Ontario Plays Race Card In Transmission Towers Dispute With SCE

(December 31) Ontario officials have raised the specter of racism and ethnic prejudice in their effort to convince the California Public Utilities Commission to order Southern California Edison to scrap its current plans to construct an above-ground electrical transmission line across the southern portion of the city and instead bury that high capacity cable below ground.
Trying to replicate the rather improbable success the city of Chino Hills had in persuading the California Public Utilities Commission to force Southern California Edison to underground the 500 kilovolt electrical lines that are part of its Tehachapi Renewable Energy Project traversing that city, Ontario officials have now filed with the commission a petition and an amended petition to modify the massive utility corridor through the southern portion of its city, where the city intends to complete the so-called New Colony retail and residential subdivisions, which will entail the addition of roughly 12,000 residents once it is completed.
The 173-mile Tehachapi line is intended to connect what is planned as the world’s largest windfarm, consisting of hundreds of electricity-producing windmills in Kern County, with the Los Angeles metropolitan basin.
The Public Utilities Commission in 2009 over the city of Chino Hills’ protest granted Southern California Edison clearance to erect high-tension power transmission towers through the 44.7-square mile city at the extreme southwest corner of San Bernardino County along a long-existing power corridor easement owned by the utility.
In 2011, after Southern California Edison had already expended millions of dollars in erecting 18 of the 197-foot high transmission towers within the Chino Hills city limits, the California Public Utilities Commission issued an order to Southern California Edison to halt work on the project while the commission’s staff looked into the possibility of bringing the towers down and instead having Edison bury the transmission lines beneath the power corridor running through Chino Hills.
In July 2013, the California Public Utilities Commission voted 3-2 in favor of requiring Southern California Edison to underground high-voltage power lines for the 3.5 miles of the five miles they run through Chino Hills.
Well over a year after commissioners Michael Peevey, Mark Ferron and Catherine Sandoval effectively undid a four-year standing vote of the Public Utilities Commission that gave Edison go-ahead to string 500 kilovolt cables from the towers running through the heart of upscale Chino Hills, Ontario on October 31, 2014 filed a petition for modification of the Tehachapi line design in its jurisdiction with the public utility commission.
According to Joshua Nelson and John Brown of the law firm Best Best & Krieger, who represent the city of Ontario, “The actual impacts of the line are greater than anticipated [and] the impacts to the city of Ontario are the same or worse than those in Chino Hills,” such that “fundamental fairness and equal protection requires treating the city of Ontario and Chino Hills the same.”
Southern California Edison, through its attorneys, Beth Gaylor, Angela Whatley and Laura Zagar of the San Diego-based law firm of Perkin Coie, responded.
In turn, Ontario, through its attorneys, Joshua Nelson and John Brown of the law firm Best Best & Krieger, filed an amended petition.
According to Gaylor, Whatley and Zagar, Ontario’s delay in making its protest to the above-ground design of the utility corridor through its territory, seven years after Edison previewed the design and five years after the public utilities commission held hearings on the proposal, is requesting too much too late.
“In July 2009, the commission held ten days of evidentiary hearings with over 25 witnesses, which involved numerous parties, extensive witness testimony, hundreds of pages of briefing, and oral argument,” Gaylor, Whatley and Zagar wrote in their December 5, 2014 response. “Ontario did not participate in these proceedings. Ontario’s petition for modification is procedurally defective and attempts to relitigate issues already decided by the commission. There are no new facts or evidence warranting the extraordinary relief Ontario requests.”
Furthermore, according to Gaylor, Whatley and Zagar, the commission’s rule pertaining to protests of commission decisions and rehearings “requires a petitioner to file a petition for modification within one year of the effective date of the decision it seeks to modify. Ontario does not provide a compelling reason for its failure to participate in the commission’s initial review of the Tehachapi Renewable Transmission Project or the commission’s reevaluation of Chino Hill’s petition for undergrounding. A party that has not engaged in the proceedings should not be able to derail this crucial project at such a late stage in development.”
According to Nelson and Brown, however, “the city of Ontario’s delay was justified as the facts supporting its petition for modification were unknown. The actual effects of the line were not known until they [i.e., the towers] began to be constructed. Construction began within the city of Ontario after April this year. Once these facts were known, the city promptly filed its undergrounding petition. Moreover, the city was not aware that similar communities would be treated differently until [the commission’s July 2013 decision] provided an undergrounding exemption for Chino Hills.” Nelson and Brown assert that “while the city of Ontario did not participate in [the 2009 decision to approve the Tehachapi line] as a formal party, it submitted numerous California Environmental Quality Act comment letters throughout the process. The adverse impacts of this line, which only became clear after its partial construction, occur within the city of Ontario. In addition, the city previously limited its participation in this proceeding for economic reasons.
Chino Hills spent $1.8 million during the initial proceeding with another $2 million on the petition. While the city of Ontario appreciates that jurisdiction’s decision to participate fully in the proceeding and the result it obtained, $3.8 million is a significant sum of money that the city of Ontario simply could not spend at that time. However, now that the true impacts of the lines are apparent and an effort to ensure equal treatment for its residents, the city will spend the public resources necessary to achieve a similar result. Undergrounding [the transmission line] through Chino Hills without undergrounding portions through the city of Ontario is fundamentally unfair and raises concerns that similarly situated communities have been treated fundamentally differently by the commission. There is simply no reasonable rationale basis for requiring Southern California Edison’s ratepayers (i.e., the community at large) to share the cost of undergrounding through the city of Chino Hills while requiring the city of Ontario’s residents to solely bear the impacts of the aboveground portions of [the transition line].”
According to Nelson and Brown, the positive outcome Chino Hills obtained in its petition to the California Public Utilities Commission must be replicated in Ontario to avert the manifestation of favoritism along racial lines.
“While the city of Ontario does not attribute any personal animus to the commission or its staff, these concerns are compounded given the racial and economic disparities between the communities,” according to Nelson and Brown. “Based on the 2010 Census, the city of Ontario’s population is 163,924. The median income in the city of Ontario is $54,994, with 16.4% of the population living below the federal poverty line. By contrast, Chino Hills’ population is 74,799. The median income is $97,065, with 6.3% of the population living below the federal poverty line. Moreover, the decision not to underground the lines in the city of Ontario has a discriminatory impact on the Hispanic and African American populations in the city of Ontario. The census tracts affected by the Tehachapi Renewable Enegy Transmission Project in the city of Ontario have a significantly greater proportion of Hispanic and African American residents than do the affected census tracts in Chino Hills. In Chino Hills, where the Tehachapi Renewable Energy Transmission Project will be undergrounded, the affected population is 22.8% Hispanic and 4.6% African American. In contrast, in Ontario, where the Tehachapi Renewable Enegy Transmission Project’s 200 foot towers will be visible from the residents’ backyards, the affected population is 49.5% Hispanic and 14.1% African American. Given the demographic differences between the communities, their disparate treatment is especially concerning. Whether through less access to resources or otherwise, the residents of Ontario were unable to mount the exorbitantly expensive campaign necessary to underground the segment through the city. It is unfair and a denial of equal protection to penalize the city’s residents. As such, basic notions of fundamental fairness mandate undergrounding the portions of [the transmission line] through the city of Ontario.”
In response, Gaylor, Whatley and Zagar asserted, “What Ontario fails to disclose is that the commission directly compared the impacts of the project on Chino Hills and Ontario and concluded that the impacts in Chino Hills were not the same as those experienced in Ontario. This conclusion formed the basis of the commission’s decision to order undergrounding only in Chino Hills. The commission also considered the environmental justice arguments Ontario now raises in its petition and specifically rejected those arguments.”

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