RIVERSIDE – Chino Hills resident Anabel Hurtado sat in the courtroom of the 4th District Court of Appeal on Wednesday, glancing over her shoulder at an eight-member legal team representing Southern California Edison.
“I hope we can take them down,” she said.
Concerned about the larger, high-voltage power lines and towers sprouting daily through the five-mile stretch of her city’s neighborhoods, Hurtado and three dozen other Chino Hills residents came out to support their city’s possibly last battle against the utility company’s Tehachapi Renewable Transmission Project.
Elizabeth Calciano, Chino Hills’ deputy city attorney presented her case in front of three justices in the appellate court’s Division 2 arguing that the Public Utilities Commission does not have an exclusive jurisdiction with regard to the right-of-way property rights issue between the city and SCE.
The $2.1 billion Tehachapi project will bring wind-generated electricity from Kern County to the Los Angeles Basin – part of a state mandate to use more sustainable energy. The project is expected to be completed by 2015.
The transmission poles and towers are being erected within Edison’s existing right-of-way corridor from Chino Hills’ western border near Tonner Canyon, proceeding northeast to Peyton Drive and then continuing east to the 71 Freeway and eventually reaching Mira Loma.
The city filed a complaint in San Bernardino County Superior Court against
SCE in 2009, claiming that the project would “overburden the easement over City property.”
In April 2010, Judge Keith Davis rejected the city’s lawsuit and said the PUC has exclusive jurisdiction regarding the route used by SCE.
“We didn’t get to argue about property rights, they threw us out of the court (in 2010),” Calciano said. “For us, this is a real property case. You have an easement to build 100-foot towers not the 200-foot ones, so get off our property.”
The Wednesday’s hearing comes after the city appealed judge’s ruling in June 2010.
Citing “Covalt Test” – a set of checks established by the Supreme Court to determine PUC’s authority – Calciano argued that commission has no regulatory policy on how wide an easement needs to be in a densely populated area, “just a broad goal for the state to have 30 percent of its energy coming from renewable sources by 2020.”
James Arnone, representing SCE, called Chino Hills claim a “clear collateral attack on commission’s decision,” but was interrupted by Justice Jeffrey King who asked Arnone if running a utility with PUC’s blessing means “you can do anything you want to? PUC has carte blanche and courts can just move aside?”
Arnone also argued that since no one wants power lines in their backyard, PUC plays an integral role in such a large project.
“If you left this as a city-by-city issue, there would be no lights on tonight,” he said.
In response to Chino Hills’ claim, Arnone said that the PUC has “a written policy” signed by the governor.
From the start, Calciano was facing an uphill battle – the court made a tentative decision against the city on May 26 saying that potential state court action could slow down the project, and that “Garamendi Principles” – which encourage the use of existing rights-of-way by upgrading existing transmission facilities where technically and economically justifiable – have been in place.
“But that’s a preference, (Garamendi) does not mandate it,” Calciano said.
The justices are expected to issue a legal opinion in a about a month.
“If it’s favorable we go back to state court,” Calciano said. “But if they say `no’ there are other options, such as petitioning for review but City Council will have to decide whether to pursue them.”
Debi Hernandez of Chino Hills walked out of the courtroom “hopeful,” she said. “We will keep our fingers crossed. We are also looking into other options and some residents have retained a legal council.”