USA – CALIFORNIA Law and Practice Contributed by: Nora Sheriff, Gwenneth O’Hara, Samir Hafez, Antonio Carrejo and Elisa Rivas, Buchalter
periods. For the determination-of-need phase, an administrative law judge oversees the pro- cess, and parties are permitted to provide input in the proceeding, including through written testimony and evidentiary hearings. At the end of process, the CPUC approves or denies the application, based on the contents of the final environmental impact report and the record developed during the determination of the need phase of the proceeding. 4.3 Terms and Conditions Imposed on Approvals to Construct and Operate a Transmission Line and Associated Facilities In California, the common terms and condi- tions in CPUC approvals to construct and oper- ate transmission lines and associated facilities include: • routing and siting conditions; • construction restrictions; • CEQA compliance and Tribal consultation, when triggered; • operational restrictions; • co-ordination with other agencies; • public and stakeholder engagement; and • technical and safety standards. On the federal level, the common terms and con- ditions include: • compliance with NEPA, the Clean Water Act, and the Endangered Species Act (ESA); • right-of-way (ROW) on federal lands; • FERC backstop authority in designated cor- ridors; • additional terms imposed under Section 1222 of the Energy Policy Act of 2005; • Tribal consultation; and • security, safety and interconnection stand- ards.
To obtain an amendment or relaxation of a term or condition on approval, the proponent must file a Petition for Modification (PFM) application with the CPUC. Once the application is filed, the CPUC staff will review the application and allow for public notice and a public comment period. Subsequently, the assigned administrative law judge will issue a proposed decision with a rec- ommendation for approval or denial. At the end of the application process, the CPUC commis- sioners vote to adopt, modify or reject the pro- posed decision. The federal process requires the proponent to file a formal request or amendment with the lead agency. If approved, the agency may do so as a permit amendment, supplemental record of decision, or modified ROW grant. 4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities Private developers do not have automatic emi- nent domain rights in California. Instead, devel- opers must partner with a utility that has the eminent domain rights, or must obtain public utility status from the CPUC. California Public Utilities Code Section 610 and California Consti- tution Article I, Section 19 grant eminent domain authority to public utilities. However, the utilities must first obtain a CPCN from the CPUC in order to initiate condemnation proceedings under Cal- ifornia Code of Civil Procedure Sections 1230 et seq. To obtain the rights to the surface of the land, proponents may enter voluntary agreements or assert eminent domain authority. Voluntary agreements include easements, fee simple pur- chases, and right-of-entry or temporary con- struction licences. The eminent domain action
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