BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                  AB 1398|
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                                 THIRD READING
                                        

          Bill No:  AB 1398
          Author:   Papan (D)
          Amended:  6/15/00 in Senate
          Vote:     21

            
           SENATE ENERGY, U.&C. COMMITTEE  :  8-0, 6/27/00
          AYES:  Bowen, Alarcon, Hughes, Kelley, Mountjoy, Murray,  
            Solis, Vasconcellos

           SENATE JUDICIARY COMMITTEE  :  9-0, 8/8/00
          AYES: Burton, Escutia, Haynes, Morrow, O'Connell, Peace,  
            Sher, Wright, Schiff

           ASSEMBLY FLOOR  :  Not Relevant
           

           SUBJECT  :    Public water utilities:  judicial review of PUC  
          decisions

           SOURCE  :     California Association of Water Agencies

           
           DIGEST  :    This bill indefinitely extends the following  
          current provisions for judicial review of California Public  
          Utilities Commission decisions affecting water  
          corporations, which would otherwise be replaced on January  
          1, 2001, with a different, less deferential review  
          standard:

          1. Review of commission decisions pertaining solely to  
             water corporations are only by petition for writ of  
             review in the supreme court, except that review of  
             complaint or enforcement proceedings may be in the court  
                                                           CONTINUED





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             of appeal or the supreme court.

          2.The standard of review in ratemaking and licensing  
            decisions is under the "any evidence" test, and for other  
            types of decisions the review extends no further than to  
            determine whether the commission has regularly pursued  
            its authority, including a determination whether the  
            order or decision under review violates any right of the  
            petitioner under the state or federal constitution.

          3.The supreme court will grant expedited consideration to  
            any petition alleging that the court of appeal has  
            assumed jurisdiction to review a commission decision  
            pertaining solely to a water corporation over which the  
            court of appeal has no jurisdiction.

           ANALYSIS  :    Existing law authorizes any aggrieved party to  
          petition the court of appeal or the supreme Court to review  
          decisions of the California Public Utilities Commission  
          (PUC).

          Existing law also provides that, until January 1, 2001,  
          review of commission decisions pertaining solely to water  
          corporations are only by petition for writ of review in the  
          supreme court, except that review of complaint or  
          enforcement proceedings may be in the court of appeal or  
          the supreme court.

          This bill continues the current provisions for review of  
          PUC decisions pertaining to water corporations.
          
          Existing law provides that no new or additional evidence  
          may be introduced upon review of a commission decision by  
          the court.  In a complaint or enforcement proceeding, or in  
          a ratemaking or licensing decision of specific application  
          that is addressed to particular parties, the review by the  
          court does not extend further than to determine, on the  
          basis of the entire record, whether (abuse of discretion)  
          occurred.

          Existing law also provides that, until January 1, 2001,  
          this standard of judicial review does not apply to  
          ratemaking or licensing decisions of specific application  
          addressed solely to water corporations.  Instead the "any  







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          evidence" test applies, which means if there is any  
          evidence to support the PUC decision, it will stand.

          This bill would continue this exemption from the standard  
          of review for ratemaking or licensing decisions of specific  
          application relating solely to water corporations.

          Existing law provides until January 1, 2001, in reviewing  
          decisions (other than ratemaking and licensing decisions  
          discussed above) pertaining solely to water corporations,  
          the review extends no further than to determine whether the  
          commission has regularly pursued its authority, including a  
          determination whether the order or decision under review  
          violates any right of the petitioner under the state or  
          federal constitution.

          This bill would continue this standard of review for water  
          corporations.

          Existing law provides that, until January 1, 2001, the  
          supreme court will grant expedited consideration to any  
          petition alleging that the court of appeal has assumed  
          jurisdiction to review a commission decision pertaining  
          solely to a water corporation over which the court of  
          appeal has no jurisdiction.

          This bill continues that provision.

           Background  

          Article XII of the State Constitution establishes the PUC  
          for the purpose of fixing rates, establishing rules,  
          examining records, and prescribing a uniform system of  
          accounting for all public utilities subject to its  
          jurisdiction.  To this end, the commission institutes  
          internal procedures governing its decision-making process.   
          Article XII, Section 5 provides that "the Legislature has  
          plenary power ... to establish the manner and scope of  
          review of commission action in a court of record   "  Thus,  
          the Legislature may create different standards for review  
          of commission decisions or designate lower courts for  
          appeal.

          In 1998, SB 779 (Calderon), Chapter 886, Statutes of 1998,  







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          made substantial changes in the judicial review process of  
          PUC decisions.  In relevant part, SB 779 provided for  
          expanded judicial review of major PUC decisions by both the  
          California Supreme Court and the court of appeal, from  
          abuse of discretion to substantial evidence review.  This  
          provision was operative for all entities on January 1,  
          1999, except for decisions affecting water corporations,  
          for whom the expanded judicial review is set to begin  
          January 1, 2001.

          This bill indefinitely extends the deferential review  
          standards of PUC decisions affecting water corporations.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

           ARGUMENTS IN SUPPORT  :    The bill's sponsor, the California  
          Water Association (CWA), writes to explain the need for  
          legislation, saying, "Prior to the CPUC reforms of 1996,  
          the California Supreme Court was the court of original  
          jurisdiction for the appeal of all CPUC decisions.  Reforms  
          enacted in that year allow an appeal of decisions involving  
          enforcement or customer complaints for all utilities to be  
          heard in either the District Courts of Appeal or the state  
          Supreme Court.  Legislation enacted in 1998 (SB 779)  
          extended the option of lower court review for all CPUC  
          decisions relating to energy, telecom and transportation  
          utilities, because (as the legislative findings and  
          declarations note), the conversion of those industries from  
          traditional regulated markets to competitive markets  
          'require expanded access to the court system at all  
          levels.'  The measure delayed availability of lower court  
          review for decisions pertaining to water corporations until  
          January 1, 2001.

          "Water utilities, however, remain the only fully regulated  
          utilities subject to traditional, rigorous CPUC regulation.  
           As such, they forgo certain marketplace prerogatives, but  
          remain fully under the regulatory umbrella for their  
          financial stability and for ratepayer protection.  The  
          CPUC's broader regulatory authority over water corporations  
          makes greater judicial involvement unnecessary; statewide  
          continuity and consistency is obtained through Commission  
          regulation.  Indeed, the Legislative findings of SB 779.







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          Note:  "?inasmuch as the water supply industry continues to  
          operate in a traditional, noncompetitive utility market, .  
          . . changes in judicial review of competitive utility  
          markets are inappropriate in their application to Public  
          Utilities Commission decisions and proceedings that pertain  
          to water corporations until January 1, 2001.

          "As January 1, 2001, approaches, the water supply industry  
          remains 'a traditional, noncompetitive utility market,'  
          making it unique among the utility industry.  The CPUC's  
          broader regulatory authority over water corporations makes  
          greater judicial involvement, as might occur with the  
          advent of lower court review of 'quasi-legislative'  
          decisions, inappropriate until such time as the water  
          supply industry is deregulated.  AB 1398 would maintain the  
          status quo for judicial review of CPUC decisions pertaining  
          to water corporations, while the industry continues to  
          function as traditional,
          noncompetitive, regulated utility service suppliers."


          NC:kb  8/22/00   Senate Floor Analyses 

                       SUPPORT/OPPOSITION:  NONE RECEIVED

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