Order Granting Petition to Intervene
[California Energy Commission Letterhead]


Energy Resources
Conservation and Development Commission

In the Matter of:                   )      Docket No. 01-AFC-12
Application for Certification       )      APPLICATION COMPLETE
FACILITY (LOS ESTEROS)              )      SEPTEMBER 25, 2001



On October 9, 2001, "A Coalition of Ratepayer and Environmental Groups (the Coalition) filed a Petition for Intervention (Petition). Members of the Coalition include "The Utility Reform Network (TURN), Environmental Defense, self described as a national non-profit organization involved in a broad range of regional, national, and international environmental issues, and the Sierra ClubÕs Loma Prieta Chapter.

On October 23, 2001, the Committee received ApplicantÕs Opposition to said Petition (Opposition). The Opposition argues that the Petition should be denied because its focus is on economic and policy issues outside the purview of the Energy CommissionÕs siting authority.

The Opposition may be summarized in two parts. First, it asserts as irrelevant the energy sales contractual provisions embodied in an agreement between Calpine and the State of CaliforniaÕs Department of Water Resources (DWR) (as disclosed in the Application for Certification (AFC). (Opposition, p. 3.)

Second, the Opposition asserts that the Petition mistakenly attempts to challenge the current energy State of Emergency in California as a means to litigate the economic wisdom of the foregoing contractual relationship between Calpine and DWR. (Opposition, p. 5.)

Thus, according to Applicant, the CoalitionÕs sole purpose here is merely to litigate the merits of the DWR contract with Calpine, an issue Applicant asserts lies outside the CommissionÕs authority to cite energy facilities.

Applicant asserts that the Los Esteros project should be considered on its merits as a City of San Jose-approved mitigation project for the U.S. Dataport Planned Development Zoning Project (PDZ). (Opposition, pp. 3-4.)

Applicant concedes that the Petition states concerns that are cognizable under the California Environmental Quality Act (CEQA). (Opposition, p. 8.) According to Applicant, however, these concerns are purely incidental to the CoalitionÕs real intent to litigate contractual issues in a manner the Opposition describes as a Ôforum shop." (Opposition, p. 7.)

Upon consideration of the Petition and the Opposition, the Committee designated to conduct proceedings in this matter makes the following findings:

  1. On October 9, 2001, a timely Petition to Intervene in the above-captioned proceeding was filed by:

    C/O Robert Finkelstein
    Supervising Attorney
    The Utility Reform Network
    711 Van Ness Ave., Suite 350
    San Francisco, California 94102

  2. On October 23, 2001, Applicant filed an Opposition to the Petition.

  3. Petitioner's interests as stated in the Petition are relevant to the above-captioned proceeding only to the extent the Petition states environmental concerns that are cognizant under CEQA in the Energy CommissionÕs siting proceedings.

  4. Contractual issues involving Applicant and the DWR are outside of the Energy CommissionÕs legal authority to site energy facilities. Accordingly, these issues will not be raised or considered any further as part of this siting proceeding.

  5. CaliforniaÕs emergency powers authority as vested in the executive branch of government, under which Governor Davis has proclaimed a current energy State of Emergency, is an issue outside of the Energy CommissionÕs legal authority to site energy facilities. Accordingly, this issue will not be raised or considered any further as part of this siting proceeding.

THEREFORE, the Committee Orders that the Petition in this matter shall be GRANTED to the extent set forth in Paragraph 3 above. Petitioner shall be placed upon the Proof of Service List as an Intervenor; Staff shall ensure that Petitioner immediately is provided with a copy of the Application for Certification document. Petitioner may exercise the rights and shall fulfill the obligations of a party as set forth in Title 20 of the Californian Code of Regulations, and as set forth in this Order..


Dated October 25, 2001, at Sacramento, California.




Chairman and Presiding Member
Los Esteros AFC Committee

Commissioner and Associate Member
Los Esteros AFC Committee

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