In 2012, Pacific Gas and Electric Company (PG&E) filed an application with the California Public Utilities Commission (the Commission) seeking approval of an agreement by which PG&E would acquire a new gas-fired powerplant in Oakley, California (the Oakley Project). A principal issue in the application proceedings was whether there was a need for the Oakley Project. The need was said to arise in part from California's efforts to obtain a greater percentage of its energy from renewable sources, thus requiring additional conventional electrical generating capacity to cope with fluctuations in supply due to the intermittent nature of wind and solar power.
As evidence of this claimed need, PG&E presented a declaration from an executive of the California Independent System Operator (the CAISO) and a petition the CAISO had filed with a federal agency. Neither the CAISO executive nor the authors of the petition testified in the Commission's proceedings. Because of their hearsay nature, the administrative law judge (ALJ) presiding over the application case ruled these materials could not be used as evidence of the need for the Oakley Project. She later issued a proposed decision recommending denial of PG&E's application.
The Commission did not adopt the ALJ's decision, and its decision approving PG&E's application expressly relied on these hearsay materials in finding the Oakley Project is needed. The Utility Reform Network (TURN), Western Power Trading Forum (WPTF), and Independent Energy Producers Association (IEP), which had participated in the application proceedings, sought rehearing before the Commission. Among other arguments, they claimed the Commission had violated their substantial rights by relying on hearsay evidence the ALJ had ruled could not be used as proof of need for the Oakley Project and that the Commission's decision was unsupported by substantial evidence. After the Commission denied their applications for rehearing, they filed petitions for writs of review under Public Utilities Code section 1756, subdivision (a).
The Oakley Project approval process has been the subject of at least three Commission proceedings extending over several years. We will explain those proceedings in summary fashion and limit our factual statement to matters relevant to the issues presented in the petitions before us.
Under the Commission's biennial procurement review process, investor-owned electric utilities such as PG&E must submit long-term procurement plans (LTPPs) that serve as the basis for utility procurement activities. (See § 454.5, subd. (a); Order Instituting Rulemaking to Establish Policies and Cost Recovery Mechanisms for Generation Procurement and Renewable Resource Development (Jan. 22, 2004) Cal.P.U.C. Dec. No. 04-01-050 [2004 Cal.P.U.C. Lexis 28, pp. *11-*12].) In a 2007 decision, the Commission approved PG&E's 2006 LTPP, and among other things, directed PG&E to issue a request for offers (RFO) "to obtain contracts for 800 to 1,200 MW [(megawatts)] of new operationally flexible and dispatchable capacity by 2015."
PG&E issued the RFO in 2008. It later submitted an application to the Commission for approval of a proposed purchase and sale agreement (PSA) for the Oakley plant. In 2010, the Commission issued a decision denying approval for the Oakley Project. (Decision on Pacific Gas and Electric Company's 2008 Long-term Request for Offer Results and Adopting Cost Recovery and Ratemaking Mechanisms (July 29, 2010) Cal.P.U.C. Dec. No. 10-07-045 [2010 Cal.P.U.C. Lexis 289, p. *1] (hereafter D. 10-07-045).) In that decision, the Commission chose to "deny the Oakley Project at this time" and made a factual finding that the project was not needed. (Id., 2010 Cal.P.U.C. Lexis 289 at pp. *60, *79.) Nevertheless, the Commission believed the Oakley Project had "numerous beneficial attributes," so it allowed PG&E to resubmit the application subject to various conditions. (Id. at p. *60.) Among other conditions, the Commission stated PG&E could resubmit the application "[i]f the final results from the CAISO Renewable Integration Study demonstrate[] that, even with the projects approved by the Commission, there are significant negative reliability risks from integrating a 33% Renewable Portfolio Standard."
PG&E modified the Oakley PSA to address D. 10-07-045, and then submitted a petition for modification of that decision. Acting sua sponte, the
In The Utility Reform Network v. Public Utilities Commission (Mar. 16, 2012, A132439) (nonpub. opn.) (TURN I), we annulled D. 10-12-050 and D. 11-05-049.
Shortly after issuance of our decision in TURN I, PG&E filed with the Commission a new application for approval of the amended Oakley PSA. On May 21, 2012, PG&E submitted prepared testimony in support of its application. The testimony addressed the need for and benefits of the Oakley Project, and it referred to a petition the CAISO had filed with the Federal Energy Regulatory Commission (FERC) seeking a waiver to prevent the retirement of the Sutter Energy Center (the Sutter Waiver Petition). PG&E asserted that the CAISO had supported the Sutter Waiver Petition with testimony describing CAISO studies that had "identified a need for new flexible generation capacity resources in 2017-2018 in order to integrate intermittent renewable
On May 25, 2012, the Commissioner assigned to PG&E's application, Michael R. Peevey, issued his "Scoping Memo and Ruling" for the proceedings (the Scoping Memo). (See § 1701.1, subd. (b).) Among the issues identified in the Scoping Memo was the need for the Oakley Project. The Scoping Memo asked: "Is the Oakley PSA barred or authorized pursuant to D. 07-12-052, which requires all UOG [utility-owned generation] to be selected through a competitive process unless it is needed to meet a specific, unique reliability issue? This issue includes consideration of whether the Oakley project will meet a specific, unique reliability issue." (Italics added & fn. omitted.) A separate issue laid out in the Scoping Memo was whether the CAISO had "issued its final report on its renewable resource integration study demonstrating significant negative reliability risks from integrating a 33% [RPS.]" (Fn. omitted.) The Scoping Memo stated that the first issue — the need for the Oakley Project — was one of fact and was contested by the parties. Commissioner Peevey therefore determined evidence was required and scheduled evidentiary hearings.
In addition to its prepared testimony, PG&E asked the Commission to take official notice of decisions of the California Energy Commission (CEC) and the Bay Area Air Quality Management District (the District) regarding each agency's review of elements of the Oakley Project. After submission of PG&E's prepared testimony, the parties conducted discovery and responded with their own prepared testimony. PG&E, in turn, submitted rebuttal testimony that included a copy of the entire Sutter Waiver Petition.
On August 14, 2012, the Commission's Division of Ratepayer Advocates (DRA) filed a motion to strike portions of PG&E's prepared and rebuttal testimony on the grounds that the identified portions consisted of "hearsay or
On the first day of the evidentiary hearings, the presiding ALJ granted PG&E's motion for official notice of the documents from the CEC and the District, but only "for the limited purpose of supporting the testimony that's already been given." With respect to the Rothleder Declaration and the Sutter Waiver Petition, the ALJ granted DRA's motion to strike in part, stating, "Regarding all the other attachments which refer to the ... CAISO ..., at issue in this case is whether the [CAISO] has issued a final determination, a final report, a final result, ... and PG&E may offer evidence toward this issue. [¶] And these documents ... on the issue of whether these very documents alone or in total satisfy the requirement, that requirement of D10-07-045, this evidence goes to that and is not — for that purpose it's appropriate. [¶] I will not allow ... this evidence ... to be used for the purpose of proving on this record the truth of the matter asserted; that is, for proving that there is a system reliability need or ... for the purpose of proving that what [the CAISO] says is true, or that the Commission should find on the basis of what the [CAISO] says that ... what the [CAISO] says is true. [¶] The [CAISO's] statements are not binding on the Commission, and in that way they are not judicially noticeable authority. And they are subject to dispute. They are being challenged before the [Commission]. [¶] And so again, I will not strike the attachments, but I will strike the testimony that does cite to those attachments for purposes of the truth."
During the course of the evidentiary hearings, the ALJ explained she would allow consideration of the CAISO materials for the purpose of showing whether the CAISO had reached a final determination on the issue of significant negative reliability risks, but not for the purpose of showing that the Oakley Project would meet a specific, unique reliability issue, i.e., whether there was a need for the Oakley Project. At one point, when DRA's counsel told the ALJ that her proposed cross-examination was seeking information about PG&E's claim that there was a residual need for flexible energy resources that could only be met by the Oakley Project, the ALJ stated, "I don't want this. I don't want hearsay evidence used for that
After briefing from the parties, the ALJ filed a proposed decision recommending denial of PG&E's application. She found there was insufficient evidence of a specific, unique reliability need for the Oakley Project. The ALJ rejected PG&E's reliance on various CAISO statements, including the Sutter Waiver Petition. She concluded PG&E's use of the evidence violated her rulings and noted that because the CAISO was not a party to the proceedings, "there ha[d] been no opportunity to probe its out-of-record statements in the context of the specific issues presented here."
The ALJ's proposed decision also relied on the fact that both the CAISO and PG&E were parties to a settlement in a separate Commission proceeding in which they had stipulated that "`[t]he resource planning analyses presented ... do not conclusively demonstrate whether or not there is need to add capacity for renewable integration purposes through the year 2020, the period to be addressed during the current LTPP cycle....'" In its decision approving the settlement in that proceeding, the Commission explained the parties had agreed to defer determination of the utilities' future need for additional generation. (Decision on System Track I and Rules Track III of the Long-term Procurement Plan Proceeding and Approving Settlement (Apr. 19, 2012) Cal.P.U.C. Dec. No. 12-04-046 [2012 Cal.P.U.C. Lexis 192, p. *8] (Decision Approving Settlement).)
In Alternate Decision of President Peevey Approving Application for Amended Purchase and Sale Agreement (Dec. 20, 2012) Cal.P.U.C. Dec. No. 12-12-035 [2012 Cal.P.U.C. Lexis 594] (Oakley Decision), the full Commission adopted the proposed alternate decision and approved the amended Oakley PSA. The Commission referred to the ALJ's ruling allowing the CAISO materials into the record only for limited purposes but noted that hearsay evidence is admissible in Commission proceedings. (Oakley Decision, 2012 Cal.P.U.C. Lexis at pp. *32-*33.) It therefore chose to accord the CAISO studies and statements PG&E had introduced "less weight than we would for a CAISO study that was subject to cross examination in a Commission proceeding." (Id. at p. *33.) The Commission did not accept as true the CAISO's conclusion that there would be a shortfall of 3,750 megawatts by 2018, but following the alternate decision, it concluded the CAISO's findings were persuasive evidence demonstrating significant negative reliability risks from integrating a 33% RPS. (Id. at pp. *33, *61.)
IEP sought rehearing of the Oakley Decision, as did TURN and WPTF. In their applications, the parties contended the Commission had improperly relied on hearsay evidence for its finding of significant reliability risk. The applicants also argued the Commission had failed to preserve the substantial rights of the parties and had not proceeded in the manner required by law when it relied on hearsay evidence despite the ALJ's ruling precluding use of the CAISO materials as evidence of need. (See Cal. Code Regs., tit. 20, § 13.6(a) (Rule 13.6(a)) ["Although technical rules of evidence ordinarily need not be applied in hearings before the Commission, substantial rights of the parties shall be preserved."].) Furthermore, the applicants claimed the Commission's decision was not supported by substantial evidence.
In Order Modifying Decision 12-12-035, and Denying Rehearing of Decision as Modified (Apr. 18, 2013) Cal.P.U.C. Dec. No. 13-04-032 [2013
The Commission also reasoned that its rules of practice and procedure permitted it to rely on hearsay evidence for the truth of the matter asserted. (Rehearing Decision, supra, 2013 Cal.P.U.C. Lexis 134 at p. *10.) Under Rule 13.6(a), "`the Commission allows admissions of hearsay although it is given less weight than other evidence. In general, hearsay in administrative proceedings is admissible if a responsible person would rely upon it in the conduct of serious affairs, regardless of its possible inadmissibility in civil actions.'" (Rehearing Decision, at p. *11.) Moreover, the Commission asserted, hearsay evidence is accepted in Commission proceedings when supported by other evidence, and administrative agencies are permitted to rely upon it. (Id. at pp. *11-*12.) Since the Rothleder Declaration and Sutter Waiver Petition had been submitted to FERC under penalty of perjury, the Commission found the Sutter Waiver Petition was "an analysis upon which [it] could reasonably rely in conducting [its] affairs." (Ibid.) In addition to the Sutter Waiver Petition, the Commission cited statements from reports issued by the CEC and the District on the Oakley Project as the basis for its finding of a "significant negative reliability risk from integrating a 33% [RPS] by 2020." (Id. at p. *25.)
After considering and rejecting all of the parties' other arguments, the Commission denied the applications for rehearing. (Rehearing Decision, supra, 2013 Cal.P.U.C. Lexis 1342 at pp. *40-*41.)
On May 20, 2013, TURN filed a petition for writ of review of the Commission's decisions in this court. (§ 1756, subd. (a).) That same day, IEP and WPTF filed a combined petition for writ of review in the Court of Appeal for the Third Appellate District. On June 18, 2013, the Supreme Court ordered the latter proceeding transferred to this court. We consolidated the petitions on our own motion.
Petitioners raise a number of challenges to the Commission's decisions. They devote the greater part of their briefing to their claim that the Commission failed to preserve the substantial rights of the parties because it relied on the Rothleder Declaration and the Sutter Waiver Petition to support the finding of need for the Oakley Project despite the ALJ's ruling that this evidence could not be used for that purpose. (See Rule 13.6(a).) They argue this prejudiced them because they were unable to challenge the claims made in these materials through cross-examination. In addition, they assert that if they had known the Commission would rely on these materials for the purpose of demonstrating the need for the Oakley Project, they would have presented their own evidence on that issue during the hearings.
As we explain, we conclude we need not resolve petitioners' procedural challenges. Even if we assume the Commission's procedures sufficiently preserved the substantial rights of the parties, we do not find substantial evidence to support its finding that the Oakley Project is needed to meet a specific, unique reliability risk. Before addressing the issue of substantial evidence, we explain why writ review is appropriate and outline the scope of our review of the Commission's decisions.
In accordance with this standard, after considering the briefing and exhibits submitted by the parties, we concluded the petitions appeared meritorious. We therefore granted the writ petitions and gave notice of our intent to decide the matter on the record provided, unless a party promptly filed an objection or a request for oral argument. Having received no such objection or request, we deem the matter submitted.
Section 1757 delimits the scope of our review of Commission decisions. (§ 1757, subd. (a).) In this case, the petitioners' challenges require us to determine whether (1) the Commission has proceeded in the manner required by law and (2) the findings in its decision are supported by substantial evidence in light of the whole record. (§ 1757, subd. (a)(2), (4).)
Consequently, the issue before us is a narrow one. May the Commission base a finding of fact solely upon hearsay evidence where the truth of the extrarecord statements is disputed? The answer is no.
The residuum rule, and the California cases applying it, have been the subject of forceful criticism. (Collins, Hearsay and the Administrative Process: A Review and Reconsideration of the State of the Law of Certain Evidentiary Procedures Applicable in California Administrative Proceedings (1976) 8 Sw.U. L.Rev. 579, 591-598, 607-615.) The rule was abandoned in the federal courts after the United States Supreme Court's decision in Richardson v. Perales (1971) 402 U.S. 389 [28 L.Ed.2d 842, 91 S.Ct. 1420]. (See, e.g., Johnson v. U.S. (D.C. Cir. 1980) 202 U.S.App. D.C. 187 [628 F.2d 187, 190] ["We have rejected a per se approach that brands evidence as
Petitioners contend the Commission's finding of need for the Oakley Project is unsupported by substantial evidence. They concede hearsay evidence is admissible before the Commission, but they argue that the Rothleder
In response, both the Commission and PG&E set forth lists of evidence they contend supports the Commission's finding of need. In accordance with our standard of review, we will examine the cited evidence in light of all relevant evidence in the record. (Lucas Valley, supra, 233 Cal.App.3d at p. 142.)
We begin with the evidence upon which the Commission expressly relied.
Petitioners argue these hearsay materials are particularly unreliable based on a number of factors. Since the Commission has already recognized the materials are hearsay and has accorded them reduced weight, we need not determine whether they should be given even less weight because of the factors petitioners raise.
The Rehearing Decision also quoted from the CEC's final permit decision on the Oakley Project. (Rehearing Decision, supra, 2013 Cal.P.U.C. Lexis 134 at pp. *24-*25.) After acknowledging the intermittent nature of wind and solar power, the CEC noted, "in order to rely on such intermittent sources ..., utilities must have available other, nonrenewable generating resources ... that can fill the gap when renewable generation decreases.... [¶] [The Oakley Project] is likely to serve as an important firming source for intermittent renewable resources in support of California's RPS and [greenhouse gas] goals." The CEC explained, however, that its "siting process is not intended to determine market need for power plants. That determination is made by the [Commission], which, in December 2010 approved the [PSA] between the Applicant and PG&E for the [Oakley] Project." The CEC thus disclaimed any intention to determine whether the Oakley Project was needed, referring instead to the Commission's approval of the Oakley PSA in D. 10-12-050, the decision we annulled in TURN I. In light of these limitations, the CEC's statement does not constitute substantial
In its answer, the Commission points to the testimony of a PG&E witness as support for the claim that "the Oakley Project can provide a significant contribution to the integration of the 33% RPS." First, although the Commission has provided us with some excerpts of the reporter's transcript, the cited testimony does not appear to be among them. Second, testimony about whether the Oakley Project can contribute to meeting a possible need does not support the claim that the need itself exists. The remaining evidence cited in the Commission's answer addresses issues other than the Scoping Memo's question about whether the Oakley Project is needed to address a specific, unique reliability issue. We find no support for the finding of need in this evidence.
PG&E's answer lists other items of evidence to support the Commission's finding of need, evidence not cited in the Commission's own answer. Much of the evidence simply refers to or relies on the CAISO's assessment of need. For example, the rebuttal testimony submitted by the Coalition of California Utility Employees and California Unions for Reliable Energy states, "The period during which there are fears that reliability needs may occur that a 2020 power plant cannot meet, according to the [CAISO], is every year from 2013 through 2019...." (Italics added.) The testimony makes no definitive statement that there will be reliability needs, but makes projections about "post-2016 Sutter costs" "if there are reliability needs in 2020 or before." (Italics added.)
PG&E also cites its own testimony concerning the possible effect of the retirement of the San Onofre Nuclear Generating Station
In sum, the materials identified by PG&E are either themselves based on CAISO's hearsay analysis or do not address the issue of need for the Oakley Project. They therefore cannot serve to corroborate the hearsay materials upon which the Commission relied to support its finding of need. Because the Commission's finding is based upon uncorroborated hearsay evidence, and the truth of the CAISO's extrarecord statements is disputed, the finding cannot be sustained. (Clear World Communications, supra, 2005 Cal.P.U.C. Lexis 221 at p. *81; Cleancraft, Inc. v. San Diego Gas and Electric Co. (1983) 11 Cal.P.U.C.2d 975, 984 [party's claim could not rest on "the hearsay opinions of unavailable experts"].)
Commission decision D. 12-12-035, as modified by D. 13-04-032, is annulled.
Needham, J., and Bruiniers, J., concurred.
The California Supreme Court has required very explicit statutory authorization before permitting an agency's reliance on uncorroborated hearsay. For example, hearings in workers' compensation cases are governed by Labor Code section 5709, which provides: "No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division. No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure." (Italics added.) In Daniels, the court suggested that even this very broad statutory language "does not necessarily sanction sole reliance on uncorroborated hearsay." (Daniels, supra, 33 Cal.3d at pp. 538-539, fn. 4.) We need not definitively resolve the issue, as the Commission's own rulings preclude reliance on uncorroborated hearsay to support a finding of fact.
