burden of showing that its conduct was reasonable.”191

Furthermore, the Commission noted “guidelines are

only advisory in nature and do not relieve the utility

of its burden to show that its actions were reasonable.”

I.86-04-002 concluded with D.94-03-048, which held it

was not reasonable to pass costs resulting from the

accident to SCE’s ratepayers.

Similar to Mohave, where SCE’s facilities were

directly involved killing six people and injuring ten

others, SDG&E’s facilities were directly involved in

the ignition and subsequent destruction caused by the

2007 Wildfires. Although SDG&E had industry recognized policies and programs in place (recloser policy,

Corrective Maintenance Program, and Vegetation

Management Program) prior to October 2007, such

practices do not relieve SDG&E of its burden to show

that its actions were reasonable. As discussed above,

SDG&E fails to show its actions were reasonable when

SDG&E allowed 4 faults to occur on TL 637 over a

period of 6.5 hours; SDG&E failed to uncover the 3.3

feet clearance violation for 6 years after utilizing its

Corrective Maintenance Program’s patrol and detailed

inspections; and SDG&E did not show by a preponderance of the evidence that it properly monitored and

trimmed FF1090 before the ignition of the Rice Fire.

SDG&E did not train its contractors to properly mark

the VMS and has not shown it could not have

identified a defective limb. SDG&E is responsible for

its contractor’s failure to appropriately mark the VMS

and ensure that Tree FF1090 was trimmed on a timely

basis. The Commission is also concerned with records

suggesting that FF1090 may have been a Reliability

Tree warranting immediate attention.

191

D.94-03-048 at 37, citing D.88-03-036 at 527.

62a

Helms

In A.82-04-12 and I.82-01-01 (Helms), the Commission reviewed whether the costs incurred by Pacific

Gas & Electric Company (PG&E) in building the

Helms Project192 prior to the Lost Canyon pipe failure

constituted reasonable and prudent utility expenditures.193 On September 29, 1982, the Lost Canyon pipe

crossing failed during testing of the Helms Project.194

In April 1983, PG&E filed an amendment to A.82-0412 asking the Commission: (1) to place $738.5 million

cost for the Helms Project incurred before the Lost

Canyon pipe failure into rate base; and (2) to defer any

review of the additional reconstruction cost until

PG&E resolved all litigation arising from the Lost

Canyon pipe failure.195 In reaching its conclusion, the

Commission found PG&E failed to appreciate the risks

associated with the construction of the Helms Project,

192

D.85910 defines the Helms Project as: The Helms Pumped

Storage Project is a combination pumped storage and conventional hydroelectric project. The project allowed for the utilization

of the water power resources of the North Fork Kings River and

Helms Creek. The project completes development of the available

head between Courtright Lake, maximum water surface elevation 8,184 feet, and the U.S. Army Corps of Engineers’ Pine Flat

Reservoir, maximum water surface elevation 952 feet. The

maximum head developed by the project between Courtright

Lake and Lake Wishon is 1,744 feet. The power potential will be

developed by constructing a conduit consisting of two tunnels, a

short pipe section and a penstock between Courtright Lake and

an underground powerhouse. Total length of the conduit, which

is entirely underground except for the 140-foot pipe section, is

20,408 feet. The trailrace tunnel connects the underground powerhouse with Lake Wishon.

193

D.85-08-102 at 6 to 7.

194

D.85-08-102 at 5.

195

D.85-08-102 at 5 to 6.

63a

and that PG&E also failed “to take seriously the

repeated safety citations and work shutdowns issued

and ordered by the State Department of Occupational

Safety and Health.”196 Ultimately, the Commission

found PG&E failed to perform at the appropriate

standard of performance, rendering PG&E imprudent.197 D.85-08-102 specified that ratepayers would

not be required to indemnify PG&E for losses arising

from the Lost Canyon pipe failure.198

Similar to Helms, where the Commission found

PG&E failed to take into account the risks associated

with building the Helms Project, SDG&E failed to

take into account the risks associated with its

automatic recloser policy. As ORA showed, SDG&E

had knowledge of the 2001 Field Guide’s caution that

automatic reclosers increase the risk of igniting vegetation. As such, it was imprudent of SDG&E to not

take into account the risk factors associated with

re-energizing TL 637 after three faults occurred

within a span of 3.5 hours.

SONGS

D.84-09-120 addressed the reasonableness of SCE’s

cost of power purchased to replace power lost because

of the diesel generator fire at San Onofre Nuclear

Generating Station (SONGS) Unit 1.199 On July 14,

1981, a fire caused by a small oil leak in a section

of piping attached to a diesel engine caused two

emergency diesel generators at SONGS 1 to be out

196

D.85-08-102 at Findings of Fact 6 and 10.

197

D.85-08-102 at Conclusions of Law 5 and 6.

198

D.85-08-102 at Conclusion of Law 9.

199

D.84-09-120 at 2.

64a

from July 17, 1981 to August 16, 1981.200 Although a

small oil leak had been reported near the piping in

question, maintenance personnel could not find the

source of the leak, even with the diesel shutdown.201

Unfortunately, during the next monthly scheduled

load-test, the unidentifiable leak caused oil to spray

out and ignite a fire.202 The coordinated effort between

SONGS 1 control room operators and the fire personnel limited the fire to only 7 minutes, thereby reducing

damage to the diesel generator.203 In reviewing SCE’s

conduct, the Commission applied its reasonableness

standard, and found that the replacement energy costs

associated with the SONGS I diesel generator fire

were incurred on account of SCE’s unreasonableness

and were therefore unrecoverable.204

Similar to SONGS, where the Commission found

costs incurred for replacement energy costs were

unrecoverable due to the unreasonableness of SCE’s

actions, the costs of the 2007 Wildfires were incurred

due to unreasonable management by SDG&E. Even

though SCE limited the diesel fire to 7 minutes,

thereby substantially reducing the fire’s damage, the

Commission still found SCE’s actions leading up to

the diesel fire to be unreasonable. Similarly, it was

imprudent of SDG&E to allow a fourth fault to occur

on TL 637 more than two hours after SDG&E’s Grid

Operations became aware of the Witch Fire. Similar

to SONGS, where maintenance personnel could not

locate the oil leak, SDG&E’s Corrective Maintenance

200

D.84-09-120 at 72.

201

D.84-09-120 at 73 to 74.

202

D.84-09-120 at 74 to 75.

203

D.84-09-120 at 74 to 75.

204

D.84-09-120 at Conclusion of Law 2.

65a

Program failed to identify the almost 3-feet clearance

violation between SDG&E’s overhead conductors

and the below-installed Cox Communication Line.

While SONGS involved the prompt deployment of

maintenance personnel to address its oil leak, SDG&E

was unable to locate and address the clearance issue

for almost six years, even after personnel completed

inspections on April 8, 2005, June 22, 2007 and August

30, 2007.

Applying the above case analysis to the facts of the

instant proceeding, it is reasonable for the Commission to find SDG&E’s actions leading up to the 2007

Wildfires imprudent. Moreover, it is reasonable for the

Commission to deny those costs which were incurred

by SDG&E to resolve third-party damage claims

arising from the Witch, Guejito and Rice Wildfires.

4.5. Wind and Weather Conditions in October

2007

Per the Scoping Ruling, the Commission has analyzed

SDG&E’s operation and management of its facilities

prior to the ignition of the 2007 Wildfires by each fire.

Regardless of the varying facts surrounding the Witch,

Guejito and Rice wildfire ignitions, a common issue

amongst the three fires exists. While no party disputes

the fact that the Santa Ana winds are a known local

condition in San Diego County, dispute remains as to

whether the winds credited with the ignition and

spread of the 2007 Wildfires were unprecedented.205 If

the wind and weather patterns present in October of

2007 were not unprecedented, then a prudent

manager would have used the weather information to

reasonably manage and operate its facilities.

205

ORA-01 at 36; SDGE-05 at 3.

66a

The parties to this proceeding have put forth extensive arguments and expert witness testimony on the

issue of the wind and weather conditions in October

2007. While both SDG&E and UCAN presented highly

recognized wind and weather experts, the opinions

encompass a variety of the methodologies to estimate

the peak wind speeds during the ignition of each of the

2007 Wildfires. While reviewing the experts’ showings, we have applied the following principle:

[I]n administrative proceedings before an

agency composed of trained specialists and

before expert examiners or hearing officers,

the burden of evaluating the weight and

probity of testimony and evidence covering

technical subject matter is primarily that of

sifting and evaluating the evidence based

upon the agency's expertise. Expert opinion

does not bind the Commission. The Commission may form its own conclusions without

the aid of expert opinions.206

SDG&E’s Experts’ Showings

SDG&E put forth Mr. Steve Vanderburg (Mr.

Vanderburg) and Dr. Jon Peterka (Dr. Peterka) to

show that the October 2007 weather conditions were

unprecedented.

Mr. Vanderburg, a Senior Meteorologist with

SDG&E, testified that the 2007 Wildfires occurred

during the most severe weather event in San Diego

206

D.90642, 2 CPUC2d 89, 102 (1979), citing Market Street

Railway v. Railroad Commission, 324 U.S. 548, 560-561 (1945).

See City of Los Angeles v. Public Utilities Commission, 7 Cal. 3d

331, 351 [*34] (1972).

67a

County since 1984.

Mr. Vanderburg presented a

statistical analysis comparing wind gusts from the

Julian Remote Automated Weather Station (RAWS)

and the West Santa Ysabel weather station to show

that the wind gust speeds would have been 92 miles

per hour (mph) during the peak of October 2007

weather season.208 Mr. Vanderburg utilized data from

the West Santa Ysabel weather station because it was

the closest source to the Witch Fire ignition point.209 In

briefs, SDG&E stressed that even though the West

Santa Ysabel weather station did not exist in 2007,

“Mr. Vanderburg was still able to determine what the

wind gust speeds would have been at the West Santa

Ysabel weather station during the peak of the late

October 2007 wind event.”210

207

Dr. Peterka, a Professional Engineer and Professor

Emeritus in Fluid Mechanics and Wind Engineering

at the Department of Civil Engineering at Colorado

State University, testified as to the mean wind speeds

at the time and location of the ignition of each of the

2007 Wildfires.211 Dr. Peterka used a two-pronged

approach, WRF (Weather Researching and Forecasting)

Modeling and a model of the local terrain, to compute

peak wind gusts speeds of: 78 to 87 miles per hour

(mph) for the Witch fire ignition; 59 to 68 mph for the

Guejito fire ignition; and 70 to 75 mph for the Rice fire

ignition.212 In his direct testimony, Dr. Peterka elabo207

SDGE-09 at 2.

208

SDG&E Phase 1 Opening Brief at 91 to 92.

209

SDG&E Phase 1 Opening Brief at 91.

210

SDG&E Phase 1 Opening Brief at 91 to 92.

211

SDG&E Phase 1 Opening Brief at 98.

212

SDG&E Phase 1 Opening Brief at 98, citing SDGE-10 at 1

and Appendix 1.

68a

rated on his methodology. Essentially, Dr. Peterka

explained that he validated his WRF results with 2007

observed data from the Automated Surface Observing

System (ASOS) located at the Ramona Airport.213 Dr.

Peterka stated, “the largest 3-second gust measured at

the Ramona Airport during [October 2007] was 55

mph. Based on the ESDU procedure used to estimate

the 3-second gust from the WRF simulations, the gusts

are predicted to be between 60 and 76 mph, or 9 to

38 percent higher than the actual measurements.

The validation exercise is dependent on the overall

match between ASOS and WRF wind speeds and

directions . . . . as well as the comparison of peak gusts.

This validation supports my methodologies.”214 Dr.

Peterka explained that he believed the RAWS and

ASOS data were obtained from stations that were

improperly sited. Dr. Peterka asserts that the improper

siting resulted in recorded wind speeds that are too

low.215 For this reason, Dr. Peterka discarded the 2007

RAWS and ASOS and came up with a result that is 9

to 38 percent higher.216

In addition to providing analyses of the wind and

weather events surrounding the ignition of the 2007

Wildfires, SDG&E’s experts highlighted the utility’s

involvement in developing the Santa Ana Wildfire

Threat Index (SAWTI).217 SDG&E notes, “to develop

the SAWTI, SDG&E and UCLA worked to configure

the WRF model by calibrating it against actual observations of temperatures, winds, and dew points

213

Reporter’s Transcript Volume 5 at 735 to 740.

214

SDGE-10 at 12.

215

UCAN Phase 1 Opening Brief at 9.

216

Reporter’s Transcript Volume 5 at 739.

217

SDG&E Phase 1 Opening Brief at 94.

69a

collected from SDG&E weather stations during Santa

Ana wind events.”218 SDG&E highlights that the SAWTI

allows an individual to understand the fire potential

by comparing it to past and present conditions.219 As

such, SDG&E’s experts utilized the SAWTI in testifying that the wind and weather conditions in San Diego

County in 2007 had the largest fire potential since

1984.220 Because of this, SDG&E maintains that it had

no way to know how the strong winds in October 2007

would affect SDG&E’s service territory and fire

danger.221

UCAN’s Experts’ Showings

UCAN put forth Dr. Janice Coen (Dr. Coen) and Dr.

Alexander Gershunov (Dr. Gershunov) to rebut the

claims made by SDG&E’s weather experts. Dr. Coen,

a Project Scientist with the National Center for

Atmospheric Research in Colorado, and Dr. Gershunov,

from University of San Diego in the Climate, Atmospheric Science and Physical Oceanography Division at

the Scripps Institute of Oceanography, assert that

SDG&E’s experts’ analysis is flawed.222

Dr. Gershunov testified regarding his methodologies

in calculating the wind gust speeds for each of the

2007 Wildfires, and how his findings show that the

2007 Wildfires cannot be attributed to an unprecedented weather event.223 Dr. Gershunov’s estimates

218

SDG&E Phase 1 Opening Brief at 94.

219

SDG&E Phase 1 Opening Brief at 95.

220

SDG&E Phase 1 Opening Brief at 95.

221

SDG&E Phase 1 Opening Brief at 95.

222

UCAN Phase 1 Opening Brief at 8, 18; UCAN Phase 1 Reply

Brief at 8.

223

UCAN Phase 1 Reply Brief at 9.

70a

for the Witch fire ignition were 43.1 mph, 56.7 mph at

the time of the Guejito Fire’s ignition, and 34.4 mph at

the time of the Rice Fire’s ignition.224 UCAN argues

that “when looking at these numbers from both

SDG&E’s wind expert and UCAN’s wind expert, the

differences seem huge. However, as Dr. Gershunov

testified, the difference is that [Dr. Gershunov] used

the recorded data from 2007 to validate and bias

correct his model results and that SDG&E did not.”225

Dr. Gershunov utilized data recorded by the RAWS

and ASOS stations in calculating his wind speed

estimates.226 As noted by Dr. Gershunov, “not only was

there a stronger wind event on record [in San Diego

County], but there were 3 other wind events that were

within 10-percent of the wind speeds of the 2007 Santa

Ana event that occurred in the last 30 years.”227

Furthermore, UCAN notes that SDG&E’s use of the

SAWTI to advance its theory that the 2007 Wildfires’

ignition and spread were beyond the utility’s control is

not supported by SDG&E’s experts’ theories.228

Analysis of Parties’ Experts

The presentation of UCAN’s and SDG&E’s expert

witnesses added tremendous value to the record of

this proceeding. SDG&E’s attempt to explain why

the contemporaneous data collected from San Diego

County’s RAWS and ASOS should be discarded were

not persuasive. We find the wind estimates of Dr.

Gershunov to be more reflective of the actual wind and

224

UCAN Phase 1 Reply Brief at 9.

225

UCAN Phase 1 Reply Brief at 9.

226

UCAN Phase 1 Reply Brief at 9.

227

UCAN Phase 1 Opening Brief at 19, citing Reporter’s

Transcript at 1004 to 1005.

228

UCAN Phase 1 Opening Brief at 19.

71a

weather conditions during the ignitions of the Witch,

Guejito and Rice Wildfires in October 2007. We find

Dr. Gershunov’s utilization of the actual recorded

weather data from 2007 to validate his wind speed

estimates to be more reliable than Dr. Peterka’s

methodologies. Furthermore, the Commission is not

persuaded by SDG&E’s use of the SAWTI to try to

establish that the wind and weather conditions in San

Diego County in October 2007 created the largest

wildfire threat since 1984 because of more refined

testimony provided by the other parties.

Because we find the methodologies that UCAN’s

experts utilized in developing its testimony to be more

consistent with the actual wea

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