USA – CALIFORNIA LAW AND PRACTICE Contributed by: Nora Sheriff, Gwenneth O’Hara, Robert Dato, Efrat Cogan, Samir Hafez and Antonio Carrejo, Buchalter
due process rights, a challenge could be brought on that basis. Additionally, a challenge may be raised if the CPUC decision authorises a rate, charge, ser - vice, or facility that is unduly prejudicial or dis - criminatory. Public Utilities Code Section 453 prohibits public utilities from granting preferen - tial treatment or advantages to any person or corporation regarding rates, charges, service, or facilities, or from subjecting anyone to prejudice or disadvantage. Thus, if a CPUC decision or resolution violates Public Utilities Code Section 453, a challenge could be brought under Public Utilities Code Section 1757(a)(2). 10.8 Human Rights The CPUC is not a signatory to the European Convention on Human Rights. Accordingly, it is not possible to bring a claim on human rights grounds. 10.9 Proportionality A party may challenge a Commission decision imposing a fine or penalty under the excessive fine provision of either the United States or the California Constitutions. The “touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality” . The Commission recognises the principle of pro - portionality, and has adopted factors based on California Supreme Court case law. In deter - mining whether a penalty or fine is reasonable, the Commission considers the severity of the offence, the conduct of the utility, the financial resources of the utility, Commission precedent, and the totality of the circumstances in further -
in Public Utilities Code Section 1757, as detailed above. 10.11Exempt Decisions There are no categories of CPUC decisions that can never be challenged. In a proceed - ing to recover costs and expense related to a catastrophic wildfire pursuant to Public Utili - ties Code Section 850.1, the Commission may issue a financing order authorising the issuance of recovery bonds backed by a fixed customer charge collected over the life of the bonds. A financing order may be challenged before the CPUC in an Application for Rehearing and, if denied, appealed in the Court of Appeal or the Supreme Court. However, once those remedies are exhausted, the Commission is not permitted to rescind, alter, or amend the financing order. 11. Defence 11.1 Timing and Grounds of Defence Timing After a timely Petition for Modification or Appli - cation for Rehearing is filed, the CPUC is required to issue a decision denying or granting the requested relief. Except in limited circum - stances, there is no specific timeframe for the CPUC to issue its decision. The exceptions are as follows: • Application for Rehearing regarding a CPUC Order under Public Utilities Code Sections 849 or 850: The CPUC must issue a decision within 210 days of filing; and • Application for Rehearing Concerning the Disposition of a Protest to a General Order 131-D Notice of Proposed Construction: The CPUC must issue a decision within 90 days of filing.
ance of the public interest. 10.10Additional Grounds
The grounds for legal challenges to a CPUC decision or order are limited to those specified
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