Is the CPUC unlawfully interfering with city ordinances on Smart Meters?

The California cities of Sebastopol and Fairfax adopted ordinances prohibiting installation of Smart Meters and infrastructure several years ago. This has been protested by PG&E and by the CPUC.

On April 17, 2017, the CPUC sent new letters to the cities of Sebastopol and Fairfax warning them about their ordinances. In these letters, the CPUC alleges the cities are unlawfully interfering with the CPUC’s “exclusive jurisdiction”  over the regulation of public utilities and “exclusive authority” over electric utility equipment.

But is this true? Does the CPUC have exclusive jurisdiction or exclusive authority? Or is this action by the CPUC actually unlawful interference in the authority and jurisdiction of municipal governments?

Here is what any layperson who can read can discover. Consult an attorney specializing in utility law to get a legal opinion on this matter.  The Public Utilities Code and the California Constitution seem to indicate quite different facts than what CPUC attorneys allege. The sections include Public Utilities Code Section 761.3d and Section 2901-2906, the California Constitution Article 12, Section 8, and the Bagley-Keene Open Meeting Act, Civil Code Section 11120. Laws in full below.

PUC Section 761.3d — Federal, state, or local agencies may adopt deadlines, standards, rules, or regulations for the purposes of protecting public health or the environment, and those standards, rules, or regulations may not be modified, delayed, or abrogated (abrogate means to void.)

PUC Section 2901-2906 — Municipal corporations have vested powers of control to supervise and regulate the relationship between public utilities and the general public in matters affecting the health, convenience, and safety of the general public. It doesn’t look like the state allows municipal corporations to relinquish those powers of control.

California Constitution, Article 1, Section 1 and Article 12, Section 8 — Californians have inalienable rights including pursuing and obtaining safety and privacy (this is in addition to being secure in their persons, protected from unreasonable search and seizure and eminent domain). Cities in existence on October 10, 1911 have broad powers over utilities unless those powers have been revoked by the electorate. All cities have the right to set franchise terms for utilities to do business with them.

Bagley-Keene Act, Calif. Government Code, Section 11120 — The people retain their sovereignty and their control over agencies such as the CPUC.

These laws seem to indicate that the CPUC and PG&E are unlawfully interfering with the jurisdiction and authority of municipal governments. The cities of Fairfax and Sebastopol appear to be blameless and to be acting in accordance with their public mandate.

The General Counsels of the CPUC also appear to be acting like “Philadelphia lawyers” instead of representing the interests of the people of California. Until Californians demand a purge and radical reformation of the CPUC and the political machine that sustains it, the CPUC will continue along the same path, and there will be San Bruno after San Bruno, and Californians will continue to be stiffed, sickened, and killed by Smart Meters.

Specifics (links to laws are below)

First of all, here are Sections  701 and 761 which CPUC General Counsel excerpt.

PUC Section 701 in full reads

The commission may supervise and regulate every public utility in the State and may do all things, whether specifically designated in this part or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction.

(Enacted by Stats. 1951, Ch. 764.)

  1. Note: the commission regulates utilities. It does not regulate people.
  2. Notice the word “may” as opposed to “will”, “shall”, or “must”. This distinction is further clarified in the next section.

PUC Section 702

Every public utility shall obey and comply with every order, decision, direction, or rule made or prescribed by the commission in the matters specified in this part, or any other matter in any way relating to or affecting its business as a public utility, and shall do everything necessary or proper to secure compliance therewith by all of its officers, agents, and employees.
(Enacted by Stats. 1951, Ch. 764.)

Every public utility shall obey and comply — there’s no “may” about it.

PUC Section 761

Whenever the commission, after a hearing, finds that the rules, practices, equipment, appliances, facilities, or service of any public utility, or the methods of manufacture, distribution, transmission, storage, or supply employed by it, are unjust, unreasonable, unsafe, improper, inadequate, or insufficient, the commission shall determine and, by order or rule, fix the rules, practices, equipment, appliances, facilities, service, or methods to be observed, furnished, constructed, enforced, or employed. The commission shall prescribe rules for the performance of any service or the furnishing of any commodity of the character furnished or supplied by any public utility, and, on proper demand and tender of rates, such public utility shall furnish such commodity or render such service within the time and upon the conditions provided in such rules.
(Enacted by Stats. 1951, Ch. 764.)

  1. “Shall” is used here.
  2. But the obligations of the CPUC only seem to be incurred if the commission holds a hearing. There doesn’t appear to be any requirement to hold a hearing, no matter how many complaints or filings the commission receives — something I addressed as a needed legislative remedy in my report “Analysis: Smart Meter and Smart Grid Problems”.
  3. If the commission does not hold a hearing, it seems there is no legal obligation for it to do anything, again no matter how many complaints or filings have been made, and no matter how visible the issue.

PUC Section 761.3a-d (skip down to d)

(a) Notwithstanding subdivision (g) of Section 216 and subdivision (c) of Section 218.5, the commission shall implement and enforce standards for the maintenance and operation of facilities for the generation of electricity owned by an electrical corporation or located in the state to ensure their reliable operation. The commission shall enforce the protocols for the scheduling of powerplant outages of the Independent System Operator.

(b) Nothing in this section authorizes the commission to establish rates for wholesale sales in interstate commerce from those facilities, or to approve the sale or transfer of control of facilities if an exempt wholesale generator, as defined in the Public Utility Holding Company Act of 2005 (42 U.S.C. Sec. 16451(6)).

(c) (1) (A) Except as otherwise provided in this subdivision, this section shall not apply to nuclear powered generating facilities that are federally regulated and subject to standards developed by the Nuclear Regulatory Commission, and that participate as members of the Institute of Nuclear Power Operations.

(B) The owner or operator of a nuclear powered generating facility shall file with the Oversight Board and the commission an annual schedule of maintenance, including repairs and upgrades, updated quarterly, for each generating facility. The owner or operator of a nuclear powered generating facility shall make good faith efforts to conduct its maintenance in compliance with its filed plan and shall report to the Oversight Board and the Independent System Operator any significant variations from its filed plan.

(C) The owner or operator of a nuclear powered generating facility shall report on a monthly basis to the Oversight Board and the commission all actual planned and unplanned outages of each facility during the preceding month. The owner or operator of a nuclear powered generating facility shall report on a daily basis to the Oversight Board and the Independent System Operator the daily operational status and availability of each facility.

(2) (A) Except as otherwise provided in this subdivision, this section shall not apply to a qualifying small power production facility or a qualifying cogeneration facility within the meaning of Sections 201 and 210 of Title 11 of the federal Public Utility Regulatory Policies Act of 1978 (16 U.S.C. Secs. 796(17), 796(18), and 824a-3), and the regulations adopted pursuant to those sections by the Federal Energy Regulatory Commission (18 C.F.R. Secs. 292.101 to 292.602, inclusive), nor shall this section apply to other generation units installed, operated, and maintained at a customer site, exclusively to serve that customer’s load.

(B) An electrical corporation that has a contract with a qualifying small power production facility, or a qualifying cogeneration facility, with a name plate rating of 10 megawatts or greater, shall report to the Oversight Board and the commission maintenance schedules for each facility, including all actual planned and unplanned outages of the facility and the daily operational status and availability of the facility. Each facility with a name plate rating of 10 megawatts or greater shall be responsible for directly reporting to the Oversight Board and the Independent System Operator maintenance schedules for each facility, including all actual planned and unplanned outages of the facility and the daily operational status and availability of the facility, if that information is not provided to the electrical corporation pursuant to a contract.

(d) Nothing in this section shall result in the modification, delay, or abrogation of any deadline, standard, rule, or regulation adopted by a federal, state, or local agency for the purposes of protecting public health or the environment, including, but not limited to, any requirements imposed by the State Air Resources Board or by an air pollution control district or an air quality management district pursuant to Division 26 (commencing with Section 39000) of the Health and Safety Code. The Independent System Operator shall consult with the State Air Resources Board and the appropriate local air pollution control districts and air quality management districts to coordinate scheduled outages to provide for compliance with those retrofits.

PUC Section 2901-2906

2901 Any municipal corporation may retain or surrender to the commission the powers of control vested in it to supervise and regulate the relationship between any one or more classes of public utilities, and their present or prospective customers, consumers, or patrons, and, if it has retained such powers over any class of public utilities, may thereafter surrender such powers to the commission.
(Enacted by Stats. 1951, Ch. 764.)

2902 This chapter shall not be construed to authorize any municipal corporation to surrender to the commission its powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation.
(Enacted by Stats. 1951, Ch. 764.)

2904.“Municipal corporation” means a city and county or incorporated city.(Enacted by Stats. 1951, Ch. 764.)

2906. “Powers of control” means all powers of control vested in a municipal corporation to supervise and regulate (a) the relationship between public utilities and their present or prospective customers, consumers, or patrons. The term does not include the powers of control vested in any municipal corporation to supervise and regulate the relationship between such public utilities and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and (b) the speed of common carriers operating within the limits of the municipal corporation.
(Enacted by Stats. 1951, Ch. 764.)

California Constitution

Article 1, Section 1:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Article 12, Section 8:

SEC. 8. A city, county, or other public body may not regulate matters over which the Legislature grants regulatory power to the Commission. This section does not affect power over public utilities relating to the making and enforcement of police, sanitary, and other regulations concerning municipal affairs pursuant to a city charter existing on October 10, 1911, unless that power has been revoked by the city’s electors, or the right of any city to grant franchises for public utilities or other businesses on terms, conditions, and in the manner prescribed by law.
(Sec. 8 added Nov. 5, 1974, by Prop. 12. Res.Ch. 88, 1974.)

Bagley-Keene Act, Section 11120

It is the public policy of this state that public agencies exist to aid in the conduct of the people’s business and the proceedings of public agencies be conducted openly so that the public may remain informed. In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. This article shall be known and may be cited as the Bagley-Keene Open Meeting Act.

 Source:
https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PUC&division=1.&title=&part=1.&chapter=4.&article=

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=XII

http://codes.findlaw.com/ca/government-code/gov-sect-11120.html

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